Commonwealth v. Read — Trial ArchiveMarie Russell - Voir Dire
467 linesCOURT CLERK: Thank you. May you please be seated. Case 2211-7, The Commonwealth versus Karen Read.
JUDGE CANNONE: All right, good morning, counsel. Ms. Read. Um, are all of the witnesses here, Mr. Jackson?
MR. JACKSON: They are, your—
JUDGE CANNONE: I'd like to hear from Dr. Russell first. Are you both prepared to— I'm so sorry, I could not hear you. I would like to hear from Dr. Russell first.
MR. JACKSON: Is that her name? Dr. Russell, yes. The order would be— I would propose, based on scheduling— Dr. Russell, Dr. Wolfe, Dr. Rentschler.
JUDGE CANNONE: Okay, then. That's good, because that's the order I prefer. So, all right. Do you have a CV for her? Good morning. Do you have a CV I could look at for her, please? Let me—
MR. JACKSON: —see. I thought I did. Yes, I do.
JUDGE CANNONE: And she has not written a report. She's not— All right, all right. Let's bring her in, please.
MR. LALLY: Your Honor, before we get started, can I get an understanding? We started to say it at sidebar the other day, and you said you wanted to put that off to get to the witnesses, but I need a little bit of an understanding of what the court's expectations are. My understanding of voir dire— which this seems unusual in terms of the timing of it— so the understanding of the voir dire is this is for the Commonwealth motion to exclude this testimony.
JUDGE CANNONE: All right, that's what we're here for.
MR. LALLY: The rule 14 violation— is that the same with— —Dr. Wolfe and Dr. Rentschler?
JUDGE CANNONE: Well, I thought that would help both of you. Commonwealth has nothing on that, and you say you haven't been able to even talk to them at all about this case?
MR. LALLY: That's correct.
JUDGE CANNONE: So I want to find out if they have any credible, competent evidence to put forward. So we'll have a voir dire on them as well. But for Dr. Russell, what we're doing here today— there's an alleged violation— Well, let's just— this appears to me to be a violation of the reciprocal discovery obligations of defense counsel regarding Dr. Russell. So let's hear from her today to see what the appropriate remedy is for this violation. So my intention is to—
MR. LALLY: —ask her— So, if the court understands my sort of guardrails, my intention is to ask her what her qualifications are, which is the— that's the basis for voir dire. That's where I'm going to stop. I'm not intending to ask her what her opinions or conclusions are. I'm going to ask her if she's come to opinions and conclusions, but I don't want to have to examine her concerning her full opinions or full conclusions— what she's based those conclusions on. It's unfair. We've provided the defense— I'm sorry, the prosecution provided everything that we need to provide to them in terms of disclosure. They've got the equivalent of a report; they've got a summary of what she's going to testify.
JUDGE CANNONE: When was that provided? My order was one week from the start of trial.
MR. JACKSON: Right. But, Your Honor, in fairness, they didn't even finish their discovery one week before the start of trial, so it's a little unfair for us to be put on the one-week deadline from the filing of the certificate of compliance. Well, there— I don't know when— I can't remember— my co-counsel's—
JUDGE CANNONE: —indication— the day before trial. Okay.
MR. JACKSON: So, during the course of trial is a dynamic thing. During the course of the trial, I did not know who Dr. Marie Russell was at the time that they filed their certificate of compliance. We then— —attempted to, and did, give them the reciprocal discovery that we were obligated to do after they filed their certificate of compliance— when, within three days of that, we had been giving them information prior to that, but at least within three days of that. We've continued— so the record's clear— we've continued to get additional discovery from the Commonwealth and notices of discovery throughout the trial. They have not finished. In fact, during the trial, they interviewed Jen McCabe— apparently had a full interview with her— Lt.
MR. JACKSON: Tully took a report, dated the report, and then they held on to that report until after she testified. The interview, the report, and the completion of the report were all done before her testimony.
JUDGE CANNONE: Do you need to call her again?
MR. JACKSON: I'm not— that's not my— and I think the court understands that's not my point. My point is not that I need to call Jennifer McCabe back. I've done the damage that needs to be done on Jennifer—
JUDGE CANNONE: I'm sorry, I missed that. You've— what?
MR. JACKSON: I've done the damage that needed to be done on Jennifer McCabe. I don't need to call her back. The point is that what's good for the goose is good for the gander. The Commonwealth doesn't get to stand in the position of piecemealing and feeding us information— —reports, discovery, throughout the course of the trial. And by the way, when we then got [unintelligible] information about an expert that we did not know about, never met, never heard of, within three days of that we provide everything that we have about that witness to the Commonwealth. They can't then turn around and say, "Oh, well, it's all the defense's fault." So we want to have a voir dire— which means— the euphemism for that voir dire is we want to have two shots— two bites at the apple.
MR. JACKSON: Okay, we want to be able to completely cross-examine her, then go back to our expert, and if she testifies, cross-examine her again after consulting with our expert. That's two bites of the apple, and that's not fair. If the court wants to hear whether or not Dr. Marie Russell is qualified to testify about the arm injuries, that— I believe that is the parameters— the proper parameters of the voir dire. And that's what I'm prepared to do today. But I wasn't planning on getting into the substance of her testimony, because that's been provided. And I don't think Mr. Lally? should be able to get into the substance of her testimony, because he knows what the substance is— because, like I said, that's been provided.
JUDGE CANNONE: All right, so I disagree. I'm going to hear from the Commonwealth on this. Mr. Lally, you— um, just briefly—
MR. LALLY: In regard to what counsel was representing with Miss McCabe, it was not a full interview by Lt. Tully. It was a— and I can give— I don't have it on me at this moment, but I can give the court a copy of that report. But essentially it was Miss McCabe met with Lt. Tully, looked at some video, and was asked a single question. That report wasn't available— I didn't have it until after Miss McCabe testified. But it was given to counsel prior to Lt. Tully testifying, and there were no questions asked of Lt. Tully in regard to— —that. My issue— and, you know, I wasn't asking for a voir dire as it is proposed, as it relates to Dr. Russell— is that we first heard of Dr. Russell on May 21st, which was, I think, six weeks into trial. So that— that's what I asked.
MR. LALLY: And you told me it was three days after the beginning of trial, Mr. Jackson.
MR. JACKSON: I said— I said this at sidebar the other day, and I just said it again today. I let the Commonwealth and the court know about Dr. Marie Russell three days after I learned about her, which was the 17th of May. I have never— I think it was the 17th of May. I have never heard of her; I didn't know who she was. We made contact. I determined that she would be useful for the jury in terms of— specifically— the injuries to John O'Keefe's arm. I then had one conversation with her, then immediately within three days of that, turned that information over to the prosecution. So I didn't say that I gave this over three days into trial. That's not what I said.
JUDGE CANNONE: All right. But you were ordered to do it. Mr. Yannetti, what was the date?
MR. YANNETTI: What you had— one week from when? The day before trial, so it would have been, I believe, April 15th.
JUDGE CANNONE: So what we knew as of that requirement to turn over all— I need to take a quick— What? All right, please be seated. Before— [recess] Fragment —this— the Commonwealth's motion, the remedy— —motion— Never mind. Chapter— paper 360— I've got it. Yeah. All right. So the Commonwealth has moved that I exclude the testimony of Dr. Russell based on a violation of the reciprocal discovery obligations of the defense. So I do find that there is a violation of the reciprocal discovery obligations of Rule 14. And I'm quoting from the notes— the importance of this— the reporter's notes to the old Rule. And, as you all know, we're in the process of updating that rule.
JUDGE CANNONE: But the very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts within the framework of the Rules of Evidence to ensure that— —justice is done. It is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense. So what we're here to do today is decide a remedy for this violation, and that's why we're having a voir dire. I am not prohibiting the Commonwealth from anything on their examination of the witness, Mr. Jackson. The alternative is she doesn't testify.
JUDGE CANNONE: So the Commonwealth has not received the appropriate discovery from this witness, so we're going to have a voir dire, and they can ask her anything that they think they need to ask her. So those are the parameters of this morning.
MR. JACKSON: As long as I know the guard rails, that's fine. I just — to close the loop on the record — my understanding, and Miss Little can probably speak to this more intelligently than I can, but during the middle of trial there was a witness that we had never heard of, we did not know and didn't have a report for. Who is that? Dr. Faller, F-A-L-L-E-R. Okay. If the court remembers, he's buried in the middle of about 75 witnesses. Um, he testified to alcohol levels et cetera, and protocols at the institution at [unintelligible]. And we didn't have that information either. We didn't throw a fit. Uh, they said we were going to provide this information in a timely fashion, as soon as we know that we're going to call him. He's got to be on our witness list.
MR. JACKSON: We didn't know one way or the other what he was going to say. He didn't have a report. And we went on about our business. That's what we were doing as well. And by the way, I would note that the notes and the report under Rule 14 required disclosure of information you have. I just don't want the court to think that we were sitting on information that we didn't turn
JUDGE CANNONE: No, I'm not saying that. It's just this isn't as if it were something that the Commonwealth brought up and you needed to scramble. This is entirely of the defense's position. So
MR. JACKSON: I understand.
JUDGE CANNONE: All right, so that's the big difference. So why don't you go ahead and call her.
MR. JACKSON: Okay. May I be excused to call?
JUDGE CANNONE: Yes.
COURT OFFICER: Oh, tuck your legs in. Go — be mindful. Step —
COURT CLERK: [unintelligible — oath administered] ...the truth, the whole truth, and nothing but the truth, so help you?
DR. RUSSELL: I do.
JUDGE CANNONE: Thank you.
DR. RUSSELL: Good morning.
JUDGE CANNONE: So I'm going to ask you to keep your voice up — speak right into that microphone, doctor.
DR. RUSSELL: Okay. Yes.
JUDGE CANNONE: Thank you. All right, go ahead, Mr. Jackson.
MR. JACKSON: Thank you, your honor. Good morning. Could you please state your name and spell your last name for the record?
DR. RUSSELL: Yes. Marie Russell, R-U-S-S-E-L-L.
MR. JACKSON: And I'm going to echo what the court just indicated — the air conditioners are on, so please keep your voice as elevated as possible, and maneuver the microphone however you need to.
DR. RUSSELL: Okay, okay.
MR. JACKSON: Dr. Russell, what do you do for a living?
DR. RUSSELL: I am a retired Emergency Physician and forensic pathologist.
MR. JACKSON: And tell me, what education do you have, going all the way back to the beginning, that qualifies you as an Emergency Physician and forensic pathologist before your retirement?
DR. RUSSELL: Okay, well, I've had about at least 16 years of formal education beyond high school. Initially, I started at MIT, where I did my pre-med courses. I had always wanted to be a physician, and so I went to MIT for a year, took my pre-med courses. And then I had an unusual life event in that my mother came down with cancer, and she subsequently passed away. During the time away, I took some time off from school. Um, during that period of time I decided to explore another interest of mine, which was law enforcement. And so I took some courses in law enforcement and I became a full-time police officer here in Massachusetts.
MR. JACKSON: What years were you at MIT?
DR. RUSSELL: That was 1972 to 1974.
MR. JACKSON: Did you go to the police academy?
DR. RUSSELL: I did. Once I became a police officer here in Massachusetts, I attended the Boston Police Academy, where I graduated.
MR. JACKSON: What year was that?
DR. RUSSELL: That was in 1977.
MR. JACKSON: During the course of your training as a police officer, did you have any specialized training in hit-and-run accidents and investigations?
DR. RUSSELL: Yes, I did.
MR. JACKSON: And which agency did you work for as a sworn peace officer?
DR. RUSSELL: I worked for the city of Malden, full-time, for seven years. That would be from 1977 to 1984, approximately.
MR. JACKSON: Correct. During that time, did you continue your education in any way?
DR. RUSSELL: I did. So I took as many courses as I could from the Massachusetts Criminal Justice Training Council, which included a several-day course in hit-and-run accident investigation. I took courses in forensic photography and numerous other things. And I also, at the same time, continued to go to college, and did that part-time, where I eventually got a bachelor's degree in Science in Psychology with high honors.
MR. JACKSON: What institution was that from?
DR. RUSSELL: That was from Northeastern University. And that was a Bachelor of Arts in psychology — I think it was a Bachelor of Science.
MR. JACKSON: Got it. Subsequent to your Bachelor of Science degree from Northeastern, did you also advance your education further formally?
DR. RUSSELL: Subsequent to — so, yes. I decided that I did want to pursue a medical career, and so I then attended medical school — University of Massachusetts Medical School — full-time, for four years.
MR. JACKSON: Did you ultimately get a degree — an MD degree — from UMass?
DR. RUSSELL: Yes, a Doctor of Medicine degree in 1987.
MR. JACKSON: So you were there from 1983 to 1987. Is that right?
DR. RUSSELL: That is correct.
MR. JACKSON: And did you do a residency?
DR. RUSSELL: I did. I did two residencies, actually. Most people do one, but I did two. My first residency was a combined internship and residency for four years, and I did that in Los Angeles at Los Angeles County Medical Center, which is a very big trauma center and what I would consider the Bellevue of the West Coast — very busy.
MR. JACKSON: You say that just because of the volume at USC Medical Center?
DR. RUSSELL: That is correct.
MR. JACKSON: Is it one of the busiest medical trauma centers in the country?
DR. RUSSELL: Yes.
MR. JACKSON: You were there from 1987 to 1991. Is that right?
DR. RUSSELL: Yes, I was. I did my ER internship and residency during those years. Yes.
MR. JACKSON: During that time, were you seeing patients?
DR. RUSSELL: Oh, yes.
MR. JACKSON: You're treating — attending to patients?
DR. RUSSELL: I was. I was a trainee, so I was seeing as many patients as we could. There was always a waiting room full of patients, and yeah, so I saw many, many patients during that time period.
MR. JACKSON: You indicated a second residency — tell me about that.
DR. RUSSELL: Okay, so I still realized I had an interest in forensics, and I decided that I wanted to also train in forensic pathology. So I did a second residency in anatomic pathology — two years — and followed by forensic pathology fellowship at the Los Angeles County coroner's office for two years.
MR. JACKSON: And the years — if that's four years, that would be from 1991 to 1995, approximately?
DR. RUSSELL: That is correct.
MR. JACKSON: Tell me what your experience was as a fellow at the Los Angeles County coroner's office.
DR. RUSSELL: Los Angeles County coroner's office?
MR. JACKSON: Yes.
DR. RUSSELL: Well, it also was a very busy coroner's office. So every day there would be cases. I probably did at least two cases a day on most days, and plus conferences and educational opportunities. But the interesting thing about being a fellow is they try to give you a wide assortment of cases. So, for instance, I not only saw numerous victims of gunshot violence and stabbings, but I saw numerous victims of motor vehicle accidents, and natural deaths, overdoses. And then if there was an unusual case, it usually went to the fellow, because the fellow was also being supervised.
MR. JACKSON: Did any of those unusual cases — we'll get more into this in just a second — but did any of those unusual cases include animal attacks?
DR. RUSSELL: Yes.
MR. JACKSON: Did you become a professor, an educator, at any point?
DR. RUSSELL: Yes. So during my 29 years at LA County Hospital — well, during the last 25 of those, I was an assistant professor — or an instructor, but mostly an assistant professor. And that meant is that I was responsible for overseeing the care that was provided by the interns and residents. So when a patient would come in to the hospital — the emergency room — they were often usually seen by the intern or resident, and then I would go and subsequently see that patient also. And that was in addition to my own cases, so I'd see my cases and their cases.
MR. JACKSON: And that was at LA County USC?
DR. RUSSELL: Correct.
MR. JACKSON: That is correct. And — can I ask a quick question — LA County USC, for those of us who are not necessarily familiar with it, is that associated with the University of Southern California Medical Center?
DR. RUSSELL: Yes. That's the school. In other words, yes — so it stands for Los Angeles County slash University of Southern California Medical Center.
MR. JACKSON: And that's where you were an assistant professor for the majority of the rest of your career?
DR. RUSSELL: Correct.
MR. JACKSON: Were you also an assistant or adjunct professor at Cal State Los Angeles?
DR. RUSSELL: Yes.
MR. JACKSON: Okay. For how long were you an adjunct professor there?
DR. RUSSELL: I believe that was four or five years, and I taught criminalistics — [unintelligible] — there.
MR. JACKSON: As an attending physician in the ER — in other words, a supervising physician in the ER — can you tell us what some of your duties and responsibilities included, especially as it pertains to trauma? And then I'll get more specific in just a second.
DR. RUSSELL: Okay, well, so I would oversee the care of all the patients that came in during a particular shift, and that would include medical patients and trauma patients. And as I mentioned, it was a very busy trauma center, so we had lots of trauma patients, including the types of violence I described earlier — that I saw at the coroner's office — but lots of motor vehicle accident victims, because there was a highway right nearby — there were a couple of highways — and a wide variety of accidents.
MR. JACKSON: Did your supervision include assessing, diagnosing, and treating patients?
DR. RUSSELL: Correct.
MR. JACKSON: In terms of the middle part of that — diagnosis — was it part of your job to determine the cause of injuries, or to at least assess the cause of injuries?
DR. RUSSELL: Yes, and I took that on a little bit more because I was interested in the forensic aspect of the injuries.
MR. JACKSON: The forensic aspect. Yes. Okay. During your time at LA USC, even after you left the Los Angeles coroner's office as a fellow, did you continue to stay in contact with the coroner's office and have a relationship with the coroner's office as a supervising physician?
DR. RUSSELL: I continued to stay in contact with the coroner's office, and I used to attend their conferences as often as I could — not as a supervising physician, but as a physician and a graduate of their program.
MR. JACKSON: During your tenure at LA USC, did you ever become the director of any programs at LA USC?
DR. RUSSELL: Yes.
MR. JACKSON: Does that include the director of Center for Life Support Training?
DR. RUSSELL: Yes.
MR. JACKSON: What years was that, if you remember?
DR. RUSSELL: I don't remember — the early 2000s, late 90s.
MR. JACKSON: Yes, that sounds about right. Okay. And you would conduct lots of courses, including trauma life support courses?
DR. RUSSELL: Yes.
MR. JACKSON: Did LA USC incorporate a quality improvement program within their institution?
DR. RUSSELL: Yes.
MR. JACKSON: Did you become a director of that as well?
DR. RUSSELL: Yes.
MR. JACKSON: So you were director of Center for Life Support Training and director of LA USC Medical Center Quality Improvement? Is that right?
DR. RUSSELL: The quality improvement was for the Emergency Department. Yes.
MR. JACKSON: And did you also become the director for Jail Medical Services?
DR. RUSSELL: Yes.
MR. JACKSON: What is the association between LA USC and the very expansive jail system in Los Angeles County?
DR. RUSSELL: So LA County Hospital was unique in that they, many many years ago, developed a jail — what they called the Jail Ward — which was a combined inpatient, outpatient, and ER. So there was a dedicated jail ER, and that has been in existence for probably about 70 years now. And patients that were placed under arrest by either LA Sheriffs, LAPD, California Highway Patrol, or any of the municipal agencies in the area — and I think there were about 70 or more municipal agencies — could bring their patients to the LA County Jail Ward, where the patients would get treatment.
MR. JACKSON: Ultimately you became the director of that entire program? Correct?
DR. RUSSELL: Yes.
MR. JACKSON: Did you also work with the State Medical Board of California in any capacity?
DR. RUSSELL: Yes.
MR. JACKSON: Tell us about that.
DR. RUSSELL: For about seven years I worked part-time for the California Medical Board as a physician assigned to one of their enforcement teams, and I did that one day a week, and I did my other job at the county hospital the other 40 hours a week.
MR. JACKSON: So you didn't take off time from your duties as an ER physician — as an Emergency Physician — this was in addition to you being an Emergency Physician?
DR. RUSSELL: That is correct.
MR. JACKSON: Did you hold the title of Chief Medical Executive for the California State Prison System, specifically at Corcoran?
DR. RUSSELL: Yes.
MR. JACKSON: Tell us about that.
DR. RUSSELL: So I retired from LA County Hospital and went on to — moved on to the California Department of Corrections and Rehabilitation.
MR. JACKSON: And what year was that? Did you make that transition?
DR. RUSSELL: 2018 is when I started for the state prison system. And I worked there for five years as director of their medical service in Corcoran.
MR. JACKSON: I'm sorry — so for that prison, within that system, you were the Chief Medical Executive for the entire agency? Correct?
DR. RUSSELL: That is correct. For the entire — for the entire prison.
MR. JACKSON: Understood. Are you board certified in emergency medicine?
DR. RUSSELL: Yes.
MR. JACKSON: Are you a member of the National Association of Medical Examiners?
DR. RUSSELL: Yes.
MR. JACKSON: Are you a member of the American Academy of Forensic Science?
DR. RUSSELL: Yes.
MR. JACKSON: Do you have any publications in the area — I'm going to be very specific — because you've been relatively widely published, is that right?
DR. RUSSELL: Um, some people would say yes, some people would say no.
MR. JACKSON: More than a couple of publications? Correct? And in peer-reviewed journals? Correct?
DR. RUSSELL: Yes.
MR. JACKSON: I want to focus your attention on animal injuries. Have you been published in the area of animal injuries specifically?
DR. RUSSELL: Yes.
MR. JACKSON: Do you recall those publications?
DR. RUSSELL: Yes. They had to do with law enforcement dog bites.
MR. JACKSON: Did you draft or co-author an article called "Managing Law Enforcement Dog Bites in the ER"?
DR. RUSSELL: Yes, I was a co-author.
MR. JACKSON: 1996?
DR. RUSSELL: Sounds right.
MR. JACKSON: And that was a peer-reviewed article?
DR. RUSSELL: Yes.
MR. JACKSON: Ultimately published?
DR. RUSSELL: Yes.
MR. JACKSON: And ultimately available to be cited by other doctors and studied by other doctors? Correct?
DR. RUSSELL: Correct.
MR. JACKSON: Did you also author or co-author an article entitled "Law Enforcement K9 Dog Bites: Injuries, Complications, and Trends"?
DR. RUSSELL: Yes, I did.
MR. JACKSON: Was that in 1997?
DR. RUSSELL: Sounds right.
MR. JACKSON: Was that also peer-reviewed?
DR. RUSSELL: Yes.
MR. JACKSON: And that publication was also available for other physicians throughout California and throughout the country to refer to, for the study of animal bites and dog bites? Correct?
DR. RUSSELL: Dog bites. Yes. Dog bites.
MR. JACKSON: Concerning animal injuries, during the course of your professional experience, how many patients have you seen, diagnosed, and/or treated with animal injuries, including dog bites and scratches? If you had to estimate?
DR. RUSSELL: Many hundreds.
MR. JACKSON: Would you say it's over or under a thousand?
DR. RUSSELL: I would say it's over 500. I can't — I don't know, because we didn't keep really good records back in the earlier days. But it's safe to say hundreds and hundreds and hundreds of dog bites and scratches — in my 29 years at LA County Hospital. And dog bites I took care of and dog bites that the residents took care of.
MR. JACKSON: Yes. And you've even published articles and studied — not just seen them, but studied — dog bites and dog wounds. Correct?
DR. RUSSELL: Yes.
MR. JACKSON: Have you qualified as an expert previously in other courts in emergency medicine?
DR. RUSSELL: Yes.
MR. JACKSON: Have you qualified as an expert in other courts in forensic pathology and wounds?
DR. RUSSELL: Yes.
MR. JACKSON: Has that been in both state and federal court?
DR. RUSSELL: Yes.
MR. JACKSON: Doctor, were you asked to review certain materials related to this case?
DR. RUSSELL: Yes.
MR. JACKSON: And that was in furtherance of coming to — if you could come to — an opinion or a conclusion about injuries to the victim in this case, a person by the name of John O'Keefe?
DR. RUSSELL: Yes.
MR. JACKSON: What did you review in anticipation of determining whether or not you could come to an opinion or a conclusion?
DR. RUSSELL: So I reviewed hospital photographs, autopsy photographs, an autopsy report, grand jury testimony from the medical examiner in this case. There may be some others — based on —
MR. JACKSON: I just want to ask about that. Do you have notes with you as to what you reviewed?
DR. RUSSELL: No.
MR. JACKSON: Okay. So when you say there may be others, you don't —
JUDGE CANNONE: Well, if he tells you what you reviewed, you'd know it?
DR. RUSSELL: I would recognize it.
MR. JACKSON: All right. But I want to hear it from you. You don't know of anything else that you've reviewed?
JUDGE CANNONE: This is sort of important, Mr. Jackson.
MR. JACKSON: Okay. Can you think of anything else, Doctor?
DR. RUSSELL: Besides — autopsy photographs, autopsy report, neuropathology report, toxicology report, and the grand jury testimony.
MR. JACKSON: Okay, so as you recall, the items that you reviewed include an autopsy report by Dr. Scordi-Bello? Correct?
DR. RUSSELL: Yes.
MR. JACKSON: A neuropathology report by a doctor named Stonebridge? Correct?
DR. RUSSELL: Yes.
MR. JACKSON: Toxicological reports associated with the autopsy?
DR. RUSSELL: Yes.
MR. JACKSON: Grand jury transcripts from Dr. Scordi-Bello?
DR. RUSSELL: Yes.
MR. JACKSON: Photographs of evidence items including a gray sweatshirt?
DR. RUSSELL: Oh, yes. Yes.
MR. JACKSON: And autopsy photos that were taken attendant to the actual autopsy?
DR. RUSSELL: Yes.
MR. JACKSON: And photographs that were taken in the hospital?
DR. RUSSELL: And I reviewed the hospital ER record also.
MR. JACKSON: So in addition to what you just listed, there's also hospital photos separate and apart from the autopsy photos? Is that correct?
DR. RUSSELL: Yes.
MR. JACKSON: And those hospital photos showed the injuries to Mr. O'Keefe's arm? Is that right?
DR. RUSSELL: Yes.
MR. JACKSON: You also reviewed emergency room records that are attendant to his initial acceptance into the emergency room on January 29th, 2022? Correct?
DR. RUSSELL: That's correct.
MR. JACKSON: Based on your review of all of those materials, were you able to confidently come to any conclusions or opinions about the nature of the injuries suffered by John O'Keefe, specifically as they relate to John O'Keefe's right arm?
DR. RUSSELL: Yes.
MR. JACKSON: What is your opinion and conclusion concerning those injuries?
DR. RUSSELL: Those injuries appear to be consistent with an animal attack.
MR. JACKSON: Can you be more specific, in terms of the type of animal, or are you relegated to simply an animal attack?
DR. RUSSELL: Well, they are consistent with a large dog attack. There's a combination of both what I consider bite wounds and scratch wounds on the arm. There were also some puncture holes in that shirt.
MR. JACKSON: I'm sorry — puncture holes in the shirt?
DR. RUSSELL: Puncture holes in the shirt. Yes.
MR. JACKSON: And on what do you base the opinion that the injuries are consistent with dog bite or scratch marks?
DR. RUSSELL: Well, the patterns — there are several patterns of parallel wounds that appear to be superficial scratches that could have been caused by nails, or could have been caused by teeth. There are different angles on the arm, in different locations on the arm, and they're generally oriented in a specific direction. And there's also an area — the distal forearm, which is close to the wrist — which shows what I believe is an arch area of teeth marks.
MR. JACKSON: And what's the significance of the arch area?
DR. RUSSELL: Well, so the arch would be the front area of the jaw of the animal — the dog, in this case — where the teeth tend to be close together and curved. There's a curved pattern to the configuration of the teeth.
MR. JACKSON: Just a moment. Yes. I want to show you a series of photographs. First, can you describe whether or not you recognize what's depicted in that photograph? Have you seen that — ...photograph before?
DR. RUSSELL: Yes, I have.
MR. JACKSON: Is that part of what you reviewed in coming to your opinions and conclusions?
DR. RUSSELL: Yes.
MR. JACKSON: What is that a photograph of?
DR. RUSSELL: So this is a photograph of the decedent's forearm near the elbow. Do you want me to describe what it shows?
MR. JACKSON: Just briefly.
DR. RUSSELL: It shows wounds.
MR. JACKSON: Your Honor, I would ask that that be marked as next in order.
JUDGE CANNONE: All right. So for this voir dire, we'll have separate evidence?
MR. JACKSON: Right. Is this an exhibit number in the trial already?
JUDGE CANNONE: It has not been marked yet.
MR. JACKSON: So I'm fine with starting over, sort of, for the purposes of process. How shall we do so? This will be a separate voir dire with...
JUDGE CANNONE: ...a separate exhibit?
MR. JACKSON: Yes. Exhibit one.
JUDGE CANNONE: Yes. Just — I want to move this along. This has been marked, but I think —
MR. JACKSON: I'm so sorry, go ahead.
JUDGE CANNONE: One of the three — one of the three has already been marked. But if — just for consistency, I'd rather mark it additionally for voir dire.
MR. JACKSON: You need a separate record for the voir dire? May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: This one — keep it. And if you'd tell me the exhibit numbers that they are.
JUDGE CANNONE: So you're putting these in now. There's no objection — Mr. Lally, for purposes of this?
MR. LALLY: No.
JUDGE CANNONE: Okay, so we'll mark these now.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: One — the one with the label 22858 on the bottom has previously been marked in the trial. I would ask that this be marked as... ...the next in order for the voir dire.
JUDGE CANNONE: But what I want is the exhibit number at the trial.
MR. JACKSON: I'll get that for — I believe it's exhibit 19.
JUDGE CANNONE: Okay.
MR. JACKSON: 19.
JUDGE CANNONE: That's correct. It's 19. Okay. And is the third one also in evidence? You said two of the three have not been marked.
MR. JACKSON: As soon as the court reporter is ready. COURT REPORTER: She's ready. I'm ready. May I just establish the foundation?
JUDGE CANNONE: Yes.
MR. JACKSON: The following two photographs that I just showed you, Doctor — do you recognize those?
DR. RUSSELL: Yes.
MR. JACKSON: Did you also review those in furtherance of coming to your opinions and conclusions?
DR. RUSSELL: Yes.
MR. JACKSON: Do they also appear to be different photographs of John O'Keefe's arm?
DR. RUSSELL: Yes.
MR. JACKSON: I would move for the admission of both of... ...those, Your Honor, for purposes of voir dire.
JUDGE CANNONE: There's been no objection to them, so they're in. They've already been marked. I just need to know which one's two and which one's three.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. [unintelligible] — may publish.
MR. JACKSON: Yes. Exhibit two for voir dire.
JUDGE CANNONE: Yes.
MR. JACKSON: Is this a photograph of John O'Keefe's arm?
DR. RUSSELL: Yes.
MR. JACKSON: Is this one of the several photographs that you reviewed in coming to your opinions and conclusions?
DR. RUSSELL: Yes.
MR. JACKSON: I want to ask you a couple of questions about this. There should be a laser pointer on the desk.
DR. RUSSELL: Okay.
MR. JACKSON: Can you explain for the jurors what it is about the injuries that assisted you in coming to your opinion and conclusion that this is from an animal attack?
DR. RUSSELL: Okay. There are several patterns here. So, for instance, let's look here — right near the elbow, the exterior part of the elbow — there are these two linear... ...marks which appear to be from upper teeth, and two punctures below those which are superficial — meaning they didn't go very deep into the skin — but they appear from the lower teeth. So that's one pattern. There's another pattern close to the shoulder which shows parallel marks — these two, and maybe a third one in the middle — parallel marks that are oriented at a certain angle. And these are superficial wounds which are consistent with teeth marks. They also could possibly be consistent with nail marks — but with what? Nails from claws? Yes. We have...
DR. RUSSELL: ...some more here, similar — from, you know, obviously different teeth involved, or different claws. And then over down here, closer to the wrist, we have an unusual pattern of at least four striations — the way I see it, at least four striations — that I believe are caused from the teeth towards the front of the mouth, near the arch. And it appears that there's an arch pattern here.
MR. JACKSON: So in a dog attack, or in an animal attack — in your experience — let's take this one down. Just let's cover the ground on the three exhibits that we've already marked. Can we take a look at exhibit one? Is this just — may I publish?
JUDGE CANNONE: Yes.
MR. JACKSON: I apologize. Is this just a closeup of the same injuries?
DR. RUSSELL: Yes.
MR. JACKSON: And do these appear to be consistent with what you just testified to in terms of either teeth or claw marks, especially as it relates to the area closest to the elbow?
DR. RUSSELL: Yes.
MR. JACKSON: All right. And then looking at exhibit three — may I publish?
JUDGE CANNONE: Yes.
MR. JACKSON: Is this a closeup view of the area closer to the wrist that indicated those parallel — well, you used the word "striations"?
DR. RUSSELL: Yes.
MR. JACKSON: All right. And these appear to be taken attendant to the autopsy, as opposed to the other photograph — exhibit two — that was taken in the hospital. Is that right?
DR. RUSSELL: That is correct.
MR. JACKSON: And would the time difference account for the slight change... ...in the nature of the wound?
DR. RUSSELL: It could — [unintelligible] — I guess it could, or a different technique.
MR. JACKSON: Yes. Okay. Let me take this down. Did you take into consideration — in coming to your opinion and conclusion — the lack of other injuries? For instance, fractures, broken bones, or deep bruising, soft tissue injuries?
DR. RUSSELL: Oh, yes.
MR. JACKSON: How did that play into your opinion?
DR. RUSSELL: Well, of course I considered what else could have caused these wounds, and before coming to my conclusion I wanted to rule out other things. And there were no significant major bodily injuries outside the head. There was... ...nothing there — no fractures, the long bones, the chest, the pelvis, the arms. So, having seen hundreds and hundreds of car accident victims and people hit by cars, I ruled that out very quickly.
MR. JACKSON: Okay. And in terms of the injuries that you may see, especially as they're attendant to the arm — based on everything that we've discussed today — is it your opinion, based on a reasonable degree of scientific certainty, that those injuries are consistent with an animal attack as opposed to a vehicular, motor vehicular pedestrian incident?
DR. RUSSELL: Yes.
MR. JACKSON: Thank you.
JUDGE CANNONE: All right.
MR. LALLY: Good morning.
DR. RUSSELL: Good morning.
MR. LALLY: Let me take... ...you back. You were talking about some police training that you had received when you were in the academy, or while you were working with the police department here in Massachusetts. Is that right?
DR. RUSSELL: Yes.
MR. LALLY: Okay. What did that training consist of?
DR. RUSSELL: Well, I attended and graduated from the standard Police Academy at that time, and then I took additional courses that were offered from the Massachusetts Criminal Justice Training Council. And these were taught generally by experts in their fields, and there were a variety of subjects that are listed in... ...my CV, included, you know, the hit-and-run accident investigation, forensic —
MR. LALLY: There — just for a minute. Doctor, in reference to your training as it pertained to hit-and-run accidents, what did that training consist of?
DR. RUSSELL: Oh, well — mechanisms of how accidents occur, mechanisms of how to determine what vehicle was involved in an accident. I don't — you know, it was a long time ago. But determining if people were struck by vehicles, what vehicle was involved, or if there was auto-versus-auto accident, what vehicles were involved.
MR. LALLY: And I don't mean to belittle... ...this training whatsoever. But is it fair to say that that was relatively rudimentary training that you received in the academy?
DR. RUSSELL: Probably.
MR. LALLY: I would not — yes. Okay. Probably. Did you have any training in crash reconstruction or anything like that?
DR. RUSSELL: Correct. That is correct.
MR. LALLY: And — correct. And you indicated that you're board certified in emergency medicine. Is that right?
DR. RUSSELL: That's correct.
MR. LALLY: And so you're not board certified in forensic pathology, or anatomical pathology, or any kind of pathology?
DR. RUSSELL: That's correct.
MR. LALLY: And the last time that you worked as a coroner — when was that?
DR. RUSSELL: The last time was in 1995, when I was doing autopsies for the coroner's office. I have since, though, consulted on numerous — well, some — cases from the LA coroner's office.
MR. LALLY: About 30 years ago — is that right — for autopsy?
DR. RUSSELL: Yes.
MR. LALLY: Now, have you ever testified in a case in which either Mr. Jackson or Attorney Little were counsel?
DR. RUSSELL: Not that I'm aware of. No.
MR. LALLY: And when was it that you first were contacted in reference to this case?
DR. RUSSELL: The first contact was May 15th.
MR. LALLY: May 15th of what year?
DR. RUSSELL: May 17th, excuse me.
MR. LALLY: Of this year, 2024?
DR. RUSSELL: Yes.
MR. LALLY: And you went through a list of things that you reviewed. You mentioned hospital photos. Correct?
DR. RUSSELL: Yes.
MR. LALLY: Autopsy photos. Is that correct?
DR. RUSSELL: Yes.
MR. LALLY: An autopsy report. Is that...
DR. RUSSELL: ...correct. Yes.
MR. LALLY: Grand jury testimony from the medical examiner. Is that correct?
DR. RUSSELL: Yes.
MR. LALLY: A neuropathology report. Is that correct?
DR. RUSSELL: Yes.
MR. LALLY: Toxicology report. Is that correct?
DR. RUSSELL: Yes.
MR. LALLY: And then I think you also mentioned some photos of some clothing items. Is that correct? Records as well?
DR. RUSSELL: Yes. A shirt. And —
MR. LALLY: Anything else?
DR. RUSSELL: Yes. Hospital ER records.
MR. LALLY: Yes. Anything else that you can think of?
DR. RUSSELL: No.
MR. LALLY: Did you ask for anything else to review?
DR. RUSSELL: No.
MR. LALLY: Were you told of any other material that was available for your review that you weren't given?
DR. RUSSELL: Well, I requested that I focus in on the wound, so I didn't ask for a lot of material in this case.
MR. LALLY: Fair to say that you were looking for anything and everything — excuse me, material to the wounds that you were asked to look at? Correct?
DR. RUSSELL: Let's say— please say that again.
MR. LALLY: Sure. Fair to say that you would want to look at anything and everything that was related to the wounds that you were asked to look at? Correct?
DR. RUSSELL: Yes.
MR. LALLY: And so did you make any specific requests as to what material you were provided, or were you just handed some material or forwarded some material and you looked at what you were given?
DR. RUSSELL: No. I requested that I have the autopsy photographs, the ER records, the ER photographs. I requested those.
MR. LALLY: Now, you mentioned some articles that you had written that were published back in 1996 and 1997 related to dog bites. Is that right?
DR. RUSSELL: Yes.
MR. LALLY: Are those publicly available articles?
DR. RUSSELL: Yes.
MR. LALLY: And in those articles that you wrote, you were talking about law enforcement bites, correct?
DR. RUSSELL: Yes.
MR. LALLY: Um, so law enforcement K9 bites typically involve what people call sort of a bite and hold technique. Is that correct?
DR. RUSSELL: Yes. Uh, yes.
MR. LALLY: Well, yes. Now, um, one of those studies was over 700 dog bite wounds, and there were two techniques used at that time: bite and hold, and later on bark and hold — or bark and alert, or something of that nature. So there are different techniques. But yes, to specifically answer that question: are they generally different from regular domestic dog bites? Yes.
MR. LALLY: Now, did you write a report in regard to your opinion that you testified to here today?
DR. RUSSELL: No.
MR. LALLY: Why not?
DR. RUSSELL: I don't think there was much time, and I didn't know if I was going to be actually testifying.
MR. LALLY: How long would it take you to write a report?
DR. RUSSELL: I wasn't asked to write a report.
MR. LALLY: Excuse me — were you asked not to write a report?
DR. RUSSELL: No.
MR. LALLY: Now, at any point in time, did you ever look at anything related to Mr. O'Keefe's head injury?
DR. RUSSELL: Oh, yes.
MR. LALLY: You reviewed reports in relation to that? Correct?
DR. RUSSELL: Yes.
MR. LALLY: You have any opinions as it pertains to that?
DR. RUSSELL: I would rather defer to the pathologist and neuropathologist on that.
MR. LALLY: So who contacted you about this case?
DR. RUSSELL: I contacted a district attorney that I had worked with in the past. We were discussing a different case — a case I autopsied in 1995 — and I mentioned that I heard that there was a case in Massachusetts that might have been being handled by one of his colleagues, his former colleagues, and that there was an issue of whether something was a dog bite, and that I might be able to help in that case to clarify.
MR. LALLY: And so when you were provided this material, what is it that you were specifically asked to do?
DR. RUSSELL: To look at the wound and the reports and the materials that were sent to me, and render an opinion.
MR. LALLY: And so before you had even been provided any material, before you had even looked at anything, you had already heard information related to there being a dog bite involved in this case. Correct?
DR. RUSSELL: I had heard that there was a controversy — that certain wounds could have been a dog bite versus perhaps inflicted by a motor vehicle. That's what I had heard.
MR. LALLY: So I'm just — what I'm really trying to get at, Doctor, is sort of the timeline. Okay, so you hear about this — when was that?
DR. RUSSELL: Sometime just before May 17th.
MR. LALLY: So sometime just prior to that, you hear about some controversy in a case in Massachusetts involving a dog bite. On May 17th, you were reached out to by — who specifically?
DR. RUSSELL: Um, his name is John Leen. He's an attorney in the LA District Attorney's office.
MR. LALLY: And then who did you talk to after that?
DR. RUSSELL: I reached out to him. I said I might be able to clarify, and then he reached out to Mr. Jackson, I believe. And then Mr. Jackson contacted me.
MR. LALLY: Not asking specifically about anything you spoke about, but at some point the discussion came specifically to — correct? He — yeah, he sent you the materials, he asked your opinion. When did you
DR. RUSSELL: Provide that opinion? Um, probably the next day, I think. Yes, I know it was the next day.
MR. LALLY: So the very next day, on May 18th, you provided an opinion?
DR. RUSSELL: Yes.
MR. LALLY: And was that opinion provided in a written fashion or orally — how was that provided?
DR. RUSSELL: Orally.
MR. LALLY: So you reached out to someone shortly before May 17th, spoke to Mr. Jackson on the 17th, received all the material, and then had an opinion by May 18?
DR. RUSSELL: Yes.
MR. LALLY: But you didn't write any of that down?
DR. RUSSELL: No.
MR. LALLY: Now, beyond the materials that you were provided, what else were you told about the case?
DR. RUSSELL: I was told that the victim — the decedent — is a police officer. I was told that the defendant had been charged, and I was told that there was a controversy about whether or not these injuries had been caused by a motor vehicle. And I was also told — and I read in the medical record — that the decedent was found outdoors, I believe in the snow, and hypothermic.
MR. LALLY: Now, in regard to what you reviewed — you didn't review any investigative reports, is that correct?
DR. RUSSELL: That is correct.
MR. LALLY: You didn't review any witness statements, is that correct?
DR. RUSSELL: That's correct.
MR. LALLY: You didn't review any lab reports as far as from the forensic lab or anything like that?
DR. RUSSELL: I reviewed the toxicology report.
MR. LALLY: Beyond
DR. RUSSELL: That, any other — if it was part of the autopsy report, I reviewed it.
MR. LALLY: You reviewed everything attached to the medical examiner's file. Is that correct?
DR. RUSSELL: Yes.
MR. LALLY: Nothing from the lab beyond that?
DR. RUSSELL: I don't believe I did.
MR. LALLY: Now, this first instance — when you say you heard about it, how did you hear about it?
DR. RUSSELL: Well, I believe it was via a headline that I received in my email from the Boston Globe. A headline — you know, there was some kind of interesting case, and I got it as an email and I looked into it.
MR. LALLY: And when was that?
DR. RUSSELL: Well, that was that week in May — just a few days before May 17th.
MR. LALLY: You subscribe to the Boston Globe online?
DR. RUSSELL: I did at that time. I have not renewed it.
MR. LALLY: How long had you been a subscriber to the Boston Globe?
JUDGE CANNONE: I'm going to allow it.
DR. RUSSELL: Probably a year, or six months — six months to a year.
MR. LALLY: There was never any headlines or anything else that you saw about this prior to that week just before May 17th?
DR. RUSSELL: Not that I paid attention to.
MR. LALLY: I have nothing further.
JUDGE CANNONE: Anything further, Mr. Jackson?
MR. JACKSON: Nothing further.
JUDGE CANNONE: All right. So since this is voir dire, I get to ask questions, Doctor. So I just have a couple of questions for you. I don't think I really heard you — could you tell me again what your opinion is, and to what degree you hold that opinion?
DR. RUSSELL: Yes. These injuries on the arm — my opinion is that they are the result of animal bites or scratches.
JUDGE CANNONE: Do you know what kind of animal?
DR. RUSSELL: Oh, yes. Most likely a dog — large dog. And I'm very — um, you know, what's the word I want — medical certainty, very high — high degree of medical certainty. Reasonable degree of medical certainty. Yes. Definitely.
JUDGE CANNONE: Okay. And another question — so I received information that you also viewed all reports associated with Chloe, a dog, a prior bite history. Did you review those?
DR. RUSSELL: No. I don't recall ever seeing anything like that.
JUDGE CANNONE: You also reviewed the UC Davis DNA testing results submission forms?
DR. RUSSELL: No. I don't recall seeing them.
JUDGE CANNONE: Okay. Any follow-up, any questions based on my questions?
MR. LALLY: Not for the Commonwealth. No, no.
MR. JACKSON: No.
JUDGE CANNONE: All right. You are all set, Doctor. I don't know yet whether you'll be testifying, okay?
DR. RUSSELL: Okay.
JUDGE CANNONE: We'll try and let you know. You going to be around for a few days?
DR. RUSSELL: No.
JUDGE CANNONE: We'll let you know as soon as we can. Okay.
DR. RUSSELL: Okay. Okay.