Marie Russell - Cross (Part 2)

MR. BRENNAN: Thank you. Good afternoon, Dr. Russell.

MR. BRENNAN: We were talking about your differential diagnosis and your opinion that Mr. O'Keefe's abrasions on his arm were not consistent with impact or collision with the car. I was asking you specifically about some of the things you may or may not have reviewed before you formed your opinion. You looked on direct examination at a photograph in Dr. Welcher's presentation and it had a photograph of a person who had been hit and died as a result of a collision. Do you remember that photograph you looked at?

MR. BRENNAN: There was a gentleman lying on the ground. His face was redacted and there was—

MR. BRENNAN: Remember that one?

MR. BRENNAN: And when you discussed that, what was the reason? What was your point in discussing that?

MR. BRENNAN: Do you know what the point was — what you were trying to deduce?

MR. BRENNAN: Okay. You have stated before that one of the reasons you do not believe that the injuries were the result of a collision or impact with the car is because there were no lower body injury breaks. Do you remember that?

MR. BRENNAN: You would agree that a sideswipe or a clipping collision is different than a front or back immediate impact, like being run over. There's a difference, right?

MR. BRENNAN: When you talk about the absence of lower body breaks, do you have any studies about the frequency or the likelihood of lower body breaks in a clipping impact as opposed to being directly run over?

MR. BRENNAN: When you looked at that photograph that was shown to you on direct examination, did you look at the actual injuries that were listed for that gentleman and see that there were no lower body breaks?

MR. BRENNAN: And did you recognize in that photograph and slide that there were no lower body breaks?

MR. BRENNAN: However, when you considered the information in this case, did you have an opportunity beyond that photograph to look at Dr. Welcher's videos about impacting a vehicle driving backwards? Did you watch those videos?

MR. BRENNAN: Did you see a video when Dr. Welcher put blue paint on his arm and showed the height and the location when it touched [unintelligible]? Did you see that?

MR. BRENNAN: Did you consider what's called the telematics data? Do you know what telematics data is?

MR. BRENNAN: Telematics — the black box that shows the operation of a car, how fast, how slow, acceleration. Did you look at any of that information before you formed your opinion?

MR. BRENNAN: Did you ask anybody to help you interpret that data before you drew an opinion that the injuries were not consistent with the collision?

MR. BRENNAN: When you have an opinion, if there's new evidence that is contradictory or different or maybe undermines your theory, do you have an open mind to reconsider your theory?

MR. BRENNAN: Did you want to understand that information about the telematics data and the information that was available regarding this allegation? Did you want to understand that before you came back and offered the same opinion you had before that information was available?

MR. BRENNAN: Did you know anything about Mr. O'Keefe's cell phone data when you were drawing these conclusions about when his last movements were? Did you learn anything about that?

MR. BRENNAN: Did you know about any type of DNA testing on the defendant's rear tail light area?

MR. BRENNAN: And did you know about any hair found on the car?

MR. BRENNAN: Did you consider those things when you excluded the collision or impact as the cause of those wounds?

MR. BRENNAN: So when you consider testing your conclusions, do you look at it as an advocate or do you look at it as a scientist or a doctor and try to value how little or how strong that evidence is?

MR. BRENNAN: So you're not looking at it as an advocate to try to discount the strength or weakness of evidence. Excuse me. You're not looking at it as an advocate. You're looking at it as an independent professional.

MR. BRENNAN: When you talked about John O'Keefe's sweatshirt — can we put that up, Miss Gilman, please? You identified or discussed some of the tears to the right sleeve of Mr. O'Keefe's sweatshirt, didn't you?

MR. BRENNAN: Having an interest in dogs and dog bites — certainly you're aware, in your experience, when a dog bites it creates quite a bit of saliva, doesn't it?

MR. BRENNAN: Yes. And some dogs can shed hair, especially when they're interacting with other objects, don't they?

MR. BRENNAN: Hair is considered trace evidence, isn't it?

MR. BRENNAN: And saliva contains important items sometimes, like DNA. Correct?

MR. BRENNAN: And that's considered oftentimes very important trace evidence.

MR. BRENNAN: And Dr. Russell, are you aware that one of the criminologists took swabs of holes on the left sleeve of the sweatshirt?

MR. BRENNAN: Are you aware of that?

MR. BRENNAN: You've heard of UC Davis, haven't you?

MR. BRENNAN: Is that gratuitous answer part of your advocacy or a part of your medical objective opinion? And so you're aware that these holes were swabbed to send a sample to UC Davis, aren't you?

MR. BRENNAN: UC Davis, do you understand they specialize in dog DNA?

MR. BRENNAN: And you also know in giving it before you gave your opinion that when they were tested there was no dog DNA found in any of the samples. You knew that, right?

MR. BRENNAN: In fact, what was found was pig DNA.

MR. BRENNAN: And there's no identification where the pig DNA came from, is there?

MR. BRENNAN: So when you saw the information — after you claimed there was a dog John O'Keefe — when you saw the information that there were swabs done of those holes and the results were no dog DNA, did you consider that before giving your ultimate opinion?

MR. BRENNAN: And in fact, you've tried to discount the significance of that evidence in the past, haven't you?

MR. BRENNAN: In fact, you have made claims about that evidence, candidly with no foundation whatsoever, haven't you?

MR. BRENNAN: You were claiming that it was inconsequential because of a number of speculative reasons, didn't you?

MR. BRENNAN: Can I ask it differently? When you were discussing the absence of dog DNA on Mr. O'Keefe's sweatshirt in the past, were you trying to make suggestions that perhaps the samples could have been tarnished or compromised in some way?

MR. BRENNAN: As an independent objective expert, should you deal in possibilities, or is it a better practice — best practice — to deal with objective criteria in the form of actual opinions to a reasonable degree of certainty?

MR. BRENNAN: When you first gave your opinion, you didn't even know about that DNA testing, did you?

MR. BRENNAN: But then once learning about it, you were not willing to reconsider and change your opinion about the source of these scratches. You maintained the same opinion you had before.

MR. BRENNAN: What you suggested is there's possibilities — the word you would use — possibilities why there were errors with the DNA.

MR. BRENNAN: You can't tell us anything based in fact. Wait, I'm sorry. I'm sorry. You can't tell us anything based in fact to support the claim that something was wrong with the testing of this DNA, can you?

MR. BRENNAN: And in that process, you found no evidence whatsoever — none, zero — to support any claim of compromise of that DNA process, did you?

MR. BRENNAN: You were a medical examiner, weren't you?

MR. BRENNAN: When you were a medical examiner, when you examined a person or their body, you did everything you thought was reasonably necessary based on the information you had.

MR. BRENNAN: Did you know at the time Dr. Scordi-Bello did the autopsy, there was no claim whatsoever that a dog caused these wounds?

MR. BRENNAN: Did you know that claim didn't come about until over a year later?

MR. BRENNAN: And did you know that in response to that claim, that's why this was done at a later time? Did you know that still — for a complete investigation, this should have been considered by investigators early on, even where there was absolutely no claim or evidence whatsoever that a dog caused these wounds?

MR. BRENNAN: You can't tell us one step that went wrong with that DNA process, can you?

MR. BRENNAN: In fact, you have admittedly very little experience with DNA.

MR. BRENNAN: And yet, although you're not an advocate, you are willing to advocate trying to undermine the strength of that evidence, aren't you?

MR. BRENNAN: Do you try to exclude in your differential diagnosis all other reasonable causes of a wound?

MR. BRENNAN: And did you do that in this case?

MR. BRENNAN: Now, when a dog bites a sweater, would you expect that it would leave DNA?

MR. BRENNAN: When a dog bites a sweater, you would not expect it would leave little fragments of tail light shards enclosed, would you?

MR. BRENNAN: And so in this case, when you were developing your theory and differential diagnosis and excluding causes, did you consider that when Mr. O'Keefe's clothes were scraped — his pants and his shirts and his sweatshirt — what was discovered were minute, small fragments of broken tail light that came from the defendant's motor vehicle?

MR. BRENNAN: Did you consider that?

MR. BRENNAN: Could we have 2011D, please? Dr. Russell, this is a photograph. Okay. Dr. Russell, were you aware that very small fragments — shards of plastic that match the broken tail light of the defendant's Lexus — were found when criminologists scraped Mr. O'Keefe's shirt and sweatshirt?

MR. BRENNAN: Did you become aware of that before or after you came to your opinion and conclusion that Mr. O'Keefe's arm abrasions were not caused by a collision or an impact?

MR. BRENNAN: And when you learned that, did you get a chance to see this photograph to see how small many of those pieces were?

MR. BRENNAN: And would you agree that broken plastic, like broken glass, can tear fabric?

MR. BRENNAN: Would you agree that broken plastic like broken glass can rub up against a person's skin and if enough friction is caused, it can cause abrasions?

MR. BRENNAN: Would you agree that if fragments like this were randomly in the sweatshirt that it could cause cuts or abrasions to Mr. O'Keefe's arm?

MR. BRENNAN: Do you know how Mr. O'Keefe fell to the ground and what movements his body and arm made as he fell to the ground?

MR. BRENNAN: You don't know how?

MR. BRENNAN: Do you know how much distance or little distance he moved when he was on the ground?

MR. BRENNAN: You think?

MR. BRENNAN: Do you know where his body was found on the side of the road?

MR. BRENNAN: Do you know if his body, before it rested, moved or slid on the ground?

MR. BRENNAN: And it's your opinion that fragments like this could not have caused the superficial abrasions to John O'Keefe?

MR. BRENNAN: I wasn't asking about the collision. I was asking about his body. Are you telling us to a reasonable degree of medical certainty that these type of fragments that were found in his clothes could not have caused the superficial abrasions on John O'Keefe's right arm?

MR. BRENNAN: I'm going to ask you the question again. Are you saying to a reasonable degree of medical certainty that these fragments did not cause the superficial abrasions to John O'Keefe's right arm?

MR. BRENNAN: I have no further questions.