Procedural - Motions

MR. JACKSON: Yes. All right. Can I just —

MR. JACKSON: — at this juncture. Until we're further along, we're not going to bring in dog bite claw information. We are going to bring in exactly what we stated yesterday. If there's an issue with — for instance, we've got a clean copy of — without.

MR. JACKSON: Yes, that's going to be to show that — that shows the —

MR. JACKSON: Sure.

MR. JACKSON: Yes. Yes.

MR. JACKSON: Um, correct.

MR. JACKSON: I'm going to use them again comparatively, probably side by side.

MR. JACKSON: Understood.

MR. JACKSON: Okay, sure. Thank you. I'd like to start, if I may, by marking two documents for identification. One is Dr. Laposata's entire report. The second is the entire CD.

MR. JACKSON: Thank you, your honor. We are asking the court to reconsider the court's ruling yesterday concerning Dr. Laposata and her ability to opine on the issue of dog bites — dog wound, uh, dog bite and claw mark wounds and pattern recognition. We had some concerns yesterday, and previous to yesterday, about an issue that has been ongoing with the Commonwealth, and we've brought this to the court's attention. The Commonwealth has been using a tactic to shift the burden to the defense, uh, with cross-examination that's laced with indications or implications about —

MR. JACKSON: — witnesses that may or may not be called by the defense. That is a problem. I brought it to the court's attention at sidebar. The court will probably remember that colloquy. It was not in open court, but I expressed grave concerns — to use that phrase — that there was a burden-shifting scheme that was going on when Mr. Brennan is asking our witnesses about — or his witnesses about — other witnesses that may be on the defense witness list and may be called. Obviously, as the court knows, foundationally, we don't have to call anybody. We don't intend to call anybody. We don't have to call anybody, but we can call whoever we feel like.

MR. JACKSON: But we shouldn't be put in a position where our hand is forced to call witnesses because of questioning by the Commonwealth, which is improper. After I brought it to the court's attention, Mr. Brennan has continued along that same line. The Commonwealth has continued along that same line. And I want to bring something to the court's attention specifically. Last night, we pulled the tape. Dr. Russell was cross-examined by Mr. Brennan on the issue specifically of Dr. Laposata and her opinions regarding dog bites. He asked questions over and over and over again. The colloquy probably lasted more than five, six, seven minutes with —

MR. JACKSON: — Dr. Russell specifically on the issue of whether or not she had seen Dr. Laposata's reports, whether she was aware of Dr. Laposata's opinions, implying that Dr. Laposata had opinions about the dog bites. She was asked if she was familiar with Dr. Laposata's credentials. Dr. Russell said yes, she was familiar with Dr. Laposata by name, that she thought she had impeccable credentials, and she very much wished she could have seen her reports as it relates to dog bites. It was an intellectual curiosity by Dr. Russell that was evoked and elicited by Mr. Brennan on cross-examination of Dr. Russell. She was then asked the seminal question.

MR. JACKSON: Did the defense — Dr. Russell, were you given any reports by Dr. Laposata related to dog bites? The pages that are here and the transcript. Yes. Oh, my motion's back at the desk. Oh, I see it. Does the court have it?

MR. JACKSON: Okay. I'll just — I'll just read it. Question by Mr. Brennan to Dr. Russell. And so you think, of all those forensic pathologists, medical examiners, um, you think that qualification and experience itself is not enough to qualify someone to give an opinion on a photograph about the genesis of a wound related to dog bites? Answer: Well, if a forensic pathologist autopsied one or two cases of dog bite wounds versus my —

MR. JACKSON: — experience with over 500 to a thousand cases of dog bite wounds, I'm not sure that person would be a very good expert in that kind of case. Question by Mr. Brennan: Have you ever heard of a doctor named Laposata?

MR. JACKSON: No.

MR. JACKSON: I'd like to read it into the record, your honor.

MR. JACKSON: It's not three pages, your honor. It's about another five lines. It just goes to the top of the next page.

MR. JACKSON: — the colloquy between Dr. — I'm sorry — between Dr. Russell and, uh, Mr. Brennan was specific to dog bite wounds. It was specific to Dr. Russell's understanding of whether or not Dr. Laposata had been retained by the defense, whether she was a defense expert, whether she had written a report, and whether she opined about dog bites and dog bite wounds. And after she was asked if she had been provided any reports by the defense, by the defense attorneys specifically, from Dr. Laposata related to dog bite wounds, Dr. Russell said, "No, I haven't been." And to summarize her statements, which —

MR. JACKSON: — the court has in front of it, Dr. — uh — Dr. Russell went on and said, "I really wanted to see what Dr. Laposata had to say about these dog bite wounds. I really wanted to read her report, but no, I was never provided her report or reports by the defense." And of course, your honor, as the court knows, that is standard operating procedure. I don't trade reports between and among, uh, experts, because obviously I want independent analysis. I don't want to cross-contaminate any opinions, etc., and be accused of doing so. So, of course, we didn't provide a report from Dr. Laposata to Dr. Russell. But Dr. Russell's intellectual curiosity was —

MR. JACKSON: then extracted from the witness stand and the jurors heard all of that. So then days later — not weeks, not months — three days later, three days later, after eliciting testimony from Dr. Russell about Dr. Laposata having a report, being hired by the defense on the issue of dog bites, and not providing that report to Dr. Russell, the Commonwealth then moves to exclude the very testimony that he was eliciting from Dr. Russell, leaving the jurors with a very, very deep and irreparable misimpression. They used it tactically as a sword and a shield, and that's burden shifting. That leaves the jury with the impression that Dr. Laposata was consulted by the defense. Number one, that she wrote a report. Number two, that the report was about dog bites.

MR. JACKSON: Number three, that she didn't provide that report to other experts. Number four, and the reason she didn't, obviously, is because her opinion — Dr. Laposata's opinion — would be harmful to the defense. That's the only reasonable interpretation of those facts, and the Commonwealth has taken advantage of that. The Commonwealth's questioning of Dr. Russell about Dr. Laposata and her report and her opinions about dog bite wounds specifically was deliberate, and it left the jury with an open question. We know they consulted her. We know it was about dog bites. This is how the jurors are thinking about it now. We know they consulted her. We know it was about dog bites. They hid the report from Dr. Russell because they didn't want her to know about it. Ergo, it must be harmful to the defense.

MR. JACKSON: Now we've got Dr. Laposata on the stand. Her credentials are peerless. Absolutely peerless. They've got possibly the most qualified medical examiner in the country, certainly on the eastern seaboard, right in front of them about six feet away, and the defense is not going to ask a single question about her opinions concerning dog bites when she reviewed the entire autopsy. How is the jury going to conceive that? How is that going to land with them? The answer is they're going to think — they have no choice but to think — the only reasonable explanation is: if Dr. Laposata's opinion helped the defense, they would ask her. If they don't ask her, it's because whatever Dr. Laposata says about that right arm and those wounds, it's got to be harmful to the defense.

MR. JACKSON: They would absolutely ask the question. So the Commonwealth got to have it both ways. They got to ask Dr. Russell about Dr. Laposata and imply that Dr. Laposata had opinions about dog bite wounds. And then they have it the other way, which is: let's ask the court if she will exclude Dr. Laposata from testifying about the very issue that they brought up in front of Dr. Russell. That cannot stand. That reasonably ensures that the jury will misunderstand the import of why we're not asking Dr. Laposata about her expert opinion, especially as it specifically pertains to dog bite wounds. I want to talk for just a second — and that has, by the way, constitutional implications. Miss Read is entitled to a fair trial.

MR. JACKSON: Not a fair trial that the Commonwealth designs, not a fair trial that the Commonwealth curates, but a fair trial. Regarding Dr. Laposata's credentials — we went back through, specific to the court's questions yesterday, her resume. There are no fewer than 13 classes, 13, that she has taught specific to wound pattern recognition that have included dog bite recognition. On page seven, she was a course director for medical legal death investigation. That was in 2013. She taught about dog bite recognition in that course. She was a thesis adviser for master of science graduate, medical school, Boston University School of Medicine — taught about dog bites. Page seven, staying with page seven — forensic pathology, course director in pathology course 205 — taught about dog bites.

MR. JACKSON: Member of quality assurance committee, training division of trauma and surgical critical care — teaching on the issue of wound recognition, animal bites, and specific to dog bites. Pediatric forensic pathology, Texas Homicide Symposium — she was a presenter in 1989. She taught about the issue of dog bites as it relates to pediatrics, children, dog bites and children, forensic aspects of physical child abuse, child abuse as related to being left with dogs that can injure a child — dog bites, dog bite recognition. These are all classes taught by Dr. Laposata on the issue of dog bites to other medical professionals. The one that stands out, however — and I'm not going to go through the other nine or ten or eleven — the one that stands out is 2015 and 2016. Two courses.

MR. JACKSON: The name of the course: "Emergency Room Forensics, Evidence and Patterned Injuries," New England Chapter of the International Association of Forensic Nurses, taught in Norwood, Massachusetts both times, specific to dog bites and the issue of dog bites as seen by emergency room physicians — how they should handle them, what they should do with them, how they should view them, what to look for in terms of pattern recognition. She's eminently qualified. I will leave the court with one thought. The court indicated when qualifying Dr. Russell — one of the preeminent things that the court mentioned in qualifying Dr. Russell — is that Dr.

MR. JACKSON: Russell utilized a methodology that the court sanctioned, and quoted, and said the methodology that she used of wound pattern recognition dealing with differential diagnosis, utilizing and interpreting dog bites, is exactly what Dr. Russell did. Differential diagnosis is something that the court said was exactly why the court sanctioned Dr. Russell and blessed Dr. Russell as a qualified expert. And that's exactly what Dr. Laposata testified yesterday. She utilized, and utilizes, in coming to her opinions and conclusions. Going back to the open door issue — obviously she's eminently qualified — but your honor, this cannot stand. The Commonwealth cannot have it both ways. They cannot walk up and leave the impression with the jurors that Dr.

MR. JACKSON: Laposata opined about the dog wounds, but we're not able to hear it — the jurors are not able to hear it — because obviously that is something that is her opinion, whatever it might be, is harmful to the defense. When in truth and in fact, it's exactly the opposite. Dr. Laposata's opinion has never wavered. Those injuries on John O'Keefe's arm are from a dog. Period. Full stop. Anything less than presenting that to the jury at this point would be to perpetrate an intentional fraud on this jury. Miss Read is entitled to more. She's entitled to better. She's entitled to the evidence.

MR. JACKSON: Two things stand out about that speech. Mr. Brennan literally just said, "I didn't elicit any information about dog bites. I just asked about her experience." Question by Mr. Brennan —

MR. JACKSON: How about if I quote his words? How about that?

MR. JACKSON: "And so you think of all those forensic pathologists, medical examiners — and you think qualification and experience itself is not enough to qualify somebody to give an opinion on a photograph about the genesis of a wound related to dog bites?" The question was specific to dog bites. That's how he introduced the subject matter to Dr. Russell. Then his next question was, "Have you ever heard of a doctor named Dr. Laposata?" Those were his words. Then he goes on — I think he also just said that he did not elicit information about other individuals, including Dr. Sheridan or anybody else. Question by Mr. Brennan: "Were you ever told what other people's opinions might be regarding those photographs?"

MR. JACKSON: That's the question that she was answering when she said, quote, "I'm aware that there was a Dr. Sheridan involved in the previous proceeding and he believed that those were consistent with dog bites." That was in relation — or in response — to Mr. Brennan's specific question. She didn't just elicit that. She didn't volunteer it. She said it because he asked her, and that was all by design. The entire thing has been by design. He elicited the information suggesting that Dr. Laposata was being hidden from Dr. Russell because her opinion would harm the defense. He left that with her on purpose, then turned around and three days later said, "And by the way, the defense should be disallowed from using Dr. Laposata to talk about the very dog bite wounds that I asked Dr. Russell about."

MR. JACKSON: That cannot stand in this room.

MR. JACKSON: I — I just think it's outrageous. I think the conduct is outrageous, and I don't think that an instruction can do anything except bring the point home.

MR. JACKSON: But if the court is not willing to allow her to testify to her full opinion to a reasonable degree, can she at least testify that she reviewed the arm? Look at the arm — that's consistent with an animal. Can we at least split the baby?

MR. JACKSON: That's what I can get. I'll take what I can get. In her experience —

MR. JACKSON: No?

MR. JACKSON: Why is that?

MR. JACKSON: No visuals. Just that one sentence — that that's consistent with what she has seen.

MR. JACKSON: Okay.