David C. Patkins v. Shawn Hatton

Filing 5

ORDER SUMMARILY DISMISSING PETITION FOR LACK OF SUBJECT MATTER JURISDICTION; REFERRING THE PETITION TO THE U.S. COURT OF APPEALS PURSUANT TO NINTH CIRCUIT RULE 22-3(A); DENYING A CERTIFICATE OF APPEALABILITY by Judge Dolly M. Gee: Pursuan t to Ninth Circuit Rule 22-3(a), the Court refers the habeas Petition to the U.S. Court of Appeals for the Ninth Circuit for consideration as an application for leave to file a second-or-successive habeas petition. This action is dismissed wit hout prejudice for lack of subject-matter jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. LET JUDGMENT BE ENTERED ACCORDINGLY. A certificate of appealability is denied. Case Terminated. Made JS-6. (copy of petition and Appeal form 12 attached) cc:9th Circuit (Attachments: # 1 Petition-part 1, # 2 Petition-part 2, # 3 Appeal form 12) (jm)

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accident. The ll as lack of ied malice, as we to intent, impl 1 ion that they 1101 (b) instruct admonished in the ~;<<N~ jury will be 2 if the n evidence, and spositio ider this for di cannot cons 3 d be viously that woul ion evidence, ob sposit People argue di 4 subject to matter wouYd be onduct, and this sc prosecutorial mi 5 at should occur. a mistrial if th 6 evidence is to advised that this The jury will be 7 ', and issue of intent it relates to the as be considered only 8 mistake. lack of accident or 9 e of this the probative valu der 352, balancing Un 10 that l effect, I feel possible prejudicia e evidence against th 11 And for the its admissibility. weighs in favor of it 12 be denied. nge under 352 will erefore, the challe challenge, th 13 Mr. Sachs, ation is concerned, As far as the inform 14 bifurcation? are you requesting a 15 believe a matter of fact, I MR. SACHS: Yes. As 1b ion, but ly ask for bifurcat is prepared to nat on Mr. Patkins 17 e priors, e truthfulness of th ry on the issues of th waive ju 18 19 e. should that need ceris 20 THE COURT: 22 r offense as alleged, At this time, the prio ged in as the strike as alle s prior offense, as well the seriou will not be rcated, and the jury formation, will be bifu the in 23 ons. advised of those convicti 21 'I 24 MR. SACHS: 25 issue right now? 26 THE COURT: 27 MR. HUGHES: a jury waiver on that The Court want to take 28 double-check. I can. prior, I have to With respect to that leged the sentencing I believe we may have al 1 near the end of the I believe he got there A 5 interview. interview, the first break roximately how long the And do you recall app Q ll take a break," said, "Al1 right, we' was from the time you interviewing ective Masson began till the time that Det 6 Mr. Patkins? 2 3 4 7 A 8 ~~.., to two hours. probably closer It was over an hour, the d you were searching During that time, you sai Q 9 You videotaped the house. house. on the telephone during Did you speak with anyone 10 11 ~, _ ~ that time? 12 A Yes, I did. 13 Q the phone? Wha did you speak with on 14 15 16 17 18 -, :^ ~ -,;,; ,,s listed her name in the I spoke to -- I believe, I and erside Community Hospital, report, but a person from Riv ter. da University Medical Cen then a person from Loma Lin A Q updates on the Were those people giving you condition of the baby? 19 A Yes. 20 Q rn during that time what information did you lea 21 22 23 24 25 26 27 28 about the condition of the baby? A •e. they indicated Um, during the first interview, d some possible new there were some -- they had spotte en at Riverside Community f ractures based on some X-rays tak ll fractures, and Loma Linda Hospital, in addition to the sku but that the child did have indicated they didn't find those, d. and his condition was not goo the cranial bleeding and such, h anyone on the phone Did you discuss with them, wit Q 2 opinion was that whether the medical during that break, with the tent or inconsistent s' story was consis Mr. Patkin 3 injuries to the baby? 1 4 5 medical sed with Loma Linda I believe I discus A personnel. 10 they give you? What information did tained by Erik were That the injuries sus A Mr. Patkins. situation described by inconsistent rwith the there's a with Mr. Patkins, During the interview Q e with you his prior experienc where he discloses to point 11 shaken baby syndrome. 6 7 8 9 Q know the interview, did you Up until that point of 12 13 history? of Mr. Patkins' criminal No. 14 A 15 MR. HUGHES: permission, I'm going And with the Court's 18 In ape, People's 34, I think. to play a copy of the videot ment of the tape, there's a seg particular, toward: the end k place the interview actually too that shows the layout where 19 that I think will be helpful. 16 17 20 THE COURT: this tape? Mr. Sachs, have you viewed 21 MR. SACHS: 1've seen it before. 22 MR. HUGHES: 23 working. 25 26 It won't play. THE COURT: 24 s VCR is It doesn't appear the Court' m a couple weeks Didn't we have this proble ago? MR. HUGHES: I hit the "play" button. 27 nections. It's not a problem of the con as won't turn. It won't play. The heads, themselves, k so. Um, I -- yes, I thin of ings that came out And also two more th Q at the top e-page document that e's Exhibit 30, a on Peopl atric Associates"? says, "Rancho Pedi A 1 2 3 4 5 A Um-hum. 6 Q cument? Can you see that do 7 A Yes, uh-huh. 8 Q 9 half Eric at four and a d that pertains to An t? months; is that righ 10 A Yes. 11 Q ~~r,~,r Date 3/8/01? ire~ 12 A Yes, uh-huh. 13 Q 14 what this is don't you tell us Is this the -- why actually? 17 d would write -- he ha oks like -- Dr. Curtis Lo A -- as , form paper he would -- small little, like little t notes for him, he would fill ou 're in the room with you 18 himself on the baby. 15 16 19 20 21 22 u?. Give those notes to yo he you a copy, and then Yeah. He would give A tes later. elf too to make his no would keep it for hims lthy" on there? You see the word "hea Q Q 23 A Yes. 24 Q th him? y visit you had wi Is that the well-bab 25 A Yes. 27 ness card ExYiibit 30, a busi Also out of People's Q is that a card d D. Curtis, M.D.," front says, "Donal on the 28 that he gave to yau? 26 122 1 2 3 father and the paramedics. Q was done, did Now, when you -- when the CT scan results? you have a chance to view the 4 A Yes. 5 Q with any other Did you discuss the results 6 doctors? 7 8 be the radiologist Well, two doctors, one would and the second was the who actually gives us the report 9 ulted. trauma surgeon that I had cons A 10 Q Who was that? 11 A A. J. Rogers. 12 Q Is he a neurological surgeon? 13 A , but he's a No, he's actually a thoracic'surgeon 14 15 16 trauma surgeon. Q Okay. were Now, with the CT scan results, what the results of the CT scan? 17 A Can I refer to this for a second? 18 Q llection. Please, if it would refresh your reco 19 A tures on Well, specifically, it showed skull frac 20 21 on both sides of both sides of the head, broken skull bone the skull the head. It had some bleeding underneath 23 t side, and it between the brain ~~nd the skull on the righ n, which is also had some blood in the fluid around the brai 24 related to trauma. 25 e may have called subdural henlatoma, which suggests ther z,:,~, ,, 26 brain. been an old injury on the left side of the 27 the brain there was an area in the left frontal part of 28 blood and inside the brain substance itself that -- some 22 It showed on the left side what's ~~ Then r ~~ /3 190 r date. injury of anothe suspicious for an was you mean? An older injury, Q 1 2 3 4 Correct. A Q tvo~.,3 on -- new of new'-- pard them evidence Was the, brain? bleeding within Yes, there was. A 5 6 e that? Where did you se was places. There arily in three It was prim A r~ n and the between the brai on of blood ti Cz blood, a collec ound the whole bit of blood ar was a little skull. There ere in, and then th the brain-sits d that brain in the flui ~'n ~ °~' E~ C3 , e left side. '~~ ~~ brain over on th the was blood inside bleeding some of the new W~_th respect to Okay. Q ull and the y between the sk ribing genericall you're desc what noid subdural -was the subarach ls brain, what leve Q 7 8 9 10 11 12 13 14 15 16 type -- 19 er here on Was the blood ov A ide e skull but outs ght underneath th ri the right. That's er the the covering ov tYie dura, which is of what's called 20 brain. 21 Q 17 18 al. It's ca17_ed epidur 24 chnoid hematoma? Did you see subara That's matoma as well. :; subarachnoid he There wa A in. at the brain sits 's in the fluid th the blood that ling to the any type of swel w, did you notice No Q 2S brain? 22 23 26 27 28 is a the brain, which ere was edema to Yes, th A uses the brain , and it's what ca response to trauma ell, and 's -- itself to sw to swell, and that substance 191 most of the ll, I would say It would be -- we A of hours uld be a matter se=_eing, there wo time, what we're e blood loses or three days, th days. Atter two rather than 1 2 3 4 5 6 7 8 9 ng t give you anythi arance, but I can' appe its sort of fresh ist quire a radiolog that. It would re more specific than u that. probably to te11 yo entification, Number 36 for id Again, showing you Q e of the skull or th at in the left side the hygroma, was tYi right side? 16 said? dn't hear what you Did you say -- I di rt frontal temporal pa oma was in the left The hygr A area [indicating]. of the brain in this e brain? ~ ~~ ~•- ~:~ , ~ ^That's actually in th Q w the ural, which is belo No, it's -- it's subd A d the brain. between the dura an dura, that membrane ay in this area here Subdura looks like gr Q 17 [indicating]? 10 11 12 13 14 15 18 A That's correct. 19 Q Subdural. This area here. Frontal lobe area 24 ting [indicating]? with -- where I'm poin t if -way [indicating). Bu This is a view this A . It's a little way, yes it would be if the face is this be about this. But it would r me to describe on hard fo e brain, outside e dura but above th ht here underneath th rig 25 . the brain [indicating] 20 21 22 23 26 27 28 MR. HUGHES: Honor, For the record, your forehead s' left eye in the ing above the witnes indicat ,, irline area. -. .-~~.-<;,. area, roughly the ha 201 Is that correct? 1 Q (By Mr. Sachs:) 2 A That would be correct; little towards the 3 temporal, front part of the temporal. 5 Depends on what his hairline would MR. SACH:3: 4 be. MR. HUGHI~S : 6 Q 7 His, not mine . (By Mr. Sachs:) Now, that hygroma, that, as I 8 understand, that you thought was consistent with an older 9 injury, is that how I understood that bleeding? A 10 That was my concern and the radiologist's And read the report. That was not an acute 11 concern. 12 injury but a sign of an older injury. Q 13 14 If there is some uncertainty, that can also be a fresh injury? 15 A That would not be felt to be a fresh injury. 16 Q Now, the other injury to the, I guess you said, 17 the epidural, where was that epidural injury on the child? 18 A The epidural injury was on the right side, right 19 temporal area that -- again, remember that Jura, that 20 21 membrane that covers over the brain, the left side was a _ ,r~: .rlittle under that membrane. The right side is over that 22 membrane, between t:he membrane and the skull. Q That's what you call the epidural, I believe you 25 A Epidural. 26 Q That was deemed to be fresh bleeding by the CAT 23 24 27 28 said? That's on the right temporal side. scan? A That's correct. 202 3 lves. in the bones themse there's no shift ng up in sure that's buildi the increased pres So Q of the skull that be the result d's brain, would the chil 4 fractures? 1 2 5 A ain -a result of the br No, they would be 6 Q e brain? The bleeding in th 7 A brain substance of the e swelling of the well, th itself. 8 11 in the care long was the baby Approximately how Q termined that he before it was de verside Community of Ri about Linda? We talked transported to Loma needed to be 12 . less than an hour 9 10 13 A sferred? a need to be tran Before he showed 14 Q Right. 15 A . Less than an hour 1& Q 17 emur bones, I something about .f Now, you said also t hink, on both? 18 A Yes. 19 Q y is the bone, where exactl Talking about the 20 femur bone? 21 22 23 24 25 26 27 28 t from h bones that connec femurs are the thig The A body, and ngest bone in the wn to the knee, lo t he hip do of periosteal -- I think they said there were signs s that have been at we see in bone ckening, which is wh thi us That suggests to starting to heal. oken and they are br showing the shaft and are have been broken in the bones ing. ' some signs of heal Q that covers um is the membrane That's the perioste ~• 1 the bone? 2 A That's correct. 3 Q You're talking about both the left and the right? 4 A That's correct. 5 Q That was learned from the Xrays or the CAT scan? 6 A From the Xrays, survey of Xrays that we did. 7 Q You were not in a position to estimate the age of 8 the fractures; is that right? A 9 MR. SACHS: I have no further questions. THE COURT: 10 11 No. Mr. Hughes? you. 12 REDIRECT EXAMINATION 13 14 15 Thank BY MR. HUGHES: Q At the time that Eric was transported to 16 Loma Linda University Medical Center, would he have been 17 awake? 18 A No. 19 Q Why is that? 20 A We had put the child on a ventilator. We were 21 breathing for the child; and so to keep him from fighting 22 that tube or to be uncomfortable with that tube in his 23 lungs, we gave him sedating doses of medications. 24 Q Sedating doses of phenobarbital? ~.~~ ~ - ~~ ~: 25 A Phenobarbital. ~ - 26 Q 27 28 ,,,.,,_ Phenobarbital had previously been given to try to control swelling; is that right? A It's -- it does two functions. It helps sedate 209 1 2 A 3 How did he respond? Q Q 4 yes, it was. He responded with, how the baby ther to describe Did you ask the fa had been injured? 5 A Yes, I did. 6 Q you? Did he do that for 7 A Yes, he did. 8 Q u? What did he tell yo 9 10 11 12 holding , he said he was om what I can recall Fr A ched the stairs, approa d, began walking up the chil There was a dog. d or fourth stair. roximately the thir app m to fall him up or caused hi dog either tripped He said the 14 ng the child. and ended up droppi e house you the area o~ th Did he actually show Q 15 where this occurred? 13 16 A rs were, airs, where the stai He showed us the st 21 the child tell. stated that's where ribing owing you and desc Based on how he was sh Q e fall would u estimate how far th things for you, dici yo Mr. Patkins told you? have been based on what fall to r. We estimated the We estimate. Yes, si A 22 ches. be approximately 18 in 17 18 19 20 25 r what's been marked fo I'm going to show you show me hibit 10. Can you fication as People's Ex identi that photograph ows or tell me what what that photograph sh 26 shows? 23 24 27 28 Q r to g from the first floo Shows a staircase goin A the landing, eak in the middle, second floor and the br the 218 1 trauma? checking for, then, is head 4 on the line below it. And no other trauma noted reviation for -- thexe's an abb Also we were also checking e checking DCAP BTLS, which we wer under that also that says 5 onym. for, which that's an acr 2 3 6 A Q Stands for?~ a asions, penetrations. Deformity, contusions, abr trauma, lacerations, and The BTLS stands for burns, 9 swelling. 7 10 11 12 A go about checking How would you -- how did you clothing from the child? for that? Did you remove the e, but, like I said, We -- typically we would hav A Q 14 e. was dressed as at the tim I don't remember what the child checking for head Exactly how would you go about Q 15 you do? trauma and exactly what would 13 16 17 18 19 A e, we would Typically on a patient this siz if there's anything out obviously look at the patient, see eding, any swelling, any of the normal, as far as any ble ng or bruising. The cuts or abrasions, any active bleedi 21 -- that would probably be child was six months; so that was bably that and only doing that -- doing a pupil check, pro 22 thing we do do. 20 23 24 25 26 27 28 Q if there's Would you actually feel the head, see any bumps? A ause they On a six-month-old, probably not, bec are still a little soft in the head. Q t it was Do you remember at all if you though ly okay to keep the baby okay -- that you said it was actual 224 1 at the house, and it was Mr. Patkins that suggested he be 2 taken to the hospital? 3 A Could you repeat that question? 4 Q Do you remember saying it was okay to leave the 5 baby at the house? 6 A I don't. 7 Q Or was it Mr. Patkins that actually suggested the 8 baby be taken to the hospital? ~; ~. ;e, 9 A No. The Fire Department said if -- they felt 10 comfortable asking Mr. Patkins to leave him at the house. 11 I recommended, for safety sake, and like for his lack of -- 12 not having a car, maybe we should take the child in the 13 ambulance. 14 Q The person that preceded you from the Fire 15 Department thought it might be okay to leave the baby 16 there? 17 A That's affirmative. Yes, sir. 18 MR. SACH:3: Thank you. 19 THE COURT: I have nothing further. Mr. Hughes? 20 21 22 REDIRECT EXAMINATION BY MR. HUGHES: 23 Q 24 child? 25 A Yes, sir. 26 Q Do you always recommend transporting? 27 A Yes, sir, I do. 28 You went ahead and recommended transporting the From my standpoint, it's less .liability to take them to the hospital than leave them on 225 1 scene. 2 Q 3 Afraid if you leave the baby there, somebody might sue you if there's something wrong with the baby? 4 A Yes, sir. 5 Q Are you familiar with the term posturing? 6 A Yes, sir. 7 Q What? 8 A 9 10 ~~ z~~ Yawning or crying, either turning their limbs inward or outward like a -- like I said, almost like yawning, when you yawn you tighten your muscles up. 11 Q You described Eric as making that kind of motion? 12 A That's affirmative to one side. 13 Q Now, you also said that you thought perhaps Eric 14 15 was yawning; is that right? A Yes. The only reason I didn't think it was true 16 posturing is becau:~e when he would squeeze his hand inward, 17 when I place my finger in it, he would free it up real 18 quick, seemed like he had real good control of extremities 19 from what can I see. 20 Q For the record, to describe the motion you made 21 as sort of taking his arm in an outward fashion at about 22 shoulder height, balling up a fist, curling the fist in 23 towards the body? 24 A Yes, sir, actually two sides were decerebate, 25 which is where you can come inward, and sural posturing, 26 when you kind of have involuntary movement going outward. 27 MR. HUGHES: 28 THE COURT: Thank you. I have nothing further. Mr. Sachs? 226 1 2 3 fluid to that would drain off CSF in, which is a device dra re down. help bring that pressu An EVD drain? Q 8 in. External ventricular dra off~CSF? You said it was to drain Q nal fluid. What that is cranial spi A and g a hole in the skull They are actually puttin Q of the to drain out fluid out serting something that is in 9 skull; is that right? 4 5 6 7 A 10 A 11 Q 12 A 13 there. Right, to relieve pressure tograph? Is that visible in the pho device there coming off I thin}~ it's the red like there. 14 Q Out there in the back? 15 A Right. 16 Q 17 i A drain out? This is where the fluid would t it. Into a bag that would collec 18 Q Okay. 19 20 placed the bolt and Now, after the neurosurgeons ? brought up to pediatric ICU the drain, is that when Erik was 21 A Yes. 22 Q he came up to the What was Erik's condition when 23 24 25 26 27 28 pediatric ICU? at that time. There His blood pressure was stable , on his body. He was intubated was no real outward bruising had was helping him breathe. He meaning, a breathing machine ro exam was there was no no activity, really. His neu movement. No movement to any movement. There was no pupil A t his airway. No gag to protec 1 painful stimuli. 2 Pretty d. unresponsive chil tually did a up to you, you ac they brought him When Q t? ion; is that righ physical examinat 3 4 Correct. A 5 11 that point? Was he sedated at they use the sedation that was sedated, but He A was no . He -- but it ing off at the time wear could have been that was it. r the procedures, ion -- sedation fo sedat ls of or do you use leve es the hospital -Do Q lness when he ze his level of il Can you characteri illness? 12 I came up? 6 7 8 9 10 Q 13 A 14 Q 15 16 17 18 19 20 21 22 23 24 25 26 27 28 l. He was critically il cated that s pupils, you indi When you looked at hi ; is that right? there was no movement and fixed. They were tabulation A g Which means what? A ght. They didn't react to li Usually a pupil, when or two it will go down to one you put a bright light, come back ke that light away, they imeters. When you ta mill that. open, and his did not do no movement in his You indicated there was Q sis? any indication of paraly extremities. Was there a mostly a flaccid, not Not paralysis. It was A no movement sis from drugs. It was stiff. It wasn't paraly tion from the brain. because there was no reac ion itial physical examinat Um, after you did your in Q incoming rtunity to review the ik, did you have an oppo of Er I~ 1 medical records 2 A Yes. 3 Q -- from Riverside Community Hospital? 4 A Uh-huh. 5 Q Did you request that a child abuse workup be 6 performed? 7 A Correct. 8 Q Why is that? 9 A Because of the history of the fall. Because of the It's just a natural flow of 10 types of injuries that he had. 11 things to make suY~e that this wasn't something done to this 12 child. 13 Q Were the injuries suspicious in some way? 14 A Yes, there were old and new lesions in the brain, 15 and also in his femoral bones, so those needed to be 16 evaluated. 17 18 Q And to evaluate that, you consulted with the CAN team; is that correct? 19 A Yes, CAN team. 20 Q That's a child abuse and neglect team? 21 A Uh-huh. 22 Q Does "uh-huh" mean "yes"? 23 A Yes, yes, I'm sorry. 24 Q It's okay. 25 And when you had had a chance to look at Erik and 26 review the records, did you also get a history of how these 27 injuries were claimed to have occurred? 28 A Yes. Um, do you want me to answer? 1 Q Just with "yes" or "no". 2 A Yes. 4 your physical Did what you saw in the records and consistent with the history examination of Erik seem to be 5 that was given? 3 Q 6 A No, it didn't seem consistent. s~' ~ 7 Q initial So now, you have gone through this 8 9 10 11 placed and the drain. evaluation of Erik, and he has the bolt you continued with What are you now trying to do with Erik as treatment? A Like it's supportive care from now. After you 13 his body stabilize the patient, it's supportive care until his ICP, his heals. Healing for Erik would be to try to get 14 intracranial pressure, down. 15 saline, management with drugs, sedation, three percent normal 16 and mannitol to try to relieve that pressure. 12 17 18 Q We did that through medical Specifically to relieve the pressure, try to stop the brain from swelling? 19 A Stop the brain from swelling. 20 Q Okay. Now, can you explain for us how the brain swelling 21 22 23 increases pressure in the head? A Well, if you look -- think about a skull, it's kind There's some opening in children that age 24 of a closed system. 25 because there are sutures there and you have some give there. 26 But it's only so much that it will give. 27 gets too high, um, that pressure will take the skull and push 28 it downward to relieve that pressure. When the pressure That's just like a surgery performed to harvest organs? L 9 come and see her The mother agreed to have SCOPC his organs for other child for possibly harvesting of A children. C Q Did they do that surgery? E A Yes. 7 8 9 r doctors When they do those surgeries, othe recipients are actually, from -- who are involved with the see the Surgery? brought to Loma Linda and they over Q 10 A Yes. 11 Q That occurred with Erik's case? 12 A Yes. 13 Q is And, also, if it's a case where homicide 14 that right? suspected, a coroner attends,~as well; is 15 A Right. 16 Q were And then after the surgery, where organs 17 harvested, Erik i~; dead; is~that correct? 18 A Well, he was dead before. 19 Q That's right. 20 MR. HUGHES: 21 THE COURT: All right, Mr. Sachs? 22 MR. SACHS: Thank you. Okay, thank you. Nothing further. CROSS EXAMINATION 23 24 BY MR. SACHS: 2$ Q Good afternoon, Doctor. ine When you first had your opportunity to exam 26 27 kind of activity Erik, did you say that he didn't exhibit any 28 at all? 1 A No. 2 Q d Was he posturing at all when you first observe A It was reported that he was posturing in the 3 4 5 him? Riverside Community ER. 6 Q What about when you received him? 7 A Not on my exam. 8 Q Could you explain what posturing is? 9 A Posturing is something that happens with cerebral 10 the injury, either that injury could be done to the cortex, 11 ng in cerebral cortex, or the cerebellum, and he was posturi 12 both ways. 13 inward to the core of the body or outward. It's a stiffening of the arms and legs, either 14 Q Sort of involuntary movement? 15 A Yes. r—~ Tt could be a seizure, it could be anything. 16 But that's the tyke of severe brain injury kind of thing that 17 happens. 18 Q And you flashed some kind of a light in his eyes? 19 A A bright light, uh-huh. 20 Q Was there any activity? 21 A No. 22 Q When you were asked earlier about the injuries that As I said, the pupils were fixed. 23 you observed on Erik, not consistent with the reported 24 mechanism in which he got in this condition, were you given 25 information that he had taken a few falls from a bed? 26 what information you are talking about? 27 '~ / 28 A Is that No, the information that I was given is that the father was carrying the child up the stairs in his arms and p,?_ aoY 1 2 3 4 5 6 7 8 9 10 11 12 13 3S ,Y"s, Y~z or. onto a carpeted flo 18 feet -- sorry -fell 12 to that reviewed, does it say In the record that you Q Did times in the past? led off the bed a few the baby has rol r report? you write that in you there is a in my report, but No, I did write that A I think one ember who wrote it. given to -- I can't rem report d that there to the mom, and she sai of the residents talked t the or to this injury tha two or tYiree months pri was some And then a bed a couple of times. ld had rolled off the chi each one of those times. doctor had seen him at of e a typewritten report Did you actually prepar Q your contact with Erik? A No. 15 medical records, some So when you relied on the ords, are contained in the rec that you wrote, I guess, notes 16 though? 17 A 14 ~--. Q Correct, yes. 20 that were given to try Now, in terms of the drugs se the brain, are any of tho and control the swelling of they nduced coma? Is that what possibly leading to a drug-i 21 are designed to do? 18 19 Q 25 k as quiet as possible They are designed to keep Eri in. energy as possible in his bra so that he will use as less the in the room or movement in So that if there's talking blood ed, which will increase his room, that he won't be agitat 26 pressure in his brain. 27 e designed to do, just So that's what the drugs wer is that including brain activity; t his complete activity, limi 22 23 24 28 A Q i ing? What do you do for a liv 1 2 A Forensic pediatrics. 3 Q Where ~o you work? 4 A ldren's Hospital. Loma Linda University Chi 5 Q What dc• you do there? 7 ensic ian, as well as a for I am a general pediatric sor of istant clinical profes pediatrician. I'm an ass 8 pediatrics. A 6 9 10 r education as it Can you describe for us you Q relates to pediatrics? 13 t to medical After under graduate, I wen And then sity School of Medicine. school at Loma Linda Univer Medical Loma Linda University I did a pediatric residency at 14 Center. 15 Q When? 16 A And then -- 17 Q I'm sorry. 11 12 Yeah. A When? 18 19 20 A If I could interrupt? Loma Linda? When did you graduate from I graduated from From medical school, 1989, and residency in 1992. 21 Q 22 A since that time? What other education have you had se exams with Dr. Since I trained in doing child abu 23 ferences that we attend Sheridan, as well as, you know, con 24 every year. 25 26 Q ce 1992, you have Now, you say since that time, sin been working with Dr. Sheridan? 27 A Yes. 28 Q nal societies Do you belong to any professio 1 pertaining to medicine? 4 Society on the To the American Professional Professional Society on the Abuse of Children, California ican Pediatric Association, Amer Abuse of Children, Ambulatory 5 Academy of Pediatrics. 2 3 6 Yes. A you do? Now, what type of teaching do Q 8 residents of I do -- supervise students and when they are in medical pediatrics, you know, the students 9 atrics. school, they do a rotation in pedi 7 A So I would 10 residents in pediatrics, as supervise those students and the 11 well as family practice sometimes. 12 Okay. Q residency, Since 1992, when you completed your 13 14 15 where have you been working? A with Loma Well, I: worked -- I have been working 16 was doing -Linda, but I was -- part of that time, I 17 County Regional providing the samE services at Riverside 18 Medical Center. 19 Q What services are those? 20 A cs. Both general pediatrics and forensic pediatri 21 Q What does forensic pediatrics mean? 22 A the It's a field that deals with child abuse, all 23 sexual abuse aspects of child abuse, including physical abuse, 24 and neglect. 25 Q When yeu say it deals with child abuse -- 26 A Yes. 27 Q e? -- in what way does it deal with child abus 28 A been Well, we do the exams in children who have 4 tests that are , and evaluate all the suspected of being abused sion whether we and come up to a conclu done and the history, se or ly been a victim of abu that this child has actual think on for their or any other explanati there's any other reason if 5 injuries. 1 2 3 6 7 10 has been for the past So it's your job, and it children? what causes injuries in years, to help determine Q 8 A Yes. 9 Q physical and sexual You said that includes both 10 11 right? abuse of children; is that That's correct. A 14 h Riverside County Now, wYien you were working wit re? positions did you hold the Regional Medical Center, what nic director, and I Well, there was a pediatric cli A 15 ir of the pediatric was -- part of thE~ time, I was cha 16 department. 12 13 17 18 Q Q artment of How long were you chair of the dep pediatrics? 19 A Three years, I think. 20 Q Two to three years. Okay. abuse and And were you a member of the child 21 22 neglect team there? 23 A Yes. 24 Q of 1992 to 1999? Was that for that entire period 25 A Yes. 26 Q e services at Now, you said you provided the sam 27 is that correct? Loma Linda during that time frame; n I had to cover Yes. At times, when I was -- whe A 2 da were gone, yes. because of doctors at Loma Lin since 1992, you were So during that time frame Q 3 primarily at RCRMC? 1 4 Yes. A 8 times at Loma Linda? And you would fill in at association between Yes, because there wasn't an A ld get nty. The doctors, we wou Loma Linda and Riverside Cou re I would physically go the together and discuss the cases. 9 when there was ~a need. 5 6 7 10 11 Q ed from RCRMC to Loma Was there a time when you mov Q ? Linda University D9edical Center 12 A In 1999. 13 Q 1999 for Loma And what have you been doing since 14 15 16 Linda? A ld abuse exams, as I have been doing, again, the chi well as the general pediatrics. 17 Q cialties? Now, are you Board-certified in any spe 18 A s. Yes, I'm Board-certified in pediatric 19 Q do for a As a result of your job and what you 20 study the medical living, the training that you have, do you 21 injuries to research and medical literature concerning 22 children? 23 A Yes. 24 Q ical Keep current on medical beliefs and med 25 en? practices with respect to injured childr 26 A Yes. 27 Q t your job Now, can you tell us, generally, wha this point? duties include there at Loma Linda at 1 A Yes, of course. 2 Q What does that term mean? 3 A to It meads that there is some injury, some trauma And the cause is abuse, if it is someone has 4 the brain. 5 actually inflicted the injuries. 6 Q Are thEre other terms for abusive head trauma? 7 A Well, the common term that has been used by -- 8 mostly well, has been used in the medical profession, but it's 9 baby commonly known in the community, is shaken baby -- shaken ~ , 10 syndrome . ~ ~ ~~~~ ~~~ 11 Q 12 A Are there other names for it other than that? ~s; Well, ~.nflicted traumatic brain injury. 13 Q How about shaken impact? 14 A Shaken impact is actually on top of the shaken, an 15 16 impact or actually blunt force. Q Will you describe for us how shaking an infant 17 causes injury? 18 A Um, when an infant is shaken, and we are not 19 talking about pla}~ful shaking, that doesn't -- you know, it's 20 a vigorous violently shaken baby. 21 by the chest across the ribs, but it can be grabbed by the 22 arms, it can be grabbed by the legs. 23 There are different ways, but the most common one is the 24 chest. 25 this forward and backward motions where the head goes back and 26 forth. 27 Usually the baby is grabbed Grabbed by the neck. And as a baby is grabbed by the chest, then there's It's not just back and forwards. Because there's no limitation of that movement, so there is also rotation. As 1 A The hemorrhage can be severe right away. 2 Q It can be severe right away? 3 A Yeah. 4 Q If it does, if you have a subdural hematoma, you 5 would see the blood under the dura in redness here 6 (indicating)? 7 A Yes. 8 Q Between the brain and the Jura? 9 A That's correct. 10 Q So I'm clear, if it's a subdural hematoma, the 11 blood is between the Jura and the arachnoid; is that right? 12 A Yes. 13 Q And if it's a subarachnoid hematoma, it's one level 14 further down, and it's between the arachnoid and the brain? 15 A That's correct. 16 Q What i~~ an epidural hematoma? 17 A Epidur~il means it is above the dura. 18 Q Between the skull and the dura? 19 A Skull and dura. ~~~~ 20 Q Are you familiar with the term axial injury? ~,` ~' 21 A Yes. 22 Q What does that mean? 23 A Axial injury, when you have that significant 24 injury, you have bleeding, and not just bleeding, but you have 25 the shearing injuY~y, the tearing in the brain, itself, as it 26 moves back and forth. 27 nerves. 28 actually not -- that communicating is like the nerves can't Then you actually cause damage to the So if you cause damage to the nerves, there's So you lose 1 communicate anymore, translate any information. 2 your brain controls, everything, but you lose that function of 3 the brain to communicate to the cells and what to do. 4 Q I'm going to show you what has been marked for 5 identification as People's 43. 6 squiggly lines? 7 8 9 10 A Can you see the red,. the red, Not the ones with the arrows on it. Yeah. Those are the axials, they are also damaged from the shearing force. Q Those are examples of the nerves that are running through the brain? 11 A Yes. 12 Q As the brain moves back and forth or sideways, at a 13 different speed than the skull, you have the same tearing -- 14 A Breakage. 15 Q -- of those nerves? 16 A Yes. 17 4 People's 44 is an example to demonstrate what that 18 tearing is like? 19 A That's correct. 20 Q Now, az•e you familiar with retina hemorrhaging? '~_ ~~ 21 A Oh, yes. 22 Q What is retina hemorrhaging? 23 A Retina hemorrhaging is actually bleeding into the 24 retina. 25 doctor and they look with their scope and look at the back of 26 your eye, that's what they are looking at, the retina. 27 retina has many layers, but it's like that yellow/orangy part 28 that has your optic disk and the vessels that can be visible The retina is the back of your eye. When you go to a The And there is bleeding into the retina. 1 by - the doctor. 2 That's what retina hemorrhaging is. 3 Q How is retina hemorrhaging caused? 4 A How the retina hemorrhaging in child abuse or -- 5 Q Are there various ways it can be caused? 6 A Well, there are different ways that retinal 7 of hemorrhaging can be caused, but there are different types 8 retinal hemorrhage. 9 hemorrhage, it can be associated with certain diseases. If you have a very single dot, retina You 11 e can have retina hemorrhages that are involved with extensiv ~~ zs bleeding that are throughout the layers of the retina that are 12 more consistent with abusive head trauma or trauma. 13 there are different types of retina hemorrhages. 10 14 Q So, yes, With respect to abusive retina trauma, retina 15 hemorrhaging, how does that work? 16 How do you end up with retina hemorrhaging? 17 A Well, again, the same, the exact mechanism. 18 There's different theories of how the mechanism for the retina 19 21 hemorrhage is. They have been really seen in association of s - ~-- : 75 to 80 percent of the cases of abusive head trauma or shaken ti ~~ baby have retina hemorrhages. Sometimes unilaterally and 22 sometimes bilaterally. 23 25 In this retina hemorrhage in abusive head injury _ -,: are usually very extensive and they are a different type. - ,,.. .. . They are in more layers of one of the retina, for one thing, 26 and then they are frequently -- just the blood is diffused as 27 opposed to a single dot where you see a little small 28 hemorrhage in a particular area of the retina. 20 24 hanism ate that the same mec Um, and there is postul some forth causes those, so shearing of the back and of another retina. Then there's r.:~ ,, ., aring of the vessels in the _,mot .... ;, te ~so there is re is venous obstruction, mechanism that maybe the is blood can't drain. So there increased pressure so it is difficult to exact mechanism :.: ; ¢ lated there. And so the accumu 1 2 3 4 5 6 7 8 tell. Okay. Q l science hasn't yet It's something that medica 9 10 determined completely? 11 12 ct mechanism. 'Cause Not to an agreement on exa you would live person how exactly it's difficult to say in a 13 do that. 14 15 16 17 A in cases of high Do you see retina hemorrhaging Q speed auto accidents? A ally very small in a Very rarely, and they are usu the postular. particular spot, what we call 18 THE REPORTER: 19 THE WITNESS: 20 Q 21 Please slow down. -- around the optic disk. (By Mr. Hughes) You said you see retinal e head trauma cases? hemorrhaging frequently in abusiv 22 A Yes. 23 Q Now -- 25 e -- I'm sorry, I When we talk about motor vehicl h speeds, not just a rear didn't clarify. It's usually hig 26 ending type of accident. 24 27 28 A Q Okay. head trauma cases or Now, with respect to abusive 1 shaken baby cases, do you see associated rib injuries 2 sometimes? 3 4 A There's frequently associated fractures and Yes. commonly is rib f~~actures, especially posterior rib fractures. 5 Q Posterior meaning? 6 A In the back. They grab the chest (indicating), not Posterior rib fractures, it's just 7 even in CPR, they happen. 8 like the way their ribs are made, and you have -- you have the 9 fixed spinal column here, and as they twist, there's this 10 level where the rib goes actually beyond the extent -- the 11 flexibility point, and then it breaks right at that point. 12 13 Q You arE~ gesturing with your hands in front of you as though holding a baby. Let me show you what has been marked for 14 Does that diagram demonstrate what you 15 identification as 47. 16 are describing as far as holding a child in front of you? 17 A That's correct. You can see the upper part here, 18 the vertebrae. Yeah, right here (indicating). And that rib, 19 as it comes around, and there is a squeezing motion, you can 20 see how it breaks as it joins with the vertebrae, and the 21 posterior side. 22 Q That's what you are talking about, the motion? 23 A Right. 24 Q The point at this part at the top of the diagram, 25 that is the spinal. column or vertebrae? 26 A Yeah. 27 Q Back orL April 28th of 2001, were you consulted with 28 Vertebrae is this whole thing. respect to a baby by the name of Erik Patkins? 1 ICU room, he was very critical. Very unstable. By the time I 3 bolt -- it's a got there, he had already a bolt placed, a re, basically the monitor to check on his intracranial pressu 4 pressure in the brain. 5 pressure increases. 2 As there is injury to the brain, the So they had to check to be able to see 7 going to be, they what to do, what the course of treatment was drain. A drain put in a bolt and they had also put in a brain 8 to decrease the pressure in the brain. 9 if the pressure catheter to drain some of the fluid out to see 6 They then put in a So he had already a drain and he had also a 10 will come down. 11 bolt. 12 had an NG tube, nasal gastric tube, a tube through his nose. 13 And he was basically very sick. 14 And he had central lines, IVs. Q 17 He All right. Did you see any physical injuries,_ external 15 16 He was intubated. physical injuries? :-,:. ~' ~~ A No, he didn't have any external physical injuries. 18 Other than he had a little bit of -- just a little bit of 19 blood in the first stools. 20 stools. 21 Q Did you take a look at Erik's eyes? 22 A Yes, I did. 23 Q What did you see? 24 A Well, he had -- when I came to see Erik, actually In the analysis of the first If I go into deeper the 25 his pupils were fixed and dilated. 26 exam, in looking in head to toe, we look in the eyes, also. 27 We usually have to dilate the eyes to be able to actually see 28 in the eyes. But his pupils were not responsive, and they d into the optic Well, it was -- there was bloo A 1 3 all as they took it, it was nerve, and just the whole eyeb of of bleeding. It looked kind obvious there had been a lot 4 g. brownish, looking blood appearin 2 6 7 8 9 10 why is that The damage to the optic nerve, Q 5 significant to you? seen with abusive Again, as retina hemorrhages are e e sheath commonly seen. Thos head trauma, so is an optic nerv tell in the general physical are not something usually we can A exam. there is bleeding into Sometimes in MRIs you can tell 12 something I could tell by the optic nerve, but that's not thing that is usually looking at the eyes. So that is some 13 psy. noticed by a pathologist at an auto 11 14 15 Q ,- e an indicator And is the damage to the optic nerv accidental injury? to you whether this is an inflicted or 16 A ry. It's contributed to an inflicted inju 17 Q damage to the Would you expect to see that type of 18 optic nerve in an accidental case? 19 A No. 20 Q d cause Are you aware of any mechanism that woul 21 that damage that would be accidental? There is -- no. 22 A Right. 23 Q how retina And you have already discussed for us 24 ry, as well; is hemorrhaging is indicative of a shaking inju 25 that right? 26 A Yes. 27 Q the The retina hemorrhaging that you saw at 28 icion that this -- did autopsy, that confirms your earlier susp 1 X-rays, that will show actually that this is a fracture that 2 had happened. . It has already gone through some healing, it 3 had happened in the past. The acute fractures, then you don't see that. 4 You And you don't see the 5 just basically see the fracture line. 6 healing process yet. 7 not always -- there may be some swelling of the tissues around 8 it. 9 Q 10 11 12 13 Plus, the acute fracture sometimes -- Okay. Now, why is the hemorrhaging that you saw significant? A The hemorrhaging in the subdural -- hemorrhaging in the subarachnoid hemorrhaging? 14 Q Yes. 15 A Because the subdural hemorrhage is very common in 16 abusive head trauma. 17 common in abusive head trauma. 18 hemorrhage from ari accidental injury, you can have -- you can 19 have subdural from an accidental injury, is not usually as 20 e xtensive in the riistory, is clearly compatible with it. 21 22 Usually if there's a fracture, the subdural hematoma will be `" ~ , ~«>> at the site of the fracture and not as extensive. And usually 23 when you see the subdural hemorrhage, even between the -- what 24 we call the inner hemisphere fissures in between the two sides 25 of the brain, that is also more indicative of abusive head 26 trauma. 27 Q 28 And subdural subarachnoid is also very When you have subdural Now, how would you characterize the extent of the hemorrhaging in Erik's case? 1 2 3 4 I mean, it's not just Oh, very extensive, because, you of swelling in the brain, a hemorrhaging. He had a lot to the and the damage, the injury know, from the hemorrhaging <~~~..~, of the he had extensive swelling brain difuse axial injury, A 7 of the brain. brain and increasE~d pressure up a step. What type of -- let he back Q res from shaking a Would you expect to see fractu 8 baby alone? 5 6 9 A No. 10 Q impact of some sort? The fractures are a result of 11 A Yes. 12 Q ary to cause What type of force would be necess 13 14 ? these fractures ar~d this hemorrhaging A A lot of force. I don't know how to quantify it, It's a person -- the person who was 15 but it's out of control. 16 doing the shaking was out of control. , - 17 18 Q ~ ~ ury in a Would you expect to see this type of inj short fall onto a carpeted surface? No. 19 A 20 Q 21 A Meaning, a fall of under two feet? ~ _ No. Not at all. 22 Q Okay. ~ - , ~~s - ~ - ~ -._ ~~, v,_ ewing the In proceeding through the autopsy and revi 23 24 were records, were there any additional injuries that 25 discovered during the autopsy? 26 27 28 A p was He did have a contusion -- when the scal did have an area of reflected, when tYie skin is taken back, he t side. I don't hemorrhage. I believe it was on the lef 1 2 Q Now, the blood we can see on the left-hand side of this picture, that shows subarachnoid hemorrhaging? 3 A Yes. 4 Q Because the arachnoid, is that membrane that 5 encases the brain? 6 A Yes. 7 Q There's blood between that membrane and the brain? 8 A Yes. 9 Q From looking at this photograph, can you tell -- 10 A It looks more like it's fresh blood. 11 Q And there was a subdural hematoma, or hemorrhaging, 12 on the left-hand side of the brain; is that right? 13 A That's correct. 14 Q Was that old or new hemorrhaging? 15 A That was old. 16 Q And the subdural, is that visible in this picture? 17 A No, the subdural, actually when they take the skull 18 off, it stays more under the Jura, under the skull, so I think 19 it's not really clear, not in this picture. 20 Q 21 22 Okay. And the subdural hemorrhaging on the right-hand side of the brain, was that older or new? 23 A That was new. 24 Q All right. :~ Now, you had started to mention a femur fracture. 25 26 Can you describe for us what was found at the autopsy with 27 respect to a femur fracture? 28 A Yeah, the distal area, or the farthest area on the 1 femur, there was ~~ fracture, and it was an older fracture 2 'cause they could see, again, the new bone formation, a 3 4 healing, that there was healing. Q All right. Now, based on the injuries that you saw to Erik 5 6 when you were treating him, based on your review of the 7 medical records, and based on your attendance at the autopsy, 8 and review of the autopsy results, and based on your training 9 and your experience, and the thousands of children that you 3L 10 have seen, do you have an opinion as to how these injuries 11 were caused? 12 A Yes. 13 Q What is that opinion? 14 A My opiizion is that Erik was a victim of abusive 15 head trauma . ~.'' ;~, ~. E - ~ - ~ ~ ~ ~ ~- 16 Q And why is that your opinion? 17 A Because in taking the history, the history does not The history that is given is definitely 18 explain the injuries. 19 very inconsistent with the injuries. 20 seeking medical care. 21 all of them consistent with abusive head trauma, as is the 22 intracranial bleeding -- 23 THE REPORTER: 24 THE WITNESS: There was delay in The injuries are very extensive, and Please slow down. -- subdural hematoma, the subarachnoid 25 bleeding, there is actually even bleeding into the brain 26 tissue, and there is significant brain swelling in diffuse 27 axial injury.l ~ That causes death. 28 retinal hemorrhages. ~5 He has extensive bilateral He has multiple skull fractures of 1 2 acute. He has a posterior rib fracture that is different ages. He has also a femur fracture that is old. head So thi;~ infant is not only a victim of abusive 3 4 has evidence trauma causing his death that is just recent, he 5 of on -going abuse or previous abuse. 6 Q (By Mr. Hughes) The repetitive nature of these 7 you think injuries that you can see, is that a factor in why 8 this is abusive head trauma? 9 A It's a factor. 3~s-t~,o, 10 Q It's not? 11 A But it's not the -- the ultimate event that causes 12 death was enough, even without prior injury, is clearly 13 abusive head trauma causing the acute event that caused his 14 death. 15 Q Based nn the history that you received, if you 16 assume that that Yiistory is true, that Erik was just fine on 17 April 27th at roughly 6:00 or 6:15, maybe a little bit after 18 and that, p.m., when Margie Garifano left for work, T` ;~ r it was the ' 19 next morning in tYie neighborhood of 5:30 to 6:30 in the 20 morning that he first started exhibiting symptoms, do you have 21 an opinion as to the timing of these injuries that led to his 22 death? The acute injuries? 23 THE COURT: 24 THE WITNESS: The injuries that led to his death that 25 were acute, yeah, it had to have happened after the time mom 26 left to go to work. 27 Q (By Mr. Hughes) Based on what you saw, all the s. 28 medical records, everything you saw with Erik and the autopsy, ti p, ..-, 1 leg? being shaken by being held by one 2 A Yes. 3 Q a subdural That type of shaking can result in 4 hematoma? 5 A Yes. 6 Q without Can it result in a subdural hematoma 7 resulting in retiiza hemorrhaging? 8 A Yes. 9 Q back to Erik's Is there -- and I'm going to come 11 saw in treating him, in case now -- is thE:re anything that you _~ - ,~_, medical records, that attending his autopsy, and reviewing the 12 Erik was shaken and leaves in your mind any doubt whether 13 h? : slammed and that' what caused his deat l0 Not at all. 14 A 15 MR. HUGHES: 16 THE COURT: Thank you. I have nothing further. Mr. Sachs? CROSS EXAMINATION 17 18 BY MR. SACHS: 19 Q 20 Jack Let me turn to Jack for a moment, if I could, was yesterday. Patkins, the records you reviewed, I guess it 21 A Yes. 22 Q Now, you mentioned something about a skull 23 fracture; is that correct? 24 Do you recall reading something about that? 25 A That's correct. 26 Q ture There was nothing in the records the skull frac 27 28 was an old one; is that true? A l I believe in the report it says a "healing" skul erved? retinal hemorrhage was obs 1 2 A hages observed. There were retinal hemorr 3 Q fall? Strictly attributable to a 5 don e this. And I ___ 't They were not diffused lik ~r~' pictures of the retina not know, because there were 6 ~ hemorrhages. ~ I 8 erature from And that whole body of lit distance die from a fall from a Dr: Plunkett says children can 9 of about two feet, correct? 4 A ~ Q Yes, he says that. A 10 13 injuries to Jack, Now, again, with respect to the been t his injuries could have you are saying it's possible tha ikely. Does that characterize attributable by a fall, but unl 14 uries? your testimony about Jack's inj 11 12 Q 15 A Yes. 16 Q from a fall, can't You care get a subdural hematoma 18 A Yes, you can. 19 Q ld have blood And you can have -- then you wou 17 you? 20 a result of a fall, leaking into the subdural space as 21 correct? 22 A You can. -~ ~ ~ 23 Q a, can that How about through the subarachnoid are 24 also be caused by a fall? Yes. 25 I~ A 26 MR. HUGHES: 27 28 Objection. Vague as to the distance of the fall. Q (By Mr. Sachs) r A short distance fall, in you ~, opinion. 1 A short distance fall? 2 A 3 Q 4 A the subdural area? Can you have bleeding into of bleeding. You can have small areas 5 Q subdural -Can you have bleeding to the 6 skull? subarachnoid area of the 7 A Yes, you can. 8 ~ Q From a short fall? 9 ~ A Yes. -°~ ~~ ~~, :'% ~ ~~ ~f 11 ically, when you saw Now, tlzrning to Erik, specif ss it the evening hours of, I gue him, I guess you :paid it was 12 that right? would be, the 28th of April; is 10 Q 13 A That's correct. 14 Q heavily sedated; isn't He was already paralyzed and 15 that true? 16 A Yes. 17 Q e, in your So at that particular point in tim 18 d? estimation, was he already brain dea I couldn't say that. . A 19 I didn't do a brain dead I couldn't -- if he was sedated. 20 exam. 21 He has to be off medication for it to be done. 22 23 24 Q lex actions So -- but he wasn't exhibiting any ref rect? or anything when you observed him, cor A ibit reflex Well, you don't do the exam to exh 25 actions if he is sedated. 26 had them or not. 27 28 he So I couldn't tell you whether I couldn't elicit them. exam when he is Then what was the purpose of your you saw him on the 28th? basically paralyzed and sedated when ~Q 2 injuries you can You look for external and internal neurological exam to see brain observe without hiving to do a 3 death. 1 4 5 A 't have any So in this particular case, he didn you said on his nose? external injuries except for what Q 6 A Right. 7 Q did you do of What kind of an internal examination 8 him at that point:' A 9 about an Well, you don't -- if you are talking 11 We check ~~,.~ en for bowel sounds. I it and -- to see ~.f it is soft, list 12 na checked his retina in his eyes and saw the reti 13 hemorrhaging. 14 ological exam, complete physical exam, other than doing a neur 15 . for the purposes of establishing neurological function 10 t do that. internal examination as a summary, we don' Q 16 We looked inside his mouth. And looked for a So the pictures that we saw of the retinal bleeding 17 you on both the left and right eye, is that what you saw when 18 looked in his eyes? Is that what you're telling us? 19 A Yes. 20 Q Did you use some kind of instrument to observe 22 A I used an opthalmoscope. ~~ 23 Q Now, yc~u are aware that when the baby was first 21 this? ="~ 24 seen by the EMT at about 6:45 in the morning, the baby was 25 basically alert? You are aware of that, right? 26 A Yes. 27 Q The baby -- apparently, eyes were showing reactions 28 to light? Are you aware of that? 1 correct? Moving at different speeds? 2 A DifferE~nt speeds, yes. 3 Q Now, when you talked with Mr. Hughes about the 4 meant bridging veins that are torn, could you explain what you 5 by that? 6 A Yes, I did. 7 Q Can you explain again what you meant by that? 8 A Oh, the bridging veins are the veins that go right 9 under the dura and drain into the major central vein into the Those veins that are attached to the dura and 10 subdural sinus. 11 connect to that are as the brain moves back and forth, they 12 are stretched and torn. 13 14 Q They are sheared, so they bleed. So they bleed into the subdural and subarachnoid spaces, is that what you are saying? 15 A Not suk~arachnoid, we're talking about subdural. 16 Q So the bleeding that goes into the subdural, that's 17 not from the bridging veins then? 18 A I don't. understand your question. 19 Q The blE:eding that goes into the subdural, that's 20 from the veins that burst? 21 A That's correct. 22 Q What about the bleeding that gets into the 23 subarachnoid space? ~ ~ , 'f~'«~~, 24 That is bleeding just right under the subarachnoid, -~. not related to the bridging veins. 25 26 27 28 A Q Now, is that mechanism where the bridging veins -- does that sometimes happen as a result of a fall? A That can happen as a result of a fall. 1 Q Now, you could certainly have intracranial 2 pressure, or pres:~ure increase, from a fall, I take it; is 3 that true? 4 A From a major fall, yes, you can. 5 Q From a short distance fall, can you have 6 intracranial incrE=_ase? 7 A You can have increased intracranial pressures. -~ 8 Q That's basically what caused the death in this 9 case, isn't it? :If you cut right to the chase, is the extreme 10 high intracranial pressure basically what caused Erik to 11 become basically }rain dead? 12 Yes, the mechanisms that caused increased A As the cause of the intracranial 13 intracranial pressure. 14 pressure, the intracranial pressure is the ultimate cause of 15 death, but what caused -- 16 Q I think you said, getting back to retina 17 hemorrhaging, ther_e's really not a lot of agreement, even 18 within the medical community, as to how retina hemorrhaging is 19 actually caused. 20 A Is that what you said? What I said is that there's not as a specific 21 definite agreement: as to the mechanism that they are caused, 22 not that they are seeing with abusive head trauma. 23 exactly what happens. 24 25 26 27 28 It is just ~~, And that is basically the veins that burst in the Q eye, is it? A Well, that's what I say, there is different theories for the actual mechanism of the retina hemorrhages. — Q And just so it is clear, you do not subscribe to 1 Q In this particular case, I think you did say there 2 was evidence of some subdural hematomas that looked older; is 3 that correct? 4 A That's correct. 5 Q Was that consistent with the old skull fractures 6 7 that you had observed? A ~~ ,Well, there were slightly different locations. The subdural bleed. It And the S was more towards the front. 9 fracture was more in the middle frontal parietal area. But 10 there can be -- as far as happening about the same time, they 11 could be. I don't know how -- I couldn't date both of those. 12 Q Can you date either one of them? 13 A I could just say they are older. 14 pathologist could. I don't know. >. r 15 16 Q Maybe the ~ r, _ So the subarachnoid, which was on the left side, that was a new bleed? 17 A I believe that was more new. 18 Q And that was -- you learned that from what, the CT 19 scan, or actually being at the autopsy, in terms of the ages 20 of these bleeding;? 21 22 A bleeding -- well, the CT scan just suggests. 23 24 25 I think both, if I remember correctly. Most of the Okay? The autopsy is definitely the definite answer. ~~s' Q ~~ Okay. Going t:o the skull fracture that was on the 26 parietal side, which I think you said is the right rear, which 27 is the more dense bone, I guess, than the parietal -- is that right, the dense part of the skull? 1 that about right? 2 A Yeah. 3 Q You would certainly -- what was the age of that? 4 Were you able to tell? 5 6 A Q It was healing. As far as specific Was it the membrane, the periosteum, had started healing? 9 ~ A 10 Q 11 It was older. how many days, I can't tell you. 7 8 Yes. Right. Can you give us some range in when that would happen, when the Yiealing process would start? 12 A The pathologist that reviewed it on the microscope 13 could probably give you more estimation of that. 14 you, usually the Y-rays don't show -- on the X-rays, you don't 15 see any evidence of healing until seven or 10 days later. 16 So -- and it was peen on X-rays. 17 probably seven, 10, more days. 18 Q I can tell So I don't know how old, Exactly, I can't tell you. And with your experience, what's the most likely 19 mechanism of a sir.-month-old to have his femur fractured, by -","_ 20 twisting? 21 A Abuse. 22 Q Pardon:' 23 A Abuse. 24 Q How? A Different ways, depending on how the fracture is. 25 26 Slamming a child to the ground? Twisting him? 27 Because a six-month-old is not ambulatory, is not a child that 28 should have fractures. And frequently, it could be pulling. It could be impact. 1 It could be twisting. 2 Different ways femur fractures can happen in a infant. 3 4 Q Femurs is like if a child would lift his leg up, some type of mobility? 5 A Yes. 6 Q The child would have to use the femur? 7 A Yes. 8 Q You would expect some kind of -- 9 A It depends how the fracture is. If it's not 10 transverse or broken through-and -through, we see new bone 11 formation, and it may be a thin cortical fracture, so he could 12 still move his leq. 13 so you can't move the leg. 14 length of the femur. 15 X-ray, such a suggestion of a fracture that could be seen at 16 the autopsy. 17 18 19 20 21 Q This fracture is more in the It may -- again, is just healing in the So you are saying you don't know exactly how the femur was fractured? A I don't. know exactly how it was fractured, but it was not a transverse through-and-through fracture. Q 22 23 It's not a through-and -through fracture Okay. You mentioned again it was interhemispheric "=~'~ bleeding, I think, as well? 24 A That's correct. 25 Q Was that something apart from the subarachnoid 26 27 28 bleeding that you talked about? A Well, what we are talking about is that there was actually blood, subdural blood, that is actually between the ..- 1 presence of drugs. 2 It depends on the circumstances whether we do that or not. When I've got all those reports back, I sit down 3 4 and dictate all of that into a dictaphone and go over the 5 report, sign the report, and then that report becomes 6 the -- at the end of that report, I give a list of all the 7 injuries or diagnoses. 8 surgical procedure~~ or evidence of disease, sort of list 9 those, and, at the very bottom, I give a cause-of -death 10 It's either injuries or evidence of statement, what I think the cause of death is. Then the deputy coroner whose case -- whichever 11 12 investigator's assigned to this case, they fill out the 13 death certificate for the County, and they will use my 14 cause of death under the part of the death certificate 15 where it says cause of death was. 16 autopsy protocol. 17 18 19 20 21 22 23 Q All right.. They get that from my With respect to the external examination of Eric' Patkins, what injuries did you find? A Essentially, it was injuries related to the medical procedures and the organ-recovery procedure. Q Other than bruising perhaps in the area where an IV would be done? A He'd had -- he'd had a pressure monitor to The 24 monitor the amount of pressure inside the skull. 25 neurosurgeon had put a bolt. 26 pressure monitor, and they also put a drain in to help 27 drain out excess fluid to help control pressure. 28 were still there, and the autopsy showed hemorrhage in the It's called a bolt monitor or So those 417 1 scalp and in the covering of the bone around those 2 procedures, which, because this child survived for four 3 days, essentially, from the time it got to the hospital 4 until the time of the organ recovery, it was about four~:~=~-~ 5 days. 6 to see in a child who survived that long. `'s' ~N 7 So the amount of hemorrhage would be what I'd expect Q Other than medical-treatment-related injuries, 8 did you note any bruising or other visible external 9 injuries to Eric? 10 A 11 Q 12 No. r~~~~F Fy;,.0 -body-cavity Now, with respect to the internal examination Eric, had had organs harvested; is that right? 13 A Correct. 14 Q So in the internal examination, what did you see? 15 A Well, we saw the effects of, you know, the organs And then, when they do that, the 16 that had been removed. 17 surgeons, you know, they sew up the bowel. 18 remove the bowel, they will sew that up, then leave it in 19 place. 20 After they So all of the organs that were left, there was no The only evidence 21 evidence of injury or disease to those. 22 of injury that I found on the internal examination of the 23 chest and abdomen was that after I had removed whatever 24 organs were left after that recovery procedure, I then 25 removed the diaphragm, which is a very thin muscle that 26 separates the chest cavity from the abdominal cavity. 27 that muscle moving up and down, primarily what we breathe 28 with when -- when we take a deep breath, we are not only It's • It's 1 expanding our chest but pushing our diaphragm down. 2 the thin muscle that separates the chest from the abdomen. 3 I'.11 take that back. 4 that, back behind the diaphragm on the right side, there 5 were -- there was hemorrhaging around the area of the ninth 6 and tenth ribs on the right side right where the ribs 7 connect to the bac}L bone. 8 9 Q And remove it. And when I'd done So you're able to see some bleeding in the area of the ninth and tE~nth ribs in the muscle area? 10 A Right. 11 Q By those ribs? "" 12 A Correct. 13 Q What does that signify to you? 14 A Well, I rnean, it's basic, most basically, it's It's hemorrhaging into -- into tissues. And 15 bleeding. 16 it's not in an area, like I said, where they put the bolt 17 and they'd done surgical procedures, put in IVs, that sort 18 of thing. 19 drawing blood and surgical procedures. 20 way around in the back, low on the back, that wouldn't be 21 associated with any surgical procedures; so the implication 22 was it was an injury. You expect hemorrhage as part of, you know, But this is an area y ~~... 7i 23 Q What do you do when you see that? 24 A I cut those -- those portions of the ribs out so With ribs or 25 that I can look at them under microscope. 26 with bone, because bone is hard, we have to put it in a 27 solution, a form o~ acid, which we call it decalcifying 28 solution. It essentially eats all the calcium out of the 419 Usually takes a couple of weeks to do that, but once 1 bone. 2 that's been done, you can take a scalpel or knife, cut the 3 bone in real thin sections to make those microscopic 4 slides. 5 it, and submitted it for microscopic sections. 6 Q I cut in the area of suspected injury, decalcified What was the result of the microscopic 7 examination? 8 A Showed a fracture . _~ 9 Q And were you able to determine the relative age -~~~, ~~~ 10 of that fracture, whether it was acute or whether it was a 11 healing fracture? 12 A It was acute. 13 Q How can you tell the difference? 14 A Well, acute fractures, no matter where they are,`' -: 15 have acute hemorrhage associated with them, and that -- it 16 was -- the hemorrhage was the first thing I saw. 17 If you're looking at ribs -- it applies to all 18 bones, but it's most easily appreciated in ribs or the 19 shafts of long bones. 20 takes essentially -- it heals by forming new bone around 21 the site of the fracture, and it -- the bone healing occurs 22 like a knot. 23 fracture site. 24 usually the ribs are very smooth and sort of thin, curved 25 structures. 26 in the middle with no hemorrhage around it, that's a 27 healing fracture of, say, a rib. 28 hemorrhage, that's an acute fracture. When a fracture starts to heal, it It's like a big lump of bone right around the So when you're looking inside a body, And you're looking at them and see a big lump If all you see is the 420 The same thing will happen in long bones. 1 When 2 they first crack, there's hemorrhage associated with them, 3 they are swelling. 4 and the bone starts to heal, a callus will form, which is 5 the knot of new bone. As the hemorrhage and swelling subside And, so, when we take microscopic sections, we're 6 7 looking for the presence of reaction and healing process. 8 And, generally, with bones, we can -- we can say they are 9 acute if they happen within, like, less than a week, or 10 they may be -- they might be a couple of weeks old or they 11 might be almost healed. 12 month old, but we can't be much more definite about time. 13 We can't really give an exact date when a fracture would 14 have occurred. 15 Q So they are several weeks to a Which of those three categories did this rib 16 fracture fall into? 17 Less than a week? Couple weeks? Or longer than that? 18 A Less than a week. 19 Q And which -- which rib itself was fractured? 20 A It was the ninth rib on the right side. 21 Q Counting from the top? 22 A Top down, yeah. 23 Q Show you what's been marked for identification as 24 People's Exhibit 48. 25 Doctor, you might need to turn that television on. Showing you People's Exhibit 48. 26 27 28 Is this a representation, a diagram of a rib cage? A It's a diagram of a rib cage viewed from the 421 1 2 3 back. Q Okay. So, the -- the pointy bones in the middle there, that's the spine, the vertebrae? 4 A Yes. 5 Q And you said it was the ninth rib down from the 6 top on the right or the left side? 7 A On the right side. 8 Q So this being number one? 9 A That would be two. 10 Q That there is one, two, three, four, five, six, 11 seven, eight, nine. 12 Is this the rib it would be [indicating]? 13 A Yes. 14 Q And where on that rib was the fracture? 15 A Right -- 16 Q Adjacent to where it connects to the vertebral 17 column? Right here [indicating]? 18 A Yes. 19 Q Just going to put a circle in that area. 20 Did I place the circle properly? 21 A Yes. 22 Q Now, did you go through an examination process of 23 Eric's head? 24 A Yes, I d.id. 25 Q Did you notice any injury to his scalp? 26 A There wasn't an injury to the external scalp as 27 you're just looking at the baby, other than where these 28 drains were put in. A drain and a bolt were put in -- in 422 1 the anterior part behind the hairline. 2 But as far as an injury visible externally, no. 3 4 Q Okay. Was there any -- any hemorrhaging in the scalp itself? 5 A Yes. 6 Q What was that? 7 A Well, when we -- when we're examining heads, ~~ - << ~'~ An incision is 8 we're going to do t:he internal examination. 9 made from behind one ear over the top of the head to behind And the scalp, the back part of the scalp 10 the other ear. 11 is peeled off the skull backwards, and the part is peeled 12 forward. 13 of the scalp and you're looking right at the bone and the 14 covering of the bone. 15 that's tightly to the bone periosteum called the skin of 16 the bone, and there was hemorrhage around both of those 17 surgical procedures in the and then sort of on the top in 18 the midline. 19 within the deeper layers of the scalp. So you're actually looking at the deepest parts There's a really tight membrane TherE=_ was about a one-inch area of hemorrhage But even after I'd seen that and I pulled the 20 21 scalp back to look at that again externally, I couldn't see 22 any external evidence of that hemorrhage. 23 24 25 Q Was that. -- in a six-month-old baby, was that a suspicious injury to you? A Well, it might not be. It depends on the y 26 circumstances. 27 injuries and the other injuries are suspicious, then sort 28 of any new injury is suspicious. If you have -- if you have a bunch of It -- if I was doing the 423 ..-~ ! 5~~~ ~ %6~ 1 autopsy under different circumstances, it would indicate 2 that there had been some trauma to the top of the head, ~Y: ' lr/r"~71 C5=CN7/ y?r> ~'P ~5J v,Ct,..i..yf> - I~meari, an infant, a 3 some sort of a bump or fall. 4 six-month-old infant, generally isn't going to create. by 5 themselves a situation -- no, I guess -- I guess I can 6 think of a few situations, as a former pediatrician. 7 who rock themselves, you know, in an infant rocker and flew 8 out of the rocker and landed on the floor. 9 actually, my oldest son flew right between my wife and I. 10 11 Q Kids That's -- You didn't see -- you didn't see any injury associated, any bruising associated with that, did you? v t9 a„!•~6 12 A The subdural hemorrhage is a hemorrhage -- you 13 can describe it as a deep bruise, but, by bruise, if you 14 mean something you can see that anybody would have seen 15 just looking at the baby before the baby died, no. 16 Q Okay. I'm going to show you what's been marked 17 for identification as People's Exhibit 20. 18 Do you recognize these diagrams? 19 A Yeah, these are diagrams I prepared. 20 Q I'm going to zoom in on the upper left of the It's the circular area in the middle of the 21 diagram. 22 outline on the top of the head. 23 subdural hemorrhage was? Is that the area where the 24 A Yes. 25 Q That would be a view looking down on the top of 26 Eric's head? 27 A Right to the top of the skin. 28 Q Now, after you looked at the scalp, you looked 424 The hemorrhage isn't so 1 the nerve was the darker blue. 2 much in the nerve itself as in the tissue around the nerve. 3 4 5 Q Were you able to see any retinal hemorrhaging with respect to Eric's eyes? A Not -- not at the time of the autopsy. 6 microscopic sections of the eyes and saw -- saw 7 I made hemorrhaging in thf= microscopic sections. 8 Q Is that both eyes? 9 A Yes. 10 Q was the damage to the optic nerve sheath, was 11 that both eyes as well? 12 A Yes. 13 Q Now, prior to making the microscopic sections of 14 15 Eric's eyes, are the eyes themselves actually sliced open? A The eyes are removed, then they are fixed -- like 16 all the tissue before, we make microscopic sections, put it 17 in formaldehyde -- term for it -- and what the 18 formaldehyde does for most tissue, it makes it firmer, 19 stiffer, so that then when you go to make a cut, it's 20 easier to get a ni~~e thin section in the plane that you're 21 trying to make the section in. 22 tissue. 23 24 Q And that's true in most And when the eyes were cut, were you able to, with the naked eye, see the hemorrhaging? 25 A Yes. 26 Q Did you notice any injuries to Eric's leg? 27 A There were no external injuries. 28 Q How about fractures? 437 1 A Well, when we took -- we took Xrays, and the 2 Xrays showed some periosteal reaction, more prominent 3 around the right leg. ~- 4 Q Okay. 5 A So then I dissected the leg to look for any 6 evidence of acute injury, which would be hemorrhage, and I 7 didn't see some. 8 the bone in the right leg, and microscopically I saw 9 evidence of new bone around the central femur. 10 :But I took a section of the right femur, Symmetrically around it, there was another layer of bone. Q Was this different than what you saw on the left 13 A Um, I only looked at the right leg. :~~ ~~ 14 Q Did you list the injury that you saw as 15 asymmetric? 16 A 11 12 leg? The asymmetry was from the -- I listed it that 17 way, but the asymmetry was more prominent in the right than 18 left was from the Xray. 19 20 21 22 23 24 Q From the Xray, it was different from the left A Correct . Q Are you able to determine whether the healing to leg? _-- that right leg is necessarily inflicted injury or not? A Well, there is a condition where you can get 25 periosteal reaction in growing bones rapidly growing in 26 infants, and it's a normal consequence of rapid bone 27 growth. 28 When you take the Xrays, you'll see the same amount of Usually it's -- in those cases, it's symmetric. 438 And those kids 1 reaction in the right leg as the left leg. 2 don't have any other injuries. 3 the -- we do a lot of autopsies for sudden infant deaths, 4 the majority of which end up being sudden infant death 5 syndrome, and we might see this Xray picture in those 6 cases, but that's all there is. 7 So there is, in this case, it was asymmetric, and this was 8 a child who had ot7ler injuries I felt were inflicted; so I 9 thought it's likely this was inflicted, too. `~' ,~ ~F , y~ We see them, like, in There's no other injury. k~ : 10 Q Based on the record -- your review of the medical 11 records, your review of the history of how these injuries 12 were claimed to have been inflicted and the autopsy that 13 you performed on Eric Patkins, the microscopic examinations 14 that you did, and your years of experience and training, do 15 you have an opinion as to what caused Eric Patkins' death? 16 A Yes. 17 Q What is that opinion? 18 A Abusive head trauma. 19 Q Why do you say that? 20 A Well, because I think the -- the -- the whole 21 picture is -- tells me that these injuries were inflicted. =~~- 22. They were not accidental, in the sense of something that 23 the infant did themselves. 24 generate that kind of energy. 25 Q All right. Six-month-olds generally don't And you reviewed the history that at 26 approximately 6:00 or 6:15 p.m. on April 27th of 2001, 27 Eric Patkins was fine, and the following morning when 28 paramedics got there, he was exhibiting crying; and roughly 439 1 an hour later, CT scans show fractures to the skull and 2 hemorrhaging in the brain. 3 history that the baby was claimed to have been dropped from v,r distance of about 18 inches onto carpeted stairs. a 4 Are the injuries that you saw consistent with 5 6 7 And you also are aware of the that history? A Well, well, no, in two senses. One sense, they 8 were -- they were injuries of different ages; so certainly 9 the older skull fracture didn't occur from a fall on the The rib fracture, the 10 carpeted stairs on that morning. 11 posterior rib fracture, might have occurred at the -- 12 around that same time, and the occipital fracture at the 13 base of the brain might have occurred at the same time as 14 the injury to the brain, but the injury that led to the 15 subdural hemorrhage on the right side and the fatal brain 16 injury, that -- those all could have occurred at the same 17 time, um, but the mechanism of a fairly short fall, 18 Y~~;ye5 18 inches or even 24 inches, on carpeted stairs, I wouldn't 19 expect to, number one, give this fracture at the base of 20 the skull and, two, cause a significant brain injury 21 associated with it. In addition, from my review of the records, there 22 y,~, 23 24 25 26 27 28 v v ~! r ,. appeared to be a delay in calling for medical assistance. Q Okay. THE COURT: Mr. Hughes, I think we'll go ahead and take about a ten-minute recess right now. We'll be in recess. [Morning recess- taken.] 440 The jury is again seated. 1 THE COURT: 2 Mr. Hughes. 3 MR. HUGHES: DIRECT EXAMINATION (Resumed) 4 5 6 Thank you. BY MR. HUGHES: Q Dr. Trenkle, you told us what would not cause 7 these injuries, these acute injuries. 8 What would cause these acute injuries? 9 A Well, by acute injuries, I would say, talking 10 about the fracture at the base of the skull, the right 11 side, the injury to the brain, the subdural hemorrhage, the 12 subarachnoid hemorrhage, and the ninth rib fracture in the 13 back, that's a blunt-force injury. rr~ , ref, v, vE' +a f' 14 Blunt force, meaning blunt force applied to the And 15 base of the head essentially where the fracture was. 16 blunt force can be force as applied to a head, a blow to 17 the head, or they can be the head hitting -- a moving head 18 hitting another object like a fall. y~-6~~~~ y61 < ~a 6;a 19 So I think the rib fracture, the most common 21 mechanism for posterior rib fracture in the infant, is , ;r~ _~~o having the chest squeezed and the rib, sort of the end of 22 the rib leveraging against where it attaches to the back 23 bone and cracking at that point. 24 blow, it's usually the chest being squeezed, the rib. 25 Otherwise, it's -- they are really pliant and mobile. 26 are not really stiff and brittle. 27 back of the head with someone squeezing the ribs would 28 generally mean that the baby is hit against something. 20 So, rather than being a They So severe blow to the 441 ~ 1 That would be, I think, the easiest explanation for these 2 injuries. 3 4 Q All right. How hard would the baby have to be hit against something to cause the injuries that you saw? 5 A Very hard. 6 Q Would falling from a height of 18 to 24 inches 7 onto a carpeted stair be hard enough? 8 A No. 9 Q One of the things you mentioned previously in 10 talking about blunt-force trauma, you talked about a fall. 11 What type of height of fall are you talking about that 12 would be required to cause this type of injury?rsp 13 A Well, it's -- there are different factors. 14 ~ Basically, you're not going to get this kind of injury -- 15 a -- your standard accidental falls in infants, which are 16 usually from a parent's arms if you're walking with the 17 child and you stumble or slip on wet linoleum or something 18 like that, and the baby falls, falls off of beds, falls off 19 of changing tables, kitchen counter heights, they rarely 20 cause fractures. 21 . ~~y ~s ~, ~~~s~~, When they cause a fracture, it's usually up in 22 the parietal bone, and there's no -- there's no brain 23 injury associated with it. 24 So fatal fractures from falls, you know, a height 25 greater than 10 to 20 feet. 26 infants who fall out of windows in cities where they have 27 multiple-story buildings that children fall out of, it's 28 usually not until you get past the second floor that you When you look at children or 442 You may get broken bones falling out 1 get fatal injuries. 2 of a two-story window, break your arm, break your leg, but 3 you don't start dying from head injury until you get to 4 falls higher than that. a The height is one issue. y?t[was' The other issue is what you fall against. 5 I 6 mean, if you fall -- stunt people jump out of 15-story 7 buildings onto an air bag and then survive; so it's what 8 you land on, is the other thing. 9 you land on, the more likely you're going to have an So the harder the thing 11 And then the shape of if you land on, something ~ :;.~ ~„ ,~,, N~,~ , . ~ that's sharp and sort of pointed, there would be more force 12 applied there. 13 spread out over a broader area. 14 factors that go into it other than just the height of the 15 fall. 10 16 injury. Q 19 There's a lot of different Got you. But we're not talking about the type of fall that 17 18 If you land on the ground, the force is was described in the history? A No. 20 MR. HUGHES: 21 THE COURT: 22 MR. SACHS: I have nothing further. Mr. Sachs? 23 Thank you. Thank you. CROSS-EXAMINATION 24 25 All right. BY MR. SACHS: 26 Q Morning. 27 A Morning. 28 Q You've been involved basically in child abuse 443 1 since about at least 1983, I guess; is that fair to say? 2 A Yes. 3 Q You were involved with the C.A.N. Team or the 4 team in San Bernardino as a pediatrician, I guess, from 5 1983 to 1990? 6 A Correct. 7 Q Testifying basically for the prosecution at that 8 time in many child-abuse cases; is that fair to say? A 9 10 testify. Q 11 Well, I testified for whoever wanted me to As it turned out, it was 95 percent prosecution. Since you joined the coroner's office in 1990, 12 would it be fair to say in child-death cases, would you 13 testify probably close to a hundred percent for the 14 prosecution? 15 A That be fair to say? Again, I've had defense attorneys ask me to 16~ review cases, and I have and given them an opinion, but 17 I've -- it's never led to testimony. 18 practical purposes, the testimony I've done in child-abuse 19 cases is being called by D.A.'s. 20 Q So, again, for all Certainly when you see a child death with A 21 multiplicity of injuries like you see here, you sort of 22 suspect some type of child abuse. 23 say? 24 A Would that be fair to Well, I think it would be fair to say that any 25 physician looking at an infant with multiple injuries, that 26 should be part of their differential diagnosis. 27 28 Q But you are, are you not, conditionally fair to say -- or is it fair to say you're sort of conditioned to 444 1 look for evidence of child abuse when you look at a child 2 death under suspicious circumstances, where there are 3 suspicious circumstances? Well, I mean, it's -- I wouldn't say you're 4 A 5 conditioned. 6 one of the things you're saying, is this child abused? 7 this inflicted injury? 8 So you always think of child abuse, but you always say, is 9 there another way that this can be looked at that would 10 You're required to look at everything, and Is Or is there another explanation. reasonably explain what I'm seeing or the whole picture? Q 11 As a pathologist, when you're called upon to 12 render an opinion as to the cause of death, you basically 13 look at the body and do your normal routine and render an 14 opinion based on evidence you find at the time of the 15 autopsy, isn't that basically for the most part what you 16 do? 17 A Well, as far as the overt evidence of injury, 18 that's what we see at the autopsy. 19 forensic pathologist, that's all you have. 20 the body is just found somewhere. 21 explanation. 22 and then you're left with just looking at the injuries. 23 But in many cases as a There is no -- There is no There's nobody to give you any background, In other cases, there are medical records, there 24 are family members, there are -- there's a historical 25 background to the case. 26 background in the case, I take that into account, too. 27 Q 28 pages. And when there is a historical This report, your protocol, I believe is nine Basically, the first three or four pages are 445 1 basically summarizing what happened in this case even 2 before you got involved; isn't that true? 3 Yeah. A I would say that's -- that's just the way Other pathologists in our office 4 I tend to do things. 5 would be -- might summarize all of the medical records in 6 one page or even a half a page. 7 Even in your protocol you went so far to even Q 8 talk about statements Mr. Patkins made to various people. 9 You put that in your protocol; correct? 10 A Correct. 11 Q And you mentioned right before Mr. Hughes 12 concluded with you, I mean, the alleged delay in reporting 13 Mr. Patkins made with respect to injuries that Eric Patkins 14 had suffered. 15 in a protocol, the statement that the person on trial would 16 have made? 17 A Is that something you would ordinarily put Well, you're telling me I put it in my protocol 18 and then you're asking me is that something I would put in 19 my protocol. 20 Q I did so. Why would you put a particular statement of a 21 perpetrator on tri~~l in your protocol when you're asked to 22 determine what the cause of death is? 23 A Why would I not? 24 Q Are you attempting to justify your conclusion by I mean -- 25 comparing your conclusions to what statements an outsider 26 made, namely, Mr. Patkins? 27 28 A I guess :I wouldn't categorize as trying to justify my conclusions. That's part of the whole picture 446 yyo ~r 1 of the injury, is that the history that I'm given, and the 2 history may include statements that people make. 3 I think it would be a mistake to ignore all of that and 4 just look at the injuries themselves and not try and put 5 the injuries into some context of a history. 6 any reasonable physician does that, and no reasonable 7 pathologist does that. 8 9 Q You know, I don't think Absent statements that -- exclude for just a moment statements were given to you as to what supposedly l0 happened to Eric at the time. 11 have been able to come up with a diagnosis to the cause of 12 child's death? 13 14 Are you saying you would not A No. Q So in your protocol that you prepared for In this case, no. I would have been able to. 15 16 San Bernardino County, you routinely summarize police 17 reports in your autopsy protocol? 18 telling us? 19 A Is that what you're I'm not sure what you mean by "routinely," but I 20 would say that I do it more than anyone else in the 21 office. 22 and they will make their decision based on that 23 information. 24 death the way I do. 25 Q Everyone else in the office will read the reports, , They just won't put it into their history of Okay. I'd like to turn to the rib fracture that 26 you indicated on the ninth, a post -- the ninth posterior 27 rib. 28 make any determination on that? Was that a fracture -- a hairline facture? Anyone 447 1 A You might get the fractured rib if you shook the 2 baby, from gripping the baby around the chest, but you're 3 not going to get a fracture of the skull from shaking a 4 baby. 5 Q So that part of the skull had to meet some kind 6 of a blunt-force trauma? 7 Is that sort of what you're saying? 8 A Yes. 9 Q Does the same hold true -- what -- I'm talking 10 about the fracture of parietal regions as well. 11 not caused by shaking a baby? Those are Is that also fair to say? 12 A That's correct. 13 Q Now, you're obviously familiar in your work with 14 the concept of shaken-baby syndrome, I assume, Doctor; 15 correct? 16 A Yes. 17 Q I'm sure you studied back that -- back in 1983 18 19 20 when working as a pediatrician? A I started pediatrics in '73. I think it was first described in '71, so -- 21 Q For a while? 22 A Yeah. 23 Q When you shake a baby vigorously, and I take it 24 you have to shake a baby vigorously for the shaken-baby 25 syndrome to come into effect. 26 A Yes. 27 Q Okay. Fair to say? 28 And certainly a child, six-month-old, they usually don't have well-developed neck muscles; isn't that 451 1 true? 2 A True. 3 Q Do you normally find in your experience-that 4 there is some damage to a child's neck muscles when you are 5 suspecting a shakeiz-baby syndrome? 6 A Typically, I guess, by damage, the kind of damage 7 would be hemorrhage or tearing of muscles, and that's not 8 been described in cases of shaken-infant syndrome. 9 it could happen, but it's not something you expect to see, I guess I mean, you don't 10 and it's not part of the definition. 11 have to see damaged occipital muscles in a shaken infant. 12 Q Are you aware of any medical literature that 13 talks about the neck damage when it comes to shaken-baby 14 syndrome? 15 A There are a lot of people who are looking more, 16 not so much the damage to the neck muscles but damage to 17 the brain stem and the upper cervical spinal cord as the 18 site where the fatal injury would occur in shaken-infant 19 syndrome. 20 Again, t:he shaken-infant syndrome, people who 21 describe that people who got significant central system 22 injury, and that's different than the muscles in your neck, 23 an injury to the muscle in your neck might cause some pain 24 or stiffness, but it's not going to affect your brain. 25 injury that causes an injury to the muscle might cause an 26 injury to the brain, the upper cervical spine, and that's 27 28 - - that's what we think happens in shaken-infant. The That's where we really think of the pathology, not so much the 452 1 2 muscles. Q But the head, the phenomenon of shaken-baby 3 syndrome, they are shaking, the skull is going a different 4 speed than the brain, and the head is moving back -- 5 A The idea, because the person doing the shaking is 6 so much more stronger than the baby, that the baby's head 7 is moving back and forth, and it can -- it can lead to 8 subdural hemorrhagE; or hemorrhage of the upper spine or 9 brain stem. There are reported cases of shaken adults, 10 adults who have been shaken enough to cause the injuries. 11 Again, smaller adu:Lts, stronger person doing the shaking; 12 so -- 13 14 Q You didn't find any evidence of any damage to the child's neck in this case; correct? 15 A No. 16 Q There's ~zo hemorrhage attached to the neck 17 ' muscles or anything of that sort? 18 A No. 19 Q Number 19 for identification. This is the 20 healing fracture that you observed on the left parietal 21 area; is that corrE=_ct? 22 A That's correct. 23 Q And were you able to determine some kind of age 24 25 for that particular fracture? A well, I'.11 tell you only in general terms. It's 26 more consistent with having occurred more than a month 27 prior rather than within a few weeks. `= - 28 Q Now, let me understand how the bleeding that you 453 ~--o 7 talked about in the actual subdural and subarachnoid areas. As I understood your testimony, there was bleeding 6L L.~3Y y into the right of this -- I'm showing Number 22 for 4 identification. This indicates the subarachnoid area diagram. 6 This area here is the right side of the [indicating]? 7 A Subdural. `l1~ ~.~ z6_ 8 Q Subdural. 9 A Yes. 10 Q Okay. This is recent, then;. is that right? Nc~w, the sub -- subarachnoid that you 11 indicated, it was also on the -- that was on the left side, 12 then; is that right:? - 13 A Yes. 14 Q So the subarachnoid bleeding would have been 15 different than the bleeding here in the subdural? 16 A That's correct. 17 Q A different area? 18 A Well, it's a different side of the brain. The 19 subdural is more on the right midportion of the brain, the 20 subarachnoid is mo~.e diffusely over the whole left side of 21 the brain. 22 that very thin, tightly adherent to the brain. 23 on top of that, anti subarachnoid is underneath it. 24 anatomically different part of the layers of the central 25 nervous system. 26 27 . ~ r 28 Q And if you take the subarachnoid membrane, it's Subdural is So it's Orie is on -- How does the bleeding go to the subdural into the subarachnoid area? A well, it -- 454 Q Just a deeper type of injury, more severe? A red Well, if you have somebody, say, with a ruptu those layers. aneurism, you can get hemorrhage in all of 9 blows out If you have someone with a severe stroke, just G all of those part of the brain, you can get bleeding in E different layers; but generally there are slightly i subdural mechanisms that act for subarachnoid versus 8 hemorrhaging. 10 any Are there any recent -- you didn't discover y6~ stent with recent fractures o~ the brain that would be consi 11 is that the bleeding that you observed into the skull; 12 right? 13 A Could you rephrase that? 14 Q You talked about some fractures of the brain that 9 ~- 15 Q you observed both on the parietal and the occipital? Well, a fracture only applies to the skull, the 16 A 17 bone; so -- 18 Q There wouldn't be any bleeding seeping down below 19 f was the fractures, then, just talking about the bone itsel 20 fractured? 21 A Ex ~~ The bleeding we're describing in this diagram is This is -- this 22 not bleeding from ~~ fracture of the skull. 23 is -- I think that the bleeding comes from the same 24 trauma. 25 this bleeding, but it's -- 26 27 28 Q So what c~~used the fracture of the skull, caused The occipital-lobe fracture, that was of a recent vintage, I think .you told us? A Occipital.-bone fracture is recent. 455 1 after the brain is removed, the Jura lays against the bone 2 at the bottom of the brain; so this is blood that's visible 3 in the subdural space. 4 Q This be on both the left and right side? 5 A That's correct. 6 Q Now, this is fresh bleeding, as you say? 7 A Yes. 8 Q Now, showing Number 22 for identification. 9 10 You also showed us this was also recent bleeding here on the right side [indicating]? 11 A Correct. 12 Q Is that the similar type bleeding of what we saw 13 in the previous picture? 14 to the brain? 15 A 16 brain. 17 Q Same, just deeper to the region This -- the subdural blood lies on top of the It doesn't_ go into the brain substance. ~F Okay. So going back to, again, Number 21. This 18 bleeding that we see here, is it your opinion this is still 19 20 the result of one traumatic episode, the bleeding we see ,. ,.s here as opposed tc~ the epidural bleeding as well 21 [indicating]? 22 23 24 A Yes. ~~_ -~._ I think it's all consistent with one t raumatic episode. THE COURT: When you say, "one traumatic 25 episode," are you talking about more than one blunt-force 26 trauma event? 27 28 THE WITPIESS: All you would need would be one ~,, blunt -force trauma event, but there may have been more than 461 1 one. 2 3 site of blunt-force injury. That's one event, being a blow __ or a fall, would be sufficient to account for all the 4 damage. 5 There's only evidence on the skull fracture of one - ~~ Q .. _ -_ (By Mr. Sachs:) That's what I was going to get I'm trying to understand for myself and perhaps 6 into next. 7 for the jury, all the -- what areas of the brain we had 8 evidence of the recent bleeding as opposed to old bleeding 9 you talked about. We start off with the fresh fracture, 10 occipital, that you told us about this morning, that you 11 think sort of started the ball rolling, the fresh fracture? 12 13 A Again, the fracture is just a marker of a blunt-force injury. 14 Q Okay. 15 A Many, many fractures have no associated brain 16 injury at all. 17 Q I understand. 18 A This one did. 19 Q And best medically -- the most reasonable medical 20 explanation, contact with sharp object? 21 A Blunt object. 22 Q Blunt object. 23 Then, as a result of that, we have the bleeding 24 that we see in Number 22, the subdural bleeding on the 25 right side of the brain, which is fresh; is that right? 26 A Right. 27 Q That could be attributable to that same skull 28 fracture you just made reference to; right? 462 1 Again, it's attributable to the same injury that A 2 caused the skull fracture could have caused the subdural 3 bleeding. Q 4 And then we have 21, again, for identification: 5 We have -- the bleeding here could have been attributable 6 to that same? 7 A Same injury. 8 Q Same injury. And then we have -- which is Number -- excuse 9 I think you told us 10 me -- Number 14~for identification. . 11 before this is the picture, this area here, the 12 subarachnoid hemorrhaging; is that right? 13 A The subarachnoid hemorrhaging is over -- the 14 whole hemorrhage is spheric sort of compared -- what -- the 15 way I'm looking at the picture on my left to the right, 16 there's more -- 17 Q From here to here [indicating]? 18 A -- more dark coloration from side to side. 19 Q Speaking of this area here [indicating]? 20 A There are two areas of hemorrhaging showing 21 here. 22 and the other is fresher; so just depends on where you put 23 the pinpoint. One is older, one that occurred, say, a month ago g-,. 24 Q Is this the more recent [indicating]? 25 A That's the older one. 26 Q Over here would be the more recent [indicating]? 27 A No. 28 The whole left hemisphere, all -- I keep wanting to point to my screen here. I can come down there. 463 1 Q Maybe that would be helpful. 2 A This area here, just -- I am circling with the 3 pen -- is the site of the older injury underneath the 4 parietal fracture 'that was healing. 5 hemisphere here, particularly out on the sides here, the 6 sort of reddish-brownish color is -- that's all 7 subarachnoid hemorrhaging on the right side of the brain. 8 You can see individual blood vessels that have blood inside 9 the blood vessel. But this whole The blood that appears darker on this -- 10 this side of the brain, although swollen, it doesn't have 11 the subarachnoid hemorrhaging. 12 more. 13 would be more dramatic. 14 straight down so you can see the top of the left side, top 15 of the right side with the whole left side having more 16 diffuse subarachnoid hemorrhaging. 17 18 Q This side of the brain has If you -- if you saw a view from the left side, it This is one looking sort of This area here, the more diffuse area, that's clearly recent bleeding? 19 A Yes, it is. 20 Q A couple days of the child's death, then; right? 21 A Yes. 22 Q Okay. 23 Thank you. That kind of bleeding you just described, that 24 can also be attributable to the same injury, the fracture 25 to the occipital? 26 A The same injury that caused the fracture could 27 cause that subarachnoid hemorrhage, the fresher more recent 28 subdural hemorrhage. 464 1 instrument; is that fair to say? 2 A That's correct. 3 Q If we -- can we just turn real quickly to the 4 femur? 5 was that? 6 through-and-through-type fracture? 7 8 I understand you to say -- what kind of fracture Were you able to tell? A No. Was this hairline, ~~~:, ~e> r~E This was -- this was a circumferential -- it wasn't really a fracture, but it was as if -- 9 Q You mean -- 10 A Like a break in the bone or crack or hairline. 11 This was an instance where the external layer of the bone, 12 13 the periosteum, which is usually very tightly inherent to ~~cF«_ the bone, yet sort of the leg can get twisted, the 14 periosteum is sort of torn off of the bone, creating an 15 injury between the periosteum and the bone. 16 heals. 17 elevated periosteum. 18 femur, just cut it in cross-section right through the bone, 19 you can see that whole layer of new bone being formed 20 around it. 21 reaction from an injury, but it's not an actual crack of 22 the bone. 23 • 4 2 25 26 27 28 Q It then When it heals, it gives this Xray appearance of And when you take a section of the So it's, I'd say, it's an exuberant periosteal In terms of your ability to date that, several weeks; is that fair to say? A Yes, several weeks to, you know, could be six weeks or eight weeks. Q The most likely way in which that could have been done is by a twisting motion? 467 1 I think, as I described before, if it's A 2 inflicted, it's twisting like the leg or whatever, the arm, 3 gripped tightly, and there's some twisting motion so that 4 the periosteum strips. 5 Another phenomenon I talked about, the rapidly 6 growing bone, wher? you have very symmetric -- looks the 7 same on the left as it looks on the right -- which we 8 don't -- the medical profession doesn't think that's really 9 an injury. 10 11 12 13 That's probably just a result of very rapid bone growth. Q That's what you're saying in this case you believe, or you're not sure? A In this case, because in this case it was 14 asymmetric, much more pronounced, I say more pronounced on 15 16 the right side than the left side, and there were these ~,, ;a other injuries, my inclination is to say this was likely an 17 inflicted injury rather than being the result of rapid bone 18 growth in a six-month-old infant. 19 20 21 22 23 24 Q Did I understand you to say, though, that you didn't X-ray the left femur, though? A We X-rayed both femurs. What I didn't do is take a section of the left femur to compare it from the section +.., I took from the right. Q If I could ask you, since we're talking about the 25 femur again, ask you to look at Number 18. 26 on the diagram to the far left of this picture, would there 27 be an area on the right knee, right leg, or child where you 28 can tell us with the same green dot where the femur would If we focus in ~ .: 1 have been? 2 A Well it's the whole -- from the hip to the knee. 3 Q If you can circle that area for us with the green 4 5 marker? A Sure. [Witness complies.] 6 MR. SACHS: May I approach, your Honor? 7 THE COURT: Yes. 8 THE WITNESS: 9 10 11 12 I can -- I can just -- you just want it on the right or both sides? Q (By Mr. Sachs:) Where you found the evidence of abnormality there? A I'll draw a long line where the bone would be, 13 and on the right side I'll put a cross where I took the 14 microscopic section. 15 Q 16 Okay. Showing you 18. So it looks like you've drawn on the far left 17 picture of this diagram the long straight line that 18 indicates the whop=_ femur bone; is that right? 19 A Yes. 20 Q On the right side, you also drew a straight line 21 on the left leg as well. 22 on the left leg? That's also to indicate the femur 23 A Correct. 24 Q There's a crossing here like where the area was 25 that you located the, what you thought was possibly a break 26 in the femur? 27 28 A The periosteal reaction with a new bone formation. ,~. 1 2 3 Q It's a recognized document or piece of literature in your field? A . It's the official journal of the National 4 Association of Medical Examiners, which is basically the 5 American organization of physicians, like myself, forensic 6 pathologists that work in the coroner or medical examiner 7 system. 8 Q That's a peer-review article as well? 9 A Yes. 10 Q Can you explain to the jury what a peer-review 11 article is? 12 A If you want your article to be published, you 13 write your article, submit it to the editor of the journal, 14 then the editor sends it out to a group of forensic 15 pathologists who agree to reading the articles. 16 it over and give -- they may offer criticism or what -- 17 they may say, "This is worthless. 18 which case generally the editor won't publish it. 19 basically a group of your peers looked at that article, 20 said this is worthwhile to be published. 21 editor -- then it's his decision whether he's got the room 22 to published it. 23 24 Q They look Don't publish this," in So it's Then the That article came out about the year 2001; that about right? 25 A That's about right. 26 Q Now, .did you talk about the optic nerve sheath?`~'-~ ° 27 2S JSY I just want to make reference if you have extensive retinal hemorrhaging like we did in this case, 475 1 would you also normally expect to have the optic nerve 2 sheath in the condition you found it as well? 3 A Yeah, such that they would go together. 4 Q Finally, when you were talking about your 5 protocol, you diagnosing, listing the various injuries that 6 you found, you have under "abusive head trauma," you have 7 "the right inferior occipital skull fracture, recent." 8 you see that? Do 9 A Yes, I do. 10 Q And then further on down, you have "blunt-force 11 head injury explained, remote." 12 left parietal bone fracture, remote"? You have "the superior 13 A Yes. 14 Q Can I ask, why do you distinguish one fracture as 15 being blunt-force head injury and the other fracture you 16 describe as abusive head trauma? 17 reason for that? 18 A Is there any particular Well, it has to do with the -- just the way we -- 19 an evolving way that we have of describing these kinds of 20 injuries in infants. 21 Q Certainly the right inferior occipital lobe skull 22 fracture could also be described as blunt-force head 23 injury, could it not? 24 25 26 A Certainly. I wouldn't argue with anybody who chose to do it that way. Q So when you tell us that the cause of death is 27 abusive head trauma, you're basically telling us in your 28 medical opinion this is a nonaccidental death; correct? 1 A Certainly. 2 Q That could have come about in a variety of ways, 3 then. 4 preceded in your explanation by some sort of blunt-force 5 trauma that the baby didn't generate itself? Namely, it could have been -- well, had to be 6 A Right. 7 Q Could it come about -- a blow to the baby's head 8 by, you know, a board or a hammer or something like that, 9 or baby hitting it's head against a hard surface? That 10 fair to say? 11 A Yes. 12 Q And as a result of that blunt-force trauma, then, 13 the inferior bleeding which you've described quite 14 comprehensively for us probably started taking place; 15 correct? .~ 16 A Correct. 17 Q So, in your medical opinion, then, this baby is 18 not necessarily a victim of shaken baby, then; is that fair 19 to say? 20 A Well, I think that's fair to say; and I didn't 21 use that term, the term "shaken baby," I don't think I used 22 anywhere in my report. '-- 23 MR. SACHS: 24 Thank you, Doctor. 25 THE COURT: 26 MR. HUGHES: 27 28 I don't have anything further. Mr. Hughes? Thank you. REDIRECT EXAMINATION BY MR. HUGHES: 477 1 Q Performing your autopsy and reviewing all the 2 records, you're focusing on determining the cause of death; 3 is that right? 4 A Yes. 5 Q Okay. 6 In this particular case, death is caused by that blunt-force trauma; is that right? 7 A Yes. 8 Q It's also possible that the baby was shaken; is 9 that right? 10 A The baby may have been, but, um, I think all the 11 injuries can be explained by blunt-force injury. 12 but I can't say the baby, from the autopsy, my review, I 13 cannot say the baby was not shaken. 14 15 Q But -- Everything that you've seen with respect to Eric 16 is consistent with shaking, but you know for certain that ~, baby was slammed against something hard enough to fracture 17 it's skull; is that right? 18 A YCS. yr,s 19 Q Dr. Plunkett came up with 18 cases of death out 20 21 of 75,000 playground falls; is that right? A Well, what he did is -- he's a forensic 22 pathologist from Minnesota. 23 some controversy, whether a short-distance fall could ever 24 be fatal. 25 fall from a short-distance fall [sic]. 26 that was wrong. 27 28 And there had been some issue, Some people who thought, no, cannot, you cannot He thought that So what he did is go to a national data bank, the name of which is i.n the beginning of his article. It's 478 1 was the youngest, but the majority of them, as I remember 2 that paper, were schoolage kids. 3 Q Okay. Now, counsel asked, "Are there other 4 mechanisms that can cause diffuse retinal hemorrhaging?" 5 You said, "Yes.° 6 Are there any other mechanisms that can cause 7 diffuse retinal hemorrhaging that you saw in Eric Patkins 8 that came into play in this case? 9 A Well, no. I think trauma is the best explanation 10 for the diffuse retinal hemorrhages here. 11 is associated with increased basically brain swelling and 12 increased pressure inside the brain. y ~ , , .r' y'L Now, here trauma ___._. .. ._____-.____..... . _-.. ___._._ 13 And, say, if you have a case of a near drowning 14 w here someone, a child, is pulled out of a swimming pool, 15 and they are resuscitated but they've been without oxygen 16 for a significant amount of time so they get hypoxic brain 17 injury. 18 there, you might see a few scattered retinal hemorrhages in 19 that scenario. 20 because you probably would have gotten Xrays, you've done 21 an exam, you wouldn't find any evidence of trauma, you'd 22 say, in this case, I think these retinal hemorrhages are 23 due to the increased -- the brain swelling. 24 reason to, in a case like this, to say, well, these -- in 25 this case, the retinal hemorrhaging are only due to the 26 swelling. 27 caused the swelling caused the hemorrhages. 28 trauma caused the swelling, it caused the hemorrhages, F Their brains might swell. If you look at the eyes Would you sav it's not due to trauma But there's no I mean, from that logic, you can say whatever Since I think ~ •~ 1 2 3 albeit perhaps indirectly. Q Okay. And, again, the swelling causes more spotty hemorrhaging than what we see here? 4 A No, the 'trauma does . ~ ''- ~ _` 5 Q Okay. Now, with respect to the healing parietal 6 fracture, the symptomatology that may have been visible 7 could have been as minimal as the baby being fussy for a 8 few days? 9 A A combination of fussy and lethargic. And 10 because babies mostly cry and sleep and poop and eat, 11 that's about all a baby does, and they do it in various 12 amounts, and sometimes they are fussier and cry more than 13 other times. 14 doing neurologic exams and checking reflexes and shining 15 lights in the eyes and measuring that kind of thing like a 16 doctor would do, a caretaker might not recognize that the 17 sleepiness or fussiness was due to the injury rather than 18 just the normal various infant behavior. 19 Q They sleep more, you know. Unless you're You mentioned that you have been consulted at 20 various times by defense counsel to see if you agreed with 21 other coroner's opinions; is that right? 22 A Well, it's -- I was a -- I was a pediatrician. 23 would be approached by defense attorneys as a forensic 24 pathologist. 25 26 Q I've reviewed records on their behalf. Ever have a difference of opinion with a person who reached a conclusion in the records? 27 A Yes. 28 Q You've just never come in to testify about it? .; I A 1 Right. Either -- well, I mean, you give your You say this is what I think. This is where I 2 opinion. 3 disagree with this person. 4 calls you back to say, "Will you come to court, say this?" 5 Either they decided not to use it, or they found another 6 way to use that, or the case was settled in some other 7 way. 8 in court. 9 10 And then the attorney never But it's never come to a situation where I testified Q There are other doctors that do this type of consultation; is that right? 11 A Many. 12 Q You've had trials where you testify on one side 13 and another doctor comes in and gives a different opinion 14 than you did? 15 A Sure. 16 Q Much was made over the fact that you include a 17 history which includes statements by the caretaker in the 18 history. 19 conducting your evaluation, is it not? That's something that's important to you in 20 A Yes. 21 Q Why is it important to you? 22 A Well, the key to looking at injuries, either 23 fatal injuries or nonfatal injuries, is that one of the key 24 issues is is the mechanism offered for this injury 25 consistent with what you see. 26 your emergency room with multiple bruises and broken bones, 27 but they were pulled from the wreckage of a flattened car 28 that rolled in the desert, you will accept that sort of So, if a baby comes into 482 1 I trauma should lead to these sorts of injuries. 2 That raises nobody's suspicion. When a child comes, as they often do, with 3 4 basically no history of anything, just suddenly stopped 5 breathing, turned blue or had a seizure, then you find 6 skull fractures, subdural hemorrhages, retinal hemorrhages, 7 then you ask the caretaker what happened, and they said, 8 "Nothing," well, that -- that -- those kinds of things 9 don't occur out of the blue; so that's not consistent. 10 And then you get a story from a caretaker what happened. 11 "Well, this is what happened." 12 And then you have to make a judgment. 13 injuries you see in the child, that either if they are in 14 the hospital, if it's the hospital doctors that are making 15 those decisions, if the child comes to me, then I'm making 16 them. 17 fatal injuries, not just infants but in adults we see the 18 same thing. 19 autopsy, find skull fractures, hemorrhages, and then you 20 say, "Well, somebody's not giving me the full story here." 21 That's sort of the bread-and-butter day-to-day casework of 22 forensic pathology. 23 with injuries. 24 these," and it doesn't fit. 25 out of cars, out from a freeway accident, that fits the -- 26 usually that will f. it the injuries. 27 28 Do the But I need -- I need some sort of explanation for People found dead in bed. Then you do an You have the body of a dead person Thf=n you say, "What's the explanation for Again, when they are pulled Sometimes you get a case where bodies pulled out of a car that crashed and there are no injuries at all, 483 THE COURT: 1 Okay. 2 And aci~ually, before you go today, I'll read the 3 case, because I know you have to do your jury instructions. 4 12.40 will be given as to Count III. 5 All right. MR. HUGHES: 6 7 only reads "metal knuckles." THE COURT: 8 11 Uh-huh. Okay, let's talk about lessers under Count I, Mr. 9 10 And, obviously, we'll modify 12.40 so it Sachs. MR. SACHS: Yes, I am requesting involuntary 12 manslaughter. 13 manslaughter, it's basically non statutory. 14 Ancl it's not statutory involuntarily I think the jury could find this is an unlawful 15 killing done without malice and without the intent to kill, 16 and therefore, comes under the umbrella of involuntary 17 manslaughter. 18 involuntary manslaughter as non statutory. 19 that the Court -- the jury could easily find that. 20 this is not an intentional killing and it was not done with 21 malice, and it certainly doesn't fall within the definition of 22 voluntary manslaughter because after Lasco and Blackley, we 23 know you don't have to have an intent to kill for involuntary 24 manslaughter. 25 so we know it wouldn't be voluntary manslaughter. 26 think the new instructions under involuntary manslaughter have 27 incorporated the Lasco and Blackley decisions, and I do -- 28 this case falls within that category of case that would There are some cases that talk about And it seems to me Again, We don't have heat of passion or self-defense, Actually, I 1 justify an involuntary manslaughter. 2 THE COURT: 3 MR. HUGHES: Mr. Hughes? My question would be; What unlawful act, 4 not amounting to a felony, are we talking about that resulted 5 in this death? 6 try to get the language right, what lawful act which involves 7 a high degree of risk of death or great bodily harm was done 8 without due caution and circumspection? 9 that fits within the law of involuntary manslaughter. O.r what lawful act that is performed? I'll There isn't anything 10 I have a case, People versus Evers, and I have a 11 copy for counsel, and the Court -- I cited it in my 1101(b) 12 brief. 13 Court, under highly similar facts, did not instruct on 14 voluntary manslaughter, and the 4th DCA said that was 15 It's a 1992 case out of the 4th DCA in which the . appropriate and review was denied. 16 In that. case, there was 1101(b) evidence of a prior 17 shaking of a baby, and in the new case the baby was abused and 18 killed under similar circumstances by the same person. 19 the Court ruled treat giving of an involuntary, under those 20 circumstances, was unnecessary because there was no evidence 21 upon which the jury could reach an involuntary manslaughter. 22 MR. SACHS: 23 People versus Cameron. 24 THE COURT: And 25 26 The cases I would like to point out, there's Just one moment, Mr. Sachs. Let me jot down these citations and take a break and read these cases. 27 THE COURT: All right, and your cases, Mr. Sachs? 28 MR. SACHS: Yes, it's People versus Cameron, which is 30 1 Cal. App. 4th, 591. 2 THE COURT: 30 Cal. App. 4th -- 3 MR. SACHS: -- 591. The applicable language is at 604, People versus 4 5 Morales, 49 Cal. App. 3d., 134. 6 THE COURT: 134? 7 MR. SACHS: Yes, at Page 144. And People versus Burrows, 1984 case, 35 Cal. 3d., 8 9 824. 10 THE COURT: 35 Cal. 3d. 11 MR. SACHS: Cal. 3d., yes, at 824. 12 is 836. With those cases, basically talks about it's non 13 14 statutory involuntary manslaughter. THE COURT: 15 16 Applicable language All right, I will be in recess about 20 minutes. 17 (Recess.) 18 MR. HUGHES: One brief matter before we take up the We had mistakenly, I believe, indicated that People's 19 lesser. 20 4, which is the internal photograph of the baby's ribs, would 21 be admitted into evidence. 22 considered. 23 me. 24 25 That was a mistake. It was not I would request it be withdrawn and returned to THE COURT: People's 4 will be withdrawn . ~ ~ '", ~-j- h' I assume there's no objection? 26 MR. SACHS: That's correct. 27 THE COURT: People's 4 will be returned to the People. 28 All right, the Court has read the matter of 1 2 Basulta, and it does appear it is a legal lesser, Mr. Hughes. MR. HUGHES: Okay. I've si~ated my position. 3 I don't think there's 4 evidence to support it, and that's the only reason I suggested 5 we not give it. 6 THE COURT: Well, in evaluating these kinds of issues, I I don't assess the 7 do not weigh the credibility of witnesses. 8 weight of the evidence for one side against the other. 9 is a factual issue under 273(a)(b) whether a reasonable person But it 10 would know that the conduct could result in great bodily 11 injury or death, and it is a factual issue, so I'm certainly 12 not in a position to take that away from the jury, however 13 remote that conclusion might be. If you are requesting 245(a)(1) as an additional 14 15 lesser, I will give it, Mr. Sachs. 16 MR. SACHS: Yes, I would be. 17 THE COURT: All right. 18 I've also reviewed several other cases, including 19 the case submitted by the People, People versus Evers. 20 does raise ari interesting legal issue. 21 Evers -- and correct me if my recollection is in error -- but 22 in the Evers matter, we had a child, I believe two years of 23 age, living in the home. 24 This In the matter of And there was 1101(b) evidence, as well, but I 25 don't think that's necessary for purposes of my evaluation, 26 but at any rate, the evening in question, the minor was placed 27 in bed. 28 discovered lying on the floor. Mom went to bed, and the next day the child was And the autopsy results It was 1 indicated the child died from non-accidental means. 2 the consensus that the child died as a result of abusive head 3 trauma. And basically that was the cause of death. As far as the circumstances surrounding the cause 4 5 of death, the actual trial transcript, or the actual evidence, 6 was void of what happened, other than the child was found on 7 the floor basically beaten to death. 8 9 And the issue really was who did it? either mom or dad. And it was The defense attorney made some arguments 10 in closing of a non evidentiary matter, but there was it really -- there was no theory based upon any evidence that the 12 baby died based upon any kind of negligent handling of the 13 baby or anything else. 14 death. 15 The baby was just basically beaten to And so the Court in this particular scenario felt 16 that involuntary manslaughter was not based upon any evidence 17 in the transcript at all. 18 citation I wanted to read. 19 I just wanted -- there was one By reading Evers, the Court basically indicates 20 that involuntary manslaughter would be appropriate if there 21 was an~r evidence to support it„ but in this particular case 22 there was no evidence to support that theory, which would have 23 caused the child's death, based upon involuntary manslaughter 24 or criminal negligence 25 In this particular case, let's assume, Mr. Hughes, 26 that a juror, in evaluating the evidence, believes that it may 27 be possible that the head injury in this case could have 28 resulted from a short range fall. Let's assume a juror 1 believes that, or believes that that is a reasonable 2 possibility,. based upon the testimony from the experts. 3 I'm not saying that is the most probable conclusion or the 4 most reasonable conclusion, but let's assume a juror drew that 5 conclusion, that Yie wasn't convinced beyond a reasonable doubt 6 that it wouldn't be possible. 7 And Further conclude that a juror adopts, or believes, 8 the defendant's version, which is in evidence, that he was 9 going up the stains and he dropped the baby. 10 have, if any? 11 MR. HUGHES: 12 THE COURT: 13 What crime do we None. Okay. Obviously, if it's strictly accidental, then 14 there's no crime. 15 defendant's prior handling of this baby, a prior head injury 16 is the result of the child hitting its head at some point in 17 time 'cause we have an old skull fracture, and then we have 18 the 1101(b) evidence of mishandling another child, which goes 19 to knowledge. Under the circumstances and evaluating the ~ziss; 20 Do we have any evidence here which would ~~ssr; suggest an inference that he was criminally negligent in 21 handling the baby as he was going up the stairs? 22 MR. HUGHES: 23 THE COURT: Mr. Sachs? 24 MR. SACHS: I think we do, Your Honor. Not in my opinion, no. I think there's 25 an issue whether he was criminally negligent or whether he 26 exhibited conscious disregard. `' ' 27 THE COURT: And that's the difference. 28 MR. SACHS: That's the difference. I think that would be a jury issue. I don't think the Court could take that away, because it is a little uncertain as to how the baby was killed. 9 We don't know that. How the baby received the injury in the occipital .region of the skull. And so, I do think this does fall in a gray area. E And I don't think the defense should be in a position of either asking the defendant to be acquitted of murder by virtue of an accident or guilty of murder. J I think because of the uncertainties of how the baby met its demise, there is 10 evidence that the jury could find that he was criminally ssy~N,y ss~, SLe Ir. 3Z - SEl 11 negligent instead of exhibiting this conscious disregard. 12 the injuries, pre-existing the one he suffered, are not life 13 threatening. 14 All There is no indication that Margie or Mr. Patkins 15 knew he suffered those. 16 child actually haci his feet burned before he was killed, a 17 prior occasion. 18 THE COURT: Unlike the case in Evers, where the Yde don't have that here. In the Evers case there's no evidence to 19 suggest- any other theory, which would have caused death. 20 There was no other theory. 21 all. 22 23 24 MR. SACHS: There was no accidental theory at The cause of death is much more clear-cut in the Evers case than it is here. THE COURT: I think in Evers that's why the District 25 Court of Appeal took the position that involuntary 26 manslaughter wasn't in the cards, in this case, because there 27 was no theory of the evidence to support that. 28 MR. SACHS: Right. THE COURT: 1 Again, Mr. Hughes, it's not my job to 2 evaluate the evidence, or weigh the evidence, or weigh the 3 credibility of the witnesses. 4 the trier of fact, I believe it would be error. So at this time, I will be giving involuntary 5 6 If I took this issue away from manslaughter. And, Mr. Sachs, I would suggest under involuntary 7 8 manslaughter, the Court would define it as during the 9 commission of an act, ordinarily lawful, which involves a high 10 degree of risk, or death, or great bodily harm without due 11 caution and circurnspection, I don't believe, based upon your 12 theory, it was during the commission of an unlawful act. 13 MR. SACHS: 14 15 Do we have to define for the jury what the lawful act is? 16 THE COURT: 17 MR. HUGHES: 18 THE COURT: 19 That's correct, yeah. No. No. We would have to define what the unlawful act is. 20 MR. SACHS: Excuse me. 21 THE COURT: But not the lawful act. 22 MR. SACHS: Carrying the baby up the stairs is a lawful 23 act. Okay. So that's what I would suggest. 24 THE COURT: 25 MR. HUGHES: 26 THE COURT: Do you concur with Mr. Sachs? Yes, I think so, that's fine. So if paragraph number one would be 27 stricken, so "The killing is unlawful, within the meaning of 28 this instruction, if it occurred in the commission of an act 1 ordinarily lavaful, which involves a high degree of risk or 2 great bodily harm without due caution and circumspection." 3 4 5 6 MR. HUG~IES: In which case we should also give 8.46, which defines due caution and circumspection. I agree. THE COUkT: Cary we pull that; Madam Clerk? 7 THE CLEF~K: Uh-huh. 8 MR. SAC~tS: It was requested. 9 Did you pull it? 10 THE CLERK: Yes. 11 MR. SACHS: I did request it in my packet. 12 did not ask for that. 13 THE COURT: 14 MR. HUGHES: 15 I'm sorry, I I forgot to ask for that. Then 8.50 --- should not be given because 8.50 applies only to a voluntary manslaughter. Maybe 8.51 instead. 16 THE COURT: Can you pull 8.51, please? 17 THE CLERK: iJh-huh. 18 THE COURT: Just for the record, but for the defendant's 19 statement concerning how the child was killed, if he had not 20 made that statement in this particular case, I would not have 21 given involuntary manslaughter. 22 23 24 25 26 All rigYit, as far as 8.50, I will not give that. That's rejected. 8.51, gentlemen, I believe the second paragraph would be appropriate. MR. SACF~S: Just to interject, I was thinking about the 27 Court's ruling. 28 Court had the chance to read the cases I cited if we really Certainly, I concur. I'm wondering if the 1 have to fit this into a lawful act or unlawful act. It seems like it's a stretch to tell the jury that 2 3 my client is involved in a lawful act, namely, carrying the 4 baby up the stairs, but that involves a high degree of risk or 5 death or great bodily harm without due caution or 6 circumspection. How would carrying the baby up the stairs? 7 THE COURT: It would be how he carried it, I guess. 8 MR. SACHS: I would propose just tell the jury if 9 someone commits an act without malice, and without the intent 10 to kill, then that would be involuntary manslaughter, which I 11 think the cases I cited to the Court support that proposition 12 of law. 13 the other cases, we don't have to fit an involuntary 14 manslaughter situat=ion immediately into a category defining an 15 act or unlawful act. 16 without intent to kill, it would be involuntary manslaughter. I don't k~zow if we have -- that seems to be Burrows, 17 THE COURT: 18 MR. HUGHES: If it's an intent without malice and Mr. Hughes? As I read Evers, and it is reference to 19 Burrows, I didn't have an opportunity to read Burrows. 20 are talking about if there's a commission of a non inherently 21 dangerous felony without knowledge of its danger that results 22 in death, then you could have an involuntary. They 23 Well, Mr. Sachs can't argue that Mr. Patkins was ~~ 24 shaking this baby or slamming it's head was abusing the child 25 and didn't realize it was dangerous. 26 I'm certain he's not going to. 27 that type of involuntary under Burrows. 28 I suppose he could, but That's the only way we get to Counsel, I think, has hit exactly on the head, why - _ I say there's no way we can get to involuntary because there's no unlawful act here. MR. SACHS: I agree. I think it applies. I was 9 thinking out 1_oud because I know that's my sense of those C cases that you don't have to, you know, again, fit into a neat E category. I think there's a non statutory involuntary manslaughter. What I think those cases suggest, what the Court doesn't have to say, whether it was a lawful or unlawful 9 act. Just gi~~e definitions of malice and intent to kill. If 10 it doesn't fired malice exists or attempt to kill, it would be 11 involuntary manslaughter. 12 MR. HUGHES: I would submit that. I have a suggestion that might help that 13 might fit within what counsel is suggesting. 14 page. 15 MR. SACHS: 16 MR. HUGHES: Using the second Of 50? 851. There are many acts which endanger 17 human life. 18 or engaging in conduct in a criminally negligent manner 19 without realizing t=he risk involved, he's guilty of 20 involuntary manslaughter. 21 course, is that really only implies to him intentionally doing 22 something to the baby. 23 THE COURT: If a person causes another death by doing an act I guess the trouble with that, of Ulell, engaging in an act, doing an act or 24 e ngaging in an act, in a criminally negligent manner would be 25 handling the baby, carrying the baby, and then dropping it. 26 We're not talking about a situation where he is actually 27 shaking it and pounding it's head against the wall. 28 MR. HUGHES: Right. MR. SAC~iS: 1 I can see the Court's point. The jury could 2 come to the conclusion, if they do believe he tripped over the 3 dog, was carrying the baby too loosely or something should 4 have been more protective, the jury could find ostensibly that 5 he was conducting himself in a criminal manner. THE COURT: 6 7 paragraph. First of all, I'm not giving the first It doesn't apply on 8.51. 8 MR. HUGHES: 9 THE COUkT: All right. okay. I'm not going to give that. I will be giving the second paragraph because it is l0 11 an accurate statem~=_nt, but what Mr. Hughes is suggesting that 12 we draft a definition of involuntary manslaughter around the 13 second paragraph of 8.51, which basically is, I think, your 14 position, Mr. Sachs. 15 MR. SACH:S: Chat's fine, yeah. 16 THE COURT: Chink about that. 17 well. I'll think about it, as But I think Mr. Hughes' suggestion was a good one. 18 MR. SACHS: Yeah, that's fine. 19 THE COURT: I'll work on that, too. 20 Okay, 8.46, due caution and circumspection. 21 8.72. 22 And 9.02 would be appropriate as a lesser under 1 believe, that's appropriate. 23 Count II, striking reference to deadly weapons. 24 commits an assault upon the person of another by means of 25 force likely to produce great bodily injury is guilty of a 26 violation of 245(a)(1) 27 28 A person who Okay. All right, 17.11, I don't believe that's necessary. MR. HUGHES: That just pertains to degrees, correct? 1 The mental state constituting malice aforethought 2 does not necessarily require any ill will or hatred of the 3 person killed. 4 The word "aforethought" does not imply It only means 5 deliberation or lapse of considerable time. 6 that the required mental state must precede rather than 7 follow the act. 8 9 10 The crime of involuntary manslaughter is a lesser-included offense under Count I. Ever~~ person who unlawfully kills a human being 11 without malice aforethought, which means without an intent 12 to kill and without conscious disregard for human life, is 13 guilty of the crime of involuntary manslaughter in 14 violation of Penal Code Section 192, Subdivision (b). 15 A killing in conscious disregard for human life 16 occurs when a killing results from an intentional act, the 17 natural consequence of which are dangerous to life, which 18 act was deliberately performed by a person who knows his 19 conduct endangers the life of another and who acts with 20 conscious disregard for human life. 21 A killing is unlawful within the meaning of this 22 instruction if it occurred in the commission of a lawful 23 act which might produce death in an unlawful manner, or 24 without due caution and circumspection. 25 26 In order to prove this crime, each the following elements must be proved: 27 Number one, a human being was killed; and 28 Number two, the killing was unlawful. S: The term "without due caution and circumspection" 1 2 s, refers to a negligent act which is aggravated, reckles 3 what would and flagrant, and which is such a departure from 4 person be the conduct of an ordinarily prudent, careful 5 a proper under the same circumstances as to be contrary to 6 to regard for human life or danger to human life or 7 such acts. constitute indifference to the consequences of The fact must be such that the consequences of 8 9 n. the negligent act could reasonably have been foresee It 10 was must also appear that the death or danger to human life 11 not the result of inattention, mistaken judgment, or 12 misadventure, but the natural and probable result of 13 aggravated, reckless, flagrant, or grossly negligent act. If an individual is acting without due caution 14 15 and circumspection, he is acting in a criminally negligent 16 manner. 17 - 18 nevertheless endanger human life. 19 another's death by doing an act or engaging in conduct in a 20 criminal, negligent manner, without realizing the risk 21 involved, he is guilty of involuntary manslaughter. 22 There are many acts which are lawful but If a person causes If, on the other hand, the person realizes the 23 risk and acted in total disregard of the danger to life 24 involved, malice is implied, and the crime is murder. 25 If you are convinced beyond a reasonable doubt 26 and unanimously agree that the killing was unlawful but you 27 unanimously agree that you have a reasonable doubt whether 28 the crime is murder or manslaughter, you must give the 589 1 defendant the benefit of that doubt and find it to be 2 manslaughter rather than murder. 3 Before you may return a verdict in this case, you 4 defendant must agree unanimously not only as to whether the 5 him is guilty or not guilty, but also if you should find 6 guilty of an unlawful killing. 7 as to whether tie was guilty of murder or involuntary 8 manslaughter. 9 ' You must agree unanimously The defendant is accused in Count II of having 10 committed a violation of Section 273 (a) (b) of the Penal 11 Code, a crime: Every person who, having the care or custody of a 12 13 child who is under eight years of age, assaults the child 14 by means of force that to a reasonable person would be 15 likely to produce great bodily injury resulting in the 16 child's death, is guilty of a violation of Penal Code 17 Section 273(a) {b), a crime. Great. bodily injury means significant or 1 F3 It does not mean 19 substantial bodily injury or damage. 20 trivial or insignificant injury or moderate harm. In order to prove this crime, each of the 21 22 following elements must be proved: Number one, a person had the care or custody of a 23 24 child under eight years of age; Two, that person committed an assault upon the 25 26 27 28 child; ~ • ~ >~~ ~~ -~ ~_- ~-, Three, the assault was committed by means of force that to ~i reasonable person would be likely to 590 1 2 3 Murderer. Mr. Patkins. That's what there is to say to Murderer. ,,~ ,_~ I was thinking about Eric a lot this weekend, and 4 I was thinking -- I realized he should have been two in a 5 couple weeks. 6 smearing cake frosting on his face; but, instead, we're all 7 here listening to gruesome and heart-wrenching testimony 8 about that man's brutality to a six-month-old boy. 9 He should have been laughing and smiling, And when you think about this case at its most Eric wasn't old 10 basic level, that's what it comes down to. 11 enough to walk. 12 couldn't move about to get himself into trouble. He couldn't crawl. He couldn't scoot. He And when ' i 13 he was alone in that man's care, he suffered massive head 14 injuries and a rib fracture, and he died from them. 15 what happened to Eric Patkins in his care. ~, ~s ,, _ 16 That's ~. -, E ~ ~:_ ' And he, after killing his son, lies about it. :~ , -,~ He " 17 tells you folks by talking to a paramedic and by talking to 18 19 Margie and by talking to the doctor, tries to tell you he.~~;,i ~... fell eighteen inchf=_s -- that far [indicating] -- eighteen 20 inches onto household carpet, not the industrial stuff we 21 have here, household carpet -- that far [indicating] -- to 22 fracture his skull at the base of his skull, the thickest 23 24 part, the hardest part to break. An 18-inch fall onto :r; carpet to cause massive bleeding in his brain at various 25 levels, subdural hematoma, subarachnoid hematoma, to cause 26 extensive retinal hemorrhaging in both eyes, bilateral 27 retinal hemorrhaging, to cause the bilateral optic nerve 28 sheath damage. 596 Eighteen inches, that's what he told the ,' - . ~ , F~ ~.~ .. 1 2 paramedics, as he was walking up the stairs and tripped 3 over the dog and dropped him onto the stairs. 4 broke his rib too. You know that didn't happen. 5 6 1"~ Fi' - ~ ev, ~"~'=- l~t 6 7 lie. „~ ..,t, E6~ ~ Somehow You know that's a Gsi l„la ~C:ln 5 i(~ ,.; ,. ~ ~~ -~ 6%7, Every doctor that ^ saw~Eric knew it was a lie. sre [N /f You heard from Dr. Sonrie, Riverside Community 8 Hospital, board certified in emergency medicine, been an 9 emergency room physician for over 20 years. He told you 10 the injuries he saw are inconsistent with what the 11 defendant claimed about falling on the stairs. "` .~=` 12 Inconsistent. 13 in children, and he told you he knew right away it was 14 inconsistent with what that guy's trying to claim. 15 why he asked for a child-abuse evaluation. 16 police were called. ! .. 17 -.~; ,~ . ., srz~. ,~z He's seen two to three hundred head injuries That's That's why the Dr. Angela Slaughter, she works at Pediatric ICU 18 at Loma Linda University Medical Center, the primary 19 facility for children in our region. 20 Eric after he'd already had the bolt in place, after the 21 drain was in place. 22 you it was inconsistent. 23 with a short fall onto carpeted stairs at home. 24 Dr. Rebeca Piantini, she's a forensic She told you she saw She reviewed his records, and she told .' Those injuries were inconsistent. v 25 pediatrician. 26 works at Loma Linda University Medical Center. 27 chair of the Pediatrics Department at R.C.R.M.C. 28 in charge of the children -- of the Pediatrics Clinic at She's also a general pediatrician. She also She was the r She was 597 She sees both normal children with normal 1 R.C.R.M.C. 2 illnesses and medical problems, and she's the one they call 3 in when doctors suspect child abuse. 4 she's called in, she doesn't find child abuse. Half the time when F ., .S - She told you Eric was abused . 5 Eric was abused. This was no ' ~,. ,; The force necessary to break 6 accident. 7 8 the little boy's skull was far greater than any household ld _ , ~~'~~~ /, greater than any household fall. She told you fall, far 9 this was a classic case of shaking and impact, shaken 10 impact, not a close call. Dr. Steven Trenkle, forensic pathologist for the 11 He's been doing that since 1990, 12 County of San Bernardino. 13 over a decade. 14 pathology. 15 because before he switched careers in the field of medicine 16 to become a pathologist, he, himself, was a forensic 17 pediatrician. 18 He was the former chief of the Division of Adolescent 19 Medicine and Pediatrics at R.C.R.M.C. 20 Dr. Piantini's job -- actually, Dr. Piantini's boss' job at 21 Loma Linda University Medical Center. 22 He's board certified in forensic He's also board certified in pediatrics, He worked in pediatrics from 1973 to 1990. He used to have And he told you this was no accident. The force 23 necessary to break Eric's skull back here is the kind of 24 force you'd expect to see in greater than a second-story `" 25 fall. 26 see these types of injuries in urban areas where they have 27 high-rises -- Detroit, Chicago, New York -- greater than 28 second-story fall, that's when you start to see these types 6 S! .. . Remember he was talking about the studies where we .~ Greater than a second-story fall. 1 of injuries. 2 eighteen inches, not on the carpet. Not That's nonsense. Now, Dr. Trenkle said we saw old and new 3 I 4 injuries, were black and blue, again, over here. 5 apologize. 6 up on the left top of Eric's head beneath that subdural 7 hematoma and a brain contusion. S that photograph. 9 contusion was. 10 Old injuries, parietal skull fracture healing ~~?' You can actually see it on You can see the area where the brain And an old healing leg injury. ^~~ Eric's n~=_w injuries, occipital fracture to the 11 back of his skull, subdural hematoma on the top right and 12 in the middle, and at the base under the skull under the 13 brain -- excuse me -- subarachnoid hematoma all over the 14 left-hand side of the skull of the brain. 15 Extensive bilateral retinal hemorrhaging, both sides, and ~ _ <<`~ ~ that rib fracture. "~ 16 17 Pardon me. He told you all about all of that and he took all 18 of that into account and he took the history into account, 19 the claim of falling eighteen inches onto carpeted stairs, 20 when he told you, "No way. 21 22 23 That didn't happen. The cause Es , of death was abusive head trauma." He said it was all ~, ~`tz i,. ..- - _ consistent with sh~~king, but he didn't need to reach the 24 shaking issue because what caused the death was the r . _ 5 E t a ~,~ -.~~ impact. Impact with a force greater than that of a 25 two-story fall. 26 Not a single doctor who saw Eric said otherwise. 27 Not a single doctor who saw Eric was called in to say those 28 four doctors had it wrong. •^ .~ _. ~~ -, ~~;~, 599 Now, the defense has no burden of proof. 1 2 I'm not trying to not obligated to call any witnesses. 3 They're suggest that . t6~ :~ 6 ~s And if .,,. They have the right to call witnesses. 4 ,, ; ;<.-:..~ Ei'r,:~ 5 any of those doctors that treated Eric had felt s 6 differently, you better believe you'd have heard from 7 them. But you know what? 8 : Even without those doctors,;: 10 you know it didn't happen the way he said. You know from ~ ~ <<~ ,a~ ~,your common sense, ~from your life experience, you know it 11 in your heart of hearts. 12 falling eighteen inches or so. Let's make it an even two 13 feet onto the carpeted stairs. Never happened. 14 that. 9 No baby got those injuries from You know z 15 Why else do you know? 16 Well, most parents never drop their baby. .: Most 17 parents never drop a baby that young. 18 twice. 19 four times within a total of nine months. 20 so he says, when he's walking up the stairs, and Eric flew 21 out of his arms like a football.'' "="~` Maybe once. Maybe .'-i :- ~' He claims to have dropped his two babies at least. He dropped Eric,,,:, About a month earlier when Margie notices a bump~~ , 22 23 on Eric's head, then he says, "Oh, yeah, he fell off the 24 couch, hit his head on the coffee table." 25 beforehand. 26 only after the baby had rolled off the bed in Margie's 27 care. 28 ,;~? Didn't tell her Told her only after she found the injury and How's she going to dispute him? More importantly, he -- move back to 1993 and .~~ He drops Jack three times in three months. Says he 1 Jack. 2 dropped him in the shower on July 1st of 1993. 3 dropped him when he tripped over the bedpost and he flew 4 out of his hands like a dart. 5 when he arched his back and forced his way out of his hands 6 and hit his head on the windowsill in Oceanside. 8 And he says he dropped him ~~~,,; f-~y ,. Four or fivea~~~.e.- Most parents never drop a baby. 7 times in nine months? Says he No, absolutely not. And you know every time one of these boys comes 9 10 up hurt, he's alone with him. 11 otherwise. Nobody's there to see And he says, "It was an accident." ;~~~ '-' -' " ss~ ~'. '. ~ How else do you know that this didn't happen? u~ ~~-~} 12 Especially 13 Babies bump their heads all the time; right? 14 once they get to the age where you start playing with them 15 a little bit. 16 little bit, resting on the hip, go through the doorjamb, 17 and bang. 18 their shoulders, walk through the door. 19 Right? But mothers frequently carry the baby down a Happens. People have the little babies up on Oops. I was playing with my little niece. 20 Bang. She likes to 21 run around, hold her under the arms, throw her up in the 22 air. 23 doorjamb, bam, hit the doorjamb. Wasn't paying attention, running right under the But the babies don't die. 24 You see babies bump 25 their heads all the time. That's why they make the corner 26 guards for our furniture. Baby's fall, hit their heads all 27 the time. 28 had. They don't get the types of injuries that Eric 601 So, even without the doctors, you know it didn't 1 2 happen the way he says. He's All right. . Let's look at the charges. 3 The first, violation of Penal 4 charged with three crimes: 5 Code Section 187, murder; the second is violation of Penal 6 Code Section 273(a)(b), assault on a child under eight 7 resulting in death; and the third, a violation of Penal 8 Code Section 12020, possession of metal knuckles. Talk about the law and the facts with you now. 9 10 know it was all abundantly clear when the judge read it to 11 you, but we'll go through it anyway. I 12020. 12 We'll go in reverse. A person what do I have to prove? 13 possessed a weapon, and the weapon was commonly known as 14 metal knuckles. 15 are. That's all I have to prove. It's illegal to possess these. Metal knuckles. Now, one thing you noted. 16 There they You don't have to Doesn't 17 prove that Mr. Patkins knew they were illegal. 18 matter whether he knew or not. 19 It's not a defense if he didn't. 20 21 I don't know, but that's not an issue. The _, only issue is he possess those knuckles. I don't have to 22 prove he knew it was illegal, because it's no defense he 23 knew it was illegal. 24 them on his person, just have to have control of these 25 things, right to control them. 26 I don't have to prove it. Something you may have not known. Possession. Doesn't have to carry They are in on a workbench in the garage. 27 told you she saw them. 28 and took them home. Margie She was there when he found them So that's Count III. I don't think 602 1 that's going to be seriously disputed. Let's look at Count II, assault on a child 2 A person had the care and custody of a 3 causing death. 4 child under eight, the person assaulted the child, and to a 5 reasonable person, the force used would be likely to cause 6 great bodily injury. Great bodily injury just means significant or 7 8 substantial injury and the assault resulted in death. Well, let's look at those. 9 10 He had the care ~ :assaulted the He Mr. Patkins was alone with Eric. 11 and custody of his six-month-old child. 12 child. 13 That's a very long What do we mean by "assault"? 15 instruction, but basically it means did he intentionally ~ ;_ , ~. apply physical force to his baby. If he intentionally 16 applied physical farce to the baby, he assaulted the 17 child. 14 That's what that means. 18 Now, to a reasonable person, would the force used 19 be likely to cause great bodily injury, to a reasonable 20 21 person, any one of you folks. Would the force equivalent v, E.~-~ of a three-story fall be likely to produce great bodily 22 injury in a six-month-old? 23 and slamming~a child. 24 i `'~ 25 done it before. 26 know it. word. Of course. ~ .., Shaking Everyone knows it. He knew it from his own unique knowledge . He knows it. He'd ~'-S'~,, Any reasonable person would _~:. I use the word "slamming." 27 28 Of course. ,~' ~ Yep. ~ ~. w That's my '- Dr. Trenkle didn't use it in his report, but I can't 603 1 think of a differe~zt word or a better word for the force of 2 a three-story fall. Maybe you have a different word, but ~ ~, z~ <, And you can look at the nature~~~ :~r 3 "slamming" certainly fits. 4 of the injury to see would that force be likely to cause 5 great bodily injury. 6 fractured skull, massive brain hemorrhaging, retinal 7 hemorrhaging, optic nerve sheath damage, and a broken rib.,-,'_~,~ 8 That's indisputable. 9 or hitting the kid against something with that much force!~~1;r:•~ Just look at Eric's injuries -- 5 ~,`s~ ~`~- GS> ~s' Hitting a kid either with something s;s~=c c ,r r i 10 to any reasonable person is going to cause great bodily 11 injury. 12 13 14 And the assault resulted in Eric's death. So, you know he's guilty of that crime. elements are all met. Those He's guilty of that crime. Now, let's look at murder. c , What is murder? A 15 human being was killed, and the killing was unlawful, which 16 means it wasn't in self-defense or justifiable somehow, and 17 the killing was done with malice aforethought. 18 Malice aforethought. Lot of times we think of 19 malice as hatred, .ill will, anger, something like that. 20 Malice does not equal hatred under the law. 21 legal term we're going to use. 22 doesn't mean he haci to hate his baby to have malice. 23 Okay. It's a I'll define it further. There's two kinds of malice. It There's express It can be either. The person 24 malice and there's implied. 25 was killed, the killing was unlawful, and it was with 26 malice aforethought= . 27 28 Let's look -- what does express malice mean? A defendant manifests an intention unlawfully to kill a human 604 1 being. What would we mean by that? 2 By words or conduct 3 4 That's you can tell that the defendant intended to kill. express malice. There's another way we can get to murder, and 5 6 7 It doesn't have to be both. that's implied malice. It can be either/or. What is implied malice? 8 9 Well, implied malice -- malice is implied when the killing resulted from an 10 intentional act, the natural consequences of that act are 11 dangerous to human life, and the defendant acted -- or the 12 act was deliberately performed with knowledge of the danger 13 to and conscious disregard for human life. So, in of=her words, person commits an intentional 14 15 act, that act is a danger to human life, and the person 16 disregards that da~zger. 17 anyway. All right. 18 Knows it's dangerous and does it Like to give an example to illustrate 19 what we mean with all of this express and implied malice 20 and malice aforethought. 21 building up on the fifth floor. 22 Your window is open. 23 window. 24 it's been a long day. 25 concentrating. 26 knock that potted plant off. 27 and hits your mana<~er who's sneaking out early. 28 your manager. Let's say you work in an office It's an older building. You have potted plants next to the It's quarter to 5:00, and you're working away, and You're tired, but you're The phone rings. It startles you. You It falls down five stories It kills And while the manager lies down there, you .~" 1 2 manager. 3 making you do his work for him. 4 You hate your see what you've done, and, you know what? head, you say, "I hope you die." He's always sneaking out early. Okay. 5 After that hits him on the That would be express malice, but that 6 wouldn't be malice aforethought. 7 after the fact. That would be malice That wouldn't be murder. Aforethought just means it's before an 8 9 He's always intentional act. So let's talk -- change the scenario All right. 10 You're not startled. 11 just a little bit. 12 manager sneaking out early again. 13 loudly proclaim, "I'm going to kill you." 14 down. 15 dies by your actions and your words. 16 intent to kill. 17 You see your express malice. You want to kill him. 18 You take that plant, You throw it You've manifested an You've shown your intent to kill. All right. Let's change it one more time. That's Talk Now it's your best friend in the 19 about implied malice. 20 office. 21 known her for years. 22 wedding. 23 "I'm going to play a little trick on my friend. 24 to throw this potted plant down and scare her. 25 dangerous, but I'm a good enough shot. 26 straight. 27 to kill her. 28 He It hits him on the head. Your best friend's leaving work early. You've She was your maid of honor at your You love the woman like a sister, and you figure, I know it's She always walks I'll miss, and it will be funny. I'll miss. I'm going I don't want It will be funny." You throes it down. Of course, that's the one day .~. 1 she turns left because she's going to go mail something, 2 and it hits her in the head. 3 malice. 4 human life, and you consciously disregarded that danger and 5 did it anyway. 6 murder. 8 That's implied You did an intentional act that was dangerous to That's implied malice. Okay. 7 It kills her. Murder. That's So that's just kind of an example to talk about what the three different concepts mean. So what evidence backs up malice then equals 9 10 murder? 11 danger disregarded. Express malice, intent to kill; implied malice, ~=~' c 12 13 Either way it's murder. What evidence do we have of express malice, intent to kill? ~s-' 14 Well, you can look at the amount of harm to Eric 15 and you can infer an intent to kill just from the severity 16 of those injuries. 17 took for that man to break his son's skull and cause 18 massive brain hemorrhaging and all of those injuries. You 19 can, from that alone, say he meant to do what he did. 20 intended this. ~ > ~ ~ ~ z ~ 21 You can look at the amount of force it But you have more than that. He Because, if you 22 think about murdering your own child, it's a crime of 23 emotion, rage, frustration, anger, despair; and he fits 24 those emotions. 25 You look at his life. His life. is crumbling ~; ;His relationship with Margie is failing. It's , 26 around him. 27 on the rocks. 28 different times. r -. , , _. . She has asked him to move out a couple She's paid him to move out.' / The arguing : ~ He 1 is getting more fra_quent, and it's getting worse. 2 doesn't have any money. 3 have the means to support himself. 4 friend network that he can go to that he can rely on, and 5 his family relationships, by his own definition, his 6 relationship with his father is poor. 7 collapsing around him, and he is jealous of Eric. 8 getting Margie's love and David is not. He's barely working. He doesn't He doesn't have a His world is Eric is And you look at all of these things together, and 9 10 you throw in the fact that he knows precisely what he's 11 doing when he injured the child. 12 before. 13 what he can do that will kill that child. 14 through it. 15 can infer that he intended to kill Eric. He's been through it `~ ~ ~ `' `"' He knows exactly He knows how dangerous it is. He's been And when you look at that entire picture, you But there's another way you can get to murder. 16 It can be implied 17 It doesn't have to be express malice. 18 malice. 19 danger disregarded? 20 doctors told you that, and you know it from your own common 21 sense. 22 to know what he was doing was dangerous to human life. ~ ~ And what evidence do we have of implied malice, This was abusive head trauma. All the .ey [ And, again, the very nature of the injuries, he had Everyone knows that it's dangerous to shake a 23 24 ' r;baby or to slam its head against something or with CAS<<. 25 something with the force of greater than a second-story 26 fall. 27 it firsthand from his own experience because he's done it~~=,.i /:, 28 before, and he saw firsthand what the injuries were. Everyone knows that. Everyone knows. - ~~~ And he knows .~: I want to be really clear. 1 When I say he's done 2 it before, I'm not suggesting to you folks, "Okay, he did 3 it before, we're going to convict him regardless." 4 would be wrong. 5 guy; therefore, he did it this time. 6 get to hear that evidence. 7 because it shows he knew what he was doing was dangerous. 8 And the more accidents he makes up, the more obvious it is 9 that he's lying about it being an accident. _ ~ That's why you I mean it. That I'm not suggesting he's a bad That's not why you You get to hear that evidence r o' 0<<1~ 6;~L~- 10 get to hear about 'that kind of evidence. e He knows 11 firsthand of the danger. 12 13 Little Jack spent, what, eleven days to two weeks E~ , in the hospital because of what he did to him, and he lied 14 about it. 15 done. 16 Jack's brain four times to relieve fluid build-up, which 17 was causing pressure in his brain. 18 his head, which stayed there for a year. 19 what he was doing and how dangerous it was. 20 anyway. 21 That's murder. C %ir._v 6ct: 22 But ultimately he ended up admitting what he had During that time in the hospital, they had to tap Danger disregarded. They put a shunt into He knew firsthand And he did it That's implied malice. The police, when they interviewed him and 23 Michelle on the telephone, told him Jack has 24 life-threatening injuries, knows firsthand because he did~_.'r:` t~ 25 it and lived it. 26 'Phis is dangerous to human life. All right. Let's talk about lesser offenses. 27 The law says that we have to give juries the option of 28 convicting on lesser offenses. They don't necessarily .~• 1 apply in every given case, but we have to give juries the 2 option. 3 greater offenses, then they have the option of finding the 4 defendant guilty on the lessers. 5 but the law says we have to give you those options.;; If they don't find the defendant guilty on the They don't apply here, . Involuntary manslaughter is a lesser to murder. 6 7 To get to involuntary manslaughter, you have to have a 8 killing, an unlawful killing, without malice aforethought. 9 In other words, if he didn't know what he was doing was 10 dangerous to human life. It doesn't apply here. Assault by means of force likely to produce great 11 12 bodily injury is a lesser to assault on a child resulting 13 in death. Simple assault is an even lesser to that. 14 Again, And if the defense tries 15 those don't apply to these facts. 16 to shoehorn those lessers into these facts, then I'll 17 address them on rebuttal. But the key, you cannot convict of a lesser 18 19 offense unless you unanimously agree he's not guilty of the 20 greater offenses. 21 manslaughter unless you unanimously agree he's not guilty 22 of murder. You can't find him guilty of And if there's an attempt to shoehorn those 23 24 lessers in here, I'll talk to you more about them on 25 rebuttal. C~~~~'/ 26 So what's the defense in this case? Well, these 27 types of cases, there are two possible defenses. 28 one, it wasn't me. Somebody else did it. First Well, that's not 610 Mr. Patkins was alone with his boy, and 1 the defense here. 2 he chose not to go that way when he talked to his wife on 3 the phone -- or when he talked to Margie on the phone -- 4 and when he talked to the doctors and the paramedics. 5 He went with the other option in these types of . , ;:, It was an accident. Well, neither one of those 6 cases. 7 fits. 8 fits. ~~"~~ 1 r~ ` We talked a little bit about why neither one of them (s Basically, to find him not guilty, you have to 9 10 believe that a `fall that far on these carpeted stairs, 11 household carpeted stairs, caused that type of massive c-~ .r~~, 12 brain injury. 13 the defense. ~'r: --_=~ That's what you have to believe to believe 14 How else do you know it's not an accident? ,~ . 15 Well, he'd fallen before from greater than that 16 distance when he was in Margie's care and he rolled off the 17 bed. 18 that was 26 inches off the ground -- rolls off the bed, 19 fell on the carpet, started crying. 20 whatsoever. 21 22 That bed -- :remember Detective Bartholomew testified No bumps. No bruises. No injuries Nothing. And yet when he supposedly fell eighteen inches-" - =~ onto the stairs, it caused him to die? 23 How else do you know it's not an accident? '~ ` 5 ~ ~- 24 He lies to Michelle and he lies to the police and ~, . ; 25 26 27 28 he delays medical care. = •~ %~=„c; .. ~° .:~ ~~~ ~ -yet another drop,"E :;.': Back in 1993, he claims it was yet another drop, but he ultimately ends up admitting in '~ _ , r- ~~ -r z ~ _ _. court he abused Jack on July 1st, 1993, and he personally 6 ~=~^~ --', t:7 611 ~, 1 inflicted great bodily injury. ! And years later, he ends up admitting it to 2 6E y 3 Michelle, he shook Jack by the feet. 4 medical care back then. 5 I hope nobody knows. 6 He delayed that Maybe trris will just go away." . .- ~~.:- What must he have been thinking? "I hope Michelle won't notice this. We also know because the defendant knew more 7 8 about Eric's condition than the paramedics. 9 come. Baby seems fine. The paramedics C.D.F. even says, "You don't need =''~ If you want to take him in for a 10 11 checkup, you can do that." 12 ahead, transport," because he doesn't want to get sued if 13 ~ to transport him. it turns out, as it did, that the injuries were much 14 worse. 15 And the AMR guy says, "Go But the defendant knew more than they did, ~=` ` '- 16 because remember the defendant called Margie before they 17 got there, and he told Margie, "The baby's hurt bad. 18 hurt his little shoulder. 19 better come home right now." 20 He's favoring one side. He You The defendant knew more than the paramedics did, 21 because the defendant knew what he did to the boy. 22 them that the boy fell eighteen inches. 23 "Well, nothing serious." 24 boy, and he knew because he'd lived through it before, that 25 Eric was in big, big trouble. 26 l :%" 27 Because we have lightening striking twice, that's why. 28 get to hear about his past conduct because the more times He told~'~~;~ . ,, . They thought, s ''=• %" He knew what he'd done to the How else do you know it's not an accident? 612 You 4a ~ ,r 1 he claims the identical accident, the more you know he's 2 lying. i~:~ What happens to Jack when he's three months old? 3 4 He's -- the defendant is in a relationship that's on the 5 6 Michelle left him about a month earlier, was gone ,r few weeks. He's alone with the baby. The baby for a 7 suffers a serious life -threatening head injury. rocks. He delays boo, ~r~l, !~' 6L,3 , ,=, ~ ~ 8 medical care. ~He claims that he dropped the baby, he 9 advises the hospital. Remember, he was there for, like, five minutes 10 Five minutes he spends at the 11 the whole first day. 12 hospital while his son is almost dying. 13 a history of falls and he defines Jack's fall in the 14 bedroom when he tripped as falling like a dart. _'- .' And then he claims Now, we look at what happened to Eric when Eric 15 The defendant's in a relationship 16 was six months old. 17 that's on the rocks. 18 couple times and has actually paid him to move out. 19 alone with the baby. 20 head injuries. 21 to sixty minutes he spends before he calls Margie. Thirty .. ~ dropped the baby. ~~~,, ~ to sixty minutes. He claims he Margie's told him to move out a C GS ' He's Eric suffers serious life-threatening ~_ 22 The defendant delays medical care. Thirty He wanted to leave the hospital when Margie was 23 Here his baby is dying, and he wants to leave the 24 there. 25 hospital. l~ 1',r He claims a history of falls for the boy, and he 26 ~,~ ~u 27 o .;~~. defines Eric falling like a football. You know he's Div rrr~s. , ~ 28 lying. You know Eric was abused. 613 The Court read you the law regarding 1 2 consciousness of guilt, and it says, "If you find that 3 before this trial the defendant made a willfully false or 4 deliberately misleading statement concerning the crimes for 5 which he is now being tried, you may consider that 6 statement as a circumstance tending to prove a 7 consciousness of guilt." And if you think about it, it makes perfect 8 9 common sense. People lie when they are trying to get away They try to cover themselves. 10 with something. 11 They try to hide their misconduct. The law tells you that when someone lies about 12 13 the crime for which they are on trial, you can infer that 14 means they know they are guilty. 15 enough. 16 much more than just that. 17 .something. 18 i `'= ~'r" 19 knows the baby's hart. 20 a couple of hours. 21 something's up. 22 it. 23 hope Margie won't notice. 24 hoped that Michelle wouldn't notice and maybe it would go 25 away. 26 Margie's a nurse. 27 He's got to come up with something. 28 Now, that alone isn't I'm not trying to suggest that to you. We have so But he's got to come up with What's got to be going through his mind? He knows Margie is due home within He knows she's going to know He knows everyone's going to know he did He's got to come up with something. He can't just He tried that in 1993. That didn't work in 1993. Okay. He He just He can't do that again. She's going to know something's up. The baby fell. He's got to explain why a 614 1 healthy man, six feet two inches tall, in his mid-thirties, 2 is going to trip and drop a baby in his own home. 3 the dog, Scooby did it. 4 something; so he decides he'll call Margie and tell his 5 StOY'y. ';Z,S°6lr' Plain, He's got to come up with The baby fell eighteen inches onto the stairs, 6 He came up with a `~~ 7 only that's not medically possible. 8 story that can't possibly explain the injuries that Eric 9 suffered. And you know why he's lying? 10 Because he abused 11 Eric, because he bashed him~on something, and he killed 12 13 him, and he's trying to avoid responsibility for that. ,~ . I said I thought a lot about Eric this weekend. 14 Talked about him a lot to my family and friends. 15 somebody said, "What a tragedy." 16 it's not a tragedy. 17 own son. And And it occurred to me It's an atrocity. -. . .~ This man killed his That's an atrocity. C,:,,f ,c,~~"tN;c, 6czl~l6~a/ lEo~..1~ :s 18 To find him not guilty, you have to believe that 20 all of the doctors that saw~~Eric were wrong. You have to r.%~ ~~ t y believe that falling eighteen inches onto carpet turned 21 this little baby into that little baby. That's what you 22 have to believe to find him not guilty. You know that 23 didn't happen, and you know he's guilty of everything he's 24 charged with. 19 25 Thank you. 26 THE COURT': 27 Ladies and gentlemen, why don't we go ahead and 28 All right . take a ten-minute recess. 615 2 At this time, ladies and gentlemen, THE COURT: 1 we'll take our noon recess until 1:30. [Lunch recess .]. 3 [In the presence and hearing of the jury.] 4 Afternoon, ladies and gentlemen. 5 THE COURT: 6 THE JURY: 7 THE COURT: 8 Mr. Hughes. 9 MR. HUGHES: 10 we'll finish today. Afternoon [collectively]. The jury is seated. Okay. It's 1:35. I'll finish -- Just kidding. I think you folks probably saw the major flaws in 11 12 the defense argument, but just in case, I have to go 13 through it. 14 it probably is, I apologize, but these are important 15 matters. If it's things you already saw and know, which P (r' So where did eighteen inches come from? 16 Where How did Mr. Hughes come up with 17 did that come from? 18 eighteen inches? 19 20 Well, Mr. Patkins gave us that, because ~ 5r , Mr. Patkins told the paramedic, Chu~:k Clements, what had 21 happened to Eric, or a version of what had happened to 22 Eric. 23 Mr. Clements, who came in here and told you folks about it, 24 that, based upon the demonstration that Mr. Patkins gave 25 him, the distance the baby fell was about eighteen inches. 26 If you think about it, it makes common sense. 27 good sense that's about the right number. 28 And he described it, and he demonstrated it for It makes As Mr. Sachs pointed out, Mr. Patkins would be ~, . 1 holding the baby at, what, four, four and a half feet, if 2 he's holding him here [indicating]. 3 the stairs. 4 They are seven inches tall each, if you remember 5 Detective Bartholomew measured them. 6 onto the fourth stair, that's twenty-eight inches up. 7 he's holding the baby up at four feet, that's -- what's 8 that? 9 then that's going to be only a foot. He trips. 20 inches. He's walking towards _ .N - The stairs go up in front of him. If he drops the baby If If he drops him onto the fifth stair, So that eighteen inches is exactly what you would 10 It's exactly what you would expect based on what 11 expect. 12 the defendant demonstrated for Mr. Clements. I'm not making these numbers up. 13 I'm not coming 14 in here deciding the evidence will be whatever I choose it 15 to be. 16 Where did three stories come from? Where did Dr. Trenkle came in and he 17 Mr. Hughes get three stories? 18 testified for you, he told you that that's when you start 19 to see death from .falls, when you start to see injuries, 20 not when you start to see fractures, but that's when you 21 start to see death, greater than a two-story fall. 22 making this stuff up. 23 24 25 I'm not That's what Dr. Trenkle told you. .:- : You probably saw some attempts in the argument to rewrite history or rewrite testimony. Dr. Tren}cle, yes, he testified that all of these f f. f Yes, he did, but 26 injuries could be suffered from a fall. 27 that's taken out of context, because he said repeatedly 28 over and over these could not be suffered from this type of -~_~ 650 1 fall . 2 fall . 3 He talked about babies falling off changing 4 tables and beds and the kitchen counter, that type of 5 thing, and you don't see these injuries from those types of 6 falls, and you don't see death from those types of falls. 7 So when it's suggested to you it's a reasonable 8 interpretation of the evidence that these injuries were 9 suffered in a fall, that misstates Dr. Trenkle's testimony 10 11 and it's inconsistent with every other doctor's testimony <~ _ ~ s . as well. Every doctor agreed you don't get these types of 12 injuries in that type of fall. ~, 'I sE i., ~s And if you're at all concerned with Dr. Trenkle's 13 14 context, with what he really meant, all you have to do is 15 think about what did he tell you was the cause of death? 16 Abusive head trauma. 17_ trauma. 18 fall. 19 That's his opinion, abusive head _~ .~- -, He told you you're not going to get this from a This is inflicted injury. He's pointed out he's never done a fall autopsy."'. 20 Maybe that's because babies don't usually die from the 21 falls here in Southern California. 22 out of high-rises, falls higher than two stories, not ~%'>, 23 household falls. 24 You start seeing deaths -3 If a baby died from those types of falls, could 25 our species have survived this long? 26 Absolutely not. Absolutely not. 27 28 It's kind of suggested to you that I said that Eric was a victim of ongoing abuse, if all of this abuse is 651 I a; I'm not suggesting 1 going on, why didn't Margie see this. 2 to you that David was regularly abusing Eric. 3 term he was abused because that's what Dr. Trenkle said, 4 5 because that's what Dr. Piantini said, because that's what ,.. , all the other doctors suspected, he was abused. I'm not 6 saying that every day David was out there battering the 7 child. 8 charged with the murder, one incident, and that's what I'm 9 talking about. I used the He's not charged with ongoing child abuse. He's If you want to talk about the symptoms that Eric 10 11 would have had when he had that parietal skull fracture, 12 the healing skull fracture, you heard what the doctors said 13 the symptoms would be, maybe nothing more than fussiness, 14 maybe nothing more than sleepiness. 15 You're right. 16 How could any parent miss a fussy child? ~„ They also said there might well be a bump, and 17 18 Margie did find the bump. 19 and to and behold, Eric got that bump when he was alone <=~=- ~ , 20 with the defendant; so she asked him what happened. 21 And she asked him what happened, And it's suggested to you folks that he got that 22 bump from a fall and that that blows these experts out of 23 the water, because here we have in living color a skull 24 fracture from a short fall. According to whom? According ~, •25 to David Patkins. 26 gets hurt. 27 baby Jack and now he says it repeatedly about Eric. 28 That's what he says every time the baby "Oh, he fell." He said it repeatedly about%~` ~~'' The only evidence that that healing skull '~" - - ' 652 1 2 can't believe that. 3 that. You fracture came from a short-distance fall is from him. It would be unreasonable to believe ~~'_r~.~ He's not trustworthy. He lies repeatedly about ,: 5::,: So his word somehow blows out all the 4 these injuries. 5 medical testimony, all the established knowledge from the 6 experts in the field? 7 Let's talk about rewriting the testimony. 8 Mr. Patkins may have landed on the baby. 9 Really? When did he describe that to anybody? He didn't He didn't say that to Mr. Clements. 10 say that to Margie. 11 He didn't say that to the doctor at the hospital. 12 wishful thinking. That's That's revision of the history. And the doctor told you that type of rib injury,~~-~- 13 That's from squeezing the baby. 14 that's not from a fall. 15 Can it be shaking as well? Absolutely. Let's talk about rewriting things some more. 16 17 ', ~ ~ Intent to kill.~~ Went through all of that 18 evidence that supports intent to kill, and I told you folks 19 you can infer that's what he meant to do. 20 that. You can infer 21 You can reach guilty on murder because you can infer ° intent to kill from all of the circumstances. But you 22 don't even have to, because we have implied-malice murder. 23 Implied malice murder is the one thing Mr. Sachs 24 barely touched on, because it fits the facts so perfectly. 25 i3 'y _ '~ Question was asked, where did this delay in 26 reporting come from? 27 from David. Where did that come from? He called Margie. It came He said he called at 6:30, little after, said, "The baby's hurt bad," shoulder 653 ~, ~I 1 injuries, favoring one side. And Margie asked him, "When did this happen?" 2 r ~.: ~~,.,:. And he estimated 5:30. 3 Where did we come up with 5 That's what he told Margie. ~ ~,~ Is there a delay in reporting? Yes, there is. 6 To be charitable to him, could it have been half 4 that? Out of his mouth. Yeah. That's what he said. An hour? If the 7 an hour? 8 baby's hurt bad and your spouse, or the woman you're living 9 with, the mother of the child, is a nurse, you're going to 10 wait an hour before even calling her if you didn't do it 11 yourself? She's working. 12 The baby's hurt. You pick up the phone. What should I do?" 13 God. 14 want medical attention. 15 crime not to be discovered. 16 what he's done. "Oh, my But he doesn't -~ .-, He wants the baby -- he wants his c~v-He wants to be able to hide Rewrite things a little bit more. I suggested that Mr. Patkins knew more than the 17 Not that he had more medical knowledge than ~~= 18 paramedics. 19 the paramedics. 20 knew what happened to the boy, and when they couldn't see 21 22 I said that he That's not what I said. - - see serious injury, he knew the boy was hurt bad because he knew what he'd done to the boy. He told Margie before the paramedics got there, 23 He's favoring one side. He hurt his 24 "He's hurt bad. 25 shoulder. 26 than the paramedics knew, because he knew what he'd done to 27 the boy. 28 You need to come home right now." He knew more You'd expect to see some neck damage if this baby 654 1 were shaken. Both Well, that's contrary to all the evidence. 2 3 doctors said, no, actually you don't expect there to be 4 neck damage. 5 to see it. 6 presented to you as though, wouldn't you expect to see 7 that? 8 9 Yes, there can be some, but you don't expect It's not one of the classic symptoms. Yet it's Let's rewrite the testimony. ' ~ `~" It's suggested to you that Michelle Tubs, now Michelle McFarland, is somehow unreliable because many 10 years later from out of state she calls Mr. Patkins. 11 Imagine the gall of a mother with a nine-year-old boy 12 expecting the father to take some financial responsibility, 13 unmitigated gall of expecting a man to live up to his 14 responsibility. 15 scenario. 16 Somehow she's the bad guy in this It's ridiculous. Let's say that Michelle is unreliable and, of 17 course, Dr. Piantini's unreliable, because she said that 18 what happened to Jack is consistent with shaking, and she 19 said in her opinion most likely that's what it was, not ~0 absolutely for sure. She never saw the boy. 21 the medical records. What she saw is consistent with it, 22 and she's somehow unreliable and biased. 23 24 She reviewed Of course, Michelle actually saw Jack shaking the 26 baby -- the baby -- pardon me -- saw David shake the baby, , , ~t~, , and he admitted to the police that he shakes the baby, and ~ ~ ~6~ he admitted in court that he had abused his son and <<s, 27 personally inflicted great bodily injury. 28 Dr. Piantini is unreliable because she thinks this baby may 25 But somehow 655 1 have been shaken. And then we have the famous Dr. Plunkett and his 2 That's it. There's 3 study, and that blows it all away. 4 your reasonable doubt. 5 studies that refer to eighteen deaths at playground 6 equipment out of 75,000 reported injuries. One doctor writes one or two Playground falls. 7 These aren't infants. We're 8 not talking about kids the age of Eric or Jack Patkins. 9 These are after the fact from a review of records, and they 10 come up with eighteen deaths out of 75,000. How many million more falls were there from 11 12 playground equipment where they were not reported 13 injuries? 14 what surfaces, concrete, hard-packed dirt, who knows, on 15 other bars when they fall, who knows. 16 you're supposed to say that -- Dr. Piantini and Dr. Sonne 17 are aware of the study and give it its due weight -- are 18 out to lunch. So with these eighteen deaths onto who knows But out of that, I think Dr. Trenkle described it best when he 19 Now that's 20 said we're comparing apples and oranges. 21 playground equipment falls in older children, school-age 22 children onto the playground surfaces. ;~ _ . ~f ~ _ ~~. ' ~ -- We're not talking ~~i 1., , - - i~' , .~' , '~- 23 about household falls, not talking about infants, 24 pretoddlers. And then it's suggested that you folks can't 25 26 convict unless you can tell me what exactly David did to 27 the boy. 28 of the head with a board, you can't convict. If you can't tell me he smacked him in the back But maybe he 656 1 smacked his head on the wall or maybe he threw him to the •~ . ,. 2 floor as hard as he could. 3 '. But if you can't say what the act was, you can't convict. Well, that's not the law. 4 That would be crazy if We could never convict in any murder 5 that were the law. 6 case where there wasn't eyewitness testimony where somebody 7 wasn't there to see the crime. 8 people would be free to kill their children -- not that any 9 sane person would want to do that -- but they would be free If that were the law, 10 to kill their children as long as nobody was there to see 11 it. No jury could ever convict. You don't have to decide what was the act. 12 13 have to decide that he took an intentional act, a 14 deliberate act. 15 You drop his boy eighteen inches onto the carpet. You have to decide that he didn't trip and It's suggested that I'm too emotional about the 16 We come into court. 17 case. Yeah, it's an emotional case. 18 It's a fairly sterile environment. 19 pictures. 20 it all in a very clinical way, a cold way. 21 the stand. 22 little baby, peeling the Jura off his skull, peeling his -- 23 that's horrible. 24 to you folks that emotion should be the reason you make 25 your decision. 26 exactly the opposite. 27 emotion. 28 not an emotional issue. We show you a couple of We tell you about what happened, and we discuss Doctors take They describe committing atrocities to this We just describe it. That would be wrong. I'm not suggesting I'm suggesting Don't make your decision based on But you don't have to sit here and pretend it's You don't have to sit here and 657 ~; 1 ignore the fact this man killed a little baby. 2 can't say, "I'm going to vote guilty because I'm 3 outraged." 4 You just guilty because you're outraged. You can be outraged. You just can't vote Talk about murder versus manslaughter. 5 Again, Express malice, intent to kill. 6 malice equals murder. 7 Implied malice, danger disregarded. There's a lesser offense to that. 8 9 involuntary manslaughter. Manslaughter, The key is you can't convict of 10 involuntary manslaughter unless you unanimously agree he's 11 12 And I think, as both counsel have ~~ ~E ~pointed out, involuntary manslaughter doesn't fit here. It 13 just flatly doesn't fit. 14 you need to trouble yourself over. 15 arguing about it. 16 it. not guilty of murder. So it's not really something that I didn't spend time Counsel didn't spend time arguing about It doesn't fit these facts. Let's talk about the lessers to assault on a 17 One of the lessers is assault by 18 child resulting in death. 19 means of force likely to produce great bodily injury. 20 Again, it doesn't fit these facts. 21 assume the baby did, in fact, get hurt in this accidental 22 23 fashion, which the medical testimony says did not happen. _:~ And your own common sense tells us it did not happen. You 24 have to assume that did happen, and then say somehow he was 25 doing this lawful act of carrying the child up the stairs 26 in an unlawful way or in a recklessly or grossly negligent 27 manner. 28 that assault by means of force, assaulted a child by means You have to somehow !; r It doesn't fit these facts, but the element for 1 of force likely to produce great bodily injury, and that a 2 reasonable person wouldn't know it was likely to cause 3 great bodily injury, that's what you have to believe; that 4 these massive injuries by means of force that a reasonable 5 person wouldn't know would be dangerous or likely to 6 produce great bodily injury. Does not apply. Talk about expert testimony. 7 What it amounts 8 to -- basically, the defendant is guilty of Counts I and II 9 or he's not guilty of Counts I and II. 10 medical grounds, they don't apply. 11 The lessers, the You folks know that he's guilty. Talk about the expert testimony. 12 Was there some 13 difference in the testimony between Dr. Trenkle and 14 Dr. Piantini? 15 people. 16 of every case. 17 18 Dr. Trenkle, of course, is focused on determining < <~;, the cause of death. That's his primary concern, what's the 19 cause of death, and both he and Dr. Piantini agreed that it 20 was abuse. 21 22 Dr. Piantini says yes. s; When you look at all of this, the rib fracture, retinal 23 hemorrhaging, skull fracture, subdural hematoma, 24 26 subarachnoid hematoma, when you look at all that together, -. ;-, _~ , that is inconsistent with the history he gave. Yeah, she _ _ says, there was shaking. It's a classic shaken-impact ~~• 27 case. 25 Yeah, of course. These are two different They are not going to agree on every little aspect They each have their perspectives. Was there also shaking? DY~ . Trenkle says I don't have to get to the r , ~, 28 shaking. I can explain all of this with abusive head 659 1 trauma, explain all of this with the impact. ~ ~-_ Does that mean that the baby wasn't abused? 2 Of He says, yeah, it may have been shaken, but I 3 course not. 4 don't need to reach that conclusion; so he doesn't. 5 they both agree it was abuse. 6 ~ '`"=~ 7 doctors are out to get Mr. Patkins just like the 1993 8 doctors were when Mr. Patkins told the police, "You're all 9 out to get me." But I guess you're supposed to suspect that these Cc i Apparently, that's what's going on again. I've got to ask you, where's the contrary medical 10 Like I said earlier, he doesn't have to call any 11 evidence? 12 witnesses. 13 14 the right to call witnesses. He didn't call any of the c• < ~~~ doctors that saw Eric. He didn't call any of the other 15 consultants that are out there who can review the case and - 16 come in and say, you know what, Dr. Trenkle is all wet, Dr. 17 Piantini is wrong. 18 that. 19 doctors that are out there that look at this stuff, aren't 20 there?" He has no burden of proof. I do. But he has He didn't call any witnesses like That's why I asked each of them, "There are other And they both said, "Yes." 21 He didn't call any of those people. 22 You better believe if some doctor was willing to 23 come in here and say, "You know what, this guy is wrongly 24 accused. 25 them. 26 This was an accident," you would have heard from He has that right. Reasonable doubt. _~" _ ~. , Reasonable doubt. The 27 instruction was read to you by the Court, by Mr. Sachs, and 28 I'm sure it makes about as much sense to you folks as it . .~ 1 does to me. It's not particularly helpful. Not a mere possible doubt, because everything 2 3 relating to human affairs is subject to some imaginary or 4 possible doubt. 5 consideration of all the evidence, that leaves jurors in 6 the state of mind they cannot say they have an abiding 7 conviction of the truth of the charge. What reasonable doubt is, you consider all of the 8 9 It's that state of the case, after evidence, not mere possible or imaginary doubt. You use You use your logic, not just what if, 10 your common sense. 11 not just isn't it possible, not just what if there's a 12 little voice in the back of your head asking, gee, what if 13 that's not what reasonable doubt is. I suggest you approach the subject of reasonable 14 If you have a doubt, ask yourself, can 15 doubt three ways. 16 you articulate it? 17 other people can understand? 18 Is it based on the record, what you heard from the witness 19 stand? Can you put it into words in a way Is it based on the evidence? Is it shared or understood by others? Now, I don't mean to say if you're the only 20 21 person that thinks one way, you automatically change your 22 mind. 23 other people don't seem to share, maybe you need to 24 reevaluate whether it's a reasonable doubt. 25 you have to change your mind, but maybe you need to 26 reevaluate. 27 28 I don't mean that. But if you have a doubt that Circumstantial evidence. I'm not saying If there are two reasonable interpretations of all of the evidence, one of 661 1 them points to innocence and one of them points to guilt, 2 you must adopt the interpretation that points to 3 innocence. That's the presumption of innocence. It's my burden of proof to overcome that 4 It makes good sense. ' However, if no 5 presumption. 6 interpretation points to innocence, what are you left 7 with? 8 to innocence. 9 reasonable interpretation of this evidence, points to 10 Guilty. And there is no interpretation that points No interpretation of this evidence, no innocence. 11 If there's only one reasonable interpretation of 12 all of the evidence, that's the one that points to guilty, 13 you vote guilty. 14 the unreasonable. 15 evidence here points to guilty. 16 17 Only reasonable interpretation of the Now, why is the defense interpretation ~ unreasonable? 18 19 You have to adopt the reasonable, reject ,_ - ~~<;~ ;; Why? well, it's contrary to the evidence. It's 20 contrary to every witness who came in here, every doctor`' r < ,. who came in here, said that's not right; that can't have 21 happened that way. i~l~.. a' 22 '_ `~~ =- ,,y ;N '' Well, if it's contrary to all of the evidence, 23 it's not a reasonable interpretation of the evidence. 24 There's nothing to support it except wishful thinking. 25 Mr. Sachs can say over and over and over again 26 that Dr. Trenkle admitted the baby could have been hurt in 27 a fall. 28 Doesn't mean he's taking it correctly, taking it in He can say that as many times as he wants. 662 1 context. It doesn't make it true. Dr. Trenkle told you unequivocally over and over 2 3 again, "Can't have happened from this household fall." 4 must reject the unreasonable interpretation. 5 unreasonable for you to assume that those massive head 6 injuries were caused by that eighteen-inch fall onto 7 carpet. 8 When you reject this, you're left with, is the defendant 9 You guilty. It is If that's unreasonable, you have to reject it. For the defendant to be not guilty, you've got to 10 1 = ; `' 11 believe he's the unluckiest guy in the world. 12 When he's alone with ~'~~. that baby, he repeatedly drops it, causing injuries. When 13 Meets Michelle Tubs, has a child with her. . .~ E~i LEvi~ ~' 14 15 causing new injuries that Michelle misinterprets as 16 I he's alone with that baby, he drops it in the shower injuries, when really it's just the flu. 17 the high fever for a couple of days, David's so unlucky he 18 doesn't put two and two together, realize, gee, I dropped 19 the baby in the shower, his eyes are bulging, his head is 20 swelling, he's got a fever. 21 connection because he's so unlucky it never occurs to him. 22 23 Of course, we know he has shaken Jack because he ,ti ~.admits that to the police and because Michelle saw l him do ~`r~- 24 it. 25 maybe I'm hurting the boy. And when he's got No, he never makes that But he still never puts two and two together, that 26 So the cops are out to get him, <~~~ ,- E, the doctors are out to get him, and the nurses are out to 27 get him. 28 And he goes to court and he admits his abuse, ~'- -~ - . admits he inflicted great bodily injury. He's just unlucky 663 And years later, Michelle is l~ and wrongly accused. 2 unfortunate enough to reconcile with him, and he admits -- 3 well, no, I guess he doesn't admit to her. 4 child. 5 in here and lies because he's again wrongly accused. She makes it up. He shook theC~~~~~ Even years after that, she comes He meets Margie, and when Eric, he's in this 6 8 unlucky man's care, Eric falls off the couch and suffers a csz.~~, - , , ~, -. head fracture because Mr. Patkins is an unlucky man and 9 he's involved in this rocky relationship. 7 And he's so 10 unlucky he trips over the dog and he drops the baby again. '~~~ , %~= cr 11 Fifth time a baby's been put in his care. 12 man on earth, and he's so unlucky he gets two completely 13 biased doctors who happen to be very experienced at what 14 they're doing, who happen to work at the premier children's 15 facility in the region, and these biased, unfair doctors e.- ~~~ 16 come into court and tell lies about him because he's so 17 unlucky. 18 any of these symptoms that he had before, even though she 19 says, yes, she did notice those symptoms. 20 The unluckiest And Margie exaggerates because she never noticed Michelle lies. The paramedics get it wrong. 21 Mr. Clements gets it wrong. 22 unlucky. 23 at Mr. Patkins being guilty of murdering his own son, and 24 yet he's just unlucky. 25 Because Mr. Patkins is so Everybody comes in, all the evidence points right You know that didn't happen. 26 the evidence. 27 seen the photographs. 28 know what he did to Eric. You've heard all of You've heard from the witnesses. You've You know what he did to Jack. You You know he's guilty of murder. . .~ 1 THE COURT: 2 This is irrelevant and not within the scope of the evidence. All right, question number three, and I'll initial 3 4 the top, "Dr. Sonne versus Dr. Trenkle, broken leg, how many 5 times"? And then, "Dr. Trenkle, what height could cause 6 7 this type of damage? And then the last question, "Could occur in 8 9 10 What would cause femur breakage"? ~~=L°~ household accidents"? MR. SACHS: I guess answer it the same way. If this is 11 issues of concern, they could have Trenkle's testimony 12 reread. 13 questions. I don't think we are in a position to answer those 14 MR. HUGHES: 15 THE COURT: I agree. All right, "if these are issues of concern, 16 the jury can requ~=_st the testimony of Dr. Sonne and Dr. 17 Trenkle be reread. ° 18 MR. SACHS: Yeah. 19 THE COURT: Okay. 20 All right, gentlemen, thank you. 21 MR. SACHS: 22 MR. HUGHES: 23 24 25 26 27 28 Thanks. Okay. •~. (Proceedings adjourned.) 9114 9999 4431 3680 1785 85 USPS TRACKING # ~~~ ----, UNITED _ STdTfS ' r POST/~L SfRVICEm, 7--- p ,r,. v ~~ ~- ~~,s k i ~~ ~~ "~~ ~ ~3G ~z ~~ s~ R~ if,~4F'1?!F ~~~. Cl~. ~ I~''~~SrD~ , ~~ 7~ -rv~E ~~ Tit S~ CAS-Ifo~r~rA c ~J ,S. Go~/~TKavSF ~~ E~s~~2r~ D~v~J'r ~c ~~rRA~ ~~sTR~cT, C ~ f y, 1 :hb ~„ ~N ~F~~~C?y~~ hr:~ '~ ~~~ ,,~r »~~-fi~, ~~.~ ,l 0 c"01~ Ct~q~C ~.~.,__, -~"~', ~- ~ ,~ F,a .' `ti - l ~' ~ ~ - / ` ~. _ `~ -- ~~ /. T

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