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)

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.)

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