CA vs. Spector – What Happens in the Vagus, Stays in the Vagus

 I hope that when Paul eventually kills me and throws me in that wood chipper he is always threatening my ass with, that he just pleads guilty to the murder charge and doesn’t have some big fancy trial where they put *my* ass on trial. Because I will not fare well.I have no friends. And maybe that’s a good thing. There won’t be a parade of people going to the stand saying “Oh, yes, Kim and I were BFF’S and here’s how she *really* was.” And then spin yarns about how I drank all the time, snorted coke and partied until dawn. That just won’t happen. Mostly because I didn’t *do* those things, but also because I haven’t cultivated enough “friends” to allow anyone to get on the stand and say that they knew me. There are no photographs of me and *anyone* partying or or drinking or in Cancun on vacation. And there certainly aren’t people who are going to get on the stand to say “She loved *me* best!” “No, she’s a liar! Kim loved *ME* Best – that other chick was a daytime friend.”

There are no Pie’s or collagen lipped Jennifer’s or Nili’s in my life.

But Paul had better just plead out to any murder charges leveled against him – because it wouldn’t be too hard for him to have a parade of Malonian’s come to the stand testifying as to what a fucking bitch I am. “She done hated them there Redneck Games – Why would she wanna say anything bad against them? The Redneck Games is for charity – She hated poor dying kids – she was a BITCH! A BITCH!” Paul would get off just through jury nullification. I can safely say that in this town, I’d fall under the heading of “people who just need killin'”.

But that’s because people don’t like me. And I have no friends. Lana had friends. People loved her, and yet she still has people parading to the witness stand to say “Oh, Don’t get me wrong, I *LOVED* Lana – but here’s why she needed killin'”.

I haven’t decided which is worse. Having no friends at all or having friends like Lana’s.

In the meantime, we are graced with the presence of Dr. Spitz again on the stand – because God hates us all.

Linda Kenney Baden, looking rather bright eyed for someone who was at death’s door a week ago, gets up to do the direct and Spitz gets on the stand with a fucking suitcase in tow. Warning us, perhaps, that this isn’t going to be as quick as the defense says it will be. And if Spitz is true to form and does his “rambling fucking  rose” answers the way he did last time, he probably should have his suitcase with him.

Spitz reminds the jury that he has done 55,000 to 60,000 autopsies over his career, and you know that the only reason that he has done so many is because dead bodies can’t talk back to him. If this guy treated living patients, you would ask him one question and by the time he finished fucking answering you, you’d be dead from old age right there on his office floor. He could only see one patient a day, because the first one would never get out the door with a simple fucking answer. If you asked this guy where the bathroom was he’d have to give you a rundown of the elimination system in the human body and talk about that nasty sphincter muscle winking after death when you scratch the anus rather than just telling you “down the hall to the left.”

So last night he made a chart of the spinal cord and using the photo generated at autopsy and the ruler markings of the wound, he measured the actual width of Lana’s spine as 15.875 millimeters, not the 10.4 Andrews said it was.

He also takes issue with the diameter of the bullet as stated by Andrews – he says that the width is governed by Federal Standards and that you don’t actually measure the width – you measure the bore – which is the end of the bullet and that the bore of this bullet was 8.8 millimeters, therefore instead of the 1 millimeter on either side of the bullet that Andrews said would have had to happen to have intact nerve fibers, according to Spitz the cord actually had a whole 7 millimeters left after the bullet passed through wherein fibers could still be intact.

And Spitz says that there could have been tons and tons of fibers in that 7 millimeter area, since these nerve fibers are so minute and so tiny that you can’t even see them with the naked eye. You need a special microscope and you need to stain the fibers in order to see them.

Spitz then takes issue with Andres theory that breathing could not take place after the transection of the spine. Spitz says that the textbook that Andres was relying on for his information, the Guyton Textbook, covers other areas that weren’t in the two pages supplied to the defense during discovery. Spitz says that he pulled the actual textbook and referred tot eh chapter entitled “Regulation of Respiration” and discovered some information that he wasn’t even familiar with.

Spitz says that according to the book, the same one relied upon by Andrews in forming his opinions, that breathing can certainly happen when the spinal cord is transected, either fully or partially.

Spitz explains that there is an area just above the medulla called the pons, which literally translated means “bridge” and it is called the pons, or bridge, because it is the bridge between the cerebrum and the cerebellum. The medulla sits below the pons. The medulla is the place where all the autonomic control centers are, including those that control heartbeat and respiration. The spinal cord starts just below the medulla.

The area that governs regulation is the pneumotaxic area in the pons and the inspiratory area that governs the taking in of breath or air is located in the medulla – the expiratory center that governs exhalation of air or breath is located adjacent to the inspiratory center in the medulla. The inspiratory center generates millions of fibers that go into the vagus nerve and these fibers connected and contained within this nerve is the one that controls breathing. The vagus nerve originates in the inspiratory center in the medulla and comes out of the vertebrate column and runs all the way to the soft tissue in the chest. The spinal column does not affect this nerve or these fibers – since the nerve is outside of the spinal column, Therefore, according to Spitz, the spinal column is not necessary or vital to the process of breathing.

Spitz says that there is a survival mode that the body enters into when the spinal cord is damaged. If this very area – which is above the area of injury here – is not only damaged but cut, or even suppressed due to chemical causes – it will still generate impulses for executing it’s function. These impulses have absolutely nothing to do with the spinal cord. The vagus nerve, as well as the glossopharyngeal nerve, are outside of the spinal cord itself.

And since the wound in this case was below this area, these automatic functions would not have been affected.

Next Linda Kenney Baden, (who really does look even nicer than when the trial started – I think the grim reaper actually did visit her while she was ill – and he must have told her “Girl, fix your hair and put on some makeup – I can’t take you when you that ugly”, and she took his advice) asks the doctor about the lung slides that were taken at autopsy. She flashes some of them on the screen, and they look like some Jackson Pollack “red period” painting. Just a bunch of red crap with some lines in it. Dr. Spitz explains that surely everyone can see that the blood cells in these alveoli can’t be from leeching – it’s so clear, isn’t it? There are circles of blood and walls and black shit that has to be gunpowder residue, therefore she breathed in. And leeching of red blood cells only happens when bodies are breaking down due to decomposition of tissue – that didn’t happen here.

And in case you’ve lost track – this shit doesn’t matter in the least, anyway. The defense needs blood in the lungs from breathing not because of the process of inhalation, but only for the companion process of exhalation, so that Lana could have coughed blood onto Spector’s jacket. It matters not a fart in the wind HOW the blood got there – it was there. To argue over whether it was leeching or from some other process doesn’t really matter – it was there. All we need to argue over is if it came out through coughing and how far that coughing could go. But the defense doesn’t want to go there, because if the coughed blood could only go one foot – well, that puts Spector right back at her side, and they don’t want to put him there – especially not after the jury has seen him pointing his finger like a gun. They want some pneumonia whooping cough pertussis going on – so that the blood can go 4 feet away, way over by the stairs, where Spector is safely out of the reach of an extended arm with a gun in his hand. But I don’t give a crap how the blood got into her lungs. It’s there, and that’s all we need to know. All the rest of this is just delaying getting Punkin Pie back on the stand, and that’s really who I want to see today. Just to see if she’s going to have her deflated pancake boobies hanging out again.

But the doctor drones on about the specific findings that were significant to him when the autopsy report mentioned the lungs – mainly that there was a description of blood in the alveoli, and that there was a description of sub-crepitus in the lungs. This is the sound of crackling or popping that can be heard when you rub soft tissue and there is air or gas under the skin that shouldn’t be there. The doctor says that it is often seen in drowning victims lungs when they have inhaled a mixture of air and water. The doctor says that the autopsy report noted this sub-crepitus when the lungs were manipulated, leading him to assume that there was air and fluid together in the lungs, which could have only happened by inhalation after the wound was inflicted.

Linda Kenney Baden then asks the doctor about the testimony Andrews gave regarding the fluid in the lungs being there as a result of the manipulation of the body during transport. She asks the doctor if he often saw this much fluid in lungs of gunshot victims that were transported to his Coroner’s office. The doctor says no, there was never blood in the lungs such as this unless the patient was breathing after they were wounded, or if they were shot in the lungs or some other area that would naturally create blood in the lungs.

Linda Kenney Baden then asks the doctor about the contents of the stomach, and asks if it is reasonable to assume that if the blood got into the lungs through the forces of gravity, if it would be expected that we would find blood in the stomach, as well. The doctor agrees that if the fluid and blood had drained through the back of the throat into the lungs, that we could expect to find blood in the stomach as well. Since there was no blood in the stomach, it is safe to assume that this was not the mechanism via which the blood got into the lungs.

The doctor wraps up his testimony by repeating his central premise – that no matter if the spinal cord was transected fully or partially, there could still be breaths taken after this injury – that the respiratory center in the medulla would still function, since it was above the point of injury, and that several breaths could have therefore been taken.

Alan Jackson then gets up to cross examine the witness, and he begins by asking the doctor about his testimony regarding the size of the bullet. Jackson asks the doctor if he understands that his measurement of the “bore” of the bullet is really a measurement of the inside of the lands (the parts that stick out) of the cross section of the bullet, and that this is not the actual measurement of the diameter of the bullet itself.

Spitz agrees that this is true, and that he knows that the bore measurement is actually a measurement of the two closest spots of the lands inside the muzzle, not a measurement of the bullet. Spitz says that this is not what he was actually rejecting, anyway, he was only rejecting the measurement of Andres, that the bullet measured 9.6 millimeters – he says he is not fussy about 1/1000’s of an inch.

Jackson then asks the doctor if he realizes that this was a plus P bullet – and the doctor agrees with that, but says that this referees not to the bullet but to the powder used.

Jackson asks the doctor if he is aware that this was a hollow point bullet, and the doctor says yes it was.

Jackson then asks about the mushrooming effect of this bullet – how it will flatten when it makes an impact and the doctor says he has never seen the bullet in this case, so he doesn’t know if the bullet flattened.

Jackson asks the doctor to assume that the bullet did mushroom and flatten out, he asks if this would make the diameter much wider and the doctor agrees that it would.

Jackson tells the doctor that this bullet hit the bone and tissue of the spinal cord and before that went through the tissue and soft palette at the back of the mouth – and asks if he thinks this would have flattened the bullet – the doctor says that he doesn’t think that the soft tissue in the throat would have had much effect on the bullet and that he is not sure if it flattened before or after it hit the spinal cord.

Jackson asks the doctor if he is aware that these bullets are designed so that they mushroom upon impact with water in a water tank – the doctor counters that he has seen bullets hit skin and not mushroom, and that skin is much denser than the soft palette at the back of the throat.

Jackson then asks the doctor about his opinion of the transection of Lana’s spine and he wants to know if the doctor thinks it was partially or completely transected. The doctor says it was probably a partial transection. Jackson asks when he came to that conclusion, and the doctor is noncommittal, saying that he doesn’t think the issue matters, and that his opinion makes no difference either way.

Jackson, not getting a satisfying answer, asks again, and the doctor says that he thinks, because of the extent of the structural damage and the way it looks, that you can’t really tell either way, he sys that there is excellent reasoning in saying that the bullet did not transect it completely, because there is a huge amount of blood in the lungs – but then she would have taken breaths whether it was totally transected or not – that a partial or complete transection has little to do with her ability to take a breath and apparently his colleagues who did the autopsy thought so too, because they said she took some breaths, and that opinion had to have been based on the amount of blood in the lungs because he can see no other basis for such an opinion, and it makes no difference if it was partial or complete – once the body was moved and the area was partially torn, the move would have completed the tear.

Jackson then asks the witness if he is a pathologist as opposed to a neuropathologist. The doctor confirms this.

Jackson then asks if the witness saw Dr. Baden’s testimony. The doctor says he started to and then he couldn’t continue because something happened to his transmission. But he says he heard about Baden’s “AHA” moment through other people who did see the testimony. He says that it wasn’t from Baden himself, that he hasn’t spoken to Baden and it wasn’t anyone from the defense team, that he had spoken to no one from the defense team until last night.

Jackson then asks if he is getting another 5K for this trip and the doctor says he is very pleased that Jackson is looking out for him.

Jackson asks the doctor if he was called here to rebut Andrews testimony and the doctor said that he knew last night that he would be a sur rebuttal witness, but that he really didn’t know what he was going to testify about.

Jackson then asks the doctor if he was called by the defense team after dr. Baden testified and asked if he could corroborate Baden’s testimony, and the doctor says no, that didn’t happen. He also tells Jackson that if Jackson knew him better, he would know that no one tells him how to testify.

They then have a sidebar, and Spitz and the jury are excused for the moment while Jackson wonders to the court why it is that Christopher Plourd said in open court a week ago that he was going to call Spitz to corroborate Baden’s testimony, if it is true that no one even asked Spitz if he agreed with Baden.

Plourd offers that yes, he did talk to the witness last week and he doesn’t remember exactly what they discussed, but he knows that he asked if he could confirm Baden’s theory, and the doctor said it was possible that the spine was partially transected. Plourd says he is not sure if he even mentioned Baden’s name, or if the doctor just confirmed the facts. Plourd said that he asked if the doctor would be available and he said he would.

Jackson then says, well, I’m sitting here thinking to myself that Dr. Spitz just…..and I need to choose my words carefully here but…and Fidler says let’s just bring him back in and ask him.

Spitz then retakes the stand and the jury comes back in and Jackson clears up the issue by getting the doctor to admit that yeah, he talked to Plourd last week and although he doesn’t remember the subject matter and never heard the words “aha moment”, he is sure that they asked him to come back.

Jackson then asks the doctor if it is true that the last time the doctor was here he never mentioned this partial transection. The doctor says he never talked about the spine at all, that he was talking about whether or not she could have taken a breath, he never talked about how or why breathing was accomplished. And he says he still stands by the fact that Pena did a good job at the autopsy, even though he said that the spine was completely severed. The doctor says that when a bullet hits a spinal cord the spinal cord nerves and tissue becomes a semi liquid Jell-O like substance and it’s next to impossible to determine a wound path.

Jackson takes this admission to ask the doctor is he then would agree that the area surrounding the wound path would be traumatized and damaged – and the doctor says that is partially correct, although this would be compounded by unprotected transport.

Jackson then asks the doctor that if Baden said that in Baden’s opinion the only way to account for breathing is if the spinal cord was partially transected and the remaining axons were healthy enough to continue to receive signals, if he would agree or disagree with that, and the doctor said he wouldn’t disagree with that – that the appearance of the lungs proves that there was a transmission of impulses and even though this wound was below the medulla and the impulses generated, that the word “only” is the only word he would leave out – that there is another way nerves can receive signals – impulses can continue whether spinal cord is partially or completely severed.

Jackson is a little incredulous and he doesn’t understand the doctor’s conclusions – he asks if the doctor is saying that the spinal cord does *not* carry the neurotransmitters for respiration, that it’s a completely different set of nerves…

And the doctor says no, he isn’t saying that, but that Jackson can surely see that there is a continuation from inspiratory center by way of vagus nerve and by way of spine –

And Jackson asks then if it is the doctor’s understanding that there are two transmissions,

And the doctor, now totally and utterly confused begs off any position and says “Look, I am totally innocent in this, I told you earlier, I knew none of this until I read it in the literature last night, and it says in unquestionable detail that respiration would continue.” And now we are left to wonder if the doctor read the chapter very closely, or if he is just confused, or maybe even just misunderstood what he read.

Maybe the judge senses, too, that the doctor is confused and maybe needs to glance at the chapter again because he calls for a break.

After the break the defense asks if they can put on a witness out of order – Dr. Mary Goldenson, as she has patients waiting,. The prosecution agrees and she is called.

Dr. Goldenson testifies that she is a licensed clinical psychologist, that she practices in Brentwood, that she gives seminars and sees patients and that at the end of 2002 or the beginning 2003 she got a call from someone claiming to be Lana Clarkson, that she was calling to see if she had a n open practice and if she could come in for a consultation, just to discuss issues, and that she was recommended by friends. She asked how the doctor charged, said she was working on handling her insurance and that she would get back with the doctor. The doctor never heard from her again.

The doctor then identifies her name and address in two emails, the prosecution has no questions, and she is excused.

And with that Spitz gets back on the stand.

Jackson asks the doctor if it is true that just last night the doctor learned that there are neuropathways that are not contained within the spinal column, but the vagus nerve is outside of the column – the doctor says yes, but that he would also say that the glossopharyngeal nerve is also outside of the column.

Jackson says – “so the spinal cord can suffer a complete transection but the impulses to breathe will still be intact – that’s what you learned last night?”

And the doctor agrees.

Jackson then says “you said that you’ve been practicing medicine and been a board certified pathologist for over 54 years and you never knew this?”

And the doctor excuses himself by saying “Well, I never read this chapter before.”

“So last night when you read this chapter,  this was the first time you learned this and your entire opinion today is based on this?”

“Yes”

Jackson then asks the doctor if it is true that the chapter he is referring to is actually written with reference to the respiratory system and how it reacts to strenuous exercise and stress.

The doctor says no, that this chapter talks about the issue at hand and the relative portions are in the first two pages. (And raise your hand if you think he only read the first two pages.)

Jackson then has the same thought I had, and he asks the doctor “Did you read the whole chapter” And the doctor says yes, (so put your hands down.)

Jackson then asks ” Doctor, wasn’t it talking about stressors in live people?”

And the doctor says “Yes, but the first part talks about the location and the function of the respiratory center – things like how many there are and how they transmit their impulses and what happens if there is damage.”

“And you interpret that to mean that all the impulses are transmitted by the vagus nerve and not the spinal cord?”

“No,  I’m not saying that, but I gleaned from this text that there is a series of stimuli that occurs even when there is very significant damage – and the fact that the diaphragm is functional even in cases of damage leads me to believe that the respiration continues for a substantial length of time in an individual with significant spinal injury – which I would not have thought before. I was not aware of this, and this book talks with authority about it.”

And now I really am shaking my head, because what is this fucking book? Really! I want to see this book! How authoritative must this book be to be able to convince a doctor and pathologist of over 54 years of some new thing that he never knew of before overnight – and to the point that he will testify to the book’s conclusions in a high profile murder case on the basis of one chapter! What? Is this book like written in gold or something? And how gullible is this doctor? Do you think we could give him a Dr. Seuss book and have him go into a murder trial the next day and testify that there really is such a thing as green eggs and ham and that you should eat them on a train and in the rain and in a box and with a fox because he just read this book last night that said so – an the book said so very authoritatively?

Get the fuck out of here!

Jackson then tries very calmly and very patiently to explain to the doctor that this is not what the book said at all – that the doctor has some misunderstandings about what the book said – and even some basic misunderstandings about the central nervous system itself – and who can blame him, you know? He’s not a neuropathologist – and he probably hasn’t read a book explaining it to him. 

Jackson explains about the reflex cycle described in the book – that from the lungs, at the bottom of the cycle, to the brain, at the top of the cycle,  there is a generation of impulses that leads to the lungs and the inhalation and exhalation of air, but the lungs do not act alone – they do not squeeze and release on their own. And the doctor agrees with this, he says that the lungs are not muscles.

Jackson continues that no, they are not, but that there are muscles around the lungs that are required for breathing, that these lungs are the intercostal muscles, the abdominal muscles and most importantly the diaphragm. The doctor also agrees with this and he emphasizes that the primary muscle is the diaphragm, that it is the bellows. 

The doctor then offers that  – “the vagus nerve – it is the nerve that carries the signal that causes the diaphragm and other respiratory muscles to contract.”

And Jackson asks the doctor if he can point to *any* book or medical piece of literature that would suggest that  the outgoing transmission from the brain that goes to the diaphragm or any of the muscles – or any transmission away from the brain to the muscles is via the vagus nerve.”

The doctor complains that Jackson is expecting him to have a computerized brain to tell him what anatomy books say.

Jackson gives him another way out by allowing him to agree with the statement that there is a reflex arc or cycle – and the lungs (which have no muscles) send impulses UP the vagus nerve – going on a Northbound highway, so to speak –  to the brainstem.  The brain then transmits signals down to the muscles – on a Southbound highway – and then the diaphragm, abdominals and those muscles are given the signal to breathe.”

The doctor says that he doesn’t agree that breathing is a reflex.

Jackson ignores this – mostly because he probably doesn’t have fucking clue what that had to do with his statement, and says “But doctor, isn’t it true that this Southbound transmission that sends signals to the muscles is inside the spinal column?”

And the doctor, maybe remembering some other book he read and realizing that he is now disagreeing with basic anatomy, says only ” I don’t know – I can’t argue with you – my reading of this book is different.”

Jackson then gets the book out and asks the doctor if this is the sentence he is relying on and basing his conclusions on: “Even when all incoming nerve fiber connections to this area are cut or sectioned or blocked, this area still emits repetitive cycles.”

The doctor says “You left one part out – exhalation is passive.”

Jackson says :yes, but in order to have passive exhalation, you have to have active inhalation, yes?” Yes.

“What this sentence is saying doctor, is that if the vagus nerve is affected and *incoming* signals from the lungs are cut off, there is still an area in the brain that is going to send automated signals for a few seconds to the muscles to tell the muscles to breathe, do you agree with that?”

Yes.

“But the nerves that control those muscles, doctors, and take those signals away from the brain – those nerves are inside the spinal column.”

“Exhalation is passive, you don’t need nerves to control exhalation.”

“But before you can exhale, doctor, you have to INHALE. The impulses in the brain are trying to send signals to the muscles to tell them to contract, yes?” Yes.

“and if those impulses are severed, or cut off,  then there is no bridge or pathway to tell the muscles to inhale – no matter what the signals are from brain, if the spinal cord is cut off, then those signals are not going to get there.

“My opinion is and has always been: inhalation continues, exhalation then follows.”

“Tell me how the muscles are told to contract if that cord is severed, doctor.”

“It would happen if – the cord is a bunch of spaghetti, only much tinier – first of all if the cord is not completely severed, well, there you go, the signals can still be transmitted – although it’s true that the vagus is receptor – there are fibers within this vagus nerve or from the inspiratory center that cause continued contractions.”

“Doctor, the only outgoing nerve from the vagus goes to the pharynx and the larynx – and those have nothing to do with breathing.”

“The vagus comes out of the inspiratory center.”

“But it’s only receiving info from lungs to breathe – all the info *to* the muscles –  all of it – travels straight down the spinal cord.”

“If you want to say that the cord is completely transected and there are no fibers to make the diaphragm move than you may be correct – but I think you are incorrect – I think the diaphragm continues to move.”

“Doctor, it can only continue to move if it was able to receive impulses from the spinal cord – no muscle can move unless it is stimulated.”

“You cannot stop your diaphragm from moving…”

“But Doctor, that’s in a live person, I can hold my breath – but my brain is still sending impulses – even unconscious movements come from spinal cord, if I twitch in my sleep or something…:”

“You are oversimplifying a complicated issue…”

Jackson tries to cut in as the doctor starts to explain about what happens when you hold your breath and Rosen complains tot eh Judge that he doesn’t think that Spitz is done with his answer.

The Judge, seeing how rambling and off on tangents the doctor has gotten all morning, says “It’s hard to tell….” He then turns to the doctor and says “Have you finished?”

And the doctor says “I don’t remember.”

Jackson then continues to beat the dead horse, and says “Doctor, any movement that controls breathing,  all of those muscles require an order from the brainstem that travels down the spinal cord and tells those muscles to contract –  and if that is cut completely off those instructions to those muscles will not get there, is that right?”

“If you are correct there would be no quadriplegics – remember that the area that we are talking about is not involved in the injury. Whether the spine is severed completely or severed half way, you are talking about lower level of injury than the inspiratory center and the medulla. Quadriplegics – they are injured in levels below that – this is not spinal cord these centers are all within the brain – these centers are active and able to produce signals.”

Jackson says – “OK, but there are plenty of quads who say, fall off a horse for instance, and break their neck and these pathways are transected and those quads are on respirators that are breathing for them for the rest of their lives.”

“Yes, but there are quads not on respirators.”

“Yes, then that would mean they didn’t suffer this type of injury with complete transection.”

“That’s why I said, if there are some fibers in this case that were still connected, she could still breathe.”

And Jackson thinks that they are finally getting somewhere, and maybe he *can* get the doctor to agree with his position – but it isn’t going to be that easy.

“OK Doctor – so – if in fact that there was a complete transection of the spine will you agree that her muscles couldn’t move and she couldn’t breathe.”

“No, I don’t agree with that in this case – there are other phenomenon…”

“Doctor, let’s not worry about other phenomenon –  if in fact that there was a complete transection of the spine will you agree that her muscles couldn’t move and she couldn’t breathe.”

 “No, I can’t agree.”

“Well, where do these impulses come from then that tell the muscles to contract?”

 “Either through incompletely severed cord or via other connections.”

“So, you think that the vagus nerve receives impulses from the brain and those pathways are outside the spinal cord?”

“No they are inside the spinal cord -and some are outside…”

“Which ones?”

“The major nerves – I’d have to look it up –  the phrenic nerve, for instance.”

“So your testimony is that the phrenic nerve is high enough that it could still receive impulses?”

“I said I don’t know – I’d have to look it up.”

“Is it your opinion that,  in fact,  in order to breathe Lana Clarkson would have had to have suffered a partial transection?”

“It also appears to me that it doesn’t matter – it’s easier to explain on basis of partial – and easier to understand, but, in fact, it doesn’t matter.”

“Doctor, the phrenic nerve is located at c3,  c4, and c5 – is that above or below the wound here?”

“Below.”

“So there is no way for the brain to get impulses to the phrenic nerve if the spinal cord is severed?”

“Yes that eliminates the phrenic nerve.”

“By the way Doctor, just to eliminate some other nerves, the intercoastal nerves are t 1 through 12…”

 “The intercostal muscles by themselves can’t sustain breathing – same with abdominal muscles, so it doesn’t matter where they are located.”

“Ok, Doctor, so if these other nerve muscles are all lower then the location of her injury then there’s no way for them to get info from the brain if the transection is at c1, right?”

“Yes, these are below.”

In what even Jackson himself describes to the judge as a “merciful” act, he moves on to something else.

It’s easier this time for Jackson to get the doctor to back down. He asks about those slides of the lung tissue that Linda Kenney Baden put on the ELMO. Jackson asks the doctor if he realizes that Pena said these were only “representative samples” of the lung tissue, and if he realizes that Pena testified that he only took slides from the area where there was blood, that there were tons of places in the lung tissue where there was not blood at all.

Spitz says that this is not what Pena’s report described, but says he does not recall what Pena actually testified to.

Jackson then asks about the lack of blood in the stomach, and asks the doctor if there were a small amount of blood in the stomach, and if it was mixed with gastric contents already in the stomach, if the blood might not have been noticed or reported. Spitz maintains that blood is a powerful dye, and it would probably be noticed.

Jackson then asks about he fractures to the top of the skull, and the doctor says he does not agree that these are fractures – he would call them separation of the natural sutures in the skull. He explains that the skull is not one continuous piece of bone, but that the skull is in separate pieces. As we age these bones fuse together, but in some people that takes longer than in others, and in younger people, the suture lines will be more pronounced. The doctor attributes the separation of the sutures to the gasses inside the head that built up and the increased pressure this caused inside the cranial cavity – he does not attribute this to the bullet slamming into the back of the skull at 900 feet/sec and pushing the skull up and away from the brain.

Redirect of the witness is relatively quick – Linda Kenney Baden asks the doctor if there’s any way other than breathing that the blood could have gotten into the lungs, and the doctor says no, and she brings up that Pena described the damage to the spinal cord in two different ways – he used the terms “pulpified” and “ragged”, and the doctor agrees that these two terms could have been describing injury from two different things – one, the bullet, and one the continued damage that transport caused.

She then asks, with regard to the lung slides, if Pena also described aspirated blood, and the doctor says yes, he did, and aspirated blood means inhaled blood.

The witness then is excused and he takes his suitcase and leaves.

The lawyers then, outside of the presence of the jury, get ready for the next sur rebuttal witness, Punkin Pie, who will presumably be called Monday, since the judge sends the jury home.

Rosen gets up and proffers to the judge what exactly he wants this witness to testify to.

He wants to introduce Pie’s datebook – which lists all the events in 2002 -2003 that she and Lana attended together – this is to rebut Nili Hudson’s testimony that Lana was backing off seeing Pie in the last year of her life. The judge allows this.

Rosen then talks about the whole “daytime/nighttime friend” concept – the same thing he wants to bring up with Jennifer Hayes. Pie will also say that Lana compartmentalized her friends and that Nili was a daytime friend, and someone Lana looked up to and admired, and for this reason she did not tell Nili a lot of her troubling or distressing feelings and thoughts. The judge thinks this is hearsay, and Rosen says it goes to state of mind. The judge is going to defer ruling on this.

Rosen then want s to “revisit” the area of the phone call between Lana and Pie three days before Lana’s death because he doesn’t think the wording was clear the first time around – the judge says this is not proper sur rebuttal.

Rosen wants Pie to talk about the Christmas card and letter – the judge allows this.

Rosen wants to revisit the Franklin party, because Pie has some newly recovered memories of Lana saying “The fuck he didn’t recognize me – I’ve been to his fucking house, I know his fucking dogs names.” The judge says no, because this is not new and this party was already extensively testified to, and that this is not information she couldn’t have testified to the first time around.

Rosen wants Pie to testify about the House of Blues job and the depression Lana felt and that Lana was trying to get a job at the Hustler Casino and was pissed when she didn’t get it. The judge says no – all this has been testified to before and offers nothing new or nothing pertinent to rebuttal.

Rosen wants Pie to testify about “The Cowboy” (L.B. Moon). Hudson said that this relationship was a potential, but no big deal, but Pie will say that Lana thought this guy was the one. The judge says no – testified to before.

The last area Rosen wants to get into is the drugs and alcohol, and that Pie says she was using them more than in any other time of her life.Oh – and that Lana had her purse with her at all times.

The judge says he has to read PIe’s testimony regarding the drugs and alcohol, and that the purse thing isn’t rebuttal to anyone.

And he orders everyone to come 15 minutes before court on Monday to go through the same things regarding Jennifer Hayes testimony.