The Darwin Exception

because it's not always survival of the fittest – sometimes the idiots get through

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Ca vs. Spector – Pena Cross Day 1

Posted by thedarwinexception on May 30, 2007

For the cross of Dr. Pena we get not Linda Kenney Baden for the defense, but Christopher Plourd. And this cross examination isn’t in the confrontational, aggressive style of Bruce Cutler. Plourd and Pena seem to be in a friendly conversation, and Pena addresses the jury directly, pointing out to them perceptive questions on the part of the defense, telling them “This is a good point – something you need to consider”, in response to Plourd’s questions regarding the bruising.

Of course, Pena has no reason to feel adversarial or confrontational, Plourd’s questions seem to be an extension of the prosecution’s, and for the first hour, the only point he seems to be making with Pena is “You relied on another expert’s books – our expert, by the way – because you haven’t published any books, have you, Dr. Pena?” And most of the painstaking questions seem only to be setting up their own witnesses. Then Plourd goes step by step through Dr. Pena’s “list”. Yesterday during direct examination Pena had testified that he based his final report and decision of “homicide” on 12 points – and the prosecution had led him though every item on the list. Today the defense goes point by point trying to bring out flaws in Pena’s list. But Pena, with every issue, brings up the fact that his decision was not made on one factor alone. *Just* the fact that women don’t often kill themselves in stranger’s homes with a gun in their mouth may not be a deciding factor – the defense could introduce evidence that 100 women had done so, and it wouldn’t change Dr. Pena’s mind. He brings up again and again that it’s the totality of the evidence and all things taken together that led him to conclude that this woman was murdered.Plourd finally seizes on this statement, and asks Dr. Pena if that means that just the body alone would lead him to believe that this was homicide, and Dr. Pena says “No – it’s the totality of the evidence and all circumstances taken together.”Plourd also questions Pena’s statement that Clarkson likely would have removed her pocketbook from her shoulder if she was going to shoot herself, the lawyer asks him if the purse would have remained on her shoulder during the bruising struggle the prosecution alleges. The doctor maintains it is possible.

Plourd also elicits from Pena that Clarkson bruised easily. She said so in forms she filled out in a doctor’s office, and Pena says it is also a side effect of at least one of the drugs she was taking, Vicodin. The attorney points out that she has bruises on the front and back of her legs in addition to the contusions the prosecution noted on her hands and in her mouth. Pena agrees and says there is no way to date any of the bruises. Plourd asks the doctor exactly what he meant when he testified that the bruises were “recent” – what is the time frame of “recent” to the doctor? Pena says that recent, to him, means that the bruises could have occurred as recently as minutes before death, or up to 48 hours before death. This paints a different picture than the one the prosecution was trying to paint of a vicious struggle at the time the gun was fired.

Drawing on the now nearly required defense tactic of “blame the evidence handlers”, Plourd also elicits testimony from Dr. Plourd concerning the mistakes made in this case as far as the forensic evidence is concerned, including the loss of a piece of one tooth. and movement of Clarkson’s body which caused blood to flow out of her mouth, compromising evaluation of her dress for blood spatter.

Pena said the lost tooth fragment was the fault of an odontologist – a forensic dentist – who was called in on the case.

“There were three vials collected to be examined by the odontologist,” Pena said. “What happened is on review in meeting with the odontologist he admitted he broke one of the vials and the tooth fragment was lost. It flew around the room somewhere.”

Asked how this happened, Pena said, “When my back was turned he took it out, cracked the vial, panicked – as he told me – and sealed it again.” Pena said the fragment was never found.

The coroner said he had found some of the tooth fragments on a red carpet in front of Clarkson’s body and some on a staircase nearby, indicating that the force of the gunshot fired inside her mouth sent her two front teeth flying out.

The missing tooth fragment was among items in an in-house coroner’s office memo about concerns in the case.

In addition, the memo said a criminalist used tape on Clarkson’s dress to collect samples of evidence and inadvertently compromised the ability to evaluate blood spatter on the dress.

As for the blood from the mouth, the memo said, “Body movement caused oral purge which soaked the side of the dress and also compromised evaluation of the dress for blood spatter.”

Alluding to the now infamous acrylic nail piece, which has resulted in hearings outside the presence of the jury, and has called the reputation of Dr. Henry Lee into question, Pena said he was aware at the death scene that a piece of acrylic nail was missing from Clarkson’s right thumb.

Plourd asked Pena if he knew whether criminalists had looked around the body for the acrylic nail.

“Yes,” he said. “It was the sheriff’s crime lab.”

“How did they know the nail was missing?” asked Plourd.

“I told them,” he said

Pena’s cross is expected to continue Thursday.

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