“This would be the first one.”
I nodded to underline the point.
“So you’re sort of a rookie when it comes to a killing with a hammer.”
“That’s right, but my comparison was painstaking and cautious. My conclusions are not wrong.”
Play to his superiority complex. I am a doctor, I am not wrong.
“Have you ever been wrong before in giving court testimony as a witness?”
“Everyone makes mistakes. I am sure I have.”
“What about the Stoneridge case?”
Freeman quickly objected as I knew she would. She asked for a sidebar and the judge waved us up. I knew this would go no further but I had gotten it out in front of the jury. They knew from what little had just been said that somewhere in his past Gutierrez had testified and been wrong. That was all I needed.
“Judge, we both know where counsel is going and not only is it not relevant to this matter, but Stoneridge is still under investigation and there has been no official conclusion. What could-”
“I withdraw it.”
She looked at me with searing hostility in her eyes.
“No problem. I have another question.”
“Oh, as long as the jury hears the question you don’t care what the answer is. Judge, I want an instruction on this because what he is doing is not right.”
“I’ll take care of it. Go back. And Mr. Haller? You watch yourself.”
“Thank you, Your Honor.”
The judge instructed the jurors to disregard my question and reminded them that it would be unfair of them to consider anything outside of the evidence and testimony while later conducting their deliberations. He then told me to proceed and I went in a new direction.
“Doctor, let’s zero in on the fatal wound and get a little more detailed. You called this a depression fracture, correct?”
“Actually, I called it a depressed calvarial fracture.”
I always loved it when the prosecution’s witnesses corrected me.
“Okay, so the depression or dent that was left by this traumatic impact, did you measure it?”
“Measure it in what way?”
“How about its depth? Did you measure that?”
“Yes, I did. May I refer to my notes?”
“You sure can, Doctor.”
Gutierrez checked his copy of the autopsy protocol.
“Yes, we called the fatal impact wound one-A. And, yes, indeed, I did measure the definitions of the wound pattern. Shall I give you those measurements?”
“My next question. Please tell us, Doctor, how did it measure out?”
Gutierrez looked at his report while speaking.
“Measurements were taken at four points of the circular impact location. Using a clockface, the measurements were at three, six, nine and twelve. The twelve being where the notch on the surface was located.”
“And what did the measurements tell you?”
“There was very little play in these numbers. Less than a quarter of a centimeter separated the four measurements. They averaged out to seven millimeters in depth, which is approximately a quarter of an inch.”
He looked up from his notes. I was writing his numbers down even though I had already gotten them off the autopsy protocol. I glanced over at the box and saw a few jurors writing in their notebooks. A good sign.
“So, Doctor, I noticed that this part of your work didn’t come up on direct examination by Ms. Freeman. What did these measurements mean to you in terms of the angle of impact of the weapon?”
Gutierrez shrugged. He stole a glance at Freeman and got the message. Be careful here.
“There is nothing really to conclude from these numbers.”
“Really? Wouldn’t the fact that the impression in the bone-the dent, as you called it-left by the hammer was almost even at all measurable points indicate to you that the hammer struck the victim evenly on the top of the head?”
Gutierrez looked down at his notes. He was a man of science. I had just asked him a science-based question and he knew how to answer it. But he also knew he had somehow strayed into a minefield. He didn’t know how or why, only that the prosecutor sitting fifteen feet from him was nervous.
“Doctor? Do you want me to repeat the question?”
“No, that is not necessary. You must remember that in science one-tenth of a centimeter can mean quite a difference.”
“Are you saying that the hammer did not strike Mr. Bondurant evenly, sir?”
“No!” he said in an annoyed tone. “I am just saying that it is not as cut and dried as people think. Yes, it appears that the hammer struck the victim flush, if you will.”
“Thank you, Doctor. And when you look at your wound-depth measurements on the second and third strikes, they are not as even, correct?”
“Yes, that is correct. In both of these impacts the deviation ranges up to three millimeters in each.”
I had him now. I was rolling. I stepped back from the lectern and started to wander to my left, into the open space between the lectern and the jury box. I put my hands in my pockets and adopted a pose of a completely confident man.
“And so, Doctor, you have the fatal blow delivered clean and flush to the top of the head. The next two, not the same way. What would account for this difference?”
“The orientation of the skull. The first strike stopped brain function within a second. The abrasions and other injuries to the body-the broken teeth, for example-indicate an immediate dead fall from a standing position. It is likely that the second and third strikes occurred after he was down.”
“You just said the other injuries indicate ‘an immediate dead fall from a standing position.’ Why are you sure the victim was standing when attacked from behind?”
“The abrasions to both knees are indicative of this.”
“So he could not have been kneeling when attacked?”
“It seems unlikely. The abrasions on the knees indicate otherwise.”
“What about crouching, like a baseball catcher?”
“Again, not possible when you look at the damage to his knees. Deep abrasions and a fracture to the left patella. The kneecap, as it is more commonly called.”
“So no doubt in your mind that he was standing when struck with the fatal blow?”
“None.”
It was perhaps the most important answer to any question in the whole trial, but I glided on like it was just part of the routine.
“Thank you, Doctor. Now let’s go back to the skull for a moment. How strong would you say the skull is in the area where the fatal impact occurred?”
“Depends on the age of the subject. Our skulls grow thicker as we age.”
“Our subject is Mitchell Bondurant, Doctor. How thick was his skull? Did you measure it?”
“I did. It was point eight centimeters thick in the impact region. About one-third of an inch.”
“And have you conducted any sort of study or test to determine what kind of force it would have taken for a hammer to create the fatal dent fracture in this case?”
“I have not, no.”
“Are you aware of any such studies of this question in general?”
“There are studies in the area. The conclusions are very broad. I happen to think each case is unique. You can’t go by general studies.”
“Isn’t it widely held that the threshold measurement of pressure needed to create a depression fracture is one thousand pounds of pressure per square inch?”
Freeman stood and objected. She said that I was asking questions outside the scope of Dr. Gutierrez’s expertise as a witness.
“Mr. Haller himself was quick to point out in his cross-examination that the witness’s expertise is in diseases of the GI tract, not bone elasticity and depression.”
It was a no-win situation for her and she had chosen the lesser of two evils: burning her witness or allowing me to continue to ask him questions that he didn’t know the answers to.
“Sustained,” the judge said. “Let’s move on, Mr. Haller. Ask your next question.”
“Yes, Your Honor.”
I flipped a few pages on my pad and acted like I was reading. It would buy me a few moments while I considered the next move. I then turned and looked at the clock on the back wall of the courtroom. It was fifteen minutes till lunch. If I wanted to send the jury out with a final bit of food for thought, I needed to act now.