by Kenneth Eade
“You sure?” she asked, as Brent stroked her cheek and dived in for another round.
“Well, maybe for a while.”
Brent thought of the famous quote from the movie, Arthur; “Isn’t fun the best thing to have?” He could get used to this “relationship thing.” For some reason or another, any relationship he had ever formed with a member of the opposite sex did not last too long. Maybe “Debbie Does Dallas” was not so bad for him after all.
CHAPTER FIFTY-ONE
Lieutenant Commander Michael Farraday was the medical examiner from NCIS who had performed the first autopsy on Ahmed. Most people are intimidated by doctors, and you would think the jurors would be even more intimidated by one in a crisp naval officer’s uniform, but Doctor Farraday had a surprisingly good bedside manner that you would not expect from a doctor whose patients could have never benefited from it, because of the fact that they were all deceased. He spoke to the jury in a calm, reassuring, but authoritative way. He was a pleasant looking, handsome Dr. Kildaire type, as opposed to Dr. Orozco, who could be regarded as something of a slob.
“Doctor Farraday, can you please tell the jury a little about your background and experience?”
“Of course. This can get a little boring Ladies and Gentlemen, so I apologize in advance.” Dr. Farraday smiled a pleasant smile, and delivered his “I am super doctor” speech to them with deliberate articulation. Like Dr. Orozco, Farraday had an impressive set of credentials, and he was younger and better looking, an irrelevant point to anyone else but the jury, who would put as much value on his appearance as his testimony.
“I am a certified medical examiner, currently serving with the Naval Criminal Investigative Service. I hold an M.D. and a PhD from Georgetown University School of Medicine, an A.B. from Dartmouth, and a medical license from the State of Virginia, where I am board certified in clinical, anatomic and forensic pathology. I am a Diplomate of the American Board of Forensic Medicine. I did my residency at the University of Florida Health Sciences Center, my general medicine internship at the Naval Medical Center in San Diego, California, and received aerospace medicine specialty training at the Naval Aerospace Medical Institute in Pensacola, Florida. I served as a naval flight surgeon for 6 years at the Marine Air Corps Station in Beaufort, South Carolina, and served as a Medical Education and Training Officer there for six years, before assuming my present position as a medical examiner for NCIS, where I have performed over 3,000 autopsies over the past 15 years. I have also published numerous medical journal articles, which are listed in my curriculum vitae. Sorry if that seemed to be one enormous, continuous sentence.”
Members of the jury smiled and there was one chuckle. They were in love with him.
“Doctor Farraday,” said Nagel, handing him a piece of paper, “Can you identify what has been marked for identification as Exhibit 54?”
“Yes, this is my curriculum vitae.”
“Move Exhibit 54 into evidence, Your Honor.”
“No objection? It is received.”
“Doctor Farraday, you read the expert report of Doctor Jaime Orozco, did you not?”
“Yes, I did.”
“And did you agree with Dr. Orozco’s opinion on the cause of death?”
“No, I did not.”
“Can you tell the jury why?”
“Although there was some evidence of aspiration of a small amount of fluid in Mr. Khury’s case that is fairly common in enteral feeding. It is my opinion that the small amount of fluid aspirated was not enough to cause death. The forensic evidence in his case was consistent with asphyxiation by hanging.”
“What about Dr. Orozco’s comments on the lack of ligature marks consistent with death by hanging, and the lack of abrasions or hemorrhages in the skin and indeed, no hemorrhages in the eyes?”
“First of all, Ladies and Gentlemen,” Farraday said, making eye contact with the members of the jury, “The presence of ligature marks depends on the composition of the ligature. In this case, it was a soft cotton and rayon jumpsuit leg sleeve. This type of ligature does not often leave a mark, or will leave only a superficial one.
“Further, the presence of the mark may be affected by the amount of time the body was suspended. It takes only 2 kilograms of tension to close the jugular veins and only 15 kilograms tension to close the trachea. Death by asphyxiation happens quickly, in no more than three minutes. In this case, when cells are monitored every one to three minutes, the body was discovered relatively quickly after death.”
“What about the use of olive oil as a lubricant? Would that cause you to change your opinion?”
“Not at all. As Doctor Orozco stated, lipoid pneumonia was not the cause of death, and I concur. Lipoid pneumonia cannot cause death in such a short period of time.”
“Dr. Farraday, you performed the first autopsy on Mr. Khury, is that correct?”
“Yes.”
“And Dr. Orozco performed a second autopsy?”
“Correct.”
“Are there any limitations on a second autopsy in this case?”
“Yes. Ladies and Gentlemen, an autopsy should take place as soon as possible after death. The best evidence is available at the first autopsy, because, since the body begins to decompose rapidly from the lack of oxygen, time is your enemy.
“Although second autopsies are not per se considered unreliable, in this case, Dr. Orozco did not have the chance to dissect the internal organs for examination, and he couldn’t examine the body fluids because they had already been removed, examined and disposed of. He only had preserved tissue samples to refer to, which makes his examination secondary to the autopsy that I performed.”
“So doctor, in your opinion, because of all those reasons you have articulated, were you able to make a more thorough and pertinent examination than Dr. Orozco?”
“Yes, I was.”
“Doctor, do you have an opinion within a degree of reasonable medical certainty, of the cause of Mr. Khury’s death?”
“Yes. It is my opinion that the cause of Mr. Khury’s death was asphyxiation by hanging in an apparent suicide.”
“And do you have an opinion as to whether Mr. Khury’s death was the result of gross negligent medical care in his last enteral feeding?”
“Yes. It is my opinion that his death was not a proximate result of gross negligent medical practices or reckless disregard of standard medical practices.”
Again, in the back in the gallery, Balls Anderson sat in his usual place, smirking, as if he was sitting in his living room, watching a ridiculous reality TV show.
CHAPTER FIFTY-TWO
Now it was Brent’s task to engage the doctor in cross-examination, which was going to be like an intellectual chess game, with the odds stacked in favor of the doctor due to Brent’s lack of medical expertise.
Brent didn’t have time to go over the testimony with Dr. Orozco to prepare, but they both knew that the Navy doctor would come up with a perfectly plausible explanation that his opinion was the correct one. It was important to emphasize any weaknesses in that opinion so the jury didn’t end up tossing a coin in the jury room during their deliberations.
“Dr. Faraday, when you said you disagreed with Dr. Orozco’s opinion, that means you have a different opinion than he does, isn’t that correct?”
“Yes, it is.”
“And Dr. Orozco’s opinion is a completely different opinion of what caused Mr. Khury’s death, right?”
“Yes.”
“Now, doctor, between your and Dr. Orozco, you think that your opinion is the correct one, don’t you?”
Farraday smiled and said, “Of course it is.” The jury caught his infectious smile. This guy was good.
“Move to strike as non-responsive, Your Honor.”
“Granted.”
“Could you please repeat the question?” Farraday knew full well what the question was. He just wanted to emphasize his innocence and impartiality.
“Yes. Between your opinion and Dr. Orozco’
s opinion, you think that your opinion is the right one, don’t you?”
“I think that, within reasonable medical certainty that my opinion is correct and Dr. Orozco’s is not correct, yes.” That was not exactly an answer to the question, but Brent had to live with it. Still, it was worth a shot to try to put him in his place.
“Move to strike everything but “yes”, Your Honor.”
“Denied. Please continue, Mr. Marks.”
“Isn’t it also true, Dr. Farraday, that Dr. Orozco’s opinion is based, in part, on the forensic evidence in the report from the autopsy you performed?”
Farraday paused for a moment. He didn’t want to find himself checkmated. “He stated that his opinion was so based, yes.”
“Move to strike as non-responsive, Your Honor.”
“Granted. Please answer the question, doctor.”
“Yes, his opinion appeared to be based, at least in part on the forensic evidence in my autopsy report.”
“And it was also based on his own examination, correct?”
“Yes.”
“And you did not perform a second autopsy on the body of Mr. Khury, did you?”
“There was no need.”
“Move to strike as non-responsive, Your Honor.”
“Granted, please answer the question, doctor.”
“No I did not.”
“So Dr. Orozco’s opinion then, is based on your report as well as his own examination, and yours is based solely on your report, is that correct?”
“Objection! Compound and argumentative!” barked Nagel, weighing in on the game.
“Sustained.”
No matter, thought Brent. The jury had heard the conclusion he made and some were nodding their heads in agreement.
The intellectual tug of war continued for about an hour, and Brent was careful to try to paint Farraday into a corner whenever he could, as opposed to allowing him to pontificate on how superior his opinion was to Dr. Orozco’s. Nagel then went into redirect.
By that time, at least one member in the jury was nodding off, which signaled that their joint attention span was wearing thin and in serious need of a junk food recharge. Thankfully, within walking distance of the courthouse was the L.A. Mall, filled with a delectable choice of nutritious meals, from Carl’s, Jr. to Quiznos. Brent and Rick settled on the less noxious California Pita.
Out of the corner of his eye, Brent saw Balls Anderson, sitting at a corner table.
“That little fucker is following us,” he said to Rick.
“I’ll go have a talk with him.”
Rick got up, sauntered over to Balls’ table, and sat down. Balls looked at him with those crazy eyes.
“Hello, sir.”
“Hello, Balls.” Balls looked surprised that someone knew his nickname.
“How do you know my nickname?”
“I’m an ex G-Man, Balls, nothing gets past me.”
“What do you want?”
“We’re trying to have a privileged conversation here. You’re too close.”
“It’s a public place. I have the right to eat here, sir.”
“Not if you’re stalking us, you don’t. You know what’s up there?” Rick asked, pointing at the ceiling.
“What?”
“L.A.P.D. station. I wonder how fun your lunch would be if a couple of uniformed officers came down here to put you in a crime report. Does your command even know you’re here?”
“I’m on leave.”
“So, leave then.” Rick signaled with his thumb for Balls to “hit the road.” Balls got up, leaving his uneaten lunch on the table.
“This isn’t over,” he said, and walked away.
Punching his buttons may have not been the brightest thing to do, but Rick knew from experience that it was the only way to pop open a lead that wasn’t leading anywhere. He just had to make sure to keep a keener eye on Brent. It looked like the timer on Balls’ fuse had just been activated.
CHAPTER FIFTY-THREE
Dr. Richard Lester’s credentials as a clinical and forensic psychiatrist were beyond reproach. He held a PhD from Johns Hopkins University and an MD from Georgetown University School of Medicine, where he completed his internal medicine internship. He had completed his psychiatric residency at Johns Hopkins as well as a forensic psychiatry fellowship there.
Dr. Lester was a member of the American Psychiatric Association, the American Academy of Psychiatry and the Law, and the American Medical Association. He had written numerous articles in psychiatric, medical and law review journals, and had testified in court as an expert many hundreds of times. Lester had served as a Professor at several East Coast universities and medical schools. He was a Diplomate of the American Board of Psychiatry and Neurology with added qualifications in Forensic Psychiatry, and a Certified Forensic Physician with the American College of Forensic Examiners Institute.
“Dr. Lester,” asked Nagel. “Just to be clear, you have been hired by the defense and paid for being here today to give your testimony, haven’t you?”
“Yes, I have.”
“But doctor, in the many times you have testified in the past, has it always been for the defense?”
“Oh, no, I have testified for the plaintiff’s side many times. Each case is different, and I am always called upon to give impartial testimony.”
“How many of those cases that you testified would you estimate were plaintiff’s cases?”
“About 35%.”
Dr. Lester testified as to the reports he reviewed, including Dr. Ransen’s report, which he disagreed with.
“Dr. Lester, as a result of your review, have you been able to formulate an opinion, within a reasonable degree of medical certainty, whether the conditions of detention of Ahmed Khury resulted in a mental condition that contributed to his suicide?”
“Yes. It is my opinion that Mr. Khury could not have developed such a mental condition as a result of the conditions of his detention alone.”
“Why?”
“While it is true that long periods of solitary confinement, sensory deprivation and overstimulation may exacerbate certain psychic syndromes, Mr. Khury’s medical history was devoid of any mental conditions that could have been worsened by those conditions. Further, his solitary confinement was of too short a period to cause any serious mental effects.”
“Doctor, does the fact that Mr. Khury was not only subjected to sensory deprivation, but also long periods of sensory overstimulation affect your opinion?”
“No. While I agree with Dr. Ransen that there are studies on the effects of sensory overload on the mental state, the period of time that Mr. Khury was subjected to this as part of his behavioral modification program was not significant as to cause any such effects.”
Dr. Lester explained, in detail, the pathology of suicide, and how it was not likely that anyone, even a psychiatrist, could have predicted or prevented Ahmed’s suicide, based on the information that was available.
“Suicide is a complex behavior, influenced by multiple synaptic systems, the functioning of which can be permanently altered by experience. The expression of a suicidal thought is rather common among humans, and does not necessarily lead to an attempt. Still, the precautions that were taken in Mr. Khury’s case were reasonable, given the fact that the only symptom was the expression of a suicidal thought, given his lack of a previous mental conditions and lack of previous attempts.”
“In your opinion, doctor, could the type of treatment Mr. Khury experienced during his detention reasonably lead to uncontrollable impulses to commit suicide?”
“No, it could not.”
“Dr. Lester, do you have an opinion, within a reasonable degree of medical certainty, as to whether a reasonable person would perceive Mr. Khury’s treatment to create a danger to his medical condition?”
“Yes, I do. It is my opinion that a reasonable person would not perceive Mr. Khury’s treatment to create any type of danger to his medical condition.”
“Do you hav
e an opinion as to whether the techniques used in the behavior modification program with Mr. Khury were used with deliberate indifference to his expressions of suicidal tendencies?”
“Yes. It is my opinion that the staff reacted reasonably in response to Mr. Khury’s expressions and not with deliberate indifference.”
Now that the jury was completely confused by conflicting testimonies from two different psychiatrists, Brent had the onerous job of cross-examination without confusing the jury even more.
CHAPTER FIFTY-FOUR
If engaging Dr. Farraday was a challenge, then the cross-examination of Dr. Lester proved to be even more of one, as Brent had to avoid the pitfall of attacking the field of psychiatry itself and its lack of reliability.
In Brent’s dues-paying days, he sometimes took on personal injury cases, something he would not do now even if his practice depended on it. About ten years ago, a new psychiatrist moved to Santa Barbara and began doing evaluations for some insurance companies. In Brent’s analysis of his potential new personal injury clients, they fit one of three types: a group of people that had absolutely nothing wrong with them; a group of pathological liars, and a group that Brent was convinced had something very wrong with them. Brent figured that he either had a black hole above his office, sucking in all the bad clients and depositing them in his waiting room, or there was something seriously wrong with the doctor.
Since Brent was relying on his own psychiatrist to cross over the finish line in case the jury did not buy the death by force-feeding and cover-up scenario, he dared not attack the science of psychiatry itself. However, Rick had done a thorough background check on Dr. Lester, and had come up with a nice slam dunk for Brent. No chess game this time: Brent would trip up Lester with his own words.
“Dr. Lester, you testified that about 35% of the cases you testified were cases in which the plaintiff hired you, is that correct?”
