Written in Blood

by Diane Fanning

  “I think it’s unlikely,” Leestma said. Then he blathered about the wounds, trying to avoid giving a direct and definitive answer.

  “Okay. So—But at least it’s possible that Elizabeth Ratliff was struck by some instrument?” Hardin pressed.

  “I’ll never say never and never say always. So, it’s there. It’s a possibility.”

  The defense next called Major Timothy Palmbach to the stand. He was an employee of the State of Connecticut Department of Public Safety. He also worked part-time for Dr. Henry Lee’s Forensic Research Training Center.

  The whole purpose of his arrogant testimony was to slash and burn the Durham Police Department and the North Carolina State Bureau of Investigation. He criticized the collection of evidence and the length of time it took to tape off the scene and restrict movement near Kathleen’s body. But he saved his most vicious attacks for Agent Deaver. He disputed Deaver’s conclusions and ridiculed his technique.

  When questioned about Palmbach’s testimony, some state police officers across the country expressed dismay. They insisted that there is a procedure to follow if another officer suspects wrongful conclusions by a crime scene analyst. There is an official protocol for cleaning up concerns between jurisdictions. Regardless of the merit of his opinions, they professed, revealing this information as a witness for the defense in a murder trial is not one of the methods members of the police force would ordinarily use. However, in the State of Connecticut, there is no official policy and no existing law that prohibited or discouraged Palmbach from presenting this testimony. Due to scheduling difficulties, Palmbach’s cross-examination was reserved for a future date.

  Following his testimony, the judge ruled that a statement from Christina Tomasetti could be read into the record. Christina was Todd’s companion on the night of Kathleen’s death. Now she lived on the West Coast, was pregnant and, according to the defense, her doctor did not want her to travel. Many suspicions were raised about the real reason for her absence in the courtroom.

  Nonetheless, a member of David Rudolf’s staff read her description of the early morning hours of December 9, 2001. Her statement concluded: “Mr. and Mrs. Peterson were in good spirits and very happy when Todd and I left the house at 10:20 P.M., Saturday night. I gave this statement of my own free will.”

  In response, the prosecution read the following statement into the record: “On January 8 at 1600, I, Art Holland, interviewed Ms. Christina Tomasetti. Ms. Tomasetti said she did not see Ms. Peterson while she was in the house.”

  Then Ron Guerette, the investigator for the defense team, took the stand. He explained how he had ordered the boarding-up of the stairwell and the additional actions he had taken there. He said that he was present every time the plywood was removed for a defense expert to view the stairwell.

  With the judge’s permission granted, it was now time for the jury to inspect 1810 Cedar Street for themselves. A journalist from the Raleigh News & Observer was selected as the press representative at the scene. In his report, he said that the jury members went into the house in two groups of eight. Jury members went one by one to the staircase. Some of them walked all the way up the stairs and down—others walked halfway up. Some walked three steps up and looked back to see what it would look like to fall from that position—some made swinging movements as if the blowpoke were in their hand. Many of them crouched down to look more closely at the blood spatter in the lower level.

  The defense hoped that the jurors would perceive that the space was too tight to swing a blowpoke. And they did. But some of them came to another conclusion as well—that the space was too small for someone to sustain such massive injuries from such a short fall.

  46

  When the celebrated Dr. Henry Lee walked to the front of the courtroom, he nodded his head, smiled at the jury and wished them a good morning. He tried at first to project the image of a typical witness, but his Hollywood-enhanced persona overshadowed his pleasantries. The only testimony capable of creating more anticipation than his was the possibility of Michael Peterson facing cross-examination.

  Lee testified that medium velocity spatter comes from many things other than impact—shaking hair, a swinging hand. He stood in front of the jury box to demonstrate, telling them he would not use real blood, just red ink.

  With a full dropper, he dripped red onto a horizontal white board and then a vertical one, showing examples of low velocity spatter. Using a piece of hair dipped in the red ink, he flipped his wrist and slung medium velocity spatter on a white board held by Rudolf on the edge of the table where Lee performed his demonstration. When he swung a second time, his arm flew upward and flying red ink spattered the defense attorney. Dr. Lee laughed, but Rudolf was not amused.

  He then explained that that type of spatter could also be the result of someone coughing, sneezing or wheezing. He held up a bottle and said, “I’m not going to drink ink. I’ll use some ketchup. He swigged it into his mouth and coughed onto the white board. The ketchup was diluted and a fine mist flew far and wide around the board and landed on the prosecution table, staining some of the papers there.

  Freda Black fumed. When the experimentation continued and she had to duck to avoid the onslaught, she was ready to throttle him.

  Lee told the jury that the pattern would be radically different if the person were lying down. Laughing, he said, “I’m not going to lie down.” He turned to the defense table. “Anybody want to lie down? Nobody want to lie down? So we won’t do demonstration of lie-down.”

  Photographs of Kathleen in death were important evidence. When the prosecution team showed the horrific pictures from the stairwell or the autopsy suite, they held photos up to the jury, but did not display them to the whole courtroom. The defense, however, demonstrated total insensitivity to Kathleen’s family members by displaying these photos on a large screen.

  Guy Seaberg pressed a key on the computer and there was a close-up of Kathleen’s agonized face, larger than life. Dr. Lee pointed out the evidence of blood or a darkish stain around her mouth and on her lip. That, he said, proved that much of the blood on the walls was coughed up by Kathleen.

  Rudolf wound up the direct examination of Dr. Lee with a long-winded question that had one succinct point: Was the evidence more consistent with a beating or was it more consistent with an accident?

  Lee answered, “It’s more consistent with an accident.”

  The defense released its witness, but one of Dr. Lee’s statements hung like a cloak of deception around the witness box. “There’s too much blood for a beating,” he said. This counter-intuitive statement stunned jurors and spectators alike. For some, it was a fatal blow to Dr. Lee’s credibility.

  On cross-examination by Jim Hardin, Lee confirmed that he did not believe Kathleen died from a beating, but did agree with Agent Deaver’s finding of three points of origin in space—seemingly contradictory conclusions. He then tap-danced around questions posed about the cause of the lacerations on Kathleen’s head.

  He testified that a void spot on the wall was not the result of cleaning, but was caused by Kathleen coughing while holding a closed fist to her mouth. He could tell this, he said, because of the ghosting—the round circles of blood with empty centers.

  Hardin asked Dr. Lee if he tested those spots for the presence of saliva.

  “Not my responsibility. That’s something your local laboratory crime-scene people should do. If they do their job properly,” Lee banged his fingertips on the wood railing, “I don’t need to come here. You cannot blame me. Say I did not do test.”

  Hardin pushed the issue, causing Lee to get even touchier.

  “How many time I have to repeat it?” Lee turned to the jury and smiled. “That’s not my job. In Connecticut, I guarantee I would do it.”

  Hardin asked him about different photos and blood spatter patterns and what they meant, getting him to admit that the prosecution scenario was possible. Hardin used a photograph to point out stains in the crime scene and to as
k Lee if he tested any of them.

  Lee laughed and asked, “You want me to work for you? Sure, you can offer me a job in North Carolina.” During direct examination, Lee often made eye contact with the jury, but during cross, the façade of charm slipped.

  On his next day of testimony, he discredited Agent Deaver’s experiment model in the stairway because Deaver used a head-shaped piece of Styrofoam with a wig in lieu of a human head. He also said that he did not use stringing via a computer model or any other method to determine point of origin. He just used his visual observation.

  At first, Lee claimed that he had not used the stringing method since he was a rookie. On further prodding from Hardin, he admitted to using the method in a 1992 case as verified by the photographs in his book. Then, Hardin forced him to acknowledge that he had used the process as recently as a year ago.

  After Lee agreed with Agent Deaver’s analysis of bloodstains on shoes, Hardin moved on to Peterson’s shorts and Lee disparaged the use of experiments at all. He said that it was impossible to reproduce real life and any effort to do so was useless.

  Using Lee’s book, Hardin went through the cycle process of crime reconstruction iterated there and read a quote from the book about the need for testing to corroborate the reconstructive hypothesis. “You wrote that, didn’t you?”

  “Yes,” Lee admitted.

  When Hardin asked him about any testing he performed on clothing or on any other evidence seized, he argued again that it was not his job.

  Hardin continued, “Well, Dr. Lee, you did produce an eight-page report called a ‘reconstruction report,’ didn’t you?”

  “Yes, I did.”

  “And you did that without going through all the phases of the fact-gathering process that you indicated in your book are very important to go through in order to produce a reconstruction?”

  “No. I did gather the facts.”

  Pressured by Hardin, Lee admitted that Deaver did a good job, but had not considered all the possibilities.

  After a break, Hardin asked, “Based on all you saw and all you did, all you didn’t do, is it your testimony before this jury that you can absolutely, conclusively exclude that Kathleen Peterson was beaten on her head?”

  “My conclusion more consistent with an accidental fall.”

  “But you can’t exclude that she was beaten?”

  “Nobody can.”

  Hardin continued to pummel the witness after lunch. He questioned him about a conversation Lee had with Agent Deaver in which he said that what Deaver did was some of the best work Lee had seen.

  In response, Lee dithered without giving a real answer to the question.

  Hardin pushed harder. “Okay. Do you recall telling him that his work and his conclusions were very close to yours, but that you differed on how some of the blood spatter occurred? Do you recall that?”

  Lee insisted he did not recall.

  “Well, let me show you a copy of your book. You recall giving him a copy of your book, don’t you?” Hardin asked.

  “Yes, I generally give everybody a copy of my book. I want them to learn.”

  [ …] “Do you recall signing an inscription with a note to Agent Deaver in this book?”

  “Yes.”

  [ …] “If you would please read what the note says.”

  “It says, ‘To Duane Deaver, one of the best,’” Lee read. “‘Keep up with your good work. With warm regards, Henry Lee.’”

  “Okay.”

  Lee objected that his courtesy was just the result of his Chinese culture and upbringing. “I cannot say he did not try to do good work.”

  A Cheshire grin crept across Hardin’s face. “So you are agreeing then that he did good work?”

  “I just … What, you want me to say he do lousy work on the book? I cannot say that. Just like I give Mr. Rudolf a book and say he’s … ‘You’re one of the best attorneys,’ but he’s lousy.”

  When Dr. Lee stepped down from the stand, no one at the defense table would look their celebrity witness in the eye. They offered no celebratory handshakes. No pats on anyone’s back.

  47

  The next witness called by the defense was Faris Bandak, a Ph.D. specialist in biomechanics, the study of forces and motion on living things. He prepared a flashy video to enhance his testimony.

  The video was too stylish by far—the animated model wore black nail polish, and black lipstick on an otherwise blank face. It also had problems in its content. The lift chair so prominent in all the photographs of the stairwell at Cedar Street was not present in the film. Its presence at the scene gave the initial impression to investigators that Kathleen was disabled.

  The computer-generated woman was shown leaning forward and holding the railing before she fell backwards—in direct contradiction to the laws of physics. It did not demonstrate any movement that would cause Kathleen to get blood on the soles of her feet. The pratfall seen in the animation would have caused bruising on the buttocks of a real woman. Kathleen had no such marks. And if the impact on the doorjamb was the first, as shown, the blood evidence found there would not have existed.

  On cross-examination, Freda Black gave her most effective performance up to this point of the trial. “What experience do you have in scalp lacerations?”

  “None.”

  “Thyroid cartilage?”

  “None.”

  “No research that you’ve done personally?”

  “Do I have to build a 707 to know how to fly one?” Bandak was cocky now, but in a few minutes, Black would have him stammering like a schoolboy.

  “So how many autopsies have you attended before?” she asked.

  Bandak gave a rambling answer that included his experience in live surgeries with animals and children.

  “Sir, I didn’t ask you about surgeries and I didn’t ask you about animals. How many autopsies have you attended where the ultimate opinion of the pathologist was that an adult person died because of a beating death? Any?”

  “None.”

  “Not having that experience and not being a forensic pathologist yourself, you come to this courtroom and tell this jury that Dr. Deborah Radisch, who actually performed the autopsy, is just dead wrong about this?”

  “Well …”

  “That’s what you told them, correct?” Black pushed.

  Bandak stammered out his objections to being paraphrased and justified his interpretation of the biomechanical evidence. Black jerked him back to the question at hand: Did he disagree with Dr. Radisch’s testimony that the lacerations were inconsistent with a fall?

  Bandak stuttered his way through his responses as Black lobbed one direct response after another at him. He tried to discredit Dr. Radisch’s expertise, but left the impression that he didn’t believe his own testimony.

  He was still rambling on when Freda Black interrupted, “Do you remember my question?”

  Then Rudolf interrupted her. “Objection. Argumentative.”

  “Assuming it is not argumentative,” Judge Hudson said, “overruled.”

  “Sir, my question was, would you agree that a person that’s actually there, whether it’s a doctor or pathologist or even someone in your position actually there visualizing a person’s body, looking at their wounds, feeling their wounds, measuring their wounds, looking at all the different things on their body—Would you not agree a person with that vantage point could really have an advantage in making a decision in a case like this?”

  “[ …] Not on the cause, not in the causation.”

  Freda asked Bandak to get up from the stand and use the Kathleen doll and acrylic model of the staircase. He held the doll awkwardly, like a man caught playing Barbie and trying to deny it. She asked, “Can you show us another scenario of what might have happened? Such that she received those injuries in the stairwell?”

  Bandak bumbled through a clumsy response. Black then switched to photographs of the crime scene. Bandak held the photos before the jury box as Black fired a rapid series of
questions. Bandak did not fare well under the constant volley.

  Black’s attack then led to one big question: “How many lacerations do you contend she had to the back of her head?”

  After a long pause, Bandak answered, “If you count it, you count it per, per hit she has, uh, uh, four lacerations. If you count it as individual slices, she has more. Individual—if each individual fork is counted, she has more. It’s just a bookkeeping issue.”

  “So the number of lacerations she has is a bookkeeping issue?” Outrage screeched like fingernails on a chalkboard on the edge of Black’s voice.

  “Objection. Argumentative,” Rudolf shouted.

  “I think she’s just asking a question,” Hudson responded. “Overruled.”

  “What do you mean by that?” Black asked again.

  Bandak gave a disjointed response about the different ways you could count the injuries.

  “So the number of lacerations wasn’t important to you?” Black asked.

  After another aimless response from Bandak, Black asked, “So, what was the answer to my question, sir?”

  Rudolf called out an objection.

  “Three—three lacerations,” Bandak answered before Hudson overruled. “By my way of counting.”

  After establishing that Bandak had billed $40,000 to Michael Peterson so far, Black let him go.

  48

  On Thursday, September 18, for the first time in weeks, coverage of the Michael Peterson trial was not on the front page of the local newspapers. The gale force winds of Hurricane Isabel had blown it to the back pages. That day, court was cancelled in advance and then a lack of electricity in the courthouse suspended the action on Friday as well.

  On Sunday, Defense Attorney David Rudolf called District Attorney Jim Hardin. He informed him that he might call lead investigator Art Holland as a witness for the defense. Hardin knew Rudolf had an unwelcome surprise in the works, but he had no idea that legal steps were taken behind his back.

  Earlier that day, David Rudolf requested an ex parte order from Judge Orlando Hudson. That type of order meant that no one—not the judge or the defense—would inform the state of its existence.