How NOT to Cross-Examine a Medical Examiner

[00:00:00] Tony DeWitt: There are some days that I wonder what they teach at certain law schools because they don't really teach very much about trial strategy. And indeed, in my law school, they didn't teach a lot about trial strategy. You pick that up sort of as you go. But in the Apodaca case, there seems to be a lot less trial strategy than I would have hoped for if I had been the defendant. Let's talk about that in just a moment. Hi, Tony DeWitt here. I am a retired Missouri attorney who has now unretired so that I can bring you some commentary on trials and that sort of thing. Because I deal generally with legal topics, I'm not offering any legal advice and I'm not intending to form any lawyer-client relationships with any of you. I'm simply presenting some information. I am a content creator. I am not currently practicing law, although I do maintain my license in the state of Missouri. This is a trial channel and today we're discussing a trial. In fact, this is what we're discussing today. Today, we're back in the case of Isaac Apodaca. He is on trial for conspiracy to commit murder and second-degree murder in the death of Grace Jennings. He did not physically commit the murder. That was done by a woman by the name of Keira McCulley. And part of the issue in the case is whether he's responsible, even though he did not do anything but perhaps encourage it or create some fantasies around it. Now, again, that's the defense narrative. It may not be the truth. But let's look today at what happened when the medical examiner testified. On day three, the medical examiner, who reminded me so much of Dr. Carney from the Blaze Taylor trial that it was hard not to smile watching her testify on direct, got up and testified for the prosecution and did a pretty good job. Let's look at a few substantive cuts about some of the things she testified about. [00:02:19] Speaker 2: And if you'd begin, please, by stating your name for a record and spelling your name, please. [00:02:24] Emily Helmrich: Yes. My name is Emily Helmrich, E-M-I-L-Y-H-E-L-M-R-I-C-H. [00:02:33] Speaker 2: Ms. Murphy. Thank you, Your Honor. Good morning, ma'am. [00:02:36] Emily Helmrich: Hey. [00:02:37] Speaker 2: Can you please tell the jury what you do for a living? [00:02:40] Emily Helmrich: I am a medical examiner or a forensic pathologist. What that means is I perform autopsies on individuals who die outside of the care of a doctor or on individuals who die an unnatural death. [00:02:53] Speaker 2: Thank you. Let's talk a little bit about your educational background and training that led to you being a forensic pathologist. [00:03:00] Tony DeWitt: I will spare you the exposition of her background, all of her clinical training, all of her education, that sort of thing. Because although it's certainly necessary to qualify her as an expert, I think it's boring testimony. And I would ask the other side to stipulate to it so you didn't have to go into it. That would make trials much easier to get through. But of course, sometimes people on the other side can be rascals. [00:03:29] Speaker 2: After you've performed an autopsy, do you draw conclusions sometimes as to cause and manner of death? [00:03:36] Emily Helmrich: Yes. [00:03:36] Speaker 2: Can you explain cause and manner of death to the jury? [00:03:39] Emily Helmrich: The cause of death is exactly what it sounds like. It's what caused a person to die. Some options are pneumonia, heart attack, stab wound, gunshot wound, trauma. A manner of death is an opinion rendered by the pathologist based on the circumstances surrounding the death. And there's only five options for the manner. Those are natural, accident, suicide, homicide, and undetermined. [00:04:09] Speaker 2: Let's talk about the process of an autopsy. Where do you perform autopsies? [00:04:20] Emily Helmrich: At the OMI in Albuquerque. [00:04:22] Speaker 2: When a case or a person is assigned to you, how do they arrive at the office of the medical investigator? [00:04:30] Emily Helmrich: One of our investigators is deployed to the scene of the death and will place an identification band around the wrist of the person who has died, place them in a body bag, and seal that bag. When we receive a person at our office for exam, they're received in that sealed body bag. [00:04:49] Speaker 2: And do you review all information from every step of the case in addition to everything that you're present for? [00:04:58] Emily Helmrich: Yes, but I don't have anything that I review for the evidence that's collected. We simply collect that and release that to law enforcement. [00:05:06] Speaker ?: Okay. [00:05:07] Speaker 2: So you don't examine the fingernail clippings necessarily? [00:05:12] Emily Helmrich: Correct. [00:05:12] Speaker 2: Or you perform testing on them, I guess. [00:05:14] Emily Helmrich: Yes, we just collect them and release them. [00:05:16] Speaker ?: Okay. [00:05:17] Speaker 2: But in terms of the autopsy itself, are you present or pathologist is present for every stage of the autopsy? [00:05:24] Emily Helmrich: Yes, and if I'm supervising, then I am present to see every injury, every significant finding for that case. Okay. [00:05:33] Speaker 2: Can you, let's now turn to Grace's autopsy and discuss that. What were your overall findings about Grace in terms of her stages of development, nutrition, nourishment, or nourishment, the overall initial observations? [00:05:51] Emily Helmrich: Ms. Jennings was a healthy, appearing 21-year-old woman. She was thin, but she otherwise looked like a normal 21-year-old woman. [00:06:01] Speaker 2: And when she arrived, were there any evidence, was there any evidence of attempts at medical intervention or medical assessment prior to arrival at OMI? [00:06:17] Emily Helmrich: Not significantly. I believe she may have had an EKG pad or a sticky sticker that EMS places on her leg, but otherwise she did not have any significant medical intervention, no. [00:06:29] Speaker ?: Okay. [00:06:30] Speaker 2: Any evidence of any sort of underlying natural diseases that would have been involved in your opinion? [00:06:38] Emily Helmrich: She was a healthy young woman on my exam. Okay. [00:06:43] Speaker 2: Can you very generally describe the overall injuries to Ms. Jennings, and then we will review them in more detail. [00:06:52] Emily Helmrich: Ms. Jennings had multiple sharp force injuries on her body. She had 12 stab wounds and at least eight incised wounds, so 12 stabs and eight slices. She also had additional incised wounds on both of her hands, so greater than 20 sharp force injuries. [00:07:12] Speaker 2: And I guess I should back up. Are you able to make determinations if injuries are rendered before, during, or after someone dies? [00:07:22] Emily Helmrich: Sometimes we can say that, and sometimes we can't. [00:07:25] Speaker 2: Okay. Can you explain that a little bit more to the jury? [00:07:27] Emily Helmrich: Just like we talked about earlier with having a blood pressure, if a person sustains an injury while they have a blood pressure, that injury will be bloody in the tissues. If they sustain that injury after their heart has stopped beating, then that injury will not be bloody in the tissues. [00:07:45] Speaker 2: What can make something indeterminate? Why would you sometimes not be able to render an opinion on if it was before or after death? [00:07:52] Emily Helmrich: It can sometimes be hard to put an injury definitively in one of those categories if a person sustains an injury while they have a very low blood pressure. So when they are dying actively, or if the injury is very small and doesn't involve much tissue, then it can also be hard to say. [00:08:11] Tony DeWitt: Now, I don't know about you, but that actually was one of the questions that I had about how you distinguish between a post-mortem and a pre-mortem, you know, injury, and I thought she explained that very well. She's going through this very patiently, explaining all of this, doing a really good job, and again, if I'm on the defense, I'm wondering why they're putting this on since my guy, apparently, didn't inflict any of these wounds. Well, they're putting it on, of course, to make the jury a little queasy about what happened to poor Grace Jennings, and what happened to Grace Jennings was truly a tragedy and awful. But the allegation is that he merely conspired with and that sort of thing. It's not like he's responsible for any of those injuries. So there is some danger to the state in putting this on in that an appellate court might well determine, hey, that was all irrelevant. I don't think that's going to happen, but it certainly could. [00:09:13] Speaker 2: How did Grace die? What actually, what was injured that led to her death? [00:09:20] Emily Helmrich: So Ms. Jennings had wounds on her hands, cuts on her hands that occurred while she was still alive. So she was in contact with a sharp object while her heart was beating. She had wounds of her head and neck that largely occurred after she had died, and she had wounds of her chest and back and abdomen that at least one of these had occurred while she was alive. She had blood in her abdominal cavity and some blood in her chest cavity, and that would really kind of only happen if she had been alive while she sustained these. So at least one of the wounds of her chest and abdomen caused her death. [00:10:03] Speaker 2: How specifically did she bleed out? Did they, can you explain that to the jury? [00:10:08] Emily Helmrich: Yeah, so Ms. Jennings first and foremost had air in both of her chest cavities, so both of her lungs were collapsed. If that had occurred on either side of her chest, that could have caused her death, but it occurred on both sides of her chest, and so that certainly could have been fatal. Her lungs would not have been able to expand to allow her to breathe, especially in combination with injury to her diaphragm, that muscle that helps us breathe. She also had injury to her spleen, which was associated with some bleeding in the tissues nearby. So she did have some blood loss in the tissues at that area, and then she had a little bit of blood loss in her belly and her chest cavities. [00:10:55] Speaker 2: Are you able to form an opinion on how long it would have taken Grace to die from the time that the fatal injuries were inflicted, how long from when the fatal injuries were inflicted until she would be dead? [00:11:10] Emily Helmrich: Ms. Jennings did not have any immediately fatal wounds, so it would have taken her at least a couple of minutes to die. [00:11:19] Tony DeWitt: And now we get to cause and manner of death, which is pretty much the end of the direct examination. [00:11:26] Speaker 2: And you stated that your opinion is to cause and manner of death is what? [00:11:31] Emily Helmrich: Cause of death is sharp force injuries, and manner of death is homicide. [00:11:37] Tony DeWitt: Now, after she was through testifying on direct, it was cross-examination time. I expected the defense to say something like, does anything in your autopsy indicate that another person was involved in this killing? And the answer should be pretty simple, no. And then he would have sat down. Because all of the information from the autopsy, if he is telling the truth, if Apodaca is telling the truth, should be completely irrelevant. If he wasn't there and he didn't see any of this, I mean, again, why would you ask questions about the autopsy when it's not central to any part of your defense and really not central to the state's case? I think I would have objected to the autopsy photographs at the beginning, and I would have said, your honor, we'll stipulate to cause and manner of death. It was caused by Keira McCauley. Of course, the prosecution doesn't have to accept the stipulation. So, again, what you want to do is you want to get this witness off the stand as quickly as possible, ask maybe one or two relevant questions, and let her go. But there's one thing above anything else that you do not want to do. You don't want her to repeat everything that she said on the direct examination. I realize you may be curious, but you're not supposed to do that. You don't want her to sit up there any longer than she needs to because all of that, all of the photographs and the testimony are going to stick to your client. Even if it's not particularly relevant, it's going to stick. And so, the sooner you can get her off, the sooner the damage is done and over, and you can move on to perhaps other witnesses who can rehabilitate this issue. But he just apparently doesn't get it. Watch these questions and listen to what he's asking and ask yourself, what does this have to do with his defense? [00:13:48] Speaker 4: You had said you testified about 40 times? Yes. Are those all here in New Mexico? [00:13:54] Emily Helmrich: One time was in Arizona, but the rest have been in New Mexico. Yeah. [00:14:00] Speaker 4: And going back to what year, if you remember? [00:14:05] Emily Helmrich: I'm not sure I understand the question. Oh, since I've been tracking. [00:14:08] Speaker 4: Yeah. [00:14:09] Emily Helmrich: I would say probably around 2020 would have been the first time I had a jury trial. [00:14:17] Speaker ?: Okay. [00:14:21] Emily Helmrich: Or hearing. [00:14:22] Speaker ?: Yeah. [00:14:23] Speaker 4: Gotcha. So, this won't take me long. Again, Ms. Murphy has to do the hard part, and so I'll get you through this pretty quickly. There's a couple of areas I want to cover. First, it sounds like there were seven wounds total on the head and neck. Is that right? [00:14:47] Emily Helmrich: Yes, that's correct. [00:14:49] Speaker 4: And ten on the torso? [00:14:51] Emily Helmrich: I would have to refresh my recollection. Thank you. Please do. There were nine wounds on the torso. [00:15:00] Speaker 4: And then it sounds like one on the right arm? [00:15:06] Emily Helmrich: Yes. If we're not counting the right shoulder, one on the right arm. [00:15:09] Speaker ?: Yes. [00:15:10] Speaker 4: Okay. When you say not counting the one on the shoulder, is that part of the torso? Are you counting as it part of the nine on the torso? [00:15:17] Emily Helmrich: I do, yes. [00:15:19] Speaker 4: Okay. So, and then two on the hands, one on each hand? [00:15:23] Emily Helmrich: There's multiple ways we can count those, right? So, we can count the multiple slices across the fingers as one wound, or we could count them as three. But if we're counting the slice across multiple fingers, she had, as one wound, she had one. Seven total. Two incised wounds on her hands. Both, both hands. [00:15:51] Speaker 4: Both hands. Yeah. And then the one on her knee? Yes. Okay. So, 14, nine, 23, seven. So, 31 total. That's my math. [00:16:09] Emily Helmrich: Let me do my math. [00:16:10] Speaker ?: Let me do my math. One, two, four. [00:16:24] Emily Helmrich: I'm getting 27. [00:16:27] Speaker 4: 27 to 31. Okay. We'll go with your math. 27. [00:16:31] Emily Helmrich: Sounds good. [00:16:32] Speaker 4: And together, all of these wounds are lethal. So, if they were all inflicted at the same time, that entire infliction would probably cause her death in and of itself. [00:16:45] Emily Helmrich: Well, certainly, some of the wounds on their own could have caused her death by themselves. But, yes, generally speaking, when things are occurring at, you know, may be occurring at the same time, we lump them together as a cause of death. [00:17:00] Speaker 4: Okay. And we'll go through the ones that could, in and of themselves, cause death. She kind of did, but we'll just recover those. [00:17:12] Tony DeWitt: Now, why would you recover those? She's already testified to them. Your guy apparently didn't do them. So, why are you going over them? This is not smart. And it all works against your client. [00:17:29] Speaker 4: Okay. So, I think you indicated, or was it Dr. Pasquale who did the original report? [00:17:37] Emily Helmrich: Dr. DePasquale performed the examination. [00:17:40] Speaker 4: Dr. DePasquale. [00:17:41] Emily Helmrich: Wrote the report. I reviewed and certainly edited the report, and I signed the report. [00:17:47] Speaker 4: Okay. In the report, it indicates, there's an indication that this, that Ms. Jennings is underweight? [00:17:53] Emily Helmrich: She was underweight, yes. [00:17:55] Speaker 4: Okay. Yes. And was there a measurement taken of how thick her abdomen actually is? [00:18:01] Emily Helmrich: No, that's not a measurement that we routinely take from the exam. [00:18:06] Speaker 4: Okay. So, but it had to be a long blade to get through that entire body? [00:18:11] Tony DeWitt: Yes. That's a nonsensical question, and it doesn't advance any defense in this case. [00:18:18] Speaker 4: And could you describe to the jury what a defensive wound is? [00:18:22] Emily Helmrich: A defensive wound is a wound that's sustained while a person is trying to defend themselves against an attacker. [00:18:28] Speaker 4: And so, how do they get the wound when they're trying to defend themselves? [00:18:32] Emily Helmrich: So, hypothetically, in a scenario where a person is being attacked by a sharp object, the person may put their hands up to try to block that sharp object from touching other parts of their body. They may try to grab that sharp object to stop it from entering their body. Those are a couple possibilities. [00:18:54] Speaker 4: Okay, thank you. And the wounds that traveled across her fingers, which hand was that? [00:19:01] Emily Helmrich: Both hands. [00:19:02] Speaker 4: Both hands. So, you think that could be from grabbing a blade? [00:19:06] Emily Helmrich: I cannot make any determination about her behaviors because I only examined her after death. But that's possible that a person trying to grab a blade could get that. That's one of many possibilities. [00:19:19] Tony DeWitt: And the prosecution right now is going, oh, gee, thanks, pal. That really helps me because you just cleaned up what I forgot to ask on direct examination. Man, you're quite the guy. Then an issue arose about the distance involved with the length of the blade and that sort of thing. And she said she really couldn't give any estimate of that. And so, he asks this question and draws an objection. [00:19:45] Speaker 4: Okay, what types of distances can you give in shooting cases? [00:19:49] Speaker 2: Objection, Your Honor, relevance. [00:19:52] Speaker 4: Your Honor, it's relevant because I want to compare it to what's going on here. [00:19:57] Speaker 2: Approach the man. [00:20:00] Tony DeWitt: So, they approach, and this is what happens when he comes back. [00:20:05] Speaker 4: Counsel, you may proceed. Thank you, Your Honor. Well, let's just talk about incise wounds. In order for a person to inflict an incise wound on another person, they've got to be close to them. [00:20:17] Emily Helmrich: Not necessarily. [00:20:19] Speaker 4: It depends on how long the blade is. [00:20:21] Emily Helmrich: That's one of the variables. [00:20:23] Speaker 4: What other variables are there? [00:20:25] Emily Helmrich: If I throw a knife at another person from a distance, I could inflict an incise wound. [00:20:30] Speaker 4: With this many wounds, do you think a person would have to be close? [00:20:37] Emily Helmrich: It certainly could be consistent with close contact. This many wounds, yes. Okay. Thank you. [00:20:44] Tony DeWitt: And again, I just have to ask, what possible relevance does that have to his defense? It's just not a smart question. And you have to be careful when you're dealing with a professional, like a medical examiner, and you ask a question like, don't they have to be close? And she says, no, somebody could throw a knife. And I'm betting that she's probably seen knife wounds that were inflicted from a distance. So it just seems to me like he was rambling, trying to find his way through the minefield of questions to ask here to make it look like he was doing a good job cross-examining this witness. And in the end, all he did was reinforce prosecution's narrative about how this all happened and did not do anything to advance his defense of, it wasn't me, it was all her. So I don't understand what he was doing. Tell me what you think. One of my subscribers called this to my attention the other day as it was happening. She sent me an email and said, I don't understand what's going on here. None of these questions really make any sense. So I want to thank her for pointing this out. It gave me a chance to look at it. Hopefully you found this interesting and helpful. So thanks for being here. Catch me again next time. Thanks for watching my video. I really appreciate it. And today, as you go about your business, would you try to do just one kind thing for somebody? It doesn't have to be a big thing. You can open a door for somebody who has their arms full. You could buy somebody a Coke. You could let the manager know when somebody did a really good job for you at the grocery store or at Walmart or someplace else. There are all kinds of things we can do to make people's lives better. And a lot of times people will always remember to go to the manager and complain. They very seldom remember to go to the manager and say, hey, you know, that guy over there in produce is top notch. And I think it's really important to do that because I want to make the world a better place. I know you're here probably because you want to make the world a better place. So let's do that. Now, let's be respectful of one another. And thank God we live in the greatest country in the free world. 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