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Monday, July 14, 2008

Cross Bones: Court Of Appeals Of Ohio Finds No Prosecutorial Misconduct Despite Scathing Comments Attacking Kathy Reichs a/k/a Bones In Nun Murder Cold Case

On the Fox series "Bones" a point of humor is that while forensic anthropologist Temperance Brennan, a/k/a Bones, is brilliant at her profession, she is frequently less than brilliant as an expert witness.  One example can be found in the first season episode, "The Girl in the Fridge," with the following exchange occurring among Bones, Special Agent Seeley Booth, and jury consultant Joy Deaver:

     Deaver: Juries don’t like you.

     Bones: Excuse me?

     Deaver: I’ve seen you testify before Dr. Brennan.  You come off cold and aloof.  I want to make sure…

     Bones: Cold and aloof?

    Deaver: Try not interrupting, it makes you sound arrogant.  Also don’t front load your testimony with technical crap.

     Booth: Look, this really is not the best approach.

     Bones: I’m a technical witness.  I have testified in over thirty trials.

     Deaver: But most of the experts you’ve come up against are as dry and boring as you are.  Now I don’t know if you’ve seen their expert…

     Booth: She’s seen him, Ms. Deaver.

     Deaver:  Well then you understand my concern. Professor Stires is open, charming, great looking.  The jury’s going to love him.  I love him.

     Bones: This isn’t a personality contest.  It’s about data that we present to the jury.

     Deaver: You’re kidding, right?  The women on the jury aren’t going to be listening to a word that comes out of his mouth.  They’re going to be undressing him...  I don’t want the men on the jury to be putting more clothes on you.  Wear something blue it suggests truth, make eye contact with the jury, and loose the clunky necklace.

     Bones: Mary and Scott Costello murdered Maggie Schilling.  The forensic data I’ve complied proves that.  That should be enough.

     Deaver: But it isn’t enough.

     Booth: Okay that’s…that’s great. We’ll uh, take that under consideration, thanks.

Well, now it appears that Kathy Reichs, the inspiration for Bones, ran into the opposite problem while rendering expert testimony in a case in Ohio.  That case, State v. Robinsion, 2008 WL 2700002 (Ohio App. 6 Dist. 2008), sounds like it could form the basis for an episode of "Bones."  Here is a very brief version of the facts:

On April 5, 1980, the body of 71 year-old Sister Margaret Ann Pahl, a Catholic nun, was found in the sacristy of the chapel in Toledo, Ohio's Mercy Hospital. She was lying flat on her back, with her arms to her sides, her legs together and straight, her habit pulled neatly up to her breasts, and her underwear pulled down around her right ankle. Her assailant had strangled her to the verge of death and then stabbed her 31 times. Initially, she was stabbed nine times through an altar cloth that her assailant had placed over her body. The altar cloth was then removed and Sister Paul was stabbed 22 more times to her face, neck and chest

From there, there were a number of red herrings in the case, which explains why it became a cold case for over two decades:

     -detectives initially thought that Pahl was strangled to death and that the wounds were from a pair of sewing scissors normally kept in the sacristy;

     -detectives then thought that Pahl was manually strangled by someone with large hands, but later concluded that she was a victim of soft ligature strangulation, although the strangulation was not the cause of her death;

     -detectives soon dispelled the initial belief that Pahl was raped, although they concluded that a genital injury may have been inflicted to mislead investigators into thinking a rape had been committed;

     -a housekeeper at Mercy Hospital told police that Pahl had been upset because one of the priests had shortened Good Friday services, meaning that priests could be suspects; and

     -the nun's letter that brought the case to the attention of the cold case unit in December 2004 alleged that she had been victim of ritualistic sexual abuse performed by multiple individuals, although the eventual defendant was not one of those individuals.

Instead, the defendant was Gerald Robinson, the Senior Chaplain at Mercy Hospital and a former altar boy.  Robinson was a suspect back in 1980, at which point police interviewed him and recovered an eight-inch long sword-shaped letter opener from his residence.  Somehow, though, the notes from that interview were lost, and while a doctor determined that the letter opener was compatible with each of Pahl's wounds, its blade was sumptuously clean and appeared as if it had been polished.  Nonetheless, when treated by a senior criminologist with the chemical phenolphthalein, the letter opener tested presumptively positive for the presence of blood, but, because of the small amount of available material, the criminologist was unable to conduct a further test to confirm the presumptive test result.

Without the ability to conduct further tests, the case lay dormant for decades, until the nun's letter, with the nun later telling police that they should look for an upside down cross on Pahl's chest.  This led police to look again at Pahl's altar cloth and determine that the nine stab marks in it were precisely aligned stab marks marking the outline of an upside down cross.  They also determined, inter alia, that the puncture marks had an unusual Y-shape that was consistent with the size and shape of the letter opener's unique four-sided blade

This led to the exhumation of Pahl's body and the discovery by anthropologist Julie Saul that a piece of Pahl's mandible contained a small, diamond shaped defect.  Robinson was soon thereafter charged with her murder, and at his trial, forensic anthropologist Steven Symes and other testified that the mandible defect was created by a tool similar in size and shape to the letter opener.  The state's somewhat amorphous theory of the case was that Robinson was less than content working with the nuns at Mercy Hospital, wanted to be a military chaplain, and killed Pahl out of anger.  As the prosecutor summarized it during closing:

     "You listened to this evidence. You heard what took place in the sacristy. Is this some sort of satanic cult killing? No. Was this part of some ritualistic black mass? No. Sorry to disappoint. This case is about perhaps the most common scenario there is for a homicide. A man got very angry at a woman, and the woman died. The only thing different is the man wore a white collar, and the woman wore a habit."

And what of the upside down cross?  According to the prosecutor:

     "What do you do over the dead or dying? You perform last rites. And that's what he did. Oh, a bastardized version of last rights to be sure, but that is what happens. He covers her with that blessed altar cloth, and he marks her with the sign of the cross, but an upside down cross. Why? Father Grob told us why. To degrade her. To mock her. To humiliate her. To bring her down to the lowest point he possibly could. He marks her with an upside down cross in front of the Eucharist, the very person of Jesus Christ to whom she is wed. He carves that in her. Does that make him a Satanist? No. It she'd have been Jewish, he would have carved a Swastika in her chest. It was how he could humiliate her most."

So, how did Kathy Reichs come into play?  Well, defense counsel called her to rebut the claims of the state's expert regarding the mandible defect.  Reichs somewhat contradicted their testimony by concluding that the test fit of the letter opener into the mandible defect potentially could have done something to alter the bone defect, although she could not say with any degree of scientific certainty that the test fit did, in fact, alter the bone defect.  The prosecutor responded with a scathing attack on Reichs, showing the jury a chart that referred to her as a "hired gun" and describing her testimony as follows:

     "Then they called Kathy Reichs to testify. And her testimony was pretty poor. She talked about she had sort of two personalities. She had Katherine Reichs, Ph.D., that she's the forensic anthropologist, and when she's the novelist, she's Kathy Reichs. Well, I think we just heard the testimony of Kathy because she did absolutely no science. I think the telling point was what Dr. Barnett talked about, is that scientists do not presume, and that's exactly what she did. She never examined anything. She never did anything. They talk about trust. Would you go to a doctor that would not even look at you? She didn't look at the evidence. They talk about that they weren't at the exhumation. * * * They talk about they were not allowed to go to the exhumation. The evidence from the exhumation is still at the coroner's office. It's always been there available for review. She's refused to review the evidence. First and only time she's ever testified from photographs was in this court. Nowhere else. Clearly improper. Unethical. Never conferred with the experts who actually did the testing. She knows those people. She didn't say, well, how did you do this, what test did you conduct? I mean, she's not in a situation where they're adverse parties. We're here for a search for the truth and she could've explained a lot to you, but she decided not to be able to do that for you. And her opinion is based upon the term of could have. And she failed to follow her own replication and protocol. She did nothing. So I don't think she really adds anything to this particular case."

Robinson was later convicted of murder and appealed, claiming, among many other things, that the prosecutor's characterization of Reichs and her testimony was improper and constituted prosecutorial misconduct.  The Court of Appeals of Ohio curtly rejected this argument with one sentence:  "In referring to Reichs as a 'hired-gun,' the state did not act improperly, nor did it affect appellant's substantive rights. See State v. Smith, supra, at 14."

So, I went to State v. Smith, 14 Ohio.St.3d 13 (Ohio 1984), a case where the Supreme Court of Ohio held that "[t]he test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant."  The Court then proceeded to find that this test was satisfied, and a new trial was warranted, because the assistant prosecutor referred to defense evidence as "lies," “garbage," "garbage lies," "[a] smoke screen," and "a well conceived and well rehearsed lie." 

So, am I missing something?  How does Smith support the court's conclusion in Robinson?  Are we supposed to assume that a prosecutor calling a defense expert a "hired gun" and impugning her character and credibility clearly doesn't meet this test?  Such a holding would be inconsistent with precedent from across the country, such as Sipsas v. State, 716 P.2d 231, 234 (Nev. 1986), in which the Supreme Court of Nevada ordered a new trial after the prosecutor referred to the defendant's expert witness as "[t]he hired gun from Hot Tub Country. Have stethoscope, will travel."

Furthermore, it would seem to me that the holding is inconsistent with prior Ohio precedent.  For instance, in Dawson v. MetroHealth Ctr., 662 N.E.2d 1123, 1124 (Ohio Ap. 8 Dist 1995), the plaintiff claimed that defense counsel made the following improper statements about her expert witness:

     "And let's take a look at Dr. Charms as we are looking into the truth aspect of things. Let's see what Dr. Charms has to add to this case. He is a hired gun. He does 90 percent of his work for plaintiffs. Plaintiff attorneys say I've got a case for you. Here you go, Mrs. Dawson, go see Dr. Charms, he will treat you right, he will say you are injured. Just go there."

The court found that while these statements were objectionable, they did not form the basis for a new trial, contrasting the case with a prior case, Tsitouris v. WIlson, where an Ohio court granted a new trial when counsel made a more rambling diatribe about the opposing party's expert witnesses being "paid mercenaries" and "professional prostitutes."  In my mind, the prosecutor's statements in Robinson more closely resembled the rambling diatribe in Tsitouris than the prejudicial but concise statements of defense counsel in Dawson, especially when we keep in mind that "the jury is likely to believe a prosecutor's suggestion that defense counsel [and expert witnesses] are mere hired guns." Berger v. United States, 295 U.S. 78, 88 (1935).  And yet, the Court of Appeals of Ohio gives us nary a word explaining its decision.  Maybe the Ohio Supremes will spill more ink in what I imagine would be Robinson's impending appeal.

(For all of the other facts and legal issues in the case, you can read the whole Robinson opinion).

-CM

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