EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, January 26, 2016

Another Case, Another Dr. Rodriguez Report...and the Prosecution's Failure to Turn it Over

Yesterday, I posted an entry about Dr. William Rodriguez preparing a report in a case that bore striking similarities to the Adnan Syed case. In today's post, I will discuss another Maryland case in which Dr. Rodriguez prepared a report...and the prosecution failed to turn it over.

The Charles Eugene Burns case also bears a striking similarity to the Adnan Syed case: In both, Dr. Rodriguez was present when the medical examiner performed her autopsy on the victim. In the Burns case, however, Rodriguez prepared a report.

I'm taking the following facts and arguments from the Brief of Appellee, 2008 WL 5023493, and Brief of Appellant, 2008 WL 4125705. On August 9, 2007, Dr. Carol H. Allen wrote an autopsy report, concluding that Lilian Phelps had died from blunt force injuries. The autopsy report "did not mention any theory that a 'car' was the cause of any of the victim's injuries." (TH. 59)

After Allen submitted this autopsy report, "the prosecutors showed Dr. Allen a 'photograph of the bolt' on the undercarriage of [Burns]'s car, and gave her their only theory of this case (TH. 61): that Burns had fatally struck Phelps with her Dodge Neon. "Dr. Allen then adopted the State's theory as consistent with the injuries she observed. (Th. 61)." Dr. Allen did this "without ever actually examining the bolt or the car, and without taking measurements of the bolt as compared with the holes 'punched' in the skull."

That said, a DNA sample taken from the rear brake cable of the Neon was a match for Phelps, and "[a] clump of hair was discovered on a bolt on the underside of Burns's car," although there was no scientific or DNA evidence connecting the clump of hair to Phelps. On the other hand, another DNA sample found on the undercarriage of the Neon was a match for Jennifer Blankenship. As in yesterday's case, Burns was a likely serial killer and Blankenship was another one of his victims; the DNA sample that matched Blankenship was "found near" the clump of hair

As a result, Burns's attorneys sought to exclude the hair evidence, claiming that (1) there was no evidence that it belonged to Phelps, whose blood was not found on the front of the vehicle where the blot was located; and (2) there was reason to believe that hair belonged to Blankenship, given its proximity to her blood. The trial court, however, denied the defense motion.

The court also denied another defense motion.

On cross-examination, Dr. Allen identified Defense Exhibit 1 as a copy of “the Forensic Anthropology Consultation by Dr. William Rodriguez,” who “is a forensic anthropologist who works for the Office of the Armed Forces Medical Examiner.” (Th. 44). She explained that, “A forensic anthropologist looks at skeletonized remains,” like those of Lillian Phelps, and that Dr. Rodriguez is “an expert,” whom Dr. Allen has “used...on previous occasions.” (Th. 44). Dr. Rodriguez actually “came to the Office of the Chief Medical Examiner and he examined Ms. Phelps' skull and cervical vertebrae and the hyoid bone.” (Th. 45).

Like, Dr. Allen, "Dr. Rodriguez issued his report on August 9th." When defense counsel asked Dr. Allen whether she “relied on what he told you in that report in preparing your report,” (Th. 45), Dr. Allen replied:

In some particulars. If you compared what was in his report, it is not quite the same as what is in my report. He is my consultant and I am the forensic pathologist. (Th.45) (emphasis added).

The defense then moved to admit Dr. Rodriguez's report into evidence, but the prosecution objected, claiming that it constituted inadmissible hearsay. Burns's public defenders then responded that

[U]nder Rule 5-703 if an expert relied on additional information in preparing and forming their opinion it is admissible even if it is hearsay as long as it is reliable....We just received this document last week from the Medical Examiner directly, because we had subpoenaed information from them and they wouldn't give it to us until we paid for it, and in typical form it took my office about two months to cut them a check. I had not received it in discovery. She said he is an expert. So, I'm asking the Court to admit it. I didn't have time to subpoena Dr. Rodriguez. (Th. 46) (emphasis added).

In response, the prosecutor claimed, “I didn't know about this until this morning and I hadn't seen it until I read [defense counsel's] copy. So, it is not like this is a discovery violation going on.” (Th. 46) (emphasis added).

In their appellate brief, Burns's attorneys correctly noted that this claim was clearly wrong because 

The consultant's report was “material” or “information” that was in Dr. Allen's “possession or control,” which formed part of the basis for her own expert opinion, and the State's Attorney was obligated to disclose that material. The rule does not relieve the prosecutor of the duty to disclose, merely because he claims ignorance of the material or information, because even an “unintentional” violation of the rule may require a mistrial, if it has irreparably prejudiced the accused.

In any event, before the judge ruled on the issue,

Dr. Allen explained, on cross-examination, that the “hyoid bone is a bone in the neck,” which is “very close” to the jaw. (Th. 50-51). Lillian Phelps' hyoid bone was broken, and this could have happened either from “pressure to the neck,” or from “an impact to the left side of the face.” (Th. 51) (emphasis added). The injury “could” have been caused by “strangulation”; it could also have been caused by a car going over her. (Th. 52) (emphasis added). 

Dr. Allen opined that there were “discreet injuries” and “multiple” impacts on the victim's head. (Th. 53). Dr. Rodriguez had opined that there were “at least two.” (Th. 53). Dr. Allen's reaction was:

That's Dr. Rodriguez's opinion. He is my consultant. As I have to stress, I'm the Medical Examiner. I do not have to accept his opinion. (Th. 53) (emphasis added).

Acknowledging that Dr. Rodriguez is “an expert in bones,” Dr. Allen responded, “Yes. However, I'm an expert in injury.” (Th. 53).

The State objected to eliciting any more of Dr. Rodriguez's opinions, “piecemeal” (Th. 54) (emphasis added). The defense replied that, “If he is an expert, I want to know why she didn't rely on it.” (Th. 54) (emphasis added).

Dr. Allen indicated that she was also “running contrary to my consultant,” on the issue of whether, as Dr. Rodriguez opined, “a blow to the left side” caused “the fracture of the mandible and the maxilla.” (Th. 55) (emphasis added). All she could say for certain was that there was “more than one” blow to the skull that caused the injuries. (Th. 56).

After a lunch break, "[t]he defense proffered that, during the lunch break, counsel had attempted to locate Dr. Rodriguez, to see if he could testify, but there was no telephone number on his report, and his name did not appear on any website for his office." Without the benefit of Dr. Rodriguez's input, the trial court ruled as follows:

I took a look at Defense Exhibit 1 and Rule 5-703, I guess particularly (b), which deals with the issue of Disclosure to the jury. It reads, [“]If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied upon by an expert pursuant to section (a) may, in the discretion of the Court, be disclosed to the jury even if those facts and data are not admissible in evidence. Upon request, the Court shall instruct the jury to use those facts and data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference.[”]

Even the rule itself really doesn't call for the item to be marked and accepted as an exhibit. But even if it were, considering the three factors that the rule sets forth. It certainly is unprivileged. So, that's okay. As to its trustworthiness, the expert who did take the stand did question the trustworthiness of a portion of the report. She further cited the difference or drew a distinction between what she does and what the forensic anthropologist does, one being an expert on bones versus her expertise on injury. Then adding in the issue of whether or not it is necessary to illuminate the testimony.

Weighing all of theses things and exercising the Court's discretion, the Court will deny the motion to admit it into evidence and it will stay marked for I.D. (T. 4/23/07 at 69-70).

In their appellate brief, Burns's attorneys made one final plea that Rodriguez's report should have been deemed admissible:

Here, the jury was entitled to consider such “crucial” information and the areas of disagreement between the State's own experts, especially on matters of the nature, cause and number of any injuries to the victim's skull, and whatever theories those findings do -- or do not -- support. Those areas of disagreement dealt with critical issues in this particular murder case, such as: the possible causes of injury to the hyoid bone in the neck (whether it was from “strangulation” or some other cause); and the possible causes of injury to the skull (Dr. Allen thought the circular “impressions “consistent” with the bolt underneath Appellant's car, but admitted that it was only one possible explanation); and whether there were “multiple impacts” (i.e., whether it could have been an accident, or the driver deliberately drove over the victim “multiple” times).

In the end, Burns's appeal was denied, but I can't find a copy of it. Presumably, the Court of Special Appeals of Maryland agreed with the trial court's findings. If so, I find this reasoning baffling.

Dr. Allen testified that (1) she had used Dr. Rodriguez on previous occasions; (2) Dr. Rodriguez was an expert in bones; and (3) Dr. Rodriguez examined Phelps' skull and cervical vertebrae and the hyoid bone. Given this, how could the court accept Dr. Allen's claim that she found his report untrustworthy? 



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Your post seems to ignore the fact that even if the otherwise inadmissible evidence were trustworthy, the Rule does not mandate it be provided to the jury. This, as you should know, since you are an evidence professor, falls squarely within the trial court's discretion.

Moreover, the Rule otherwise refers to information relied upon by the testifying expert. Here it seems, at least in this case, Dr. Allen didn't rely upon Dr. Robriguez so much as she disagreed with him.

Sounds like the defense should have "found the time" to subpoena him.

Posted by: Clem | Jan 26, 2016 12:57:04 PM


Have you tried contacting Dr. Rodriguez to ask what his practices are regarding generating reports or not generating reports?

Posted by: THM | Jan 26, 2016 1:12:30 PM

I find all of the tricks and omissions made by the prosecutions in many cases baffling. Where is justice and how really is it defined?

Posted by: Brenda Sue Thompson | Jan 26, 2016 1:27:45 PM

It makes perfect sense to me, if there is nothing that benefits the prosecution they simply say no written report is necessary. If it does benefit them they get the report. It sounds to me that there should be some procedural rules in place for investigations into crimes which based on the crimes requires law enforcement take in and record specific forensic evidence or any charges made against someone would be dismissed.

Posted by: Robert Kirkpatrick | Jan 26, 2016 4:48:42 PM

Clem - In regard to issuing a subpoena to Dr. Rodriguez, there was no time to be "found". Defense council didn't know about his consultation with the Medical Examiner until less than a week before this testimony. They didn't know about it because they didn't receive the ME's report in discovery from the prosecution, and when they subpoened the ME's office it took 2 months to receive the report. It took 2 months because the ME's office demanded payment for it, and the PD's office took 2 months to cut a check. I fail to see how any of this process is what was "due" to the defendant in support of a "fair" trial.

Posted by: Dan | Feb 1, 2016 5:39:24 AM

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