Ward trial: Jury decides to try again Thursday

By Patsy R. Brumfield / Daily Journal

8:03 P.M.
TUPELO – Thomas James Ward’s jury will sleep on his case tonight, returning Thursday to work on whether he is guilty or not in the 2010 shooting death of Anna Catherine McCoy.
• • •
6:47 POST
5:54 – Judge returns. Send for jury.
5:57 – Jury seated. Final closing by state.
BOWEN TO DO FINAL CLOSING.
BOWEN – You have sat patiently here over a week …. now your solemn duty to decide guilt or innocence of Thomas James Ward (he points to him.) For last hour, heard several others put on trial. State, prosecution, DA’s Office, criticized. Told that for some reason they’re to be tried here today. Not what court told you in its instructions. One thing to decide, that is the guilt or innocence of that man right there (points to him,) Thomas Ward. All those disgtortions, criticizm of everybody in this case … from time that man right there shot Anna Catherine McCoy, What people did to try to save her life, to investigate this case.
You heard attempt to put those people on trial, criticized. That’s not what judge told you with instrutions in this case. (Post photo on overhead.) This is the young woman who’s life at 20, student ICC, soccer team, getting her educaiton. Full life ahead of her, promising life as tell by looking at her. Happy well adjusted, beautiful young woman. Had no right… did not deserve to have her life snuff out by that man there, Thomas Ward.
Judge said you took an oath to follow the law … reach verdict in this case. The stae of MS despite what has been alluded to by defense counsel, state has every confidence you will do that. State of MS does not believ eyou wil shirk your duty, or compromise your oath. State of MS believes you will … as have done hte past 6-7 days… listen carefully to evidence, consider it, dtermine fact, apply facts to law … and in that manner return your verdict. When you do … what you will do is decide among three choices that defendant is not guilty ….WHICH IS LUDICROUS … or manslaughter by culpable negligence or of what state has proved to you … that is he guilty of depraved heart murder.
Now, judge also told you … instructions … he told you it’s yours to determine the facts in this case. Whole table of evidence here. Tests, you’ve heard tetimony of witnesses who saw what happened in the aftermath, took statement from defendant and talked with other people there. You heard testimony from expert witnesses from both sides, at least one who was paid a lot of money to testify today. Based on all of that … tests, opinions … consider those and some gave your knowledge. Me, too. Expert witnesses, they have specialized knowledge … which average jurors and average public and average lawyers don’t now about. One particular witness… believe you will agree… exptensive knowledge about propensity of this firearm … the safety features. It does not just or on its own or bump, accidentally go off and shoot and kill Anna Cahterine McCoy the way THAT MAN said it did. That was Paul Smith. He explained to you in detail, design, manufacture and function of weapon.
Remember demonstration, he’s performed all over the world.. that they tried to get this weapon to accidentally fire … throwing it on the ground. It just wouldn’t happen. It cannot be fired without a heavy 12-14 pound trigger pull. It does not just go off. Man of us remember old single action .. obsolete… they would. They used firing pins. Ths is a modern weapon, designed to prevent accident that this man said happened. It cannot be unintentionally fired… but only by sufficient force of 12-14 pounds on trigger through full cycle. You don’t bump this gun and it go off. That’s what defendant wanted police to believe …you to believe. It simply could not happen.
Other reasons that defendant’s version of how this killing of Anna could not happen. Heard witnesses strained at great lengths to explain how Anna was holding weapon, way Ward says she was, making exchange to him, if she was holding by slide back here or hand behind muzzle or here near muzzle. You heard him go to great lengths to try to explain … this or that. Malarky! Total Malarky!
Anyone… firearms expert and defense’s own expert Earnest… could not tell you that it could not happen. He said it could be consistent with an accident. He also said could happen that way… with etnesive muzzle flash burning on hand or arm or damage to thumb or top of hand .. by recoil of slide. Two basic reasons …. that defendant says … that is wasn’t an accident. What we have proved is that is it depraved heart murder. Court has defined that for you.
Court told you you were sole judges of fact. I stand here and tell whatyou heard… ou heard from Fleitas and Kelly. If you find differently, you are the sole judges of fact. You make the decision. Our purpose here is to help you understand and give you our inferences of what evidence shows. Think you will agree with this. Judge instructs that in weighing evidence and credibility to the witness, you are expected to use your good common sense. Court told you … use your honest judgment. Consider evidence in light of your own experience.
What is common sense? What judge didn’t say was that when you’re selected as juror and you listen, for soe reason to hrow common sense out the window? No, he told you just the opposite. What does your good common sense tell you? What defendant says – he says he was sitting on the bed… oh, that Anna was sitting on the bed. Let’s look at this chart. This is the bed. This is the foot. Head of the bed against south wall at house. Head of bed against the wall, side rests against east wall. Night stand is here. Now, a lot of things that don’t make sense…about what defendant said … trajectory is most important. But he said she was sitting on bed with head against pillow against headboard and had been playing with the gun. LUDICROUS AND RIDICULOUS. Who’s gun was it? Who bought it 12 days before? Who on that day went to Scruggs and put this flashlight on it? Who did that? The defendant, Thomas Ward (Pointed to him.)
And by the way, Foresman said that Ward bought lite, mounted on the pistol, got off work… went home mounted it. Going to eat at Harvey’s. Coming back,he told her about that flashlight. Who’s going to want to play with this flashlight? He just put it on there. If there’s any playing around … who do you think was going to be doing that? Thomas Ward, who just bought it. Bought it, trget shoooting the day before. Bought the light the day she was killed. He wants to show it off, he is the on eplaying with the gun.
Let’s go back to wht he said. He said Anna sitting on edge of bed. She can’t sit anywhere else but here. But he said Anna was playing with the sight and he comes over and she’s going to hand it bak to him. Well, it’s very strange scenario … he says .. allright, he says Anna handed it back to him. No proof whatever that Anna has any experience with firearms. None. Some ofyou know about firearms … is a 21-year-old girl with no experience with gun do what he said she was doing … point gun at herself? Secondly, if she does like he said she does and reaches across and … she’s lying on the bed with head against pillow. On this side of bed. Defendant said she was sitting. He’s standing here and she goes to hand hi the pistol. Now, what is going to happen?
Paul Smith and their expert, Earnest, what is going to happen if what defendant say shappened? He said she grabbed grip of gun and it must ahve gone off, the gun shot her, she shot herself. But, we know this gun isn’t going to go off by grabbing the grip. We know this gun requires … hope court will allow you to take this weapon to jury room … without live ammunition… you can eperience the trigger pull. But the defenant says he grabbed the grip and that Anna must have bumped the trigger. Of she must have pushed it. Gun went off.
Already heard testimony that that can’t happen. Can throw it down, slam it against brick wall. It will not discharge in that manner. Mr. Smith also demonstrated… see if you can get it to go off as expert said… push on it like that. I won’t happen. Why? This gun was designed … made with a safety mechanism that would prevent just the thing that man says happened. It did not happen, it could not happen. Another thing, for sake of argument that it did, what is going to be the trajectory of bullet and effect on hand of Anna McCoy? Several things…. slide goes by and if it doesn’t damage or burn .. the bullet itself could perforate her palm or at least cause … to her arm. All those things. You’ve seen the autopsy photos… they are gruesome. You will see absolutely no marks, no damage, no powder burns, no muzzle flash, no cuts from the sight. It will not be there. Know why? Because Anna was not killed by the way that man says she was killed. She was killed, most likely, in this manner.
Both witnesses, staate and defense, … it didn’t make a differene… every witness on gun shot range said the muzzle … had to be more than 18 or 24 inches. Another said had to be more, up to 40 inches. Exactly wht we saw. This was not a close contact gunshot wound. It wasn’t even close intermediate wound. This gun was fired fro m6 feet to 4 feet to Anna McCoy. When he took this gun, recklessly for whatever reason, Playing around. Who knows. We don’t have to prove motive. We may never know wht precipitated thea ctions of that man when he recklessly killed Anna. It shot her much greater range than contact… like exchange he talked about. More than 24 inches, from his expert. Ours said more than 3 1/2 feet.
This is the way it most likely happened: Anna was lying on the bed. Thomas Ward was playing or showing his new light on his pistol. He was very most likely at foot of bed or sitting in this chair at computer desk. Why say that? Remember trajectory talked by Adele Lewis. FLEITAS – – your honor, OBJECTION…. TRAJECTORY WAS OBJECTED TO ON DIRECT. LEWIS SAID NO CONCLUSIONS COULD BE DRAWN ABOUT POSITION OF FIREARM. NO FACTUAL BASIS FOR THIS ARGUMENT, WE OBJECT. Judge – Mr. Bowen? BOWEN – I have photosl. JUEDGE – OK TRAJECTORY ARGUMENT GONE.
BOWEN – A few more minutes. (He’s going through the photos.) You can find them inthe jury room. You remember them… Dr. Lewis said entrance wound was right here, right above the lip .. exit wound was here at top of her head from right to left. Now, is it reasonable or possible that if the shooting occurred defendant said it did…. OBJECTION – FLEITAS — WHAT COURT DID NOT ALLOW HER TO GET INTO. NO WAY TO DETERMINE POSITION AT MOMENT GUN FIRED. NO FACTUAL FOUNDATION. JUDGE – SUSTAINED. Bowen – May I show pictures?
Bowen – This is picture …. exit wound came out of top of her head on the left side. You draw your own conclusions. Remember, a bullet travels from a barrel in a straight line. Ask yourself is it possible… that if Anna is handing gun…… FLEITA S- OBJECTION… AGAIN, COUNSEL ATTEMPTS TO ARGUMENT WIHTOUT EVIDENTIARY FOUNDATION. NO CONCLUSION ABOUT ANNA OR FIREARM. IMPROPER COMMENTS. Bowen – I object. I have every right to drawn mine. JUDGE – I THINK HE’S ENITLED TO PHOTOS. Fleitas – about arguments drawn from facts not in evidence.
BOWEN – Look at pictures, firearm.You make your determination. Was this an accident oir did this man recklessly shoot Anna McCoy? Other omments I don’t have time to make – attacks on crime lab, pathologist… have no personal interest in this case, just tht justice be done. 911 tapes, dont’ ahve time. tell you this. People do not react with shock, with terrible reaction until they fully realize what they have done. Until he shot andkilled Anna McCoy, he did not fully realize consequences of his terrible action. Also, he did not call … he didn’t ask for ambulance? Why? More interested in her dying so she wouldn’t be a witness to what happened.
No investigation is perfect. No test can tell you what happened in this case.
Old radio show that started with question: What evil lurks in the hearts ofmen? Question wasn’t action. If Anna knew what evil lurked in the heart of that man, she might well have been alive today. How would she know he would take this gun and act as recklessly as he did that night point the gun and shoot her.
Depraved heart murder or manslaughter only two possi ilities. Only difference is degree of recklessness. We’ve demonstrated extreme recklessness this night. Culminated in the death of Anna McCoy.
Your verdict will not be justice because nothing will bring her back. But justice for her family and state. WE cannot let people go around adn recklessly brandish or play around with them, and say, oh, it was an acident. We cannot allow that.
Two possible verdicts. Ask you to … nothing more than depraved heart murder. 6:36.
JUDGE – Thank you , counsel. Jury you have heard all testimony, evidence and closing remarks. Remains work to be done. First to thank 3 alternates for their service.
Tonight, not sure how long here. If you go out, you may not be able to re-enter. Up to Sheriff’s Dept. Alterntes… dismissed with thanks. Your checks will be mailed to you.
Now, the 12 regular jurors. Will go to jury room. I want you to do this … most days we’d leave at reasonable hour as best we could. Sometimes asked to stay longer. Today is one. Sensitive to your comfort and convenience. End of a tense time. Would like for you to go to jury room and get organized, select foreperson. Take instructions with you, items of evidence. Have the gun, etc. Any objection to live rounds not going with them?
BOWEN – Keep them sealed. No attempts to load pistol in any manner.
FLEITAS – Can’t anticipate every inquiry. Of opinion that the … all matters be permitted into the jury room. Believe the court’s instructions about gun and rounds enough for them to make inquiries and be safe.
JUDGE – All items go with you. Just don’t unseal those live rounds. Do not load that gun, an absolute. Now, clerk will bring to you the instructions, items, legal pads. It’s almost 6:45 – I ask you to do this… get organized, elect foreperson.Tell bailiff how long you want to work. Say if want food tonight or want to go home and return in the morning. Want you to discuss it now.
Sheriff show jury to jury room. 6:44
Judge – I have no idea how long jury will want to work. If they say to work for extended period, I’d be inclined to let them do so. It they say want food, indicates they will work for a while. If they say want to go home, we’ll make decisions as time comes.
COURT IN RECESS. 6:46
• • •
5:38 POST
TUPELO – The jury is close to taking Thomas James Ward’s life into its hands. The state will spend another 30 minutes on closing statements, after already pressing for his conviction.
Defense attorney Victor Fleitas took more than an hour to say the state had not proved Ward murdered Anna Catherine McCoy.
Ward, 25, faces up to life in prison if he’s convicted of depraved-heart murder in the April 15, 2010, death of McCoy.
She was a 20-year-old Itawamba Community College soccer player when she died at Ward’s Saltillo home of a single gunshot to the face.
Ward and his attorney, Victor Fleitas of Tupelo, insist it was a tragic accident, not murder.
Prosecutors are DA Trent Kelly with assistants Richard Bowen and Josh Wise.
This trial began May 1 and the state rested its case at mid-day Tuesday. Two defense witnesses took the stand but the jury was sent home early to await additional witnesses for today.
Only one witness, a forensic pathologist, testified for the defense today. Then, Ward revealed he will not testify and the defense rested its case.
• • •
3:15 p.m. – Judge enters. JUDGE – Expect spectators are tired of waiting. We’ve been extremely busy. Believe we are ready to proceed. First, read into record about instructions. Then jury will come in for instructions. Then, counsel will have closing arguments. Believe this entire matter will take 2-2 1/2 hours. Ask especially during time court is reading instructions and when counsel makes final arguments, that you get as quiet as possible, refrain from trips in and out of courtroom. Not going to lock the doors but I will, if necessary. Ask continued cooperation.
Ready to make a record as to instructions.
(Goes through instructions … Court’s Instructions: C-1, 2 / FLEITAS OBJECTS TO C-2 … says it’s C-33, circumstantial evidence instruction. C-3, C-4, C-5, C-6, C-7, C-8, C-9, C-10/FLEITAS – OBJECTS AS STATE’S 1, DEFENSE SAYS PROPER IS D-13 AS TENDERED as non-circumstantial evidence instruction. C-11/FLEITAS – SIMILAR OBJECTION TO C-10. preferable instruction should be D-15, also to language about pistol. C-12, C-13, C-14, C-15, C-16, C-17.
Now move to instructions court refused, would not give. C-20/ STATE OBJECTS. FLEITAS IS D-1. C-21/STATE OBJECTIONS. Was D-22. C-22 / STATE OBJECTS, two-theory instruction.FLEITAS/ Tendered that this is circumstantial was D-3. C-23… REFUSED. C-24/STATE OBJECTS, repetitive. Fleitas – D-5 tendered, not duplicative. BOWEN – Also to object on circumstantial basis. C-25 / STATE OBJECTS – proper only in circumstantial case, repetitive. Argumentative, suggests they could tender a hung jury. FLEITAS – Was original D-7, it is tendered as proper, to exclude info about circumstantial. C-26 / STATE OBJECTS, to consider prior inconsistent statements…no witnesses like that. FLEITAS – was D-8, submit that Brown’s testimony, it is appropriate. C-27 / STATE OBJECTS, duplicate and refers to reasonable doubt. FLEITAS – Was D-11, appropriate to provide jury, given nature of case. C-28 / STATE OBJECTS – also includes circumstantial evidence, sets out elements of offense covered by other instructions. FLEITAS – Originally D-13, as circumstantial and as beyond-reasonable-doubt instruction. C-29 / STATE OBJECTS – Refers to elements of culpable, neg manslaughter. Contains circumst evidence language/ FLEITAS – Was D-15, more proper instruction. C-30 / STATE OBJECTS – erroneous inform jury that malice is required for depraved heart murder. FLEITAS – Was D-18, definition of malice per depraved heart murder. Imperative in this case to provide guidance jury to provide some guidance about what constitutes and distinguish with culpable manslaughter. Absent any definition, no rational basis between sentences of the two charges. Not being able to instruct violates equal protection.
JUDGE – Court recognizes difficulty on this instruction. Do not believe malice should be defined.
C-31 / STATE OBJECTS – Court instructs about beyond reasonable doubt. Duplicative. FLEITAS – D-17, burden of proof with state. State must prove it WAS NOT an accident. C-32 / STATE OBJECTS – Veiled attempt to define reasonable doubt. Argumentative. FLEITAS – Was D-18, correct statement of the law, appropriate. C-33 / STATE OBJECTS – Repetitive, already given by court. FLEITAS – Alternate instruction, circumstantial evidence instruction. Contend this is circumstantial evidence case. Instruction, two-theory instruction proper.
3:40 – FLEITAS – may be appropriate to note ones parties have agreed to withdraw from consideration. (Fleitas got a few more minutes to get ready for jury.)
3:51 – JUDGE – next, bring jury back. Jury returns.
Judge – wait was longer than I hoped or expected. Matters have been completed, and even tho later in the day, we are going to proceed as far as we can today. First, court will read you the instructions. After tha, the state will open its final arguments, Then defendant will make closing arguments and state will make its final closing. Then you will commence your deliberation. Not sure how much time each side will take. We will be here past 5 o’clock. We’ll make determinations as we go along.
COUNSEL READY FOR INSTRUCTIONS? BOTH AGREE.
JUDGE – (PRB – I will not take all this down exactly, but will make notes as instructions get my attention.) Tells jury that it’s the jury’s exclusive providence to make these decisions. Sole judges of the facts, what weight and credibility will be applied. Defendant is presumed innocent throughout trial. Defendant is not required to prove his innocence. Burden of proof is upon the State of Mississippi, beyond a reasonable doubt. Verdict must be unanimous. If cannot do that, must report it to the court. You decide whether experts’ testimony is valid.
Ward charged with murder – killing of a human being, done in commission of act imminently dangerous to others. … and evincing a depraved heart, without premeditated design…. if so you shall find him guilty of that. If not proved all those, you will find him not guilty of murder.
If you find he is not guilty of murder, then continue to consider lesser crime of manslaughter by culpable negligence. .. with wanton disregard for the safety of human life.
Killing of another human being excusable when committed by accident without unlawful intent.
Verdict should be written on a separate piece of paper and not signed.
Never to reveal jury votes to judge unless asked in open court.
CLOSING REMARKS
KELLY – Ladies and gentlemen, Anna Catherine McCoy did not shoot herslef. Two people, Anna and Thomas Ward, and one 12×12 room. One person (points to photo of her) is dead, other is on trial for depraved heart murder. One shot, onegun one bullet through her head, found in a pillow. We know that she was lying ont he bed, propped up with head against the headboard, pillow behind. We know that a bullet …she was laying right here. Bullet passed through and exited at this angle. We know that Ward’s story says he was standing here … Anna reached to him like this… pistol in hand, handing back to him, upward and that “it just went off” or that “the trigger was bumped.”
There was nothing on her arm, no gunshot, burn, stipling absolutely none. Bullet went from here to here. I suggest to you … we know Anna was here. We know she ws shot her, angle it must take. Chair was here. Know shot was more than 18 inches away. If she held in hand, it was at least 18 inches away from her head. 18 plus 24 is 42 inches. Most likely… new flashlight, dark room… four hours for light … sitting in chair, shining flashlight, illuminating the target. A full pull of 12-14 pound trigger. Sitting in a chair. Shot and hit her right there and came out here.
Reckless. I’d submit to you that under any set of facts … that pointing and aiming and pulling the trigger on a fully loaded 40 caliber handgun is reckless. I will submit to you as reckless … pulling trigger pointing and aiming even gun believe unloaded is reckless act. But weapon intended to kill a person … with loaded or unloaded … in this case it was loaded. It is a reckless act.
Perfect investigation? No. Was a perfect crime scene preservation? No. Perfect autopsy? No. Does any of that matter? No. Those officers, when responded.. Brown first to what he believed was a self-inflicted gunshot wound. 911 tells him that. He responds… when he did, he’s got two duties – first responder … to preserve life, then to preserve evidence of crime scene. He was not worried about crime scene initially. There to save life of Anna CAtherine McCoy, if possible.
Mark Haygood, took statement of Thomas James Ward, who said handing gun back like this ..and it “just went off” and shot her here, coming out here (he pats top of head.) (Leaves gun light on.) Mark Nowell, no intentional moving of evidence. Think they were trying to hide something? NO, to save her life. Joseph Giroux said day before Ward was in field behind his house, shooting multiple rounds. He knew how it operated. It was not a surprise. He had practiced. Jamie Robinson, talked about fingerprints and lack thereof. Means nothing. Mark Bowackle, firearms expert, fired into test partterns for gunshot particles on different distances. We know it wasn’t contact, not 12 inches and not 18 inches… some place farther.
Say stipling would have been shown 18-24 inches.
Alisha Smith, gunshot residue. She testified tht both were in the room when the gun was fired. Both had GSR. Dr. Long, toxicologist, said Anna wasn’t on any drugs or alcohol at time. Corey Campbell from Scruggs said Ward bought gun on April 3. Adam Foresman said Ward went that day at lunch and then left work later.. installed that light on that gun prior to its being fired, killing Anna McCoy. Ginny Lloyd, you heard her, she said on Christmas prior to this, Ward was acting reckless and carelessly toward Anna McCoy.
Megan Riley, person on other end of 911 tape. Cotton McCoy, father of Anna, he identified her body at hospital. Allison McCoy, talked about seeing Anna four hours before she died. Josh Van Dyke and Zach Hill testified that they were dating. Dr. Adele Lewis performed autopsy, shows no stipling on forearm, hand or face. Stipling is not GSR, it’s red marks that will show up on skin… 18 inches from gun. Finally Dr. Lauritson couldn’t say anything other than gunshot that killed Anna was fired somewhere farther than 18 inches away, but no closer. Almost every expert says that.
Comes down to this … was there a reckless act?
We know he pointed a gun in a reckless act and killed her. I submit to you that a pistol always that bullet follow the barrel in a straight line. Bullet must follow where the barrel was aimed. I’d submit to you that in order to hit Anna here, must have been pointed and aimed. Straight line. Pointed, aimed and this trigger was fired. Full pull, not a bump. I tell you that point, aim and pull is a reckless act with aloaded or unloaded handgun.
Judge gave you three options – depraved heart murder, culpable negligence manslaughter or not guilty. With defendant’s statement, you only have two options – dHM or CNM. We hae presented a proved our case. I saw if you believe pointing, aiming and pulling a heavy trigger pull and killing a person is recklessness, you must find him guilty of DHM. 4:31 p.m.
FLEITAS – I’ll be ready in a moment. Will counsel collect their exhibits. (Wise, Kelly to to collect their exhibits and put them away.)
4:32 – Been here better part of eight days and a lot of words spoken, evidene, arguments made and it’s time now for attorneys to speak to you about what all this evidence means. What your apt to do and hopefully guide you in your deliberations with judge’s instructions. In this case today, Kelly talked about Thomas deliberately pointing gun at Anna and Killing her. And I got up and had and opportunity to see. This is not what this case was about. You would have heard Kelly tell you that the fatal shot was fired from a distance of 42 inches or greater. That’s what he told you in the beginning. I say that even the prosecutors, who are attemtping to convict Thomas of murder, are no longer saying shot was fired from 42 inches… It’s 40.
Distance from which shot was fired could have been as close as 18 inches. Why important? A phrase refers to reverse engineering – means you take something that’s hthere and you take it apart, determine how it works and use what learn. What you have here is a classic case of prosecutors arriving at a conclusion about what happened and getting evidence they want to support conclusiont hey made, not looking at all the possibilities.
They are very forgiving – Prentiss Brown, Adele Lewis. And Kelly alludes to minor errors … or little mistakes. Don’t look over here. You are the jury and you have to see everything. You come into this by your oaht with an open mind, to listen without preconsceived consideration or notion. But that’s not how the legal system works. Not how prosecutorial function works. Often, we have conclusions before you have proof and then you just get the proof you want.
Witnesses. First, then Capt. Prentiss Brown, now he’s the assistant chief, promoted. He arried at scene. Thomas Ward in a state of absolute hysteria and shock. Hysteria and shock. Far from calculating perosn Kelly ‘s trying to tell you he is. Brown hears screams and directed to room where Anna is. He tried CPR until firemen arrive to replace him, then replaced by medics. A horrible tragedy. Who would not be moved by the loss this family has suffered. Cannot be moved by emotion. Brown responsible for taking all evidence to Crime Lab. He didn’t do a basic part of his job. Brown photographed the scene … and when he testified he showed you pictures of where certain things were located. (He’s flipping through photos on evidence table.)
Then, he admitted after those pictures that they are not right. I didn’t actually take the photos of stuff where they were, I moved it – he said. Took evidence I knew I should not move … remember his excuse. I did it to make it safe, he said. Says he saw it like this … to make it safe. Asked, then with firearm like this … it’s safe, isn’t it? He said yes. Got to ask if it was already safe, why would he move it to make it safe. Was he being honest. Why present pictures of somethings that aren’t true? Why lose evidence for two years. Not speculation, these are facts admitted on witness stand by Prentiss Brown.
He mishandled evidence by his own admission, also Haygood and Paul Smith. This should be checked for fingerprints, properly.
Something in the legal process that’s called discovery. Both sides exchange information. Before you come to trial, no surprises. No one’s operating blind. Provided to me were photographs as accurately and truthful of the scene. But only when I show up and you are here and that witness is on stand do you learn that it wasn’t even true. This is the police. This is our government. When they do wrong, there’s not accountability. Called for here.
Nowell talked about trying to save Anna’s life. My life goes out to him as fire chief because I couldn’t think about him without thinking about my wife, who is a nurse. Everyday she encounters situations just like that. How it feels, try to do everything you can to save a life and it doesn’t work. The pain from that. My heart goes out to Nowell. He said he is a detail person. Know he was hurt because couldn’t save her. He also said that the firearm that Brown said he found on ground…. wasn’t on the ground. Brown said started taking photos… Nowell said the gun was on the dresser. Clear about it. He was certain. So, it makes you wonder. When Brown asked … what did you do … (puts gun on floor) started taking photographs. But Nowell said it was on the dresser, not the floor. Again, what’s going on here? Waht is Saltillo PD doing? Can you believe anything that investigators say? Do not have ample reason to doubt their evidence of Thomas’ guilt.
Everything critically important, Brown purposefully misrepresented the truth. To what end? By his own admission and Haygood, who didn’t learn until two days before he testified, Brown kept it out of report. Obligataion to be honest, and he didn’t do that. If Kelly wants to brush over that, Pay no attention to that. I submit that it has everything to do with this case.
Nowell said he did not ever see firearm on the floor. Never. Photos show firearm on the floor. For what purpose?
Heard Mark Haygood … as investigator. He testified to something important … also talked about shock and state of distress Thomas was in. Testified to what condition Thomas was in when he saw him outside. What he said, “Thomas was sitting on the ground with his knees pulled up to him (Fleitas demonstrates on floor).” No question about his being in absolute shock. I have seen that position before. Perhaps some of you have seen that too. Something called the fetal position…. when your mind has absolutely cut out all the horror on what you’ve seen. BOWEN – OBJECT … no evidence about that to support that argument. JUDGE – Don’t remember about fetal shock. Ask you to correct that. FLEITAS – About verticle fetal position, position he was in outside. Arguing from that evidence from Haygood. JUDGE- I’LL PERMIT THAT.
Someone in a state of mental and emotional breakdown, witnessed by Mark Haygood. He testified that he knew immediately it wasn’t self-inflicted. Thomas told him it wasn’t. Heard from Dr. Long, toxicologist, Anna had no substances of any kind. State has provided no evidence taht Thomas was in any way intoxicated, acting irrationally in any way. Observed by officers… that he was in shock. You heard from Mark Roberts, now SPD investigator, that he found a live round that had beenlost in the evidence room for two years. This is our government. This is where the evidene implicating my client comes from. And you have to consdier where it’s coming from to determine the proper result. Jamie Robinson from Crime Lab didn’t find Thoams’ prints or Anna’s on firearm. Latent print on the light. She couldn’t identify whose it was. Megan Riley testified about E911 dispatch. You will have in evidence … transcript of the call and judge says to use your own judgment. Hear the voices of Tom Ward, father, and Thomas, the son.
I do not believe that anyone who listens to this (CD) can conclude the voices here.. that voice of Thoams Ward is the voice of a murderer… someone who committed depraved-heart murder. That is not the voice on this CD, not the voice in that call. This is the voice of someone who has been involvedin as absolutely tragic accident not the voice of a murderer. He’s on phone, dad on another phone. At first, his initial statement, Send the Police! His dad’s on with 911. Hae to ask yourself this, was someone who just committed a criminal act they’ve accused him of… is his first word going to be Send the police! Is that logical? If you just perpetrated a criminal act?
Megan Riley testified about frantic voices. Cory Campbell testified about gun purchase at Scruggs about 12 days before this tragic accident. His recollection that two young ladies joined Mr. Ward at the end of the transaction. Joseph Giroux testified that he heard target shooting … not unusual. Went to check it out. He met Thomas and had pleasant, cordial conversation, They shook hands and that he went home. Adam Foresman the co-worker testified tht Thomas showed him something to do with the light. He didn’t kinow what part of it. Told Thomas was getting alight but didn’t have much else to say.
Then Ginny Lloyd. Let’s not make any mistake about what’s going on with her. Let’s call a witness and dirty up Thomas WArd. Throw it up against wall and see if it sticks. I submit to you, I have never seen a more incredible witness ever. Ginny Lloyd is a liar, with a motive to lie, a person of quetionable characer. A person who was willing to lie, fabricate. Said she saw things nobody else saw. All in an effort to disgrace and discredit Thomas in your eyes… in your eyes, because you’re who matters. Who would sponsor such a person? Who would call someone like that? To spout those malicious lies about stuff that she claimed happened four months before and she told somebody three or four months later? Two years ago, almost this happened. And the best the prosecution, your representatives of state, the goernment can come up with Ginny Lloyd!
To dirty Thoms up. To lessen him in your eyes through slander and that’s the best in two years. Put her on the stand. I submit to you she had no credibility and dishonored this entire proceeding. She had no business ieven being in this courtroom. And yet the state whisks her out here as someone you should consider. The government is powerful but not all-powerful and not always right, and sometimes they are flat wrong. Here they are wrong.
Alisha Smith, gunshot residue expert. She said evidence of GSR because I asked tht it be admitted for your consideration. Anna’s right hand (picks up gun) … was the only spot identiified with positive GSR. The only. Now, she wants to suggest particles indicative of GSR on Thomas’ hand. I don’t dispute that. Use these words for a reason, to convey meaning to be specific. What say about her – she was evasive witness. She wanted you to believe no differene between those two terms. Do you really believe positive GSR is same as merely indicative? It doesn’t make sense. Why use two words to dscribe the same thing unless youre effort is to try to distract or confuse or not show the correct picture. What state says, nothing was found on Anna’s arm andhand … there was … only created by fusing of three elemtns in right shape and in right amount on a surface. Only o Anna’s hand. Only positive.
Mark Bowackle, firearms expert. Lots of expert witnesses. Not a scientist. He did trigger pull, said 12-14 pounds to pull. Asked about presence of soot or stipling, he said it’s possible. He said, didn’t have to be. If state says, if that stuff wasn’t there and couldn’t happen like Thomas said, that’s not true – it’s not supported by the evidence. Bowackle did not interpret the results of the cloth test pattern. He performed it at direction of someone else and said, baisclaly, did it this way because that’s the way we do it here.
Then Dr. Adele Lewis. Admitted as epert and admitted she had no expertise in ballistics. Tht worked for comp[any with contract with MS. Person who trained her was arrestedin this state for possession of marijuana. She didn’t do the testing and even more important, she didn’t even bother to look at the test patterns herself before rendering an opinion. Did’t look at them. She said, I never looked at them. Who said tht she, as a scientist, had an obligation .. that sh e trusted them. Former president Reagan had saying … Trust but verify. Trust has no bearing on scientific endeavor. Can’t justify an opinion without even looking at product of the test?
What happned ? They wanted to discredit Thomas’ ersion tht firearm discharged when she was handing it to him. Way to do that… say shot had to be fired from distance greater than distance two people would share by handing one object to another. 36 nches or 42 inches. Get it out there far enough, so that we can say, no way what he told you was true. Conclusion first, results second.
Validity of Lewis? In the end, zero. zero. She didn’ tuse right material. You do not use cloth. This isn’t in dispute. On cross examination, she … this material is not in any way of use to determine stipling. On human flesh. State of MS performed a test that isn’t the right test to show something thathas no bearing on what’s supposed to be proven in this case and passes it off as evidence… to convict a man. Dr. Lewis’ testimony has no scientific validity. State … subtly changing its position because you can’t ifnore it. Lewis was the last, best chance of everybody here to know more about what happened. All shehad to do was perform a small test and do the testing to answer the scientific questions raised in this case.
Mr. Paul Smith, representative from Smith&Wesson, testified 12-pounds of trigger pull. Somewhat contradicting, not big deal. Bowackle said 12-14. Some overlap. Don’t see tremendous difference. But Smith said that firearm did not malfunction, but that he could not rule out what he referred to as an inadvertent discharge of the firearm… inadvertent, unintentional, accidental discharge of the firearm. State expert Smith couldn’t rule that out.
Heard from Cotton McCoy, about events that tragic night. Again, I don’t believe anybody who heard him was not moved. But he had no evidence of relevance to offer to the event. I submit that prosecution called him to get your sympathy, in part. That because you feel bad for him, we should convict Thomas Ward. I think that is a subtle message. Allison McCoy saw her daughter and her horrible and tragic loss. Anyone would be moved by it. She tetified about seeing Anna a couple of hours before the horrible accident. About her being happy about going out. Being normal, happy Anna.
I wnat to compare Mrs. McCoy’s tetimony with Ginny Lloyd. First, do you think that if Ginny Lloyd said ws true, for one minute, Anna would be dating Thomas? Do you believe tht for one minute Anna would not have spoken to her mother about that? Do not think that Allison Mccoy … would allow her daughter to go out with him? Ginny Lloyd said, was untrue.
Heard from Josh VanDyke … had been around Anna and Thomas. He said 15-20 times. Saw them the night of the incident, she was happy they were going out to dinner. Zach Hill said they were happy, joking, together. She left and went to go do her homework. Said they made plans to see each other the nex night after Thomas and Anna had dinner, but he didn’t go because he had his son that night.
JUDGE – fleitas … speaking about 50 minutes.
FLEITAS – Richard Earnest… only ballistics expert in this case. Gunshot range, distance determination. That is his function. He said … was lear, shot fired from distance of 18 inches or greater. Why important? State attempted to prove a fact that could not be proen through means that werenot valid. He did proper testing and completely contradicted cloth tests. Testified that discharge of the firearm could be accidental. As a firearms examiner, expert in ballistics. It was unimpeached, unchallenged by the state.
Dr. Lauritson, pathologist going on 30 years. Seen eerything under the sun. He said … when expert in one field, you don’t claim expertise in another … like Dr. Lewis. He said no significance in absence of injury or soot or stipling on her right forearm. Testified that facts of case were consistent with an accidental discharge causing death.
Youre left with all this to make a decision.
I told you at beginning, Anna was beautiful young vivacious girl… tragically died in a tragic accident. Not a murder. Not manslaughter. An accident. Ofentimes in life we are presented with a horrible event that cannot be explained. Can’t reconcile with it. Cry out for understanding and just don’t get it. Know that pain will never leave that family, but that pain does not compel the conviction of depraved heart murder of Thomas Ward. If we operated under an eye for an eye … no… the law requires the state to prove beyond a reasonable doubt. The state has failed to do so in every respect. Not proved DHM. Not demonstrated anything beyond a reasonable doubt. Evidence is not there. Instruction from the court about culpable negligene manslaughter, sets the floor … so gross to be disregard or utter indifference to the safety of a human life.
State cannot prove that. DHM requires an even higher standard.
Anna Catherine McCoy died in a tragic accident. Thomas Ward did not murder her. He did not commit manslaughter. Convicting him will not bring Anna back. That loss is there. State had an opportunity to prove evidence for beyond reasonable doubt… their investigation, their witnesses … failed to give evidence to convict. I hae gone through every bit of the evidence and told you about it. Compels the finding of not guilty. Evidence alone. When you review this evidence, look and consider … only proper verdict in this case is not guilty.
You will hear from the state next. They have the burden. 5:33
BOWEN – To close, ask that jury needs a break. Asks for short recess.
JUDGE – Without knowing how long … going to e another 30 minutes before completion of arguments.
• • •
11:55 POST
TUPELO – Thomas James Ward’s counsel rested its case after three witnesses just before noon today, with Ward announcing he will not testify.
The jury is expected to be back by 2:30, when the judge will read its instructions and then attorneys will make closing statements.
Ward, 25, faces up to life in prison if he’s convicted of depraved-heart murder in the April 15, 2010, death of the woman he was dating, Anna Catherine McCoy.
She was a 20-year-old Itawamba Community College soccer player when she died at Ward’s Saltillo home of a single gunshot to the face.
Ward and his attorney, Victor Fleitas of Tupelo, insist it was a tragic accident, not murder.
Prosecutors are DA Trent Kelly with assistants Richard Bowen and Josh Wise.
This trial began May 1 and the state rested its case at mid-day Tuesday. Two defense witnesses took the stand but the jury was sent home early to await additional witnesses for today.
• • •
Earlier, was Dr. James Lauridson on stand. Didn’t get spelling until now.
11:37 – JUDGE back. Fleitas, call?
DEFENSE RESTS / WARD WALKS TO STAND BEFORE JUDGE WITH FLEITAS, WARD SWORN IN
JUDGE – Understands decision about whether defendant will be called or not. Fleitas – correct.
JUDGE – Mr. Ward, ask a few questions. If Fleitas wants to do more or State, they will be permitted. This is not adversarial, to establish for record that you know your rights and comfortable about your rights about your decision.
WARD – Tells judge date of birth, MS driver’s license, high school diploma. Not in military. Employment history. Married, one daughter is 8 months old this month. No judge or alcohol treatment. Says good health, as far as he knows. Understand this proceeding.
Judge – If you testify, do you understand that in addition to your attorney that the state’s attorneys would have right to cross examine you about anything? (I do, Ward says.) Hav eyou consulted with Fleitas and others, family etc. about your decision to testify or not. (I have … decided not to testify, he says.)
JUDGE – asks if Ward has any questions? (No, your honor. Ward says.) Any questions from Fleitas? FLEITAS – None, your honor.
BOWEN – No questions, we’re satisfied that defendant has decided not to testify.
FLEITAS – Nothing further about his statement and decision.
JUDGE – Defendant advises court that he will not offer himself as witness in this case. Court accepts that statement.
11:46 – Fleitas, Ward take seats.
JUDGE – It’s 11:49 a.m., 7th day of trial. Jury, went out on hour recess almost. Work has been done outside your presence. Defendant and counsel, DA present in courtroom.
FLEITAS – Defense rests.
JUDGE – For state, any rebuttal
BOWEN – No, state finally rests.
JUDGE – Instructions will be read to you. Counsel will make final arguments. To counsel – how long … if jury came back by 3 p.m., would that be too late or too early?
BOWEN – That is late enough. I’d suggest 2:30 or 3:00.
FLEITAS – Agree with counsel.
JUDGE – To jury … return by 2:30 and that will be expeditious time. Jury leaves.
JUDGE – Gather in chamber as soon as we can to work on instructions. Meet by 1 p.m.?
COUNSEL – yes
RECESS FOR NOON.
• • •
10;54 POST
TUPELO – A forensic pathologist said a wound test from Anna Catherine McCoy, which was not done, could have helped the understanding of how far away the gun barrel was from her on the night she was fatally shot.
Dr. James Lauretson of Alabama criticized McCoy’s autopsy for the lack of such a test, which he said was simple, easy and cheap.
Thomas James Ward, 25, faces up to life in prison if he’s convicted of depraved-heart murder in the April 15, 2010, death of McCoy.
She was a 20-year-old Itawamba Community College soccer player when she died at Ward’s Saltillo home of a single gunshot to the face.
Ward and his attorney, Victor Fleitas of Tupelo, insist it was a tragic accident, not murder.
Prosecutors are DA Trent Kelly with assistants Richard Bowen and Josh Wise.
This trial began May 1 and the state rested its case at mid-day Tuesday. Two defense witnesses took the stand but the jury was sent home early to await additional witnesses for today.
• • •
8:59 – Judge Roberts enters courtroom. State takes a couple of minutes to arrange evidence on table in front of court reporter.
9:05 – Judge asks bailiff to bring jury to the courtroom. Jury returns. Says testimony will continue, but doesn’t know for how long. So far, 20 witnesses – 17 for state, 3 for defense.
DEFENSE CALLS DR. JAMES LAURETSON
FLEITAS QUESTIONS
LAURETSON – forensic pathologist from Alabama. Goes through education, experience, training. Devoted to forensic path 25 years after 10 years as internal medicine doc. Trained in Dade County, Fla. Published articles about gunshot wounds, lectures about child abuse and other subjects. Estimates more than 1,000 autopsies for gunshots. Testimony is several states. Also military courts. (Tender him as expert in field of forensic pathology) BOWEN – OK
FLEITAS (Asks him what is forensic pathology?) Most people who go to hospital have contact with it. Basic training in tissue, determining cause and manner of death that have to do with medical legal importance. (Interplay between forensic path and ballistics?) Yes. (What is wound ballistics?) Ot men what happens to a body when a projectile if fired near or into that body … changes that might occur on outside and changes as a result of the wound. (Per forensic path, steps to take to examine a wound?) General steps… look for material left when gun is fired next to the body … residue, documented and tested when possible. Then in great detail the wound itself… outside and where projectile went after entered body. On outside, very important. It can give doc some idea as to where the range of the shot… distane between end of barrel and the skin. In studying that, med examiner often will photograph material around the wound, collect it. Then clean the area… and photograph the actual injury itself. Then, take a section of the skin and study it under the microscope… which allows to see parts that can’t see with naked eye. Any idea of debris from bullet… residue in wound… soot or other material that comes out with bullet and travels along or ahead of it.
Next, determine pathway … where did bullet go from there. What direction, what structures did it strike? Next, med examiner does X-ray … make sure isn’t any pieces of bullet still in the bullet. Very important to recover all the pieces. Will help you decide wehre bullet came from … jacket is very important. If in an unusual case, the med examiner must document as much detail about case as he or she can. Med Examiner has one chance to get all these fact. At time, may not seem important, but if don’t get them, may leave questions unanswered, if case needs to be studied.
(Did you review any material and what?) I reviewed photographs taken at time of autopsy in morgue, taken at the scene in the bedroom where shooting occurred after body moved … series of pictures taken sometime later … maybe by MS Bureau of Investigation. Reviewed Dr. Lewis’ report, her conclusions and then a number of the police reports. (By Dr. STeven Hayne?) Yes. (Gunshot determination by Richard EArnest?) Yes. (With respect to … aware of Lewis’ testimony?) Aware she has testified, what her written opinion was but didn’t see a verbatim recording of what she said in this courtroom.
(With respect to Lewis opinions about ballistics, does she have expertise about that?) BOWEN – OBJECTION …. He said he didn’t hear Lewis’ testimony. Not qualified to answer, mere speculation. FLEITAS – Her opinions were provided to him within written report. Expert isn’t required to be present in court. Can render opinion. BOWEN – OBJECTED .. if criticism of her testimony. He said he wasn’t here for that. JUDGE – SUSTAIN for testimony he did not hear. May respond otherwise.
(With respect to Lewis’ conclusions that gunshot had to be greater than 42 inches distance, any conclusions about that?) She isn’t qualified to make that determination on evidence she was provided. (What provided to her?) Medical examiners, forensic paths have a very well defined area of expertise. It doesn’t extend into other parts of the forensic sciences. In this case, incudes ballistics. What med examiner needs to do, with question aboutt range of fire, submit that to an expert. Take opinion of firearms examiner and use it in putting a case together. Lewis stepped beyond that … took a photo of testing and made determination based on that. She doesn’t have expertise to make determination about firearms. It’s a very sophisticated area. Takes an expert to offer opinions in that area.
(Handed you yellow envelope… Exhibit 43 … please open and look at contents?) He does …. targets in test-fires, altered in some way, that’s what this is. (As forensic pathologist, would Lewis have expertise to conduct gunshot distance determination herself?) No. (Expert in gunshot distance determination and firearms required for such a test?) Certainly, to conduct and interpret testing. (Material use in Lewis’ test she testified about, what was that?) It’s cloth material or very heavy paper. (Digress … explain difference between soot, residue and stipling?) When gun is fire, in addition to bullet coming out,material to propel the bullet also comes out end of barrel. Some of that is powder burned… soot. Looks like black, can be wiped off. Other part comes out is unburned powder. Depends upon ammunition being used. Very very small. If they strike a target, esp the skin with enough velocity to penetrate and stick there… produces a little dot. Red or black. Called stipling or tatooing. From unburned powder. Causes a distinct mark on the skin. Residue is more chemical. Other stuff that comes out, associated with projectile. Not necessarily see it, but can test chemically to detect it.
(Looking at the material for the Lewis test-opinion. Is that appropriate for stipling on skin?) No, it isn’t. BEcause what will happen, even if particle is moving slowly … when hits skin … may not embed but stay on surface. This has a different texture than skin, like cloth. This will pick up those little particles that not necessariy stick in skin but will stick in this. To compare with skin is erroneous. (Other material … familiar with Earnest report about distance-range in this case?) Yes. His test uses material that is more similar to skin. (From your perspective, any scientific legitimacy to testing and opinions made by Lewis about gunshot range in this case?) This is different to determine something else, not to detrmine range of fire to the skin in this case. (Earnest’s test … method, manner, materials and conclusions … were they scientifically valid?) BOWEN – OBJECTTION – Exceeds expertise. FLEITAS – As forensic path, he is certainly requied to interpret test I presented to him, well within scope of practiuce. To determine if test is scientifically valid. JUDGE – He may give opinion. Jury will be instructed to opinions later. OVERRULED.
(FLEITAS – Again, are Earnest’s methods etc. … scientifically valid?) BOWEN – OBJECT AGAIN … to be determined by a jury. FLEITAS – Briefly, I believe experts can testify to ultimate issues. He’s forensic path, received a ballistics test … his role is to interpret if they are valid or invalid. JUDGE – He is not permitted to give conclusory opinion. OVERRULED.
(FLEITAS – Again on Earnest?) It is valid on the basis that it started with appropriate target. Other factors … that is a report I would accept as a validly conducted test. (Did you review of materials in this case… opportunity to review photos of McCoy’s body?) I did. (With respect to location of injury … goes bleeding or medical intervention have a role in determining gunshot soot or other deposits?) It does … Particularly in this case, these sorts of wounds to head and brain bleed profusely. Seeing the pictures, lot of blood. Ambulance folks came and began resuscitation… blood moved on face so they could get to an airway. Common sense… lots of blood wiped away before photos taken. (Been appropriate for med examiner to have taken tissue samples of wound area at time of autopsy?) Yes, very easy procedure. Takes very little time, and it allows us to see another bit of evidence… to see if anyr esidue deeper into the wound… can see under the microscope.
(With gunshots, lots of particles that aren’t visible to naked eye?) Yes, particularly in the wound where prticles may be in red and bloody tissue. Only way to document is to look under microscope. (Done by Lewis?) There was none.
(What is National Assn. of Forensic Pathologists?) Sets standards for autopsies and labs. (Does it have guidelines about numbers of autopsies that examiner should perform? BOWEN – OBJECT … Scopt of this and her report.. beyond scope of this witness. FLEITAS – Dr. is not soley here about opinon but also about testimony developed during direct examination of Lewis or cross about her exceeding those guideliens, the possible effects. Proper for jury to consider. BOWEN – Questions asked and answered. JUDGE – This is just his opinion. OVERRULED.
(Again, does Nat Assn. provide guidelines about numbers of autopsies?) One of roles of National Assn of Medical Examiners… to accredit labs where tests done. One standard for accred. is number autopsies done per examiner per year – 250-350. Clearly stated why. If exceed that number, mistakes occur. Trying to do too many cases and too quickly and you will not do a thorough case. If exceed those numbers, it’s a warning that mistakes can occur.
(Ask you about McCoy’s arm length. When performing proper autopsy, something you’d note?) It depends on the situation. If traffic accident, arm length probably not important. But if it’s unusual circumstance in shooting, med examiner must gather as much info as possible. Measuring that distance is negligible. Expense is zero. (Opinion … does absence of wounds on McCoy’s hands or Lewis testimony about no soot on forearm have any significance?) Without having an accurate determination about positions of her hands, impossible to say what absence of that information means. Could have residue pass the arm and leave no stipling. (Forearm testing would be appropriate to determine what happened?) Unless you can see it, soot or stipling … just doing a random residue test for the chemical isn’t very meaningful. Unless she saw it and document it, the residue test isn’t very helpful. (Absence?) Absence of soot or stipling on arm doesn’t help one way or another to determine range of the shot.
(Earnest said shot 18 inches or greater, is it your opinion that this is correct?) His methodology will give appropriate answer, other method won’t. (Do you have opinion about situation in that room was accidental?) BOWEN – OBJECTION … No proper foundation has been made. Not aware of what defendant said. Not competent. JUDGE SUSTANED.
(REVIEWEd statement of Ward?) Yes. (Have opion about accidental?) Looking at the actual evidence in this case, actual evidence … there is not any evidence that would contradict what he says. It could ahve been accidental.
CROSS – 9:49 – BOWEN TO QUESTION
(BOWEN – Follow up on last answer you gave… based upon everything you were asked and reviewed.. you said didn’t see anye vidence to exclude an accident. Did you see anything to say it WAS NOT accidental?) No, I did not. (So, it could go either way, based on what you’ve seen?) That’s right. (IN fact, you are not a firearms expert, are you?) No, I am not. (Do you know tht from viewing all the evidence, that there are other factors testified about … that bore on the safety of this weapon and its propensity to accidentally fire? Do you know that?) I did read… Earnest’s report. (Know about other factors … about soot etc. on the skin? Rephrase… other factors in this case except to what you have testified about as to use of the firearm, its operation, safety, propensity not to accidentally discharge?) Do I know Earnest made an opinion on that? I know he rendered an opinion. I’m not a firearms expert.
(Doctor, how did you become involved in this case for testimony?) I think about a year ago, Fleitas said he had case and asked if I’d look at it. People will call me for an opinion. I do that. Sometimes my opinion isn’t one attorney wants and that’s end of our relationship. Sometimes, opinion will assist in the case and then we continue on. First, I offer the opinion. (How many times have you examined cases and rendered testimony as today?) When I worked for Dept. of Forensice Sciences, it may have been daily or times per months … never kept records… 200-300 times. Since left that, testified in criminal prosecution cases and defense cases and civil cases. (Now in private business and holdyourself out as a professional expert?) Professional witness …uh.. I don’t rely on testifying … like I say if I can help, then I’ll help. Then If I can’t … (Hired by the defendant o his behalf?) Well, thought he felt my opinions assisted them to evaluate the case. (Being paid?) I am. Retainer of $1,000. Then $3,000 to come and testify.
(You didn’t perform this autopsy?) Correct. (Reviewed Lewis’ photos?) Yes. (You criticized her in some detail about examination of the entrance wound of bullet, didn’t you?) Criticism was that a microscopic examination could ahve added evidence to the case. (You also criticized number of autopsies she performed?) I was told that she testified to doing about 500 per year. (Too many?) What my statement was is that Nat Assn of Med Examiners says that when do that many you become prone to making mistakes.
(Hav eyouever worked as state med examiner?) I have. Alabama and Florida. (When?) Fla for fellowship year, one. After, Alabama Dept. of Forensic Sciences 1986-2008 or so. (Each of those, how many pathologists for autopsies did you have to help you?) Not sure understand … (You said worked in Florida… were you only one?) No, worked for Miami Medical Examiners … probably about 8 and I was one. Eight for Dade County, Miami. Didn’t cover the entire state. (Know how many total for Florida?) No. (Safe to say two dozen or more?) Don’t know. (In Alabama, how many state exminers were there?) Everyone was called state med examiner … count up …7-8. (Know how many in MS in April 2010?) I know it’s considerably less… don’t know who had contract. Group from TN did for a while. For whatever reason they left, I don’t have any idea how many. (Know that time MS contracted out autopsies because didn’t have a state examiner?) You mean a person in charge? I have no idea. (In Alabama and FL, how many did you perform in one year?) We can figure it out … overall it’s about 4,000 in about 17 years in Alabama… so (Can you say you never exceeded recommended number?) Year I was in Florida, high number … did 360. That was tough, a lot of work. (You exceeded standard?) That year by about 18. (Not uncommon that states have to perform … pathologists called to perform more than recommended?) Exactly right. Not uncommon and still leads to mistake. (Do they make mistakes in testimonY?) Everyone is human, can make mistakes.
(Examined autopsy photos… especially about entrance wound on face of Anna McCoy?) Yes, I did. (ATTORNEYS CONFER WITH JUDGE) (McCoy’s mother leaves with friends before photo of daughter goes up on screen.) JUDGE – Some of you may have seen these photos … they are graphic. If you need to leave you may do so. I do not want any outbursts in courtroom. If you’re not prepared … jury has. If you ahve not, then you need to be prepared for the gravity of thesee photos.
(BOWEN – Doctore, you said examine closely the entrance wound to detrmine evidence of soot or any other residue … or stipling as you define it. Awre that other experts differentiate between terms of stipling or tatooing?) I’m not surprised. (Say tatooing is close proximity caused by burned and unburned gas particles and gases from muzzle. You don’t recognize the difference?) Close you are, the more gunpowder is embedded, I accept that. (Accept that some paths refer it to tatooing, very pronounced?) It’s a matter of personal preference. I’d rather use one word, stipling… it equals tatooing. (Your definition is effect that unburned or partically turned gunpowder particles or residue has when striking human skin by creating injury… creates small abrasions or perforations of skin, evidenced by a blood pin prick or that sort?) Yes, no stipling in this case that I saw.

(Want to show you photos to see if you agree with conclusions of Dr. Lewis. First, Exhibit 19 – this is photo of McCoy’s head and face. Did you see tht one?) Yes. (Since it doesn’t appear as to much clarity on screen, I’d like to show it to you.) …. Ward’s sister, mother weeping. (Does that appear to GSW to face?) It does. (Do you see any evidence of stipling?) No. (See some other marks around the bullet hole … Dr. Lewis said they were perhaps facial hair but also marks she describes as stretch or bruises caused by the stretching of the gun when the bullet entered her face?) Agree that these marks are from bullet entering face. Representing stretch marks. Not sure about how facial hair enters into that. (No stipling?) Correct.
(Want to display also Exhibit 17 – … it’s closeup of the wound. Recognize that?) Yes. Recognize it. (Again, closer and different view of wound?) Yes. (Also, see any evidence of stipling?) No. (One more photo .. Exhibit 24 … of McCoy’s mouth … take a closer look. Is that even closer photo of entrance wound?) Practically identical. Answer is … (Stipling?) No.
(So, you agree with Lewis that visual examination of skin around wound … no evidence of stipling?) There is no stipling in these pictures, that’s correct. (Criticism of Lewis, tht she should have taken wound sample.) Yes, would ahve given us more informtion. (Would it have shown stipling?) Given number of autopsies… BOWEN – FORGET THAT. (If she had taken skin … in photos, nohting to suggest it would show anything more?) Only way to answer is to do the test. It’s easy, it’s cheap, takes very little time. Never know unless you look. We will never know. It wasn’t done. (Isn’t your own definition of stipling…. can be visibly observed?) Sorry, study under microscope is the depth of the wound and what’s carried into the wound.
(If Lewis said she examined the inside of the wound, would that be proper?) It would not be proper unless she did the microscopic examination. Can’t say examined inside without microscope. (Say she shouldn’t have looked into wound? Say she should ahve looke dinside for stipling?) As I define stipling, it appears on the skin. Looking into the wound doesn’t help with stipling. What it does help with is particles of gunpowder or soot that can’t see on outside of skin. Wha she needed to do was look microscopically and then complete examination etc… but what is missing not looking at this wound under the microscope. (Still may not have found anything else?) Shame she didn’t because we will never know.
(Aren’t there thousands of things that could be done?) Yes, that’s why Nat. Assn of Med Exmainers says, don’t go and exceed these nubmers. Don’t have time to anticipate questions that might have come up. You ahve one chance to do it. (Exceeded?) Once, in Miami. Take 4,000 and divide by 17 and think it falls within that number. (You say you’ve done autopsies on all ages, sizes, genders?) I have. (You weren’t here but read Lewis’ report. .. she says on a subject such as McCoy who was 100 pounds, 5-3 female. Normal length of arm reach from tip of shoulder to tip of finger… normal range about 25 inches? Do you disagree with that report?) I don’t disagree that it’s a statistical number. (Observe other photos from autopsy?) See anything abnormal about her arms?) No.
(Other criticism about medium to do firign test by MS Crime Lab?) Yes. (Criticism – that medium as cotton or cotton twill was not similar enough to human skin?) Correct. (Make any difference, if purpose of test to determine if residue would be deposited at different distances?) Residue… mean chemicals? (I mean particles. If purpose is to see if this pistol would deposit gunpowder particles burned or unburned at different distances, is this an appropriate test?) If looking at this fabrice, that’s appropriate. (Agree with Crime Lab that this pistol will not deposit particles when fired at distance of more than 3 1/2 feet?) ….. Use of same gun and same ammunition. If that is case, this is valid to detrmine how far away barrel is to deposit particles on this material. (Doctor, you don’t know. You said they don’t know what they were testing for.) They were testing on how far away particles can be deposited on this kind of material. I thought they were testing for range testing. (If you don’t know what they were testing for?) This powder.. this is different from skin. All I ever said about this, is wrong particle.
(You were not critical of test by Earnest?) Well, my understanding is that his material has characterisics of skin for range-testing. SAid it was more valid than this … cotton. (Did you look at conclusions of both tests at Crime Lab on cotton and on Earnest on plastic?) Conclusions by Lewis from this was that it was greater than 40 inches. (Earnest?) says could have been 18 or more. (Neither … doesn’t matter medium…. isn’t it true that both findings … and defendant’s own expert that shot had to be fired at greater than 24 inches?) FLEITAS – OBJECTION…Bowackle performed but did not interpret test. BOWEN – Said he … jury’s decision. JUDGE ..
(Question… makes no difference … in those two experts… that this was not a close contact gunshot?) FLEITAS – NEED OPINION… JUDGE – Subject to verification, sustain it.
(Dr…. can you say … let’s disregard Crime Lab test… based on Earnest test, that this was ot a close contact wound?) Not criticisng … but world of difference between 18 inches and 40 inches. Lewis said 40 or more, Earnest said 18 or more. World of difference. (Anything you reviewed that is inconsistent with possibility that gun in this case was fired at more than 40 inches from victim’s face?) No.
NO FURTHER BY STATE
FLEITAS – (When practiced in Dade County?) 1985-86. Was called … not sure. A year of training under physicians, so I did cases and testified. (Were you the low man on totem pole?) Yes, just learning. (In Dade, …) About 368 autopsies. 18 over recommended max. 250 is really where they want you. (For rest of career, abided by standards?) To the best of my knowledge. BOWEN – LEADING THE WITNESS. JUDGE – SUSTAINED.
(Asked questions about microscopic analysis… First, how doyou go about getting sample of wound and wound track to perform this?) Small piece of tissue, and underlying tissues with scalpel. (What done with it?) Sample is placed in a fixative, so tissue stays normal. Then placed in wax paraffin so allowed very thin slices to be placed on a microscope slide. Studies it under microscope. EAsy to see where bleeding is, foreign substances deposited. (What would you be looking for with this test?) If this were a long distance shot, then amount of material falls off … carired with the bullet. So, wouldn’t see much foreign material, But closer, would start to see even unburned powder that might have made it to the skin. (Test, anything to do with stipling?) No, totally different from stipling. (Where look for that?) Just on the skin, good photos would see. (Wound track … particles coming from muzzle?) Yes. (With analysis, would you have been able to arrive at conclusion about how far shot was? Conclusion from analysis?) Could not have established the exact range but could have established if gunpowder made it to wound and embedded into the wound… could establish that. Here, don’t see stipling. Bu can’t say if gunpowder made it into the wound. No test – we will never know.
(Expect difference between shot at 40 inches and shot from 18-24/)Certainly, expect to see more powder in wound at a close range shot. As it goes farther, will be less powder. All can say if powder made it or not. Can’t tell you what the range was from tht test. (What entity is responsible for making sure proper forensic tests performed/) BOWEN – OBJECT … exceeds scope of cross. FLEITAS – Believe proper foundational question. JUDGE – He didn’t go into it on cross. Sustain.
(FLEITAS – Would testing that was not done by Lewis, in your opinion have benefited this jury with decision?) BOWEN – OBJECT, asked and answered. FLEITAS – Don’t believe I have asked that question. JUDGE -OVERRULED.
(If Dr LKewis had performed test, would it have been of benefit to this jury?) BOWEN – OBJECT… total speculation. FLEITAS – He said does not know results were because wasn’t done. But as expert, he can say if would be beneficial or not. BOWEN – OBJECT, to counsel talking his response. JUDGE – Counsel objecton sustained about Fleitas. First objection, he is an expert, his opinion is just that, his opinion. OVERRULED.
(Would presence of micropscopic testing ben helpful to jury?) Answer, i fwe had, whether powder in the wound or not. That would have answered, is it possible for powder to travel with bullet and reach the skin. Could have answered that question …to the wound. (With respect to cloth testing… is it proper test to determine stipling?) Not on skin. (Proper to detrmine to dermine stipling?) No. (Is it scientifically valid test to determine if stipling created by firearm?) .. BOWEN – OBJECT. JUDGE – SUSTAINED AS TO LEADING.
(With respect to Earnest tests, as pthologist to reveiw his concusions, do you find any problems or error…. is it scientifically valid?) Yes, he has used an appropriate target, ammunition. (Could micro testing show firing great than 40 inches?) Again, it isn’t going to help with distance. All will do is answer, could powder have arrived at that wound. Won’t help with les or great. If no powder, then we would say, well that barrel was far enough away tht powder didn’t make it. Then you go back to testing and see. (Great deal of powder in wound?) If great deal in wound, means target was closer to barrel. (So for test, it doesn’t say how far was fired …. if do detrmination in conjunction, can draw more valid conclusions?) BOWEN – OBEJCT/ SUSTAINED.
(With respect to the distance from which a shot was fired, what does microscopic test inform us?) It tells us barrel of gun was close enough for powder particles to be carried to wound. (Interplay between micro-testing and particles with distance tests?) As an example. … not sure I understand. (When talking about micro-tests and particles… there is interplay?) Yes, inexact interplay. (What is that interplay?) It’s inexact. As I said, closer the barrel is to the skin, you expect to see more material in the wound. Further away, lesser particles. Can’t use that to say how many inches away. But it will strengthen range of fire testing, in some cases. If you see a lot of particles … they confirm each other.
(Does the micro provide corroboration?) It does. (Is that possible in this case?) Yes. (Was it done?) BOWEN – OBJECT. Asked answered. JUDGE – How much longer? FLEITAS – My examintion of him is complete.
JUDGE – 10:51 / TAKE BREAK. WITNESS EXCUSED/ FLEITAS – Asks him to stay in courtroom. State no objection.
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