After a short cross-examination that didn’t bring up any new information, the judge excused him.
The prosecution next had Mike Kouns walk up and take a seat in the witness chair. After Kouns was sworn in, he told the jury that he was a crime scene specialist and technical team leader for the Marion County Crime Lab. He also responded to the crime scene on North Euclid. The prosecution then asked him many of the same questions it had asked his colleague Lisa Liebig and received similar answers.
The defense, upon cross-examination, asked Kouns, “Did you use a metal detector that night at the crime scene?”
“No, we didn’t,” he responded.
“Was this Ms. Liebig’s first major crime scene?”
“Yes, it was.”
Mike Kouns then went on to explain that that was why he went along to the crime scene, to be certain that Lisa Liebig did everything properly. He next told the court that the reason they went back later with the metal detector was because more shots had been fired than bullet casings recovered.
The defense finished the cross-examination by asking, “Did you find any bullet holes in the houses where Officer Fishburn had been shot?”
“No, we didn’t.”
Again, the judge asked the witness to remain while she read some questions the jurors had.
“Why wasn’t a metal detector used where Officer Fishburn was?”
“There was too much junk lying around for it to be useful,” Mr. Kouns said.
“Is it common to use a metal detector?”
“Not always. It depends on the location. And usually shell casings are visible on the ground.”
With these questions answered, the judge excused the witness.
The prosecution then called Lisa Prater to the witness stand, another crime scene specialist for the Marion County Crime Lab. She told the jurors that she hadn’t been at the original crime scene on July 10, 2008, but that she had been called to do a follow-up search of the crime scene on July 14, 2008. She said she was the one who recovered the Taser pins from Officer Fishburn’s Taser near the guardrail. She also recovered a .40 caliber casing close to where Officer Fishburn had been lying. Robinson thanked her and then turned the witness over to the defense for cross-examination.
“Did a detective call you to the crime scene on July 14th?” the defense asked.
“Yes, Detective Howard had found the items and wanted me to collect them.”
“Did you use a metal detector on July 14th? The items you recovered, after all, were metal.”
“No, I didn’t.”
When the defense finished, the judge then read Lisa Prater a question one of the jurors had.
“Is it common to go back to a crime scene to look for more evidence?”
“Yes, it is.”
The judge excused the crime scene specialist, and the prosecution then called Detective Jeff Wood to the witness stand. He said that he worked for the Violent Crimes Unit of the Indianapolis Metropolitan Police Department, and that on July 10, 2008, he received a call from Detective John Howard to assist in surveillance at 1428 North Bosart Street. He then went through the same story about seeing Barbara Reese in the white minivan and chasing it, and then about witnessing Brian Reese jumping out of the minivan and fleeing. He said he joined in the foot pursuit and heard gunfire come from the Euclid Street area. He ran into that area.
“As I was moving southwesterly through the yards,” he told the jurors, “Brian Reese appeared from between the houses running eastbound. He was carrying a gun in his left hand. He then abruptly pivoted on his left foot, and instead of running east he turned and began to run back southward. The handgun that he had in his left hand came up and he started to raise it toward me. I fired my weapon.”
He said that Reese continued to run around the side of a nearby house, but because he had been shot he fell down. Detective Wood then ran over and covered him as Detective Howard put handcuffs on him.
The prosecution thanked him and turned Detective Wood over to the defense.
“You saw a gun in Brian Reese’s left hand?” defense attorney David Shircliff asked.
“Yes.”
“Did he raise the gun towards you?”
“Yes, he did.”
“Did he shoot at you?”
“No.”
“At Detective Scott?”
“No.”
“At any of the other officers?”
“No.”
“Did Brian Reese have a gun out when he jumped out of the van?”
“No.”
“Did Brian Reese have a gun out when Officer Fishburn fired his Taser?”
“No.”
The judge, upon completion of the cross-examination, then read a question from one of the jurors.
“Did you know that Brian Reese had been shot when he continued to run around the house?”
“No.”
Detective Steve Scott then took the witness stand after the judge had excused Detective Wood. Detective Scott told the jurors that on July 10, 2008, he also worked for the Violent Crimes Unit. He then told the same story about the surveillance, chase, and foot pursuit. He said that when he reached the guardrail he heard gunshots and then ran onto Euclid Avenue. He saw Brian Reese come from between two houses and suddenly point his revolver at him. He fired several shots at Reese, who continued running around the side of a house. He said they chased after him and found him lying up against the house. When asked how many rounds he fired that day, he said he had ten bullets left in his gun, and he had started with fifteen.
The prosecution finished with its questioning, and the defense then asked, “Did you get shot at that day?”
“No.”
“Did you see Brian Reese with a weapon during the initial foot chase?”
“No.”
Detective Scott stepped down, and deputy prosecutor Mark Hollingsworth took over the questioning.
The prosecution next called Timothy Spears, who told the court that he was a forensic scientist at the Marion County Crime Lab, and that he was assigned to the firearms section. He told the court that he was qualified as an expert witness on firearms examination.
“We’ve heard previous testimony that a bullet was recovered from an officer’s bullet-resistant vest,” Hollingsworth said. “Were you able to examine that bullet in relationship to the revolver [recovered from Brian Reese]?”
“Yes. That bullet was fired from that firearm. Also, the bullet that went into the bulletproof vest had been fired from at least six feet away because there was no powder residue.”
The defense, in its cross-examination, then asked Spears about a bullet fragment found at the scene. He said he couldn’t tell which gun it came from. Following this, the judge read a juror’s question.
“Was the bullet that struck Officer Fishburn coming from upward, straight on, or a downward angle?”
“I really don’t know,” Spears answered.
Prosecutor Carl Brizzi then put Dr. Richard Rogers, the neurosurgeon who had led the team that operated on Officer Jason Fishburn at Wishard Memorial Hospital, on the stand. Dr. Rogers talked about the extent and seriousness of Fishburn’s injuries, and about how most people with similar injuries typically didn’t survive them. He said that gunshot wounds to the head have about a 90 percent mortality rate. He told the court that Jason Fishburn, when he saw him, had already lost two liters of blood because of the wound.
“After the surgery,” he told the court, “I felt about the same as I did going into it, that I thought his chances of survival were probably on the order of 10 percent or less.”
The prosecution then asked if Dr. Rogers could determine what type of bullet had caused Fishburn’s injuries.
“The type of injury he sustained would be consistent with what people would think of as a standard round end bullet.” Th
is was the type of bullet found in Brian Reese’s gun.
After a cross-examination that only reviewed Dr. Rogers’s testimony about the type of bullet, the prosecution, upon redirect, had the doctor talk a little more about what permanent injuries Officer Fishburn had suffered.
When Dr. Rogers left the stand, this ended the day’s testimony. The judge excused the jury with an admonishment not to talk about the case with anyone.
The next morning, November 6, 2009, before the bailiff brought the jury into the courtroom, both the prosecution and the defense stipulated to the taking of a buccal swab for DNA from Brian Reese, meaning that both the defense and the prosecution agreed that the swab had been taken properly and according to the prevailing guidelines for such samples.
Following this, once the jury had been seated, the prosecution called David Smith to the witness stand. Upon being sworn in, he told the court that he worked as the Serology Section Supervisor at the Marion County Crime Lab. He then testified that items from this case needing DNA testing had been sent to Strand Analytical Laboratories so that there would be no conflict of interest since Tonya Fishburn worked as a DNA specialist at the Marion County Crime Lab. He told the jurors that the items sent for DNA comparison were DNA swabs taken from the .38 caliber revolver, including from the trigger, from the hammer, from the barrel, and from the live rounds in the gun and in the holster.
The prosecution thanked the witness. However, the defense had no cross-examination.
Deputy prosecutor Denise Robinson then called Cynthia Cale to the witness stand to be sworn in. Cale told the court that she worked as a forensic DNA analyst for Strand Analytical Laboratories, and that she did the testing on the swabs sent to their lab from the Marion County Crime Lab.
“I draw your attention to the DNA swab taken from the barrel of the Smith & Wesson revolver,” Robinson said. “Can you tell the jury what your findings were?”
“I identified a DNA profile that matches the DNA profile of Brian Reese.”
The defense, upon cross-examination, talked about the DNA swabs taken that didn’t produce a match. Cale said that there was insufficient DNA on these to make a comparison.
Upon redirect, Robinson asked if it was true that insufficient DNA doesn’t mean that it didn’t come from Brian Reese. The DNA analyst said that was correct.
The judge excused Cynthia Cale, and the prosecution next called Beverlee Richardson to testify. Upon being sworn in, Richardson identified herself as an employee of the Indianapolis Metropolitan Police Department Training Academy, where she worked as a firearms instructor. She also said that she was the police department armorer, and that as such she repaired and performed maintenance on all department weapons, body armor, chemical sprays, handcuffs, and Tasers.
Following this introduction, Richardson testified that the Taser found at the crime scene on North Euclid belonged to Officer Jason Fishburn. She also told the court that Tasers have an internal computer that records every time they are fired, and that, upon examining the Taser found on North Euclid, she discovered that it had been fired on July 10, 2008. There was some discussion after this by the defense as to the accuracy of the specific time the Taser had recorded when Officer Fishburn fired it.
After this testimony, the judge read some more questions from the jurors. One of them wanted to know how a Taser worked, and Richardson explained it. Another juror wanted to know if a .38 caliber weapon is dropped, could it go off. Richardson answered it depended on the model. (Smith & Wesson revolvers, like the .38 in question at this trial, will not.)
During a short recess, while the jury was out of the courtroom, defense attorney David Shircliff again asked for a mistrial or at least the removal of the two jurors who had seen Brian Reese handcuffed and shackled. Shircliff said he felt serious concern about this because the next witness, Gary Rees, would come into the courtroom in shackles, which could easily remind and prejudice the two jurors. Judge Borges again denied the motion.
Once the jury had reentered the court, Denise Robinson of the prosecution called Gary Rees to the witness stand. He took the oath to tell the truth, and then told the court that he met Brian Reese in a holding cell for Criminal Court Room Four in downtown Indianapolis sometime in March or April 2009. (Records showed it to be March 12, 2009.) He said he was there for a pretrial hearing on an auto theft charge to which he had eventually pleaded guilty. Robinson then asked him if his plea agreement on the auto theft charge had anything to do with the testimony he was giving, and he said no, it didn’t.
The prosecution then entered into evidence a letter Rees had written about what Brian Reese had allegedly said.
Rees told the jurors that when a deputy called for Reese, both of them had gotten up. This had started him and Brian talking. They found that they knew some of the same people. Brian told him that he had been in lockdown for eight months (which meant he’d had no contact with other prisoners during that time). Rees said that he must have done something pretty awful to have that happen.
“He told me,” Rees said, “that he was running from the police with his hand over his shoulder pointing a gun backwards, running and he shot a cop twice. I told him he must be a pretty good shot if you’re running forward with a gun pointing backwards and you’re able to hit an officer twice. He gave me a smirk and said, ‘That’s just what I’m telling them happened.’”
The prosecution then interjected, “So the first version was shooting back over his shoulder? And the second version was?”
“The second version,” Rees answered, “is that he stopped, turned around, waited for the officer to come into view, and started shooting.”
Robinson again asked Rees if he was getting anything in exchange for his testimony. He said no. The prosecution then turned the witness over to the defense for cross-examination.
During the prosecution’s questioning, Rees had said he asked Reese why he’d shot the officer, and Brian reportedly responded, “He’s just a fucking pig. Fuck him.”
This was extraordinarily damning testimony, and naturally the defense needed to neutralize it. Defense attorney Jeffrey Neel, who handled the cross-examination, tried to do this by attacking Rees’s credibility, though that tactic proved difficult because Rees was receiving nothing in exchange for his testimony. When later asked why he had testified against Brian, Rees reportedly answered, “I’m a thief, not a murderer.”
Defense attorney David Shircliff later told a reporter for the Indy Channel, “Anytime you have someone on the stand that says something as disrespectful as ‘blanking pig’ and adds a bunch of information, of course it’s damaging, unless they perceive him, as I do, that he is a lying snitch. That is what he does for a living: he steals things and he lies to get benefits.”
Neel tried several times to get Rees to say that he still hoped to get something in return for his testimony. However, Rees kept saying that no, he didn’t.
“You like to steal things, don’t you?” Neel then asked, seeming to change the direction of his questioning.
“Yes.”
“You like to take things that don’t belong to you?”
“Yes, sir.”
“And then you lie about it, don’t you?”
“No, sir,” Rees insisted. “Every one of my cases has a plea agreement on it. I admit the truth and I do my time.”
When asked by Neel why Brian would admit to a stranger the things Rees claimed he’d said, Rees responded he didn’t know, because it sure wasn’t very smart to talk about your crime if you’re under arrest for murder. The defense then again asked for the jury to be removed, and, after they had been, once more asked for a mistrial. Gary Rees, the defense said, had let the jury know that Brian had been arrested for murder. The judge denied the motion.
The judge, with the jury still out of the courtroom, asked Gary Rees why he wrote the letter. “The reason I wrote the letter?” Rees responded. “He said
he was going to escape and he was going to try to kill the officer and kill anyone who got in his way.”
Following this, the defense asked again for a mistrial because they said that the jurors could see Mr. Rees’s handcuffs and belly chain, and this would make them assume that Brian Reese was similarly incarcerated. The judge, upon denying this motion, pointed out that Mr. Rees’s incarceration was blatantly apparent since he wore jail clothing and had a deputy always standing next to him, so the handcuffs and belly chain shouldn’t shock the jurors.
The judge dismissed Gary Rees, and the deputy escorted him out of the court.
Once the jurors returned, the prosecutors then called Officer Sam Lasley to the witness stand. After being sworn in, Lasley told the court that he had been a member of the Indianapolis Metropolitan Police Department since 1975, a member of the SWAT team since 1978, and that he presently served as a firearms instructor.
The prosecutor then had him tell the jurors what kind of training the officers received in the use of both lethal and nonlethal force. Following this, the prosecutor asked, “On July 10, 2008, was Officer Fishburn up to date on his firearms training?”
“Yes, he was,” Lasley answered.
“How many rounds does a Glock Model 22 hold?”
“Sixteen.”
“Was it likely that at a chaotic crime scene like the one on Euclid Avenue that casings would be kicked around?”
“Absolutely,” Lasley said. “With medical personnel and police officers going into a crime scene, shell casings can be kicked around or picked up in the tread of tires.”
Killers in the Family Page 14