If You Only Knew

by M. William Phelps

  The image here was that Don was passed out drunk. His killer(s) had placed him on the floor and then poured additional straight booze down his throat, which might have put him into an alcohol-induced coma, so he could not react when he was deprived of oxygen. If he had been conscious, this would have caused those little blood vessels in his eyes and eyelids to burst. It was a well-composed— and perhaps rehearsed—argument, peddled fairly cleanly and somewhat persuasively by the doctor.

  Dragovic was convinced, he said over and over, that asphyxia by smothering had killed Don. Nothing was going to sway him from this opinion. And for the next twenty minutes, they discussed it, piece by piece. Near the end of the doctor’s direct testimony, the APA asked if the “terminal fall”—a strange way to phrase it—that Don took “could have caused” the “abrasions on the lip and nose”?

  “No, sir,” Dragovic said emphatically.

  “Why not?”

  “Because for a terminal fall, you’d have a solid bruise . . . covering the one place that your face, if you go on your face, there will be a plane and you can actually take a piece of glass, apply this to someone’s face and reenact exactly how much of the surface got into contact on those exposed parts of the face, and it wouldn’t be the form of these light scrapes.” It was manifest, the doctor added, “in the form of bruising.” He also noted how the skin above the lip was more sensitive to this type of injury.

  That comment sparked another interrogation by the APA into the bruising and exactly where the doctor had found the bruises on Don’s face.

  Whenever it felt as though the APA was wrapping things up, he found another opening and asked the doctor about it. The testimony, by then, was getting technical and quite fatiguing; it seemed as though they were going over the same issues. The doctor’s explanations became long and exhausting.

  Dragovic brought up “burking” at one point. This is the act of smothering without leaving any markings on the body, whereby a killer would sit on the victim’s chest, using his or her weight to hold him down, and then place his or her hands over the victim’s mouth and nose, thus cutting off not only the victim’s oxygen but the act itself of breathing by moving the chest up and down. It is said that burking leaves no trace of murder.

  Dragovic called the murder of Don Rogers not “perfect burking,” but “the closest one gets to burking.”

  And again, instead of leaving it there, which might have been more powerful, the APA asked, “So this [was] kind of burking?”

  “Kind of burking, yes.”

  With that, Billie Jean shook her head, as did her attorneys.

  Kind of burking?

  Is this the same as, like, kind of murder?

  No doubt Piszczatowski was thinking it either was or wasn’t. Any gray area in between was where reasonable doubt lived.

  Piszczatowski stared at the APA with an almost are-you-freakin’-done-yet look of annoyance.

  By the end of this final conversation between the APA and doctor, Dragovic had actually agreed—without visiting the crime scene or examining the body, only by looking at it in photos, mind you—with the APA when he said that there was “nothing on Mr. Rogers’s body or in the scene that you see that is inconsistent with your diagnosis of asphyxia by smothering. . . .”

  Dragovic, jurors knew, had not once examined Don’s body while it was at the morgue. Everything he had done he did after the fact. This was a bold statement by the APA and the doctor—one that would be most certainly challenged.

  The APA’s final question was even bolder; he wanted to know if there was “any doubt” in the doctor’s mind about the “medical manner of death being homicide” in this case.

  Dragovic said that there was not one “doubt” about it. Don was “smothered by someone else.”

  And that someone else was his wife, the APA implied before handing Dragovic over to what appeared to be a defense attorney chomping at the bit to get going on this witness.

  CHAPTER 67

  A GOOD CROSS-EXAMINATION SHOULD combine several key factors. Leonard E. Davies points this out in his wonderful book, Anatomy of Cross-Examination. For one, a winning cross should always be part of, or “integrated into,” the entire “whole of the trial process.” It should never stand out on its own. That type of solitary cross feels more like an attack; it’s a trap that less experienced defense attorneys, as much as they don’t want to, often fall into without realizing it. In addition, a cross is “more than questioning a witness and, with some luck, scoring . . . points.” With each witness cross-examined, a pyramid of persuasion regarding the defense’s complete position should be constructed, along with the fundamentals of “obtaining evidence for [the defense’s] final argument.” On top of that, questioning a witness after the prosecution has laid out its purpose for direct questioning should always include advancing “the client’s chance of success,” or it “serves no purpose.” This approach sounds rather simple-minded. But many a defense attorney has done nothing more than try to embarrass a witness after he or she has realized there is nothing to be gleaned from the witness to support a client. There is “technique, style and strategy,” Davies claims in his book, in every successful cross—and it was no secret to anyone who had paid attention over the past several days in that courtroom that defense attorney Walter Piszczatowski had all but mastered each.

  As the second day of testimony wound down, Piszczatowski began with his cross-examination of Dragovic right where the APA had left off. Quite snappishly, Piszczatowski forcefully stated in his first question to the doctor, “No doubt in your mind—right?”

  “No doubt in my mind, sir!” Dragovic cracked back, referring to Don being the victim of a homicide by smothering and how “certain” he was of that diagnosis.

  “You are a certain kind of guy, are you not, Dr. Dragovic?” Piszczatowski asked, steepling his hands in front of himself, as if he was silently praying instead of intensely thinking where to take his cross next.

  “Well, on matters that I”—Dragovic tried to say before Piszczatowski cut him off.

  “On all matters, correct?”

  “Yeah.”

  “When you know something, you know something? Correct?” Piszczatowski asked.

  “There are limits to everything . . . ,” Dragovic said before asking the court for a glass of water.

  “Oh, allow me,” Piszczatowski said, obliging the doctor’s water request, as if to say, “We are just getting started here, so settle in Big Boy.”

  The softballs were gone.

  After he took a sip from his white Styrofoam cup of water, Dragovic explained, having been asked to, that he had been called as an expert in hundreds of cases, as he had told the APA.

  Piszczatowski dug into the subject of Dragovic having the correct numbers on the “inspections” of bodies he or the office had conducted. Because, “in this case,” Billie Jean’s lawyer said, “there was an inspection only. Is that correct?”

  “That’s correct, sir.”

  Finally, on this subject, Piszczatowski said what everyone was thinking: “And we’ve heard that ad nauseam, so I am going to get off of it—but it was an inspection?”

  “Sure.”

  Piszczatowski provided a letter he had received from the ME’s office after asking for the statistics, which stated how, according to the ME’s own numbers, there had been only “one inspection for a homicide case” during the entire year of Don’s death—and that was Don’s. The point was that every other homicide that year had been diagnosed after a full, complete autopsy. It was the same for the year 2001. In 1999, there had been zero homicide cases “preceded by way of external inspection.”

  Dragovic said he had to agree, if that’s what the letter stated.

  This was significant information. In the spectrum—or totality—of this trial and how it ebbed and flowed, this was a major contention. One that, additionally, the PO had left out.

  Keeping things moving along, Piszczatowski put up a photograph of Don’s upper lip
and lower nostrils on the overhead projector. He asked the doctor to point out any injuries to Don’s upper lip, noting they were using a “high-tech machine” to display the photo.

  Dragovic couldn’t find any.

  They talked about lighting: high-tech versus low-tech.

  Magnifying glass versus projector.

  The “limitation” of the screen inside the courtroom.

  The left side of the lip as opposed to the right side.

  Don’s lower nostril being “pinkish” or “reddish,” but not truly “injured” in any other way.

  How Dragovic “changed” the opinion of his pathologist.

  As Dragovic broke into a lengthy discussion about a previous black eye Don had had and how they noticed it during the examination, the clock struck 4:54 P.M., which meant it was time to call it a day.

  The judge gave the jury her stern warnings about keeping the testimony to themselves and not reading about the case and told everyone to be back promptly at 9:00 A.M.

  CHAPTER 68

  IT WAS THE THIRD day of testimony, December 4, 2001. The APA had gone on for so long the previous day, Piszczatowski had only a fifteen-minute block of time with Dragovic to work with. But the doctor was back on this cold, dry and overcast morning, and was seated in the witness chair by 9:10 A.M., once again ready to answer any questions the defense attorney had. It was slated to be a long morning, everyone was well aware of that.

  Dragovic did not waver. In fact, as they got underway, his answers were long and detailed, coming across as extremely confident. They discussed the role of the special investigator for the ME’s office and how, in this case, he had done an investigation at the scene and looked at the body.

  “Looked at,” Dragovic stated. “The investigation proceeded and, at some point in time, the case was deemed complete.”

  Piszczatowski asked about that Monday meeting they all had where Don’s case came up. Dragovic went on to explain how the Monday meetings worked, giving jurors an understanding of how the operation was run.

  Don’s alcohol levels came next.

  Then Piszczatowski brought up a valid point, asking the doctor if the ME’s office had wanted to conduct an autopsy on that Monday, could they have gotten Don’s body back from the funeral home?

  “Absolutely,” Dragovic answered.

  Piszczatowski had Dragovic break down the hierarchy of the office and how much “help” Ortiz-Reyes and Dragovic had at their disposal at any time—giving the impression that they could have sent someone over to retrieve the body from the funeral home if there was any concern.

  Then the lawyer and expert witness talked about how off-the-charts the toxicology report was when it came in. Those types of alcohol levels, even for a chronic drinker, were sky-high and sent up red flags throughout the office.

  Dragovic said the toxicology report “asked for attention.”

  That was one way to put it.

  “What were you thinking . . . What ‘attention’—” Piszczatowski used air quotes to make his point heard—“did it need?”

  “Well, whatever attention necessary by the person who was handling that case. . . .” It was Dr. Ortiz-Reyes, Dragovic went on to say without naming him, who was “handling that case.” He “took note of it and proceeded with whatever course he deemed necessary to proceed.”

  This was all interesting testimony and seemed to suggest that the defense and PO were at an impasse here regarding their opinions. Neither was going to budge. The witness was seasoned on the stand; he knew his place well. If Piszczatowski felt he was going to crack him, he probably thought different at this juncture.

  Piszczatowski wanted to know if Dragovic, being the ME in charge of the county, “at the point” Ortiz-Reyes indicated something was up with the toxicology report, “That you thought an autopsy should be conducted?”

  “There might have been some discussion along those lines and some criticism from me, but . . . [it’s] part of the overall communication in these cases.”

  They went back and forth: cause of death, manner of death, who made the call first, who backed it up. By the time they moved on, it was clear Dragovic oversaw the office and its procedures and policies, but he encouraged and watched closely as his medical examiners made their own decisions. And there was nothing inherently wrong with that process. Was it flawed? Maybe. But these were competent doctors, respected in their fields, looking to do the best job they could. There was no conspiracy here to help the TPD make a murder charge stick. The ME’s office did what it thought was best for the public.

  “And you would not allow someone to continue in their employment if you believed them to be incompetent?” Piszczatowski asked.

  “That’s—” Dragovic tried to say.

  “Fair enough?”

  “. . . correct.”

  “And you have the interest of Oakland County at stake?” Piszczatowski said.

  “That’s correct.”

  “That’s part of your job as the boss?”

  “Well, it’s a responsibility. It’s my responsibility,” Dragovic stated.

  Piszczatowski brought up the TPD next, so far maybe the most contentious issue. Dragovic explained how a detective had “faxed” him a “request for further investigation.. . .”

  It seemed as though Piszczatowski and Dragovic were going over the same old ground already covered. Nothing new came out of it. Then they got to the crime scene.

  “And you indicated that in this case, it was . . . your opinion where you talk about [the crime scene] . . . upon reviewing all that information [something] became obvious to you, correct?”

  “Correct,” Dragovic answered.

  “[Some] discrepancies that emerged. The scene of death was altered, correct?”

  “That is correct.”

  “Okay. And is it also correct that it was altered with the purpose to deceive the authorities, by disguising the death as a nonviolent one?”

  “That is correct.”

  “Now, when you indicated yesterday that the . . . reason you believe that the scene was disguised, one of the reasons . . . was because of the position of the chair in relation to the body, correct?”

  “Those are . . . not by one single detail.”

  “I understand, but . . .”

  “By the composition of those details, yes, sir.”

  “That’s why I said, but one of the reasons.”

  They talked about the “position of the chair in relation to the body” and how the chair was “tipped over.”

  Dragovic agreed. It was the chair “in relation to” the body that concerned him.

  And the legs, of course, being crossed. “That too,” Dragovic said.

  Then, for the first time, a new piece of information emerged after Piszczatowski asked: “And what else in those photos, if you can tell me?”

  “Absence of injury,” Dragovic said.

  “Absence of injury?”

  “Yeah.” Dragovic sounded more clear and certain than he ever had.

  “But you cannot really see that from the photos. You’re relying on Dr. Ortiz-Reyes for the absence of injury to the back of the head—is that correct?”

  “Well, we did the assessment. We have some information about that and, sure enough, there is a body diagram where he documented all what he saw on the outside of the body.”

  “Yes. He and you relied on the fact that there was an absence of injury, based on the fact of the external examination done by Dr. Ortiz-Reyes, correct?”

  “Sure.”

  They agreed the examination Ortiz-Reyes conducted did not show any sign of bruising.

  Dragovic explained a “terminal fall,” a phrase he had used during his direct. He described it as a “last fall.” And Piszczatowski asked him if he was basing all of this by “assuming” that Don was sitting in a chair.

  Dragovic said he never assumed anything. The available evidence had told him that.

  “Okay. In cases of a terminal fall, did you not testify yeste
rday that in a case of terminal fall, you would expect to have injury?”

  “Sure.”

  “Okay. And the words ‘terminal fall,’ are those words that are defined in medical . . . terms? Is that a recognized medical term?”

  “A recognized term among medical examiners,” Dragovic said. “Other doctors do not deal, necessarily, with terminal falls. Because they don’t address that issue of death occurring suddenly and unexpectedly where a person actually falls down.”

  “Right.”

  “A result of losing control over his body or her body and striking the unyielding surface, and that unyielding surface providing the opportunity for someone to get injured.”

  They discussed terminal fall for far too long. Some call it splitting hairs. Others call it unnecessary bickering over nothing. To his credit, Piszczatowski wanted the doctor to explain if there were various explanations for a terminal fall. For instance, would a heart attack, which occurred first, be followed by a terminal fall? Would any precondition leading to that fall be part of the terminal aspect of it?

  Dragovic accused Piszczatowski of adding some “seasoning” to the term.

  One staggering fact brought out was that the amount of alcohol in Don’s system was equivalent to “twenty-five drinks,” maybe “even thirty,” in a very short period of time, which led them to believe that someone had forced the alcohol down his throat. A man, in other words, could not consume that much alcohol on his own.

  But Piszczatowski put some water on the fire by asking the doctor if he or his staff had gone around the house—at least inside the kitchen—and looked for empty bottles of alcohol or looked inside the refrigerator or freezer to see how much booze Don had hanging around. There was a fine line there: If the person did not drink, had no or little alcohol in the house, well, okay, the amount in his system was suspect. But since Don drank every night, from the moment he walked into the door until he passed out, according to testimony, and had half-gallon bottles of booze all over the house, didn’t that have a bearing on the outcome of the opinion?

  “I don’t treat alcoholics,” Dragovic finally said.