Judge Hudson granted permission to the defense to remove evidence found in the house at 1810 Cedar Street after a professional photographer had recorded it where it was found and its condition at the time of discovery. The order also required that if the defense wished to enter this item into evidence, they must first inform the state of its existence.
Monday did not get off to a good start. One of the jurors overslept. Connecticut State Police Officer Palmbach was scheduled for a return visit to the witness stand. His previous appearance was cut short by his need to return home. Now, his flight was delayed.
Court was finally in session an hour and a half later than usual. Palmbach took the stand to face cross-examination by Jim Hardin. “With respect to those three hundred crime scenes you have worked, how many of those, in your opinion, have been perfectly maintained from the instant the crime had been committed?”
“And by perfectly, the assumption is exactly that—one hundred percent? None, none of them are done entirely correctly.” Palmbach admitted that the majority of them are prosecuted nonetheless. Hardin asked him how many times he had processed a crime scene where the residence was 10,000 square feet, and Palmbach granted that that was a large area to maintain.
Palmbach persisted in his allegation that luminol was sprayed at the bottom of the stairs, even though more than one witness had sworn it had not been done. He corroborated that he and Dr. Lee did not do any independent testing of the crime scene or evidence.
“What I’m saying is that we don’t per se go through the same level of experimentation and documentation, because that’s not our function,” Palmbach said. “That’s the function of the primary investigator at the scene.”
“But you rendered opinions of what they did or didn’t do. And those opinions, in some respects, are one hundred and eighty degrees divergent from Deborah Radisch’s, who said this death was due to blunt force trauma and not consistent with an accident. And one hundred and eighty degrees from what Duane Deaver opined to this jury, which was that these bloodstain patterns were consistent with a beating and not an accidental fall. You’re aware of that?” Hardin asked.
“Yes.”
“And you hold opinions that are one hundred and eighty degrees apart from Deborah Radisch’s and Duane Deaver’s in particular, right?”
“Pretty much, yes.”
“And they are the people that did all of the work?”
“Or didn’t do all the work,” Palmbach said. “But, yes, were charged to do it.”
“In your opinion?”
“Correct.”
“Okay. Your Honor, I have no further questions of the witness.”
Next, the defense called Clyde Andrson, a young man who had worked inside and outside of the Peterson home since 1999. He said he had never seen a blowpoke in the house and that the pool furniture was always by the pool—both statements contradicting testimony by Candace Zamperini.
But he also said that in 2001, he and Todd bought and put up the Christmas tree right after Kathleen died. In fact, the crime-scene videotape shows the tree already standing on the 10th. Kathleen and Michael brought it home on the Friday before her death.
On Tuesday morning, the defense leaked to the media that they would witness a Perry Mason moment. Excited whispers and grins rippled through the spectator section behind the defense table.
Rudolf called Art Holland to the stand. Waving the blowpoke the state had introduced into evidence, Rudolf asked, “This is a pretty light item, isn’t it?”
“It’s fairly light, yes, sir,” Holland answered.
“Hollow?”
“Hollow.”
“It bends?”
“Flexible,” Art Holland said, nodding his head.
“Have you given any thought to what would happen to an item like this if somebody hit someone over the head—three, four, five times—hard enough to cause the lacerations on the scalp?”
“Probably mangled up,” Holland answered. As the blowpoke questions continued, he sensed what was about to happen. He had expected it much earlier in the trial. He and the prosecution team had discussed it many times. Unless he was mistaken, the defense was about to produce its own blowpoke.
And Rudolf did not disappoint. With a flourish, he pulled out a plastic tube containing a blowpoke and some dead bugs. It was dirty, discolored and covered with cobwebs. Rudolf had ignored Judge Hudson’s instructions to inform the state of this evidence prior to its introduction in court.
“See that?” Rudolf asked Holland.
“Yes, sir.”
[ …] “That’s a blowpoke, isn’t it? Do you know where it has been for the last twenty months?”
“No, I don’t.”
“This doesn’t appear to you to be mangled, does it?”
“It’s not mangled.”
“It’s not even dented, is it? Not even a tiny indentation?”
“It doesn’t appear to have any dents,” Holland admitted.
After identification by Investigator Holland, Rudolf requested permission to enter it into evidence. Hudson paused, expecting to hear an objection from the prosecution. Hearing none, he said, “It is allowed.”
It was great theater, even though it violated the judge’s order. And it surely excited everyone in the media. But the jury was not impressed. Many of them had already eliminated the much-ballyhooed blowpoke as a possible weapon.
Professional photographer John Rosenthal followed Art Holland on the stand. He testified that he arrived at the Cedar Street home on Sunday, September 21, around 2:30 in the afternoon, and shot photographs of the blowpoke in the two-car garage.
Freda Black attacked the defense’s inference that the blowpoke had just been discovered after resting in that same place since before December 9, 2001. “Do you have any earthly idea of how long it takes for dust to accumulate on an object in a garage?”
“No,” said Rosenthal.
“Do you have any earthly idea how long it takes cobwebs to form?”
“No.”
“You don’t have any earthly idea on how long it takes a bug to die in someone’s garage?”
“No.”
With that witness, the defense rested. No testimony was presented about the where, when or who of the discovery of the missing blowpoke. The defense omitted a lot of other witnesses, too.
In his opening, Rudolf promised the jury that he would call witnesses who would tell them about the Camelot-like relationship between Kathleen and Michael. He said he would call a doctor to testify about Kathleen’s headaches and ocular migraine. He promised that Marines would testify about Michael’s valor and leadership during battle. But not one of them made it to the witness stand.
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The state began its rebuttal case by bringing investigator Art Holland back to the stand. He explained the search conducted in the cluttered, dusty basement and garage. He insisted that he looked for any type of object or weapon that could cause injury to a person. “That poker was not in the basement.”
To combat the defense charge that the prosecution hid their suspicions about the blowpoke from them until jury selection, the state called Ruth Brown, an evidence custodian for the Durham Police Department, to the stand. She said that she brought out the state’s exhibits for the defense to examine in October of 2002. The blowpoke was brought into the room in a box and it stuck out of the end of its container.
After the box was set on the table, she said, the blowpoke was removed from it and lay in clear view. In the six hours that the defense spent in that room, they never requested a close-up viewing of the fireplace tool.
Lori Campell took her seat before the court on September 24. She said that the last time she saw her sister was in July of 2001—five months before her death. On that visit, she saw the blowpoke by the fireplace.
On cross-examination, Rudolf questioned Lori’s honesty, making it clear he did not believe that she had visited the Peterson home that July. Then he attacked her mother Veronica, implying that ther
e was something wrong with her going to visit family just two months after the death of her companion Carl.
Rudolf whipped out one picture after another showing shots of the fireplace without the blowpoke. One photo included Clancey, the bulldog who died in 2000. That prompted Lori to point out that the circumstances of Clancey’s death were suspicious.
When Rudolf finished his questioning, he walked away with not only his photographs but also with one of Kathleen that Lori had brought to the witness box. With a quivering chin, she demanded, “May I please have the picture of my sister back?”
Once again, Rudolf had pushed a family member of a victim a bit too far.
The next witness in the state’s rebuttal case was a man with impeccable credentials, Dr. James McElhaney, professor emeritus at Duke University and an expert in injury biomechanics. Over the last thirty years, he had testified in over one hundred civil cases, but this was his first criminal trial.
He acknowledged that he knew Faris Bandak professionally and had reviewed his testimony. Then, Freda Black asked him, “As an expert in this field, do you agree or disagree with the opinion that he formed in this case?”
“I basically disagree with his bottom line opinion in this case.”
“And why is that?”
“Because what information I reviewed in this case has led me to the other side of his opinion and that is that the injuries, lacerations, bruises and contusions, to my mind, are inconsistent with a fall down the steps, but are consistent with a beating with a blunt instrument. Most likely a round instrument. Whereas his opinion is, they are consistent with a fall down the steps.”
“Now, as an expert in this field, tell us, please, on what you have based your opinion.”
“I base these opinions, first of all on my experience in doing experiments that create lacerations to the head and also my experience in the study of injuries over many years,” Dr. McElhaney said. He pointed to the thirty-three places noted in the autopsy where there were bruises, abrasions or lacerations. “Reviewing those, I conclude at least fifteen impact sites.”
He explained that a straight, flat impact, does not create lacerations four to five inches long. Because of the curvature of the skull, the object that struck Kathleen’s head had to move across its surface. A stair cannot move.
He stood before the jury with enlargements he made from autopsy photos and said, “I’m sorry I have to show you this, but I don’t think you can really understand these lacerations without seeing the pictures here.
“We get a laceration when we hit it hard. And fast. Fast is an important aspect to this. [ …] So if what strikes us isn’t going fast enough, we don’t get this splitting type of laceration.” He explained to the jurors how the distance of the fall played an important role in the severity of the fall. Kathleen’s first fall did have enough height to create the first laceration. “However, then she’s already used up three feet of the five feet she can fall. There’s barely—there’s probably not—enough energy left to create the speed to create a second laceration on that fall.”
On cross, Rudolf wanted to know how much money McElhaney was making for this consultation and testimony.
“Nothing. It just seemed the right thing to do,” the doctor answered.
Ms. Black appreciated Dr. McElhaney’s response to Rudolf about the money he was earning for his work on this case so much that she asked him again on re-direct and he responded, “Yes, I am doing this for free. I’ve put in about forty hours. I was willing to do it without compensation because it seemed the right thing to do.”
During re-cross, Rudolf attempted to use Dr. McElhaney to discredit Dr. Saami Shaibani, the state’s next witness on the stand, but made very little headway.
Shaibani had an undergraduate degree from Oxford in Material Physics, had taught at three Virginia schools—Lynchburg College, Liberty University and Virginia Tech—and was certified by the Department of Labor and the Department of Justice as an expert. He also claimed to have a research affiliation with Temple University as a clinical professor. He had testified as an expert in North Carolina in the field of injury mechanism analysis on nine previous occasions. The district attorney tendered him as an expert witness.
David Rudolf objected to Shaibani’s certification as an expert because, he said, he questioned the veracity of his credentials. But Rudolf did not want to examine him outside the presence of the jury because it would only prepare him to give better answers in front of the jury.
“If Mr. Rudolf has information along the lines of what he has described,” Hardin said, “that’s obviously very serious. It would be something that needs to be dealt with before the jury hears additional testimony from the witness.”
[ …] “I have no intention of going forward with voir dire if it’s outside the presence of the jury,” Rudolf insisted.
After a brief back-and-forth between the attorneys, Rudolf said, “I withdraw my request! Mr. Hardin can put on his witness. I’m sure Mr. Hardin can find out from his witness what the truth is. It’s his witness, not mine.”
Bickering finished, Judge Hudson certified Dr. Shaibani as an expert. The physicist took care to explain to the jury the principles underlying his science. He explained the importance of one of Newton’s laws of motion: “For every action there is an equal and opposite reaction.” He also defined the two underlying principles in the science of injury, relative motion and energy management.
He explained his experiment protocol involving five subjects similar in size to Kathleen Peterson. They were tested in rigid falls and loose, floppy falls to chart the complete range of possible motion.
His conclusion was straight to the point: the sequence in the video is not possible by the laws of physics in a fall. There is not enough space; there is not enough time. The human body—the pelvis, the knees—do not move as shown in the animation.
He showed the jury a still shot from the animation. “This picture really, really reinforces that something impossible is happening to the pelvis for those legs to end up going backwards there—back up onto that step. You cannot manipulate and bend and twist the human body in the real world. On a computer, you can do anything. But in the real world, you can’t.”
Showing another freeze-frame, he said, “I don’t see any way that body could be in that position, at any time, without help. Somebody had to put it there. The law of physics doesn’t let it get there naturally. [ …] You’d have to dislocate your shoulder to have your head on step seventeen and have your elbow on step sixteen. It doesn’t add up,” he said, pointing to the lower steps where Kathleen’s body was found.
David Rudolf began his cross-examination of Saami Shaibani with questions about his current position and past positions. Disdain dripped from the edges of every word the defense attorney spoke. Then, he moved in for the kill. He queried Shaibani about his position at Temple University while Michael Peterson tried, in vain, to suppress a grin.
He presented Dr. Shaibani with a letter submitted to a court at a trial in October 2001 from the chair of the Physics Department saying that Shaibani was not affiliated with Temple and should not state that he is. “I have to write this letter once a year because he is claiming that he has an affiliation with Temple which he does not have,” he wrote.
“Today is the first time I’ve seen it,” Dr. Shaibani said. “The public defender mentioned a letter, but did not produce it.”
“Well, after it was mentioned in open court by an officer of the court telling a judge that there was such a letter, did you think to yourself, ‘Gee, maybe I’d better call Temple and get this cleared up’?” Rudolf asked.
“I don’t believe everything an attorney says, sir.”
[ …] “When you testified in a murder trial in Washington, D.C., when someone’s life was at stake, you lied about your affiliation with Temple, didn’t you?” Rudolf pushed.
“No, sir.”
Hardin objected, Hudson overruled and the attack continued. “Would you be surprised
to know that as recently as yesterday, the associate university counsel, Virginia Flick, at Temple University, reaffirmed that you have no connection, no affiliation, no relationship whatsoever, formal or informal, except perhaps in your mind, with Temple University? Do you understand that? Are you aware of that?”
“I am not aware of that, no.”
Rudolf asked the judge to tell the district attorney to inform state officials about the need for an investigation into perjury charges against Shaibani.
Hardin said if the judge wished to take up the defense motion to find that Dr. Shaibani had perjured himself, the state would not object. He would decide after trial about whether or not it would be taken forward. Hardin did not want to abandon his witness, but he knew if he did anything else, he could damage his case—and possibly allow a killer to go free.
“If the district attorney won’t contact the attorney general, then I want the court to do so,” Rudolf demanded.
“Mr. Hardin knows his responsibility under the law,” Judge Hudson said. “He is not ignoring your argument. He knows how to proceed. It is not for this court to tell Mr. Hardin how to do his job.”
Then Hudson struck the testimony of Dr. Saami Shaibani, telling the jury that the witness had perjured himself in relating his credentials to the court. With that, the court day ended. Many jurors were frustrated, and uncomfortable as well. The public flaying of the witness by Rudolf was a distasteful sight to see. They found the testimony of Dr. Shaibani to be full of common sense and practical information that they could readily understand. They had wanted to consider it in their deliberations. Now they could not.
Investigator Art Holland bore the onerous chore of taking Dr. Shaibani to the airport. Holland was not convinced that Shaibani had perjured himself. None of it made sense. What he did see with clarity was a man destroyed, a career ruined. He wondered if this destruction was justified or if Dr. Shaibani was just another victim of Michael Peterson.
Written in Blood Page 25