Last week, during the opening statements, the prosecution showed the full 15-minute video of the incident that culminated in the fatal shooting of Officer Tony Diaz. During the course of airing that video, members of the family, apparently unprepared for the magnitude of emotions, responded by openingly weeping in court, and some fleeing the courtroom were even heard wailing around the entire courthouse.
Defense Attorney Dwight Samuel objected to the admission of the photos, arguing that they were “extremely, unduly gruesome and inflammatory.”
“It would be a danger to admit some of these photographs into the case,” said Mr. Samuel, who added that the images are “so inflammatory as to overcome the jury’s rationality.”
The defense concluded that it was demeaning to the person involved to show autopsy photos that are not relevant.
The prosecution said that the photos can be published if the prejudicial effect does not outweigh the relevance. District Attorney Jeff Reisig said that the damage done to the deputy is all part of the case, and the “utter destruction” that was caused and all the photos demonstrate aspects of that.
“The photographs are admissible if they are relevant,” Mr. Reisig continued.
Mr. Reisig concluded that if the court chooses to pull the photos out that he would explain what he intends to do further.
The court said that there is a line of Supreme Court cases that say the trial court has broad discretion on pathology photos. The court states that the photos will help to corroborate the testimony of the pathologist and that they are probative as to the cause of death and the manner of death. The court noted that some of the photos are cumulative and excluded 2 out of the 7 disputed photos.
To the request by the defense not to project the photos on the screen, which would add to the gruesome nature of the photos, and to instead have the jury pass them around, Mr. Reisig said that the pathologist would not then be able to point to the photos with explanations.
Judge Richardson said that this is a murder trial and it can be graphic and that he will not stop counsel if they want to project the photos.
He cautioned the audience about that and said that he cannot tell them to leave the court because it is a public building, but that he did not want any emotional reactions.
“I am concerned about audience,” said Judge Richardson. “I don’t want any display in the courtroom that might affect the jury.”
Judge Richardson warned the audience that the photos were graphic and told them that “the court doesn’t want any emotional response.”
A number of members of Deputy Diaz’s family left the courtroom following the warning, while a number of the family members remained to watch the testimony.
Gregory Reiber, a pathologist who works for the Forensic Medical Group, the group that came under fire earlier this year for faulty pathology and autopsy reports, performed Deputy Diaz’s autopsy.
He testified that a gunshot entry wound was visible in the external exam and that more widespread damage was evident in the internal exam. He explained that the chest had been cut open for examination and used a laser pointer on photos of the open chest projected on to a screen. He pointed out the ends of broken segments of ribs, the bruising and torn tissue of the chest wall. He explained that the deputy’s left side ribs were broken into separate segments having been hit by the bullet. Muscles and arteries were completely torn.
Further examination revealed injuries spread several inches around the the entry wound because of energy transfer from the bullet – the whole left lung badly bruised in that way.
X-rays showed a “snow storm” effect of bullet fragments, i.e. lots of small pieces spread out because of the high-velocity break-up of the bullet.
He stated that the angle of entry was about 30 degrees downward, plus or minus 10 degrees. He also stated that the path of travel of the bullet can change upon striking an object such as a rib, which seemed to complicate the angle of entry determination.
He ruled the cause of death to be a gunshot wound to the chest and determined that there was no chance of surviving, given the damage.
We would also learn from Lt. Dale Johnson of the Sheriff’s Department about how Mr. Topete was captured after he fled the scene following the shooting.
He was found the next morning after an extensive search with multiple agencies, a road block, SWAT teams and I-5 shut down in both directions for a period of time.
Lt. Johnson described how a line of 14 SWAT team operators formed a line to search a area of land and grove of trees in a county road west of I-5. Mr. Topete was found lying on the ground up to his chest in foliage. Photos of the area were projected onto the screen for the jury
Lt. Johnson explained that a rifle was found just east of the Dunnigan rest stop (northbound I-5) restroom, partially covered in foliage. Photos of the rifle at the scene were shown to the jury and Lt. Johnson brought out the rifle and held it up for the jury pointing to the serial number and explaining how he knew it was the same rifle that had been shown in the photographs and found by the rest stop.
On cross-examination, Mr. Johnson said that the gun was found later that morning closer to 11:20 when he had arrived to handle and process it. He said that canine units sent into the area where Mr. Topete was found had not located anything there prior to the SWAT teams moving in.
Mr. Gable questioned Mr. Johnson’s characterization of Mr. Topete and his gun as being deliberately hidden under the foliage.
Lt. Johnson said that his experience in the army meant that he knew how to camouflage, and that it appeared to him that both Mr. Topete and the rifle had been deliberately covered that way.
He said that the rifle found had a high-capacity magazine attached, which can hold 30 rounds, and that only one round was left in the magazine in addition to one round in the chamber of the rifle.
—David M. Greenwald reporting
While only an unfortunate few of us have actually seen persons die by gunfire, the vision of same is graphically depicted in vast bodies of literature, television, and films. So why is so necessary to show autopsy pictures of the victim, preceded by windy arguments over their relevance and inflammatory nature?
Why don’t we reduce a full day or two of costly murder trials by judges invoking the following stipulation: The victim indisputably died, the victim by means of (whatever), and the question remaining is who did it?
While “cause of death” is a critical element in proving a homicide case, just allow the defense to stipulate, “Yep, he died and it was by gunshot,” and then move on.
[quote]Judge Richardson warned the audience that the photos were graphic and told them that “the court doesn’t want any emotional response.”[/quote]
As I said before, this is very often what judges do, and probably should have been done when the video footage was shown.
[quote]Why don’t we reduce a full day or two of costly murder trials by judges invoking the following stipulation: The victim indisputably died, the victim by means of (whatever), and the question remaining is who did it? [/quote]
The answer lies in the word “stipulation” which means AGREEMENT. Both sides have to agree to how the victim died, and agree not to show the photos. Obviously the prosecution and defense could not come to any such agreement. The judge cannot impose an agreement on the two parties. All the judge can do is listen to both sides, and make his own ruling on what evidence is admissible. Admissible evidence is all evidence that is relevant, and not overly prejudicial. So the judge has to err on the side of admissibility.
If I was on this jury I would be more interested in the intent of the shooter rather of the exact damage done by the bullet. Was there any dicussion about how far away the shooter was? I would think the “ambush theory” would require the shooter to be at relatively close range -close enough to see and aim at the specific target. I would also be interested in the type of amunition used – was it standard of or was it designed to penetrate a police vest? Was he trying to lure the officer into a situation where he could kill the officer or was he trying to flee from the police and was the shooting and attempt to disrupt the pursuit? Either way a police officer was murdered but I would be more likely to support the death penalty if it was really a police ambush.
[quote]Either way a police officer was murdered but I would be more likely to support the death penalty if it was really a police ambush.[/quote]
Hence the reason for the ostensibly “weak” gang evidence – it goes to prove ambush for the purposes of furthering the gang.
ERM
“Admissible evidence is all evidence that is relevant, and not overly prejudicial.”
It is that last phrase, “and not overly prejudicial” that is troubling to me. Having myself attended a number of autopsies, and having witnessed the emotional reactions of many patients and their family members to even the most minor of procedures ( a healthy former member of the military passing out during an IV start on his wife for example) I find it difficult to believe that graphic photos of this kind of bodily damage and autopsy photos would be anything other than “overly prejudicial”.
I believe that those two final words presented the judge with an out which he did not choose to take.
The trial is not about a Murder. The purpose of the trial is to convict a murderer. There is absolutely no evidence that would substantiate who murdered that deputy based on those photos. The DA could get the jury to render an emotional verdict. It has been done before. So far they can only place him at the scene after the fact by capture; which is cirmumstantial at best but most likely will get a conviction.
In some ways, in the interest of frugality in the public sector, it may be unfortunate that Mr. Topete didn’t brandish a gun when he was being arrested.
Except for the theory that he as completely innocent and all of the evidence was ‘planted’.
The defense offered to stipulate to the murder and all the assorted information, the prosecution declined and wished to present the evidence.
“Except for the theory that he as completely innocent and all of the evidence was ‘planted’. “
No one is putting forth that theory.
[quote]I believe that those two final words presented the judge with an out which he did not choose to take.[/quote]
Whether evidence is overly prejudicial is up to the judge, and the judge has to err on the side of admissibility.
ERM
Are there fairly strict guidelines for “admissibility” or is this an area with a or of latitude ?
Oops, lot of latitude