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McBride Trial -- Day 4, 11/29/01
Today was a short session. There were a lot of other cases in the morning. When they finally got around to the case, only one witness, the medical examiner, was heard from, some stipulations were read, and some motions were dealt with. (Some of the testimony was graphic, as were the photographs shown.) The state is now basically finished with its case, and tomorrow the defense is expected to call two or three witnesses. The judge told the jury that closing statements would probably occur on Monday morning. This is the first time he has said that the trial will definitely go into next week. After dealing with various other cases in the morning, the judge recessed to chambers with the lawyers in the Fitzpatrick case at noon. After a few minutes, they came back into the courtroom, without the jury, and there were arguments about the photos that the state planned to introduce during the next witness' (the medical examiner's) testimony. The defense objected specifically to four of the photos, saying that they were redundant and basically all showed the same thing. They also objected to another photo, saying that it was prejudicial since it was taken during the autopsy and reflected the state of the subject after being examined. This picture is apparently of a head injury, which shows a laceration to the right temple and some injuries underlying the scalp. Mr. Adams argued that since there is no dispute about the injuries themselves, there is no point in showing three or four pictures of basically the same thing, especially photos that show the things that the medical examiner did and not the state of the victim after the incident. Judge Wadas responded that out of all the autopsy and crime scene photos he has seen in his years on the bench, these were not so bad, and the pictures all show different injuries. He denies the motion to suppress the photographs, and allows them all to be introduced. Mr. Adams presses the issue on some other pictures, but the judge does not change his mind. At 12:15 the jury was brought out and the state's twelfth (and as we learned later, likely final) witness, Dr. Mitra Kalelkar, a woman who appeared to be of middle eastern or Indian descent and about 35 to 40 years old, was called by ASA Patrick Kelly. She is the Assistant Chief Medical Examiner of Cook County. She stated that her duties are to perform autopsies to determine the cause and manner of death, and also teaches other doctors and examiners. She is currently licensed as a medical doctor and pathologist. During an autopsy, she performs both an internal and an external examination, looking for signs of injury, disease, and previous medical treatments. She stated that forensic pathology applies pathological knowledge to make determinations. Dr. Kalelkar said that she had performed over 5000 autopsies and had testified in over 500 trials. She examined Thomas McBride's body, performed internal and external examinations, and compiled a post-mortem report. Mr. Kelly gave her a copy of the report to refer to during her testimony. Dr. Kalelkar stated that the body arrived unclothed, along with windbreakers, thermal underwear, and some other items. Mr. McBride appeared to be well developed and nourished, 150 pounds, and 5 feet 10 inches in length. The body displayed "a lot of injuries" including a "large sickle shaped laceration" on the right temple and abrasions on the right side of the face, neck, and collarbone, the right hip and thigh, and both knees and lower legs. She explained that an abrasion is a scraping of the hair from the skin due to some kind of friction. She said that she could tell that the right upper arm was broken by feel, and this was confirmed by an X-ray. She testified that there was evidence of medical intervention, presumably post-trauma, including a procostomy incision in the chest and needle marks on the elbows and groin, consistent with lifesaving medical efforts. After the external exam, she performed an internal examination. She found latent blood in the chest cavity, lacerations on both lungs and the liver, and multiple broken ribs. She explained that a laceration is a tearing of tissue due to trauma. The ribs had both anterior and posterior (front and back) fractures, consistent with a "crushing type of injury" to the chest. She repeated that the scalp had a "sickle shaped laceration" with hemorrhaging underneath. The brain was intact. She stated that the injuries were consistent with being struck, dragged, and run over by a large motor vehicle. The scalp injury was consistent with falling to the street. Blood samples and other evidence were sent to the state lab and toxicologist, to be tested for alcohol, opiates, and cocaine. The tests were negative. Mr. Kelly then showed a series of nine photographs to the witness and to the jury on the television. Dr. Kalelkar testified that she had taken the photos and that they were an accurate depiction of the subject. The TV was visible from the audience as well. The photos were very graphic and several of the spectators were visibly disturbed. The jury seemed to be viewing the picture intently. I could not see Carnell Fitzpatrick's reaction. The first photo was a view of the head of the victim, from the front. Many abrasions were visible on the right side of the face. The second picture was a view of the head from the right side. Dr. Kalelkar pointed out vertical abrasions consistent with friction from movement up and down rather than sideways. The third picture was a view of the right side of the torso. The witness pointed out several abrasions and a broken right upper arm and clavicle, as well as numerous broken ribs. The fourth photo showed a frontal view of the torso and abdomen, and the witness pointed out bruises and punctures on the left chest and elbow. She said that the punctures were caused by medical intervention. The fifth photo showed the legs from the front, with several abrasions to the knees and legs. The sixth photo showed abrasions on the back of the knees and lower legs. The seventh showed abrasions to the back of the left hand. The eighth photograph was a view of the head from the right rear side. The head was shaved to show further scalp abrasions. The last picture showed the scalp rolled back to display injuries and hemorrhages beneath the scalp. Dr. Kalelkar stated that she had determined that the cause of death was multiple injuries due to being struck by an automobile. She explained that there were five manners of death: homicide, suicide, accident, natural, and undetermined. She said that she determined the manner of Mr. McBride's death to be homicide. Mr. Adams cross-examined. Dr. Kalelkar said that homicide means that a person was killed by the actions or hands of another, but makes no determination of purpose or intent. She stated that she can determine whether a death was caused by an accident or not by the nature of the injuries. Mr. Adams made an analogy to cases involving gunshot wounds, and the witness said that it was routine to test the weapon in such cases, but it could not be determined if a person had been shot intentionally or if "the gun just went off," in Mr. Adam's words. She said that her job is to certify the manner of death reported by the investigator. She admitted that this is hearsay "in a way," but that medical examiners have to rely on such reports because they are not witnesses. She admitted that she had no direct knowledge of the events leading up to Mr. McBride's death since she was not there at the time, and relied on police reports that said that he had been "deliberately run down by a vehicle." Mr. Adams then showed her the picture with the scalp peeled back and she stated that the skull injuries in the picture were caused by the autopsy, and did not reflect the initial state of the body when she received it. On redirect by Mr. Kelly, she stated that she had no idea about the underlying scalp injuries initially until she pulled back the scalp to investigate. Mr. Kelly asked her if the hemorrhage was existing when the body was received, and she said yes. The witness was excused. ASA Lynda Peters then read a series of five stipulations to the jury. She explained that a stipulation is an agreement between both sets of lawyers that a witness would offer certain testimony if called. (The stipulations were read quickly and I did not catch the proper spellings of all the names read.) The first stipulation said that if Dr. Andrew Perostnais, a Chicago police detective, were called, he would say that at 8:25 a.m. he was flagged down by Tyrone Hibbler and told about a bike being hit by a vehicle. At the scene, he saw Mr. McBride lying unconscious and interviewed Mr. Hibbler, Lionel Dixon, and Jerry Howard. He was not approached by Demetrius Terry at any time. The second stipulation said that if called, a forensic scientist (whose name I didn't catch but I think was Bepciley) would testify that on April 28, 1999, he received two swab boxes, each containing two reddish stains. The first box contained samples from the wheel well of an automobile, and the second contained samples from the passenger side rear leaf spring shackle. He performed tests on the samples and determined that they were human blood. The third stipulation said that forensic scientist Rhonda Carter would testify that in July 1999 she received a swab box with two blood samples from the passenger side rear leaf spring shackle, and she also received samples of the blood of Thomas McBride from the medical examiner. She performed DNA tests and determined that the blood from the vehicle matched that of Mr. McBride. The fourth stipulation said that forensic scientist Debra Eldred would testify that she examined a silver Peugeot bicycle and processed two latent impressions from the friction rich skin of the fingers and hands that she found on the bicycle. She also examined cards containing finger and hand prints taken from Carnell Fitzpatrick and found that the impressions on the bike matched those of Mr. Fitzpatrick's left index and middle fingers. The sixth stipulation said that forensic scientist and chemist Pat Brocherwice (I'm not sure of that spelling either) would testify that he examined a Peugeot bicycle and took fiber samples of red handlebar tape and samples of silver paint from it. He received from the medical examiner a hair sample taken from Thomas McBride. On July 1, 1999, he received several items taken from a Chevy Tahoe, including a red substance from various locations on the passenger and driver's side, hair from the passenger side, and a silver substance from under the driver's side floorboard. He compared the samples to those from the bicycle and determined that the red substance was cotton fibers similar to the handlebar tape, the hair was similar microscopically to Mr. McBride's, and the silver substance was consistent with the bicycle's paint. Mr. Kelly then read two additional stipulations saying that the medical examiner had submitted the samples in a sealed envelope and that a certified copy of a registration to Lenore Galsper (Carnell Fitzpatrick's grandmother) of a Chevy SUV was received. The defense agreed to the stipulations. At this point it was 1:00, and the judge and lawyers recessed to chambers for ten minutes, after which the judge announced that the state had basically finished with its case but was not formally resting. He said that the defense witnesses would not be ready to testify until late that afternoon, so rather than making everyone wait around all afternoon he would recess for the day and the defense would begin their case at 9:30 tomorrow (Friday) morning. He added that final arguments were expected Monday. The jury was excused. After the jury left, defense attorney Sam Adam Jr. brought a motion before the court. He said that there were only three eyewitnesses to the events in question. Mr. Hibbler had said that he did not see or know why the bike was hit and that it could have been an accident, Mr. Dixon only saw the bike under the truck, and not the events leading up to it, and Mr. Howard said that he thought it was an accident, and he was impeached by the state. Judge Wadas noted that Mr. Howard was a hostile witness. Mr. Adam Jr. pointed out that Mr. Howard's police statement and grand jury testimony were the only evidence of intent, and that those "were not enough" for the state to meet its burden of proof. He cited the case of People v. Parker where three witnesses recanted their police statements at trial, and the appellate court said that under 115-10.1 (I don't know what that means, but I think it's some law that deals with evidence) this was not enough to convict. He added that the only evidence heard was obtained when Carnell Fitzpatrick and his lawyers were not present and that they had no opportunity to cross-examine the witness about it. He said that Mr. Howard said that the collision was not intentional and that he had said that he never gave the answers to the police and the grand jury. He said that they were barred from another (unnamed) eyewitness who had alleged that it was intentional. For these reasons, he asked the judge to deliver a directed verdict of Not Guilty. Mr. Kelly responded that Mr. Hibbler testified that he saw McBride cut to the curb, the SUV go behind it, accelerate, and run over the bike. He added that the defense cannot say that there is no proof, and that the jurors might be convinced of intent by Mr. Hibbler's testimony alone, even without Mr. Howard's. Judge Wadas said that the defense was not denied confrontation of cross-examination of Mr. Howard, and that the defendant has no right to be represented during police testimony. He also noted that Mr. Hibbler corroborated Mr. Howard's version of events, and that the fingerprints of the defendant were found on the bike and that he had been witnessed discarding the bike and fleeing. He ruled that this is prima facie evidence of intent and denied the motion. (Prima facie means "on its face.") The state then asked to remove identifying marks from some of the evidence, namely the photographs from the medical examiner. The defense objected to two of the photos, based on their previous arguments. The judge ruled that the probative value of the photographs outweighed their prejudicial effect. This was the end of the day's proceedings, at about 1:30. So, today we saw the state wrap up its case, plus what seemed to be a sneak preview of the defense's closing arguments. The defense is expected to call two or three witnesses, including Demetrius Terry, his childhood friend and the son of Officer Secdonia Terry. In the defense's opening statement, Sam Adam asserted that Demetrius had been driving right behind Fitzpatrick the whole time, which does not mesh with the other witnesses' testimony, but I expect him to offer a different version of the events. The defendant is not expected to testify. I still think at this point that it's too close to call. Jerry Carter/Howard still seems to be the key, although I think that Tyrone Hibbler's testimony alone could be enough to prove intent. Apparently the jury will not be allowed to consider a lesser charge, so it's either all or nothing on the first-degree murder. The next two days (Friday and Monday) are going to be key. I encourage you to make an appearance in court if you can. -- Dan Korn |