Our Successes

Felony Murder Acquittal (5-13-2022)

First of all, thank you for the kudos. I want to say upfront; that I owe a debt of gratitude to Mariell Lehman for being my sounding board and my friend She talked me off the ledge the Saturday before trial and was there to talk almost daily on the case. We all need that person in our lives as we cannot do these cases alone. Also, to Roach, who has been my friend and colleague for 31 years. His encouragement and support were over the top. Last Gary Kennedy II was in the trial at the same time and we just pushed each other.

The case alleged that my client Ann Marie Walsh was the caretaker for her 85-year-old mom. She had been for many years.  There had prior Adult Protection Services involved, one where my client had been unsubstantiated and one where she was low level substantiate. In the latter, the mom said she was fine with her caretaker and wanted no intervention. In the latter, there was a similar act. D had left her mom on the floor for three hours and needed maintenance to lift her up. D had taken her walker away because she kept falling. These acts were excluded by the APA

On the date in question, D had called 911 because her mom was having diarrhea and no urine output. She reported that mom had been bedridden for 6 weeks, which was new, and had fallen D left mom on the floor for 2 days. She said Mom was combative and wanted to be there. Mom had 80 or so bruises, a broken nose, ribs, and a sternum. My ME was Dr. John Hunsaker III professor emeritus in forensic pathology from the University of Kentucky. He was the ME for 60 counties in KY (unlike here with individual MEs, in KY they have one for half the state and another for the other half   Deputy MEs do the autopsies). The State used Dr. Mary Pietrangelo (I love crossing her and have been since 2012). There was a solid wood nightstand next to mom’s bed.  My theory is that mom, who had severe osteoporosis faceplanted into the table and broke her nose and bones. Both MEs agreed that old people bleed and bruise easily when they fall.  The EMTs and hospital intake reported no open wounds, lacerations, or fractures outside of the above. All agreed that we would expect these if someone had been beaten. Two neighbors reported hearing mom scream 5 days earlier for D to stop hurting her. The neighbors are relatives and live together. One claimed that the police had been called before. In closing, I asked where these police reports were? Where were the neighbors? Where was management? I had to be very careful not to ask that question in the trial because it would have opened the door to the APS shit.  The one neighbor was Batshit crazy and we had to stop the proceedings twice. She was screaming from the stand that my client murdered her mother and was combative. I yelled at the judge that he needed to get control of her, and I was threatened with contempt. She was pulled off the stand and still was batshit crazy. I lost my cool and screamed at her. I apologized to the judge and at closing to the jury. One juror told me walking out told me I better be nice to Grandma’s (the bs crazy W was a GMA). Hey, I’m human.

This case was a battle of the MEs. Incidentally, Hunsaker will be testifying again, and Pietrangelo is the ME I recommend we attend to learn. My ME said the cause was either natural death (sepsis Mind you the EMTs and MEs agreed that the bedsores could cause sepsis) or undetermined. Dr. Mary said sepsis and blunt injury. All agreed that sepsis, including the MEs, was on board when mom was taken to the hospital. I got concessions that calling the EMS when diarrhea, a telltale symptom of sepsis, was present was not an act of neglect. Dr. Mary had to concede and agree with Dr. Hunsaker that the subdural hematomas, breaking of the nose, hemorrhages around the eye orbits, and abrasions below the brim line were consistent with falling (Dr. H wrote the latter in his article). Mom had some cuts on the back of the head, consistent w falling or headbutting. The theme was from Mary that these COULD HAVE been consistent. Or Possible. In closing (which I do in the first person. My protagonist was Mom and how “I died”) I argued you could not convict my daughter who starts at innocence with COULD HAVE or Possible. These answers must be concrete to convict because Beyond a Reasonable Doubt is a huge mountain to climb.

There was a blood spatter expert Jodi Corsi. There was blood all over the place. Could not be aged. She agreed that the blood could have been aspirated as mom had pneumonia and had blood in her stomach. Likely from the nose break. Bloody noses, which mom had a history of, could account for cast-off if she bled all over herself. What was best is she said it could have been impacting, aspiration, or cast off. Again, you cannot draw anything without definitive conclusions, though I did put up a photo from a training article on spatter which showed cast off. It has a distinct pattern which was not in our case NOTE as your CDAM Board member and senior faculty. I have called our Executive Director, Mona Sains, and told her we need advanced training on spattering. So, it is in the works  

Dr. Hunsaker is published on elder abuse death cases. He wrote in his article that in 50% of the cases, the police or investigators mistake injury that has innocent explanations. He is also big on self-abuse such as hitting a limb against something. Also refusing care, I put evidence into the case that mom refused care in the recent past. And her climbing into bed was her intent to die. She had terrible bedsores which were consistent with being bedridden for a lengthy time. Hunsaker said she was at biological expiration and the fall did kill her mom. NOTE: While I got great instruction on Defendant’s action being the Cause of Death-16.15, I got a terrible instruction on 16.16, susceptible victim. It was a misstatement of the law and I out a lengthy instruction on that. Based on that instruction, I asked my client on the record, if I could have permission to ask for a manslaughter instruction. My client said no.

Following up with the theme that cops jumped to nefarious conclusions, I crossed the now-retired OIC. He candidly admitted he rejected the fall outright and went right to the battery. Based on all the blood in the room and the nature of the injuries. To him, the blunt injury was one done by others I got him to admit he was an expert in elder abuse investigations as I did in the Walker hearing. I then crossed the crap out of him on falls, bleeding with ease, etc. as innocence and how it was a mistake to make automatic conclusions. He conceded that 

In this case, because it was Felony Murder, you have to prove the three states of mind. Intent to kill, intent to do great bodily harm, or reckless disregard where D knew death was likely. The Jury discounted Intent to kill and reckless outright. I admit I was a little surprised though I argued in closing that D would have had to know death was the consequence. The battleground for them was intended to do GBH. Over my objection, the court gave a GBH definitional instruction. I think they agreed with what Ann had said in her interview (she admitted that she slapped her mom.) They put two and two together-lots of bruises and whatnot-fed the conclusion that she beat her mom

This jury did its job. They did the heavy lifting. I knew I had a relatively good panel from Void Dire the Guilty Camp was drawn over to the NG group

If the Court sentences appropriately and follows the law, my client, who has been in for 1002 days as of today, should go home on June 28th.  Despite the acquittal on the murder charge, the judge declined a request for bond reduction.

This was one of the hardest cases I have tried in my career. Between the end of March and yesterday, I had one full day off (Mother’s Day). This case required razor-sharp focus and as usual, because I am unattached to the verdict, I was able to cull nuggets out of the testimony. If I get a case like this again, I think I would call a gerontologist an expert. I feel it really needed to be sold how fragile and easy to bruise and bleed these elderly folks are.