DRAGOVIC CROSS-EXAM

The jury returns at 1:38 p.m. Legghio's questions are pointed, brief, calmly put but clearly adversarial. Dragovic admits that when filling out his autopsy protocol, he didn't know the make of the murder weapon, the length of its barrel or its caliber.

"What types of gunpowder are there?"

"All kinds of gunpowder. I am not a particular specialist in various types and combinations of gunpowder."

"I didn't ask you if you were a specialist, Doctor. I asked you to the extent that you provide a professional opinion on stippling."

"Yes."

"And stippling is caused by gunpowder, right?" "That's correct."

"And you're aware that there are different types of gunpowder, correct?" "As far as physical appearances?"

"Are you aware that there are different types of gunpowder?" "Yes. I told you that."

"And so can you tell the members of the jury what different types of gunpowder there are that you're aware of?"

He does so—powder comes in different shapes with different firing characteristics, such as cylinders, disks and balls, and it can come in different combinations of each.

"Now, are you aware of different types of powder that are called flake gunpowder?"

"Flakes, yes. Flakes are disks or variations of disks."

"Are you aware of gunpowder that is sometimes referred to as a flattened ball?"

"Flattened ball, sure."

"And those different types of gunpowders, they can result—or they have a significant impact, do they not, in the distance in which they would travel?"

"Sure, there is a variation based on the size of the actual gunpowder particle. There will be more capability to travel because of the actual size of the mass of the particle and they would have different kinetic energy in and of themselves."

"They travel differently, different speed, different velocities, correct?" "That's correct."

"Because of that, they would have an impact on how they would stipple an individual's skin, correct?"

"Yes."

"Your determination that Leann Fletcher's death was homicide rested in some measure based upon the stippling of the skin that you just pointed out to the jurors?"

"The spread and the density, yes."

"Now, can you tell us, Doctor, what type of gunpowder was used in this gun when Mrs. Fletcher was shot?"

"No, sir."

"Why not?"

"Because I don't know."

"Was it listed anywhere in your report?" "No, sir. If it was, I would have known."

"And, so, let me see—you then did not only not know the type, make, model of firearm, you didn't even know what type of gunpowder was used?"

"Precisely."

Legghio goes to a white board and begins making grease-pencil diagrams. He writes the date "AUG. 17," the day of the autopsy. He also writes "AUG. 25," the day of the gun-firing tests by the state police. He also writes a curious misspelling for a defense attorney: "HOMOCIDE."

"As I understand you correctly," he says to Dragovic, "you made your determination of homicide on the 17th, is that correct?"

"It's hom-EE-cide," says Dragovic giving an EE sound to the "i," stressing it to point out the lack of an "o."

Legghio looks at the board. "I misspelled it. Where am I wrong here?" "'I' instead of 'O.'"

"Thank you for your spelling correction," he says, erasing the grease "O" and replacing it. "So you made your determination of hom-I-cide on the 17th?"

"Yes, sir."

"But those test firings did not even occur until the 25th?" "Correct."

"You did not use those test-firing patterns at all in determining homicide?" "That's correct, sir."

Legghio elicits that Dragovic had no knowledge of whether Leann was right- or left-handed.

"This is a young woman who suffered a wound entry to her right ear. Did it not at all seem mildly important to you or significant to note whether she was right-hand or left-hand dominant?"

"There was no way to determine that from the autopsy."

Legghio attempts to link the ignorance of whether she was right-or left- handed with Dragovic's lack of knowledge regarding the type of weapon and gunpowder. Dragovic interrupts him, eliciting snickers from the crowd.

"We're mixing mangos and papayas with figs and melons, here."

"Sir," Legghio counters, "how about if we just stay with rifles and handguns? "And so," Legghio continues, "at the point in time in which you rendered your decision, you really had no knowledge at all about either test-firing of this

gun or the type of gun that was used?"

"I was informed by the people who went out to the scene who established the preliminary report that there was a semiautomatic gun, so that much I knew."

"Is that where your investigator indicated that it was a Smith & Wesson .9 millimeter?"

"I would think so, yes."

"But it was not a Smith & Wesson .9 millimeter, was it?" "I don't know."

Later they get into the crucial issue of whether or not Leann's hands were bagged, that is, covered with loose plastic and tied off at the wrists to preserve evidence and keep blood from being wiped off or coming in contact with other items.

Legghio asks if any of the autopsy photos show her hands in bags. They do not. Dragovic says he is sure someone must have bagged them at the scene and that one of his staff people must have removed the bags prior to the autopsy.

Did his office keep custody of the bags? No. Why not? They may have been returned to investigators, the doctor replies. Is he aware that one of the police, for some reason, asked that her hands not be bagged at the scene? He didn't know that.

Legghio elicits that swabs were taken of her hands at the murder scene by Hamtramck police, to be tested later for gunpowder residue, that these are made with cotton swabs that have been moistened with a solution and that of the 28 color photos taken of her at the autopsy, none shows her right hand.

Why not?

"Had there been a particular finding of importance, evidentiary finding, that would have been included. Since there was no evidentiary finding of importance for me performing the autopsy, I did not insist on any particular region being photographed other than the areas of injury. The right hand had smudged a large amount of blood on it, on the back, and that's all that there was."

"It is true, is it not, that you said that one of the factors that led you to believe on August 17 that this was a homicide was the fact that there was a lack of mist?"

"That's correct."

"Did you not think, then, that if there was a lack of mist, it is as significant as mist being present and therefore a photograph would be in order?"

"If something is not there, I do not insist on photographs being taken," said Dragovic, a little more forcefully, perturbation entering his voice.

"So, then, why take a picture of the left hand?"

"I didn't insist in particular on taking a picture of the left hand. As a matter of fact, I was surprised afterwards not finding pictures of other areas of the body, because they try to cover the whole body as much as they can."

"So, we have this one picture of her left hand, none of the right, and yet in your determination of August 17th of whether or not this was homicide, accident, suicide, natural or unknown, no pictures whatsoever of her right hand

were taken, correct?"

"We generally do not take negative pictures." Spoken with a little more emphasis.

Legghio then introduces Defendant's Exhibit B, a crime-scene photo of Leann's left hand, covered in blood.

"Can you tell the members of the jury what differences to note in terms of the amount of blood which are on her hands at the scene as distinguished from the amount of blood that is on her hands while at your office on August 17?"

"There is certainly less smeared blood on the left hand on the photograph taken during the autopsy than on the photograph that was taken at the scene."

"Well, Doctor, in part your determination that this situation was homicide— spelled correctly or incorrectly—was the lack of mist on the hands, correct?"

"Well, that's part of it, yes."

"Now, can you tell members of this jury how or why there was a difference in the amount of blood on Mrs. Fletcher's hands at the scene than when she shows up at your Medical Examiner's Office the next morning on the 17th?"

"It appears that some of the blood that was smeared on the outer aspect of the left hand was removed by some sort of procedure, might have been something that [was] done at the scene."

"Now, let me ask you this, Doctor: Did you know that the Hazel Park Police Department had come to your Medical Examiner Office on the evening of August 16 and swabbed or, you say, maybe took samples of her hands?"

"Now that you're mentioning it, I might have been aware of that at the time but not at the top of my head."

"Did you in your autopsy protocol indicate, 'that I as Medical Examiner am looking and notice that there is no fine mist on her hands. I'm aware that her hands have been swabbed for gunshot residue, but it doesn't affect my judgment or affects it to such-and-such degree.' Did you note that at all in your protocol?"

"I noted what I noted, sir." More of the famous Dragovic feistiness coming forth. "I said there was no evidence of mist."

"Did you at all indicate when you arrived at your conclusion that it was homicide and you arrived in part because there was lack of mist on the hands,

did you at least mention or note that you were cognizant that a Hazel Park police officer had swabbed her hands the night before?"

"No, because that's not relevant."

Having drawn blood, so to speak, Legghio stays on the attack, going back to the issue of soot and whether Leann's thick hair could have absorbed soot in the shooting.

"That is correct."

"Now, you took samples of her hair, did you not?" "That is correct, sir."

"You gave them to the state police?" "Yes."

"And did they ever do an analysis for you to determine whether or not there was soot?"

"I did not receive any report from them. I didn't specifically request them to do the analysis for soot because I was not interested in that."

"But it is true that soot can be trapped in the hair, isn't it?" "Yes, it is."

"And that soot may not readily be detectable to the naked eye, correct, because it is spent gunpowder particles?"

"Oh, sure, yes."

"And particularly if the hair is matted with blood?" "True."

Another point made.

Legghio goes back to the white board and picks up a grease pencil and starts writing down some highlights of the autopsy reports. As he writes "AUTOPSY," he says to Dragovic, "Let's see if I can spell that."

He then writes the word "STIPPLING." And says to Dragovic: "So one of the findings is stippling, right?"

"One 'P,'" says Dragovic. It is his turn for misspelling and he says again:

"One 'P.'"

"You know what?" responds Legghio. "I'm giving up on spelling today."

He then writes "RANGE," and "LACK OF MIST," then asks Dragovic what other

factors he should write down.

"Well, length of the arm is a minor factor, but it is there."

"It is true, is it not, that with the length of arm, Mrs. Fletcher could have shot herself, correct?"

"Theoretically, yes."

"What do you mean by 'theoretically'?"

"By theoretically, yes, it is possible that the decedent could have self- inflicted the wound, but practically, it's just not—it doesn't make sense. It doesn't fit the physical relationships."

"But when you say 'theoretically,' it is as theoretically possible to shoot oneself as it is theoretically possible to be shot by someone else, is that correct? They're both theories, are they not?"

"Maybe in your concept, but…"

"No, I'm asking you, Doctor. To the extent that Mrs. Fletcher could have physically grabbed the gun and shot herself, either by accident, correct, or someone else could have shot her, they're both theories, are they not?"

"Sir, let me explain. The accident that you're bringing into the picture is out of the picture completely."

"It is, out of the picture completely?" "Yes."

"Why is it out of the picture?"

"Homicide constitutes a category where there is purposeful action that results in injury and this injury leads to death. There are so many purposeful actions built in. Number one, loading a firearm is a purposeful action. It doesn't happen by a higher force, by nature, by lightning, by thunderstorm. Someone puts the load in the gun. A purposeful action is pointing to your own self or to someone else's head. That's purposeful act. There is nothing accidental about it. That's why, sir."

"Doctor, were you in the room when the gun went off?" "No, sir."

"So, if the gun is loaded and we don't have to worry about thunderstorms or accident loading the gun, it is physically possible for Mrs. Fletcher to have

picked up the weapon and either intentionally or unintentionally discharged the weapon into herself, isn't that correct?"

"Intentionally, yeah. That's a possibility, yes." "And unintentionally, perhaps. Correct?"

At that point, Legghio asks his co-counsel, Marla McCowan, to stand. McCowan's arms, as measured by Dragovic, are 24 inches long, an inch longer than Leann's. The actual murder weapon, having been checked and found unloaded by one of the Hazel Park police in the court at the direction of Judge Cooper, is given to McCowan. "Now, Ms. McCowan—hold it like this—could Ms. McCowan hold a weapon like this and inflict a wound?" She has the gun out about a foot and a half from her head and is clearly capable of holding it there and squeezing off a shot.

"That would be self-inflicted injury. Nothing accidental about that, sir." "But you're not in the room at the time the firearm is discharged."

"Doesn't matter whether I'm in the room or you're in the room or whoever is in the room, I'm telling you this is common sense at work."

"I understand, Doctor." "Not theories."

"I understand common sense. We're talking about medically. Ms. McCowan could physically—what's the range here, Doctor?"

Dragovic leaves the witness stand, goes over to a kneeling Marla McCowan, takes out a tape measure and measures 18 inches.

"And you said 12 inches, even." "Twelve inches."

"Twelve inches. Thank you, Ms. McCowan." She rises and goes back to her seat. "So it is physically possible for Mrs. Fletcher to have discharged the weapon, whether intentionally or unintentionally, physically? Not theoretically, physically?"

"Physically it's possible. I told you that earlier."

"Did you at all, Doctor, in your report, address the potential aspect of maybe the weapon being dropped?"

"That's nonsense."

"Okay."

"That's a joke." Dragovic is angry, now. Voice louder than it has been. Each syllable forceful.

"I understand that." "I mean…"

Legghio cuts him off. "Did you address it in your report?" "No, I do not address nonsense in my report, sir."

The sharp response draws snickers from the crowd.

Legghio finishes by getting an acknowledgment that the issue of distance becomes moot if the decedent had for some reason been holding the gun with her thumb on the trigger instead of her finger. In another Michigan case, the People vs. Cynthia Lee McDonald, Dragovic testified for the defense that a wound in the back of the head was self-inflicted by her husband and not a case of murder, with the trigger having been pulled by the thumb.

"This was a police officer inflicted by cancer, yes," says Dragovic. "Thank you, I have no further questions."

Upon redirect, Dragovic testifies that while the thumb is often used to pull the trigger in suicides, nearly all suicides involve contact or near-contact wounds, and Leann's is neither. Townsend also has him expand on his claim that the theory of an accidental shooting was nonsense.

"That's nonsense, number one, because you would have to have a malfunctioning firearm in the first place. That malfunctioning weapon can discharge upon contact, upon being dropped on the floor or something like that, but then how can you drop a handgun on the floor and lean and align your head to the dropping of the trajectory?"

Since Townsend opted to redirect Dragovic, Legghio gets to recross. He hammers on two points, the missing blood on the left hand and the lack of an autopsy photo of the right hand of a woman shot in the right side of her head.

"Would you not agree with me that her hands [in photos at the crime scene] are pretty much covered with blood? And you can't indicate to the jury why Mrs. Fletcher's hands [in the autopsy photo] appear nearly clean?"

Dragovic has no explanation and says it is irrelevant to his findings. He is

excused. It is 3:10 p.m. The court is recessed for 20 minutes.

During recess and after the trial is adjourned for the day, reporters and family, alike, are convinced Dragovic has been a highly effective, impressive witness who has gotten the best of Legghio. Townsend, Ortlieb and police congratulate him on his testimony, both the content and the form. He is all smiles, jokes and self-satisfaction as he rides the elevator out of the courtroom and returns to the Medical Examiner's Office across the way.

The family is still talking about his performance the next morning. "Great" is the most frequently used adjective. They think he has handled Legghio quite well.

What they don't know is that the jury's reaction is quite different. They don't like Dragovic at all. They regard him as arrogant. Worse, they don't see him as dispassionate. He's far too adversarial for their tastes. He comes across as a member of the prosecution team. Which of course he is, despite any pretense to objectivity. The fact is, the prosecution is based on his findings, so of course he has a vested interest.

Days later, when he takes the stand to rebut a defense witness, he will only reinforce the jury's first impression of him, which is not good at all.

Says jury foreman Rob Jensen: "He came off as an arrogant ass."

Legghio's most important point is duly noted: If Leann's hands have been wiped nearly clean of what had appeared hours earlier to be copious amounts of blood, how in the world can Dragovic say that a lack of blood mist helps prove this is a homicide? If gobs of blood have been wiped clean, obviously any fine mist would have, too.

As to the lack of a photo of the right hand, and blood being washed from her other hand, Jensen would later say that when jury deliberations would begin two weeks later and jurors could finally discuss the case amongst themselves, the word "conspiracy" was bandied about. "He gets on the stand and says, 'Why would we take a picture of something that's not there?' Is he that fricking stupid?"

It is not nearly so fine a day for the prosecution as Townsend and Ortlieb think when they go back to their offices at the end of the day to plot strategy for tomorrow.