A SHORT BIRD STORY

After the jury left, Townsend, Lisa Ortlieb, Sgt. Hendricks and Woodford huddled. The trial's outcome might very well hinge on the upcoming cross- examination and whatever damage control Townsend could put together in a few minutes.

Though there was a sense of urgency, Townsend and Ortlieb didn't look panicked. Anything but. A close look at Townsend, in fact, revealed what the patrons of Hazel Park's working-class bars might have called a shit-eating grin.

The 10-minute break stretched to 30. The smokers on the jury needed to race outside for cigarettes and by the time they were done, had caught an elevator back to the third floor and gotten the clerk's summons to Cooper's courtroom, it was 3: 45.

They thought they would be hearing from Townsend, and they would, but first there was a surprise final couple of questions for Dr. MacDonell by Legghio, stunning questions that started Townsend off very nicely on his mission of damage control.

"Your Honor, I informed Mr. Townsend that I forgot to ask the professor two questions before I concluded my direct examination. Doctor, after you did your examination of the photographs, did you later receive some information from the state police about the supposed—or what you thought was bloodspatter in the room?"

"Yes."

"What was that information, if you recall?"

"I was informed that the blood on the window and by the light switch was not human blood."

"And did that—let me ask you this question: If in fact—well, let me ask you this question—" for the first time in the trial Legghio appeared flustered "—if the blood under the light switch and the blood on the screen were not human blood, would it change your opinion at all or your conclusions or deductions that you arrived at regarding the bloodspatter and how Mrs. Fletcher had been shot?"

"No. It would support it, but it doesn't negate it." "Thank you, Professor. I have nothing further."

Huh? There was a stunned look to many observers in the court, and a noticeable rustling in the jury box, a snapping to of attention. It was as if people were trying to digest what they'd heard.

Legghio had gone on at length about the drops of blood MacDonell had found that had been overlooked by police, that hadn't shown up in any of their photos. And that the directionality of the blood pointed right to the bed.

And now he was asking his witness—after he had said he was done and had turned him over to Townsend—if it would be important if he found out that the blood was not human blood? And the witness had said it didn't matter? What was going on? Reporters turned to their peers, wondering if they had missed something. They hadn't.

The explanation would have to wait for a few minutes.

Townsend rose, and began what would be a spirited cross-examination. By the time MacDonell got off the stand at 5:05, he no longer seemed so wise. He was still professorial, all right, and still on top of his material, but he came off also as a gun for hire, too eager to come up with theories to please, even ill- prepared. What had begun triumphantly for Legghio and his client would end in something far less.

What Yogi Berra had said about baseball games would prove true of a witness's testimony, too: "It ain't over till it's over."

*

"Good afternoon, Professor. How are you?" began Townsend, and then he got out the knives and began carving.

He established that MacDonell's laboratory was something less than listeners might have envisioned earlier—that it was, in fact, in MacDonell's house, that it had no employees, that it had never been certified by any agency.

"I thought I read some transcripts from the past—and correct me if I'm wrong—didn't you at one time tell a reporter that you probably were entitled to be included in The Guinness World Book of Records [sic] because you testified

in more courts on more subjects than any other human being? Did you say that?" asked Townsend.

"I think it came up and I agree with it."

Townsend had him run through the litany of areas he had testified to— fingerprint identification, bloodspatter, firearms identification, gunshot residues, Breathalyzer and blood-alcohol cases, general physics, chemical analysis, gunpowder granules, shoe-print identification and blood clotting. Townsend even got him to confess that he'd testified once in an area in which he admitted no particular expertise. "I even testified once in forensic psychiatry, that's the subject. I'm not a forensic psychiatrist, but the topic came up of autoerotic masochism and I seemed to be the only one, other than the state policeman, that knew what it was, and that's what the case was about, so that was the topic once, but I'm not a forensic psychiatrist."

The image was clear: Here was a guy who saw himself as an expert in all things, even when he wasn't.

"It looks like you've testified in quite a few homicide trials as well, is that correct?"

"Yes."

"You testified in the O. J. Simpson case, criminal case?" "Yes."

"Testified for the defense?" "Yes."

"And also testified—I believe you testified in the O. J. Simpson civil case, too, is that correct?"

"Yes, I did."

"Testified for the defense in that." "Yes."

Townsend wasn't playing the race card, he was playing the guilt-by- association card. Cooper runs a tight courtroom, tolerating little spectator reaction. The O. J. acknowledgment was one of the few times all trial when an audible buzz went through the courtroom. The Simpson trial may have polarized the country, but it didn't polarize Oakland County, Michigan, where a huge

preponderance of the population is convinced that he killed his wife and Ronald Goldman and got away with murder through courtroom shenanigans. Admitting a role in that was practically an admission of guilt of some kind.

(MacDonell testified that the blood in Simpson's socks seemed to have been pressed into the material in an artificial manner, the implication by the defense being that it was put there by police planting evidence.)

Townsend asked him how many reports he'd filed on the Fletcher case. "I didn't write an actual report."

"You received all kinds of police reports from us to Mr. Legghio to you, is that correct?"

"Yes."

"All kinds of photographs?" "Yes."

"And you were able to review and examine all of those, is that correct?" "Yes, I was."

"Didn't you feel it was necessary that you should write a report to put down your findings that would give the State the opportunity to review your findings and maybe consult with somebody or check with somebody regarding those findings?"

"If I was asked to, I would have written a report. I'm frequently asked not to write a report, either by the defense or the prosecution."

"Let me ask you specifically in this case, were you asked by Mr. Legghio to write a report?"

"No."

"You were not?" "No."

(Legghio looked as if he were trying to hold down a live fish in his throat. At the very beginning of the trial, with the jury out of the room, Townsend had protested to Judge Cooper that the prosecution had not received any copies of reports from MacDonell despite promises from Legghio that they would; Legghio had responded by saying he was sorry and frustrated, too, but despite having repeatedly asked MacDonell to issue a formal report on his findings,

nothing had ever come in.)

Townsend asked MacDonell what kinds of reports had been sent to him.

Amazingly enough, MacDonell seemed to have no idea. "There were a lot of reports relative to work notes, and mainly photographs is what I look at. I don't really read many reports unless they're technical reports. I looked at the crime- scene sketch. I compared it to my own measurements."

"I'm asking you what you received."

"I received, I think, just about everything that I could have." Titters in the court. "I didn't notice anything missing. I had an autopsy report. I think I got everything. I just don't know."

"You read all the police reports in this case about all the various statements that were made, the interviews that were conducted by all the individuals, is that correct?"

"No. I don't usually read interviews. I may have received them, but I don't read them."

"How can you reconstruct something unless you have all the information for

it?"

"The information that I use is physical evidence, not hearsay."

Townsend then referred him to Defendant's Exhibit UU, one of the photos of

MacDonell's model trying to re-create a possible death scenario.

"That photograph—can you describe that photograph for the jury? What is your model doing?"

"She is bending in an attempt to reach toward a cartridge on the floor and holding a pistol in her right hand and a clip also in the right hand."

"Now, obviously you did that for a reason, is that correct?" "Yes, to document a possibility."

"And why do you have the model holding the gun in that manner?" (She was holding the gun opposite the way one might expect someone to hold a gun, with the thumb near the trigger and not the fingers. If the thumb had pulled the trigger, Leann could have shot herself from a farther range than if the forefinger pulled the trigger, and Legghio needed the gun at a distance to account for the stippling on her skin.)

"No particular reason…"

"Were you advised that the theory of the defense was that that's the way she was holding the gun?"

"No. It was a possibility that we discussed. He didn't—Mr. Legghio didn't advise me to consider it as anything more than a possibility, which I evaluated."

"And that she was reaching for a bullet. You recall seeing these photographs that there's a bullet lying over there, right?"

"Right."

"And, so, what were you attempting to show in that photo?"

"That if she were reaching for the bullet with the left arm extended and the right hand containing the pistol in some configuration, it places the ear in a position to spatter blood under the arm in the crotch area and back into the room."

"Did you know that the gun at the scene was fully loaded and had a clip in

it?"

"I didn't know about the clip. I think there was, yes."

"Do you know why a person would reach down, pick up a bullet to put in a

fully loaded weapon? In other words, why would somebody do that?"

"Well, if they had a clip that wasn't full or didn't know it was full they might think they could load it."

"Wouldn't you normally unload the—take the clip out of the gun before holding it to your head like that?"

"I wouldn't."

They returned to the subject a few minutes later.

Townsend: "Under one of your theories—again, I show you the photograph of the girl with the gun to the head, picking up the bullet—if this is an accurate theory, that would mean that she's got a fully loaded gun with a clip in it, holding it to her head?"

MacDonell: "Correct."

There was a second clip, the one not in the gun, that Fletcher claimed he had asked her to finish loading. In MacDonell's photo, not only is the model holding the gun in one hand, but she's holding the second clip in the same hand while

reaching with the other hand for the bullet on the floor. "You've got her holding both the gun and the clip?" "That's correct."

"Why would a person do that?"

"I don't know why people do a lot of things … The reason she's holding it in my reconstruction, or possible reconstruction, is that it ultimately fell on the floor and it's on top of blood. If it's on top of blood, it couldn't have been there before the shooting."

Townsend had gotten MacDonell to make his point for him. The clip was found on top of the blood on the floor. The prosecution contends Fletcher put it there while phonying up a crime scene. The defense must account for how the clip came to rest on the blood if Mick didn't put it there. Ergo, Leann must have been holding the clip and the gun and the gun went off and the clip fell on top of the blood expelled from her ear. If convolution were required, so be it.

And then it was time in the cross-examination that many had been waiting for—to get back to the mystery of the blood MacDonell had found, the blood that Legghio had harped on so strongly earlier, the same blood that was so important in pointing toward the bed as the death spot, but which seemed wasn't even human.

*

The police had taken numerous pictures of the crime scene moments after arriving. The blinds on the windows are clearly closed in them, the same windows where MacDonell found three drops of blood.

"Are the blinds down?" Townsend asked. MacDonell replied, "They appear to be, yes."

"Would you agree with me that blood droplets cannot go—would not be going through the blind unless you saw evidence of it on the blind?"

"Correct."

"I mean, it can't go around the blind and attach itself to the window." Snickers in the court.

"If they were in that configuration, they wouldn't go through the blinds."

"Then there came a point in time that you authored a report, or a letter, obviously something different?"

"Correct."

Townsend asked MacDonell if he knew that the Michigan State Police had gone back to the house after being notified that MacDonell had found some other blood stains. He was. Townsend asked him if he was aware that when the police went to the house they found a dead bird in the house. Again, he said he was aware.

"And that there had been quite a bit of other blood stains in the house as a result of that?"

"I wasn't aware of that. I just recall there was a dead bird."

"You were aware that the stains came back as non-human blood, is that correct?"

"I was told that."

"Now, it being non-human blood, then obviously it cannot be used for computations with regard to any type of point of origin, or impact, is that correct?"

"Correct … It's an extreme coincidence that the location of them projects back to the area where I believe the shooting occurred, but it's still possible."

Townsend was nearing an end, with several more points to make. He asked MacDonell if he was aware that blood had been found in the hairs and other detritus in the trap of the bathroom sink.

"Human blood?" asked MacDonell, showing that perhaps he had at least been paying attention during Woodford's testimony. It had not been tested as to type, a clear oversight.

"Just traces of blood. Were you aware of that?"

"Beef blood? Steak? I was aware that something had been found, but I wondered if it was human blood."

"I'll ask that again: Were you aware there were traces of blood found in the trap of the sink?"

"I was told that, yes."

"As a criminalist, would that not be significant to you? Assuming they

weren't cooking or butchering steak in the bathroom sink, would that cause you any concern as a criminalist?"

"I would be suspicious that someone had cut themselves or got blood on them and washed it off in the bathroom sink."

And then Townsend returned to something he'd been dancing around earlier

—that MacDonell is a professional witness who will testify to and about all manner of topics. But this time he wanted to point out that the price had to be right, and it was a very high price.

Townsend: "Professor, can I ask you how much your retainer was on this case?"

MacDonell: "$3,500."

"And how much do you charge an hour?"

"Four hundred, today. At the time I was retained, it was $350, so I have to honor the lower figure."

"Three-fifty an hour. And can you indicate for me how many hours you've put into this case?"

"I honestly can't. I will have to go back and look at the folder, the outside jacket where I keep a rough log of time. I'm very generous with the time I give, so I honestly don't know. I charge for trips, but for working the lab, I don't remember how many hours I put in. Maybe ten."

Townsend had one last brief line of questions regarding why blood spatter wasn't found in the barrel of the Smith & Wesson, but the exchange didn't amount to much, and he turned the professor back over to Legghio for redirect.

MacDonell said he did not see the dead bird that police photographed when they came back to the house on January 7, 2000. And he said that he did not see the amount of blood when he was in the house that showed up on police photos.

"This wasn't there at the time I was there," he said, looking at a photo.

Legghio got into the record that MacDonell held a patent for a device he invented for processing fingerprints and that he has often testified for the prosecution, and he got MacDonell to say that the photos of his model were only meant to suggest that there ways to explain the blood evidence other than that Leann was shot on the floor.

At 5:05 p.m., the witness was excused and the trial adjourned for the day.

*

After the trial, Ortlieb and Townsend would still chuckle at the thought of MacDonell's poor performance upon cross-examination. And the bird blood had been a continuing source of mirth.

Townsend said after the trial that when they first heard that MacDonell had found blood stains apparently overlooked by police, the first thought was: Did he dare tamper with the scene? And then immediately dismissed that option as too farfetched. "We thought, 'Surely they can't be stupid enough to doctor the evidence.'"

Police were told, went back to the scene and found the blood MacDonell had mentioned, and other spots of blood, some large—as well as the dead bird. "It turned out a bird had gotten in and flew into some walls," he said. In fact, it had happened several times while the Fletchers had lived there; one of those times was the notorious incident where Mick beat the bird to death in front of his wife and daughter.

Lisa Ortlieb wasn't nearly as circumspect as her boss. Speaking of MacDonell after the trial, she said: "To call him pathetic would probably be rude, so I shouldn't say that," her feelings fueled by what she alleged had been a lie told her by MacDonell when she briefed him before his testimony. She claimed he misled her. "He told me one thing in the hall when I was talking to him and testified in court to the direct opposite."

In fact, during the cross-examination, Townsend had asked MacDonell briefly about being less than forthright with the assistant prosecutor. MacDonell first denied talking to her, then when she was pointed out to him referred to her as "that gal"—hardly a term to endear him to a young female prosecutor who has specialized in the rights of women victims. MacDonell denied any falsehood in court, saying his recollection had been faulty at first but was accurate during testimony.

As for the testimony about the blood during Legghio's direct examination, Townsend smiled broadly and said, "Fine. We both thought, 'Let him talk all

morning about bird blood.'"

Chimed in Ortlieb: "He made $600 talking about bird blood. He spent two hours talking on it. What was he making? Three hundred an hour? Oh, $350? Okay, he made $700 talking about bird blood. I still to this day don't know where they were going with that."

Jury foreman Rob Jensen admitted after the trial to being flabbergasted when Legghio came back after seeming to have finished with MacDonell to ask him whether it would change his conclusions if it turned out the blood in question wasn't human.

"I was really shocked," he said. "I thought Legghio made a big mistake. They spent all this time talking about this blood by the light switch. All this time! Blah, blah, blah—and then, it wasn't human blood, was it? The blood on the wall, the blood on the window. If he'd just not done that, it would have made his case better … Sitting on the bed made sense. So why did he have to be deceptive like that? And that's not MacDonell, that's Legghio. He's asking the questions. Why the hell would he let him talk about that?"

Why, indeed. It was a question that would stick in people's minds till the verdict came in, and even after. Was it something Marla McCowan had to bring to Legghio's attention during the recess, forcing him to reopen his examination of his star witness? Or was it somehow a tactic gone bad, a willful stratagem to leave the image of the blood in the jurors' minds for as long as possible, then come back after what he knew would be a recess when he first seemed to be done with MacDonell and then do his oh-by-the-way?

If Legghio knew it was bird's blood but wanted to get across that something in one of the drops got MacDonell thinking about looking toward the bed, why not just have him tell it to the jury straightaway, without leaving the impression MacDonell based some grand conclusion by confusing bird blood with human blood?

"Professor, what did you find upon your examination that seemed missing from the police photos?" "Four spots of blood, three on the window and one by the light switch."

"Did you think they were significant at the time?"

"Yes, they were angled so that they seemed to come from the bed. And once I had begun to think

of the bed as the source—where Leann had been shot—all the other evidence, such as the blood on the bedspread and blood on Leann's body, began to make a lot more sense. In fact, by the time I was done looking at the evidence I was convinced that she had to have been sitting on the bed when she was shot. It's the only way it all made sense."

"Now the police subsequently found that the blood got there in the days or weeks after the shooting. Do you recall what they said it was?"

"Yes. Bird's blood."

"So we know it wasn't Leann's blood. Did that change anything about how you thought the shooting might have occurred?"

"Well, obviously it was just a coincidence in that the blood first directed me toward the bed, but all the other evidence still points to that being where Leann was shot.

The floor makes no sense and that theory still defies the laws of physics."

But that was not how the questioning went.

After the trial, Legghio would seem confused that people thought it was an issue. He was, he said, just recounting what happened when MacDonell entered the bedroom, how quickly he could spot evidence, what a master he was of the scene. "I went to the house with him and it was like watching a master at work. He was brilliant," said Legghio, who added that whether it was bird blood or not was irrelevant, anyway. The point was that Leann could not have been shot on the floor the way the prosecution said, and leave blood on the bed. That was physics, MacDonell had said, and the jury believed him.

*

The cross-examination, most courtroom observers agreed, had been brutal. The prosecution witnesses and team gathered around Townsend to congratulate him as spectators trooped out for the day. The Miseners, no longer dismayed, laughed and joked in the hall, and would still be telling MacDonell jokes the next day before court began.

Still, though, not all of MacDonell's testimony had been undone. The blood on the bedspread was hard to explain in the prosecution's version of events. And the physics of a tiny bullet and a big body seemed unrefuted.

What the Miseners and the press thought about MacDonell was beside the point. Townsend, Ortlieb and Woodford wouldn't have been nearly so satisfied

—or had such a pleasant night away from the court—had they been able to look

into the jury's minds.

What the prosecution wouldn't find out for weeks was this: MacDonell's testimony, despite Townsend's rebuttals, bird blood or not, had been far more effective than many would have supposed. Once the jury began deliberations, about the only thing they agreed on at first was that they didn't believe the prosecution's theory of events. They didn't just doubt that Leann had been shot while kneeling on the floor. They were sure she hadn't been.

They believed the physics lesson, particularly the three engineers. And all 12 of them believed MacDonell's theory—that Leann had been shot on the bed. She had been sitting on the bed, they agreed, and not kneeling on the floor, when the bullet was fired that ended her life and left her lying in a pool of blood.

*

Woodford came up to MacDonell after the day was done to introduce himself in person and shake his hand. Though Townsend had tried mightily to discredit MacDonell, to make him look like a charlatan, the fact remained that he was a acknowledged by his peers as the master of bloodstain evidence, something of a living legend in the world of criminal forensics, and Woodford wanted a private moment with him.

Woodford was in for a comedown. As MacDonell recounted after the trial: "I told him, 'You really shouldn't have given any evidence in this case.' Before he testifies at any more trials, he really needs to learn more. He's got a science background—he's a serologist—but he's no physical scientist."