DEFENSE DAY
The family was still abuzz before court about what they perceived as Townsend's dismantling of Professor MacDonell. But the newspaper headlines barely touched on the cross-examination, except to mention the line about The Guinness Book of World Records. They played up his discrediting of the bloodstain evidence against Fletcher.
Thursday wouldn't be as dramatic as Tuesday's back-and-forth with the good professor. The next three witnesses Legghio put on would less colorfully but coolly and dispassionately continue to build a solid defense.
Frederick Wentling took the witness stand at 9:37. He was an independent firearms examiner and, as a 26-year member of the Pennsylvania State Police, an extremely credible defense witness. No mere hired gun, he was a former state trooper who had been been a firearms instructor for fourteen years and had overseen seven other examiners for nine years.
Wentling had testified in numerous state and federal trials, had been trained by the FBI and had done lab work on firearms for the Pennsylvania State Police, the FBI and the US Treasury Department.
He told the court that he had been hired by Legghio in late April to review all the police reports in the case, including autopsy and crime-scene photos and ballistics tests, and had also examined Fletcher's Smith & Wesson. Unlike the prosecution witnesses, he had conducted single-action tests on the gun. After a bullet had been racked and chambered, it required just 5.75 pounds of pull to fire it, compared to 12.5 pounds when it was in double-action mode.
And, he said, that weight need only be applied briefly as the trigger did not need to move much to fire the gun. "On a high-quality firearm—and this is a high-quality firearm—the movement of the trigger is almost imperceptible."
He said that the incomplete stippling pattern in the autopsy photos of Leann's
face—her hair prevented a complete pattern—made it more difficult to determine precisely how far the gun was from her ear when it was fired.
Then he buttressed MacDonell's point that Woodford's theory of events— and the prosecution's—that Leann had been shot while kneeling on the floor, with the force of the bullet lifting her up and over to make the blood stain on the bed, was impossible. It was, he said, a simple matter of a basic law of force, one known to all high school science students. "If the bullet from the gun was capable of knocking me over, then it would knock me over when I shot it, because every action has an equal and opposite reaction. The bullet can't hit with any more force than the recoil of the gun."
The body wouldn't be flung up and over? asked Legghio.
Wentling said you can test this counterintuitive point by shooting a bullet into a mannequin. "Nothing occurs. It just sits there. You can punch someone harder than a bullet hits."
Townsend on cross-exam tried to recover, without success. But what happens, he asked, when a powerful .45-caliber bullet enters the head but doesn't exit? Doesn't it have to expend all that kinetic energy somehow?
"Kinetic energy is potential energy, and most of it is converted into heat," said Wentling.
Townsend then pulled one of the old tricks out of the prosecutorial bag: If you can't impugn the testimony, impugn the witness. As he did with MacDonell, he asked how much Wentling was getting paid. It was $100 an hour for examination time, $150 for courtroom time and $30 an hour plus expenses for travel time.
What Townsend didn't tell the jury was that he had his own professional witness on the witness list, Rod Englert, a former cop who makes a living testifying on forensics for prosecutors around the country. Legghio had fired a warning across Townsend's bow before trial, writing him that if he dared bring Englert to court, he did so at his own peril. Englert was never called to testify.
Townsend didn't put Englert on the stand.
On redirect, Legghio did more damage. Leann's hair had never been tested for gunpowder residue. The closer the gun when fired, the more residue there
would be. He asked Wentling for comment, and he replied: "It is common practice to remove it, to properly bag it and submit it to the laboratory for analysis."
After the trial, in an interview for this book, Wentling said he'd been approached by Ortlieb in the hall and challenged on the physics of whether or not Leann's body could have been moved over to the bed. "I told her, 'There's not prosecution physics, or defense physics. There's just physics. Go ask a high school physics teacher. The idea that a bullet that weighs less than half an ounce can lift and move a grown woman is ridiculous."
And he was very critical of the firearms testing by Lt. Thomas of the state police, who had neglected to test the pull required to fire the gun if it were in single-action mode. "This was critical to the case. The examiner doing the work was very remiss in not doing that. It was very unusual to miss that."
Legghio didn't ask Wentling—but he should have—if he'd ever come across cases in his long career where it seemed as if a death might be homicide but it was determined upon investigation that the victim had shot him-or herself accidentally, with the thumb on the trigger? Was it so farfetched to think Leann might have died this way, too? A reporter asked Wentling those questions months after the trial. His answer? "It's not something that happens every day, but in the real world it is not an unusual thing." He and his investigators, he said, had come across several such thumb-trigger deaths in his years with the Pennsylvania State Police. Murder had always been the first suspicion, and had been ruled out by other evidence.
But Legghio didn't ask those questions. It would be one of his rare oversights in a brilliantly argued case.
*
John Gifford, a private investigator took the stand at 10:55. He'd been an Indiana cop for eight years and a special agent for the FBI.
He'd driven from the gun range to the house on Hazelwood three times, once at 11:30 a.m., once at 11:50 and once at 12:08. Driving the speed limit, it had taken him 18 minutes the first two times and 14 the last.
When he left the stand, there was a murmur of "What was that about?" It seemed inconsequential. There certainly wasn't much to cross-exam.
But in his closing arguments, Legghio would use the testimony to assail the prosecution's theory of events. Given the time the Fletchers left the range, considering how long it took even under optimal conditions, there wouldn't be enough time, Legghio would argue, to have sex, commit a murder had been and clean up all by 12:48, when about the only incontrovertible thing about this case happened—the 911 call.
*
After a recess, Patrick Besant–Matthews took the stand. Tall, wearing wire-rim glasses, he is a Michael Caine look-alike. A native of London, where he got his M.D., he studied forensic pathology at the Walter Reed Army Medical Center, had been with the Institute for Forensic Science in Dallas, was a medical examiner in Anchorage, New Orleans and Dallas, had been a teaching physician at George Washington University, the University of Washington in Seattle, the University of Texas in Austin and the University of Colorado.
He had been certified by a number of pathology boards, was a member of the American Academy of Forensic Science and had taken two blood-pattern courses taught by—who else?—Herbert MacDonell.
His area of specialty was mechanical trauma, including that caused by firearms. He considered himself, he said, an expert on how bullets react with human bodies, had written parts of five books and numerous scientific articles on the subject, including a chapter on firearms in a recent book published in Scotland called The Pathology of Trauma.
He had been brought on the case in April and, like Wentling, had studied all the reports and evidence. He had also made two trips to the Fletchers' house, along with Alexander Jason, a crime-scene specialist from San Francisco.
Legghio asked him if Leann's hair should have been bagged and tested for gunpowder. "We did it all the time." And his opinion on how far the gun was from her ear when it went off: "At least seven or eight inches but probably around fifteen."
The attorney showed him photos of the inside of Leann's right thigh, marks Dragovic had called abrasions. They weren't abrasions, said Besant–Matthews. They were streaks of blood, not scratches. Legghio was buttressing a point made earlier that if she'd been shot on her knees, there was blood on both thighs that couldn't be accounted for.
Then Legghio brought him to the main point he wanted him to make, about the possibility the bullet had picked up Leann's body and moved it up and over. Earlier, while recounting his years of expertise, Besant–Matthews had said, regarding perceptions of how bodies react to bullets: "There's a great deal of myth out there. I think we get it from Hollywood."
Now, it was time for specifics. Could a .45-caliber bullet move a 133-pound woman six inches up and nine inches over? "No. It can't do that. It doesn't happen. A bullet weighs half an ounce. The head weighs twelve and a half pounds and is attached to a body. We've all seen pictures of D-Day. Bodies hit with bullets fall forward, not backward. And they were getting hit with far higher impact than the bullets here."
And what about the hands? Did he bag hands in his practice? "Countless times. When you have a case that is of significance, if you feel there is a potential of trace evidence on the hands, you put bags on the hands. That keeps the hands from coming into contact with the sheet or anything else."
Finally, Legghio asked about the police theorizing that the crime scene had been staged because the gun was lying on top of some blood, that it had been placed there by Fletcher after the fact. Besant–Matthews said the mere presence of blood under the gun was meaningless. Why? Because the blood is expelled from the wound and falls faster than the gun, which falls on the pull of gravity alone. "Blood often gets to the floor first."
Besant–Matthews was excused at 3 p.m. His testimony and Wentling's convinced the jury, its members would later acknowledge, that Woodford and the prosecution were wrong in their theory of events. Leann could not possibly have been shot on the floor. After the trial, McCowan said that they also had been instrumental in her belief in Fletcher's innocence—not for the testimony in court, but in the preparation leading up to the trial. She'd had some doubts, but
they had convinced her of the plausibility that Leann had suffered an accidental self-inflicted wound.
Believing the prosecution was wrong about where Leann was shot was one thing. But convincing them that Mick hadn't simply shot her elsewhere would be something else entirely. Besant–Matthews had also made a point for the prosecution that the jury would find crucial—while Leann could have been shot from as close as seven inches, his best guess was closer to fifteen. How crucial remained to be seen.
*
The day ended with a bit of drama, a prelude to the four minutes of high drama that would play out in court the next day, when the courtroom and jury would hear the infamous 911 tape that had called police to the scene way back on August 16.
Legghio wanted the tape introduced into evidence. Townsend argued against it, saying it was a way for Fletcher to, in effect, testify in the trial without having to be cross-examined. Cooper decided to play the tape in her chambers, then rule.
An hour later, she came back to say she was provisionally allowing it in, but would take the night to reconsider. She would later review case law and decide that the tape fell into the category of an excited utterance and it was played Friday morning before an enthralled courtroom.
At 4 p.m., the trial was adjourned for the day.
Inside the courtroom, Legghio told reporters they would hear for themselves how dramatic the tape was, and it would be clear no one could play-act such a scene.
They ran outside into the hallway to get a response from Townsend. "I'd like to see his psychiatric degree," he said sarcastically. As for his opinion on the playing of the tape, he said: "I don't think the defendant should benefit from his own doing. But I'm not concerned. I don't think it will hurt us. I think they'll see it for what it is. A fabrication."
The reporters scurried off to meet their deadlines. Townsend re-entered the
courtroom, his demeanor changed now that the reporters were gone, hurried over to Legghio, slapped him on the arm, flashed him a big grin and said to him good- naturedly, "You know what I just told them? I told them I'd like to see your psychiatric degree."
Legghio leaned over and said something to Ortlieb. They both laughed. Then Hendricks said something to Legghio and there were laughs all round.
Inside, Hendricks wasn't so jovial. He was worried. Badly worried. The case seemed to be getting away from them. From open-and-shut to in-doubt. Maybe Townsend had taken Legghio too lightly. Legghio seemed to have an answer for everything. Things were going bad, and with the 911 tape coming up in the morning, it seemed as if they were about to get a lot worse.