Jury deliberations were set to resume on Friday in the David Paul homicide trial. The last of the witnesses took the stand on Thursday, followed by the judge’s usual instructions to the jury, closing arguments, and the excusal of alternates on the panel.
The jury of six men and six women sent out a note after about a half-hour of deliberations asking if they reach a verdict on one charge, then do they need to reach a verdict on the other?
After conferring with attorneys, Superior Court Judge Philip Pallenberg sent back a response asking the jury to please consult a particular set of jury instructions and decide each count separately.
The 24-year old Paul faces one count of murder in the second degree with extreme indifference to the value of human life, and one count of manslaughter. Prosecutors believe that Paul caused the death, possibly by shaking, of Rian Orr, the four-month old daughter of his then-girlfriend Jaki Orr.
The last witness called to the stand on Thursday was Katrina Houston. Paul and the Orrs stayed with Houston after Rian was born, and David Paul and Jaki Orr cared for Houston’s two children while she was at work.
“He fed the baby. He changed the baby. He did everything. He was kind of at her beck and call,” said Houston after she was asked about how Paul took care of Rian.
“Did David get frustrated with those obligations?” asked public defender Eric Hedland.
“No, not that I ever saw. Never raised his voice at all,” answered Houston.
Houston testified that Jaki Orr seemed to suffer from post-partum depression. Paul hand-fed her while she laid on the coach.
Before the defense rested, David Paul was asked the usual set of questions asked of every defendant during a criminal trial.
“Now, your lawyer has indicated that it’s your intention to rest the defense case without taking the stand and testifying. Is that your decision?” asked Judge Pallenberg.
“Yes, it’s my decision,” answered Paul.
“Anybody threatening you with anything, or putting pressure on you to get you not to testify?”
“You feel like it’s your free and voluntary choice?”
“Yes, it is.”
Most of the day on Thursday was taken up by closing arguments with the prosecution taking up a total of an hour-and-45 minutes, and the defense spending a little over an hour to make their case. Prosecution gets the first opportunity to talk to the jury, followed by the defense, and then comes the prosecution’s rebuttal.
Much of the case against David Paul is circumstantial. Rian Orr’s brain injury became apparent on August 9, 2010. In addition to chest bruising, it was later discovered that the baby also suffered from a thigh bone fracture and three rib fractures, but there was little agreement presented at trial on what or who caused those injuries.
Paul and Orr apparently were the only two adults who cared for Rian, and Paul was identified as a potential suspect before the baby was even medivacked to Seattle. Two significant pieces of evidence include police interrogations with Paul that were conducted eleven months apart. In both, Paul seems to confess that he accidentally dropped the baby while entering the bathroom for a morning feeding. That was followed by a quick, almost reflexive shake to get the baby to stop crying.
“I am in sort of an awkward position,” said assistant District Attorney Angie Kemp. “No, we absolutely do not believe everything that the defendant has said, and the ever-evolving nature of his statements are reasonable in light of that.”
During his closing arguments, Hedland turned and walked over to the defense table to address his client as he explained those recorded statements.
And I would be the first to say that I wish you hadn’t made them. Because we wouldn’t be here if you hadn’t, right? (Addressing jury again) You can take all this noise, everything we did for four weeks… If Mr. Paul doesn’t make those statements, then we’re not here. We are not here. And, the State says ‘We don’t even believe the statements. The statements are only relevant for the pieces that we like, and to prove some other thing that we don’t know about.'”
Hedland displayed an M.C. Escher sketch of perpetually flowing water to demonstrate the prosecution’s apparent efforts to make facts fit the cliché of Shaken Baby Syndrome, or Paul as a frustrated parent who was at wits end. He said that no one testified about what Paul said had happened to cause Rian’s injuries. An example would include a possible contusion or skull fracture if the baby had actually fallen on her head as Paul had described. Hedland also said that Jaki Orr was never investigated for her own statements or for possibly causing Rian’s injuries.
The police didn’t look at any of this. They didn’t care about any of that. That is confirmation bias. That lends itself to what we were talking about during jury selection with the availability heuristic. ‘I have any idea in my mind of what I want to be true. I’m going to pull in all of the things that fit that and disregard the things that don’t.’ So, when David says some innocuous thing, how is that viewed? It’s viewed in light that we want him to be the person who did this, or we’ve decided that he’s the person who did this.”
During her rebuttal, Kemp dismissed the various defense experts who were called to the stand by the defense.
So, are we just guessing? Or, is this kid really, truly the most unlucky kid? Did Rian get struck by lightning twenty times?”
The experts testified about the chronic or old fractures, signs of a recurring or chronic subdural hematoma, and brain damage without an expected neck, spine, or skull injury,
Did she have all of these things going on with her? Is that a reasonable conclusion? The part of what is reasonable to draw from all of this is that the notion of red herrings and throwing up as many things as you can possibly think of. But that’s not good science either.”
Kemp was also outwardly disturbed earlier by the psychologist called in to describe the possibility of false confessions which, in her view, seemed to invalidate or preclude the jury’s role in evaluating the credibility of witness testimony.
Start of deliberations
One man and one woman on the jury panel were randomly selected as alternates and excused from the trial. Judge Pallenberg thanked them for their four weeks of service, and recommended that they seek court-funded counseling if they desire it. The trial contained particularly gruesome autopsy photographs that were disturbing to most jurors. The remaining six men and six women retired to the jury room to begin deliberations at about 3:30 p.m. on Thursday.
Before the jury began considering the case, Hedland moved again for a motion of acquittal on the remaining charges. Paul faces one count of manslaughter and one count of murder in the second degree with extreme indifference to the value of human life. But Judge Pallenberg denied the most recent acquittal motion on the manslaughter charge and, again, deferred a decision on the remaining murder charge.
A charge of murder in the second degree with intent or knowledge that it would cause serious injury or death was thrown out earlier in the trial.
As for the remaining second degree murder charge, jurors must determine whether Paul knew or was aware that his conduct would cause the death of Rian Orr. Some of the factors include social utility of the conduct, Paul’s knowledge of the risk, the magnitude of potential harm, and any efforts to minimize the risk.
On the manslaughter charge, jurors must determine whether Paul was reckless or whether he was aware and consciously disregarded a substantial and unjustifiable risk in his conduct that would result in the death of Rian Orr.
Jurors were also instructed that if they determine that Paul caused Rian Orr’s earlier injuries, then they can consider those injuries while determining Paul’s state of mind or whether his actions led to her death.
(Broadcast version of the story corrected to accurately reflect the number of the jurors now on the panel.)
Other stories as part of trial coverage:
- A lawsuit filed in federal court this week seeks to remove the residency requirement for people gathering signatures for state ballot initiatives.
- For the second time in two years, a Skagway political figure has been ordered to pay a fine for incomplete financial disclosures. Assembly hopeful Dan Henry failed to disclose substantial debt on his candidate paperwork. He will still be able to run for office in the upcoming election.
- Administration officials have a mouthful of a name for it: the “capped hybrid head tax.” It's a flat 1.5 percent of wages and self-employment income, with a maximum of twice the value of that year's Alaska Permanent Fund dividend.
- A federal district court has sided with conservationists fighting to preserve the U.S. Forest Service's "roadless rule" that limits road building in national forests. Alaska conservationists opposed to expanded logging in Tongass National Forest hailed the ruling as a victory.