6.Mistrial Motion over David King's Testimony Denied
6 lines(Discussion at sidebar and out of the hearing of the jury:)
MR. BRUCK: We move for a mistrial based on the testimony of this witness so far. We think --
THE COURT: Just wait a minute for the music to come back on.
MR. BRUCK: We think that every effort to control this extremely prejudicial witness's testimony has effectively failed. He has completely elided the difference between risk of death and grave risk of death, which is the statutory aggravating factor. He has testified -- he has brought in his military background from the use of the term Operation Enduring Freedom to the 1,000 IED wounds to gratuitous unbidden references to his experience treating wounded soldiers in the field.
He has gone on at great length about estimated time of death from hemorrhage in a way that effectively goes beyond the notice that we were provided and the expert witness summary. The witness summary says simply that Martin Richard's death was not instantaneous; however, this very generalized evidence that he's given about all the different gray scale of time to death effectively opines that all of the witnesses -- all of the homicide victims had some prolonged -- more or less prolonged period of suffering without any notice to us, without any opportunity to challenge that under Daubert, to see how that was going to be specified.
I sympathize a little bit with Ms. Pellegrini because on top of all these problems, this is a witness who doesn't seem to wait, be guided at all by the question. He wants to give a lecture and then he wants to give another lecture, and he's gone on and on and on. He seems to be uncontrollable. And we think at this point the damage has been done and we ask for a mistrial.
MS. PELLEGRINI: Your Honor, Dr. King is an expert, and as such, his ability to explain the bases and his opinions that follow therefrom are intertwined. I don't believe that any of his references, which were basically two, with respect to where he was deployed and what he has seen, is extremely prejudicial or anything of that nature.
I appreciate Mr. Bruck's sympathy but I don't require it. Dr. King is answering the questions that I'm asking, and he's answering them as fulsomely as he can because that's what we discussed.
We did give appropriate notice that he would opine that Martin Richard's injuries would not have killed him instantly. All of the information that I have elicited thus far is as a prelude to that, to explain why Martin Richard would not have died instantly, but also to explain why he's a more vulnerable victim because while he would not have died instantly, he would have died because of those injuries because of his small stature and his volume of blood more quickly than another, meaning that he's more vulnerable due to his age.
THE COURT: Okay. I don't think the military references were excessive. I think they fit within what I had indicated on the record earlier where he would be permitted to justify his background and his experience.
As to -- his answers have been extended, and I think you should try to keep him on a shorter leash. But I will say this: The usual evil with narratives by witnesses is that they go beyond the question and start offering evidence that isn't called for by the question. I think by and large his answers have been responsive to the question, although in an extended way.
And I think generally he's within the -- I reviewed the disclosure during one of the recesses, and I think he stayed within it at this point. So the motion is denied.