 Cline is being charged in the death of 2-year-old Lucas Alberts in
2009. On Friday afternoon, the prosecution rested their case, but
because the first witness for the defense was not to be available on
Monday, attorneys Jay Elmore and Jeff Page did not begin questioning
for the defense until Tuesday.
Before the jury was called into the room at the beginning of the
day, Elmore made a motion to the judge for a "directed verdict." By
definition a directed verdict is "a procedural device whereby the
decision in a case is taken out of the hands of the jury by the
judge." Judge Thomas Harris denied the motion, saying he believed
the jury had seen sufficient evidence to make an informed decision.
The first witness to be called to the stand was Dr. Mark Shuman,
an assistant medical examiner from Miami-Dade County, Fla. Shuman
indicated he was a forensic pathologist with experience in
investigating sudden, unexpected death.
The first several minutes of questioning by attorney Page
involved establishing Shuman as an expert witness by going through
his extensive resume. Shuman was asked if he had testified as an
expert in other cases and he confirmed that he had. When asked how
many, he said approximately 40. Asked how many times he'd testified
for the prosecution of a case he said 25, leaving 15 times he has,
as in this case, testified for the defense.
Page asked, "Did we (the defense) contact you?" Shuman answered,
"Yes." Page: "Did we ask for your opinion?" Shuman answered, "Yes."
Page: "Did you prepare a report?" Again Shuman answered that he
did.
Page asked Shuman how he was able to do this, and Shuman
explained that he had requested certain materials from the defense
for his review. Page asked what those materials were, and Shuman
answered that he had requested most everything at the attorneys'
disposal. He read through a list that included police reports,
autopsy reports, reports from the Department of Child and Family
Services, hundreds of photographs, plus much more.
Page asked Shuman to confirm he was not directly involved in this
case and had no firsthand knowledge of what had happened, and Shuman
did.
Page asked if Shuman had requested pictures of Ty Cline's hand
and pictures of the rat cage Lucas Alberts allegedly fell on. Shuman
said that he did, and Page asked why.
Shuman explained that he used the photos to overlay on existing
pictures of the bruising on Alberts' cheek so that he could
determine if either matched.
Asked how such matching worked, Shuman said he used computer
software that calculated the pixels in 1 centimeter in each picture,
then adjusted the size of the pictures until the pixels were the
same in each. He then made the pictures of the hand and rat cage
semi-transparent and superimposed them on the marks on Alberts
face.
The photos taken were of Cline's left hand lying flat with his
fingers close together. Asked why, Shuman said the fingers would
have had to have been held closely together in order to make the
straight-line marks on the child face.
Through a series of slides, Shuman showed the overlay of the hand
on the face with the little finger at top and the index finger at
the lower end of the jaw.
Page noted pale spaces between the lines on the boy's face and
recalled that Dr. Scott Denton performed the autopsy and testified
for the defense that the pale spots were made by pressure from the
fingers. He asked if Shuman agreed, and Shuman said he did not
because the fingers were too wide to go with the pale spots.
Page noted a rounding of the white spot closest to Alberts' ear
and said Denton had said that was the tip or end of Cline's
finger. He asked if there were any additional rounded-off spots
Shuman saw. Shuman indicated that there was a very similar rounding
on the other end of the same area, closer to the mouth.
Page talked about the separate planes of the face and Denton's
argument that a rat cage with a single plane could not have injured
the boy on the side of the face and below the chin. Page asked
Shuman if he saw any injury below the chin. Shuman said he did not.
Page finally asked, "In your opinion, are the marks on Lucas
Alberts face from a hand or fingers?" Shuman said, "It is
possible."
Moving to the rat cage, Page asked about the comparisons Shuman
had done there. Again Shuman went through the process of creating a
superimposed picture.
Page asked if the wires of the cage matched the marks on the
boy's face, and Shuman confirmed that they did.
Page then asked which was the most likely scenario, the rat cage
or the hand, and Shuman said he could not make a determination on
the injuries alone because there were other factors involved.
In other testimony Shuman said he was aware of damage to the
throat, but in Denton's report the same injury had been reported
with two different locations. The difference in the locations was
one was under the chin on the left side, and the other location,
mentioned by medical terms, was lower down on the throat but only
slightly. Shuman began giving his opinion on which area Denton
actually meant, and Wright objected, saying Shuman couldn't actually
know that.
Page asked Shuman if the injury to the throat area could have
been caused by something or someone other than Cline or the rat
cage. Shuman said it was an injury that can occur during lifesaving
measures such as intubations.
Shuman also had a difference of opinion from Denton in how the
retinal and optical bleeding may have come about in Alberts and
substantiated his opinion with various publications on the subject
from other considered experts.
Moving on to the topics of "lucid period" and "symptom-free
period," Page questioned Shuman, asking if Alberts could have been
lucid after his head injury. Shuman said, "Yes, he could have." Page
asked if he could have been symptom-free. Shuman: "Yes, he could
have." Page asked, "For up to 72 hours?" Again Shuman confirmed that
he could have been.
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Page asked if Shuman agreed with a study statement that said
infants and toddlers lose consciousness less frequently than adults,
and Shuman said he did.
Quoting from the paper written by Dr. Denton, Page asked if
Shuman agreed with the statement "It is a widely held dogma that the
person with the child when it loses consciousness is the
perpetrator." Shuman said, "Yes, I agree it is a dogma."
Shuman then began talking about a syndrome called "talk,
deteriorate and/or die." He began talking about published works that
had not been included in the disclosure list for the defense, and
Wright objected.
In discussion, the defense said they didn't know about this
report, but if it was footnoted in other reports, it should be
allowed in. Judge Harris disagreed, saying that if attorneys had to
research every footnote, it would be too much. He concluded by
saying, "If it is worthy of testimony, it is worthy of disclosure."
He upheld Wright's objection, and the topic moved away from that
study.
When Wright began his cross-examination of the witness, the first
question regarded payment for service. He asked Shuman if he was
being paid, and Shuman said he was. Wright asked how much, and
Shuman indicated $300 per hour. After inquiring about the time spent
to travel to Lincoln, Wright surmised that the cost for Shuman's
services was approximately $10,000, and Shuman confirmed the
estimated amount.
Wright asked if Shuman had ever testified for the defense when he
agreed with the state or prosecution. Shuman indicated that he had,
but added: "Generally if I agree with the state, I'm not called to
testify (by the defense)."
Wright began by going back through Shuman's testimony on "lucid"
and "symptom-free." Wright asked if Shuman's report was based on his
own opinion and if he was asked to address whether or not Alberts
could have been lucid and symptom-free. Shuman confirmed that he
was. Wright asked if Alberts could have possibly been symptom-free
for 72 hours. Shuman said he could have, but he didn't want to
restrict his opinion in the matter. Wright then asked, "So he could
have had immediate symptoms?" and Shuman said "yes."
Moving on to the clinical history behind Alberts' death, Wright
asked Shuman to confirm that the history collected in 2009 said
Alberts was healthy when he was left with Cline and that he had no
injuries at that time.
Wright said, "If you look at the totality of the circumstances,
look at the injuries and clinical history, Denton's opinion that
symptoms would have been immediate is correct?" Shuman said, "No, we
don't know when it occurred because there is no history for the
impact to the back of the head. The rat cage injury was secondary."
Wright asked about Shuman's report, which said symptoms were more
likely to have occurred closer to the injury. He asked if statistics
showed that in more injuries the lucid or symptom-free period is
less than 72 hours, more like 24. Shuman confirmed.
Wright then asked, "Is it more likely in this case?" Shuman: "No,
you can't apply probabilities to one person."
Wright commented that statistics were equal to probabilities and
Shuman agreed. Wright then said Shuman had referenced a study based
on statistics. "You gave probabilities to that, but you don't want
to give probability now. Correct?"
Shuman replied, "No, in this case I can't say."
Wright asked, "You have to look at the child plus the
history?" Shuman confirmed.
Wright then said, "Dr. Denton said symptoms were likely
immediate." He asked if Shuman agreed, and Shuman said, "I don't
know, I wasn't here."
Wright moved on later to discussions about Cline's hand and the
rat cage. He asked specifically why the left hand had been used as a
comparison, and Shuman said that was the photo he was sent. Wright
observed that using the left hand seemed awkward, and Shuman
agreed.
Wright also asked about the cross wiring on the rat cage where it
was dented and wondered why it was not in the comparison. Shuman
said it was, but at the edge of the marks.
Wright then said Shuman had made an assumption in the comparison.
Shuman said he had not and asked what assumption it was. Wright
said, "You assumed the perpendicular lines would not be in the
middle."
Wright later commented, "You did nothing to show the
perpendicular lines because there are no signs of them (on the
face). Shuman countered, saying he had not assumed anything, he just
had to match the lines with the picture.
Wright touched on several other areas of the original autopsy
versus Shuman's report, including the retinal and optical bleeding
found
Before closing his cross-examination, Wright came back to the
money Shuman is being paid. He said that Shuman was being paid to
testify, paid for his opinion. Shuman responded, "I'm not getting
paid for my opinion, I'm getting paid to be here."
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