Reply Brief of Appellant (Defense)

After the State submitted their reply brief, there was an additional extension granted to defense, requiring the final reply brief in the process to be submitted on February 26, 2018. That brief is called the Reply Brief of Appellant, and we've made it available for your review. As we did with the initial Opening Brief of the Appellant, a summary of the main points is listed below.


Abbreviations:

Tr. = Reference to page(s) from the official court transcript

R. = Reference to page(s) from the official court document record

At.Br. = Reference to page(s) from the Opening Brief of the Appellant

Ae.Br. = Reference to page(s) from the Brief of Appellee


I. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF EHLERS-DANLOS SYNDROME.

A. The Trial Court Applied an Erroneous Legal Standard

  • "The standard articulated in Allison's motion for reconsideration - that a medical expert is not required to be an expert in a particular disease to offer testimony about how a family history of that disease was important to their analysis of a case within their own specialty - was the correct standard. [R. 1588-89; At.Br. 32-34]" (Page 2)
  • "An expert is not required to be an expert in every field on which her testimony touches. [Marron v. Stromstad, 123 P.3d 992, 1003 (Alaska 2005).] And, as explained below, Ophoven's testimony was not that J.A. had EDS, but that, given what Ophoven had reviewed about J.A.'s history, EDS could not be excluded as a factor. This is proper expert opinion testimony and should have been admitted." (Page 3)

B. There Was Sufficient Evidence to Permit Ophoven's Proposed Testimony

  • "Contrary to the State's portrayal, the topic of EDS did not first arise after J.A.'s death through C.J.'s advocacy. [Ae. Br. 9] ... The fact that J.A.'s treating neurologist suspected EDS or considered it among the conditions that should be ruled out for her was highly significant - and admissible." (Page 4)
  • "The court's declaration that C.J.'s diagnosis was speculative was an improper intrusion into the jury's fact-finding role, not an appropriate exercise of the court's discretion. [Tr. 1616-17; Ae. Br. 17]" (Page 5)
  • "The State challenged the veracity and significance of C.J.'s diagnosis below* and the trial court ruled that the diagnosis lacked indicia of reliability to be relied on by an expert. [Tr. 1554-63] But the court's ruling was not based on the evidence before it. The State did not present any evidence that C.J.'s diagnosis was not real or not significant or should not be relied upon by an expert. According to the only evidence before the court, C.J.'s diagnosis was significant." (Page 5)
    • *Footnote: "At the Mayo Clinic, C.J. was given a final diagnosis: 'Ehlers-Danlos Type 3 appearance with hypermobile joints.' [R. 2477] Throughout its discussion of this issue, the State misstates that diagnosis, calling it 'EDS-appearance.' [Ae. Br. 9, 11-12, 15-18]"

C. Ophoven Considered Any Family History of EDS Significant

  • "The State argues that the trial court was correct in determining that Vascular EDS was the only type of EDS that was relevant. [Ae. Br. 10, 15]. But this is not consistent with Ophoven's testimony." (Pages 5-6)
  • "Ophoven thus rejected the State's position that vascular EDS was the only type of EDS that was relevant to her opinion. ... Ophoven's opinion was supported by scientific literature,* and it should have been admitted." (Page 7)
    • * Footnote: "See, e.g., Anne De Paepe, Fransiska Malfait, Bleeding and Bruising in Patients with Ehlers-Danlos Syndrome and Other Collagen Vascular Disorders, 127:5 British Journal of Haematology (December 2004) ('Prominent bruising and bleeding is seen in all subtypes of EDS.')"
  • "The State's theory of prosecution was that J.A. could not have sustained fatal injuries by falling down the stairs and that only child abuse - shaking or hitting perpetrated by Allison - could have caused her injury and death. The defense theory of the case was that a short fall could have resulted in J.A.'s fatal injury, particularly because she was unusually vulnerable. J.A. was vulnerable both because she had a preexisting hematoma in her brain that rendered her vulnerable to a brain bleed and because she may have had an undiagnosed condition that could have also contributed to the severity of the brain bleed that caused her death. Under these circumstances, the trial court's preclusion of any evidence regarding that condition was an abuse of discretion and violated Allison's due process right to present a defense." (Page 7-8)

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT EXCLUDED EVIDENCE OF ALLISON'S TRAINING AND EXPERIENCE.

  • "The State argues both that [Clayton's employment] evidence was inadmissible under Rule 404(a)(1) and Rule 405(a) because it involved specific instances of conduct and that Allison did not offer the evidence as proof of his character. [Ae. Br. 19-21] But the State presented a species of character evidence - that children with special needs were at increased risk for being abused. [Tr. 1316, 1325-26] ... Allison was entitled to rebut that evidence by showing that he had specific professional experience interacting appropriately and safely with children who were atypically challenging. In other words, once the State presented evidence that in an average family a special needs child was at higher risk for abuse, Allison was entitled to show that this family, and he as a caregiver, were not average in that respect." (Page 9-10)
  • "The court declared that Moore's testimony was 'certainly not probative of [Allison's] interactions with [J.A.].' [Tr. 3026] But the proposed testimony was as probative as the state's evidence that J.A. was more likely to be abused because of her delays. And the evidence was offered, not to independently establish Allison's conduct , but to rebut the State's evidence. By presenting evidence and argument that J.A. was more likely to be abused because of her traits as a special needs child, the State rendered Moore's proposed testimony more "of consequence to the determination of the action" than it would otherwise have been. Through its case, the State placed Allison's capacity as a caregiver directly at issue." (Page 11)
  • "The State argues that any error in excluding Moore's testimony was harmless, because the testimony of his family and friends was sufficient to establish that he was a patient and caring father. [Ae. Br. 26-27] But this argument ignores the fact that, in closing, the prosecutor took pains to discredit the exculpatory testimony of family and friends. [Tr. 3734-3739, 3744-45, 3819, 3828] Indeed, a significant theme of the prosecutor's closing was that Allison's friends and family lied to protect him. Even if that had not occurred, there is significant difference between friends and family describing a defendant as caring and patient, and testimony by a disinterested former employer that the defendant successfully worked in a program providing individual therapy to emotionally disturbed children: the testimony of family and friends concerned Allison's character; Moore's testimony concerned Allison's professional experience and skills with challenging children." (Page 12)

III. THE COURT'S RESTRICTIONS ON ALLISON'S CROSS-EXAMINATION VIOLATED HIS RIGHT TO CONFRONTATION.

A. The Court's Uneven Restrictions on Tone and Rehabilitation

  • "The State argues that Allison's counsel made a tactical choice not to use a confrontational tone in cross-examining Whitmore. [Ae. Br. 61] This argument is belied by the record. ... The State argues that the court overruled the State's objection and did not prohibit Allison from adopting a confrontational tone. [Ae. Br. 56-57] While the court overruled the prosecutor's relevance objection, it did grant the objection with respect to 'tone.' Moreover, Allison understood the court's admonition as a direction. [Tr. 2530-31] Allison's adoption of a less confrontational tone was not a strategic choice." (Page 14)
  • "The State acknowledges that the prosecutor' cross-examination of Ophoven was less than professional. [Ae. Br. 60] However, the State suggests that the prosecutor was repeatedly admonished for his tone and that the court's rulings on this point therefore did not create an appearance of bias. [Ae. Br. 59] But the examples provided by the State do not support its assertion. The court admonished the prosecutor for his tone during argument outside the presence of the jury on an evidentiary issue [Tr. 994-95], directed him outside the presence of the jury not to bolster a prosecution witness [Tr. 1128-29], and found, outside the presence of the jury, that the prosecutor misquoted a witness's prior statement and that the defense could address it on cross-examination. [Tr. 1281-82] The examples cited by the State did not remedy the appearance of bias the court's rulings presented. On the one occasion that the court did admonish the prosecutor for badgering Ophoven in the presence of the jury, the court undermined the admonition by calling it 'misbehavior,' failing to enforce its ruling, and then immediately undermining Ophoven when the court had bolstered Whitmore." (Page 15)
  • "Indeed, the prosecutor was undeterred and continued his badgering cross-examination. [Tr. 2539-44] When Allison objected again, the court refused to intercede, stating Ophoven was 'giving as good as she gets.' [Tr. 2545] But Ophoven had to 'give as good as she got,' because she did not have the trial court to protect her as it did Whitmore." (Pages 15-16)
  • "While cross-examining Whitmore regarding deficiencies in his examination, Allison asked a question calling for a yes or no answer: "And [age of injury] would be important information, would you agree?" [Tr. 1802] Instead of responding yes or no, Whitmore parried: "Why?" The State contends that the defense question was ambiguous. [Ae. Br. 61-62] But a question calling for a yes or no response is not an ambiguous question nor is it ambiguous to ask a pathologist whether age of injury is important. When the trial court intervened on Whitmore's behalf, the court conveyed disapproval of the question and sympathy for Whitmore, who was undergoing uncomfortable (but, as the State recognized, professional) cross-examination regarding significant errors in his autopsy. [Tr. 1794-1803]" (Page 16)

B. Video Cross-Examination Was an Inadequate Remedy

  • "In other words, the State declared it impossible to bring Whitmore back, the court ruled that the State did not have to return him, and there was thus no request for a continuance for the state to subpoena Whitmore for Allison to oppose." (Page 18)
  • The State argues that Allison should have sought to strike only the "relevant portions of Whitmore's testimony." [Ae. Br. 40] But given that the learned treatise undermined Whitmore's core conclusions, it is not clear what portions of his testimony the State is referring to. And the State's argument that Allison's proposed remedies - striking Whitmore's testimony or returning him to Alaska - were extreme ignores the fact that it was the State's conduct that induced an erroneous ruling by the court with respect to an uncooperative, out-of-state prosecution witnesss. The State should bear the burden of the risk it took - not Allison." (Page 18)
  • "The State accuses Allison of being unreasonable in not accepting video conference testimony of prosecution witnesses, devoting significant attention to the video conference testimony of another witness, Reinhart. [Ae. Br. 41, 48-49] But it was not unreasonable for Allison to insist on his constitutional right to face-to-face confrontation with adverse witnesses. [See Maryland v. Craig, 497 U.S. 836, 844 (1990).] And where, as here, the State induced an erroneous ruling compromising Allison's cross-examination of the State's most important witness, it was not unreasonable for Allison to demand that the State make an effort to return the witness to Alaska." (Pages 18-19)

C. The Cross-Examination Must Be Viewed In Context

  • This case turned on the credibility of the medical witnesses, particularly the pathologists. Through its rulings, the court improperly bolstered the credibility of the prosecution's witness and improperly undermined Ophoven's credibility. At the same time, the State induced an erroneous ruling preventing Allison from effectively cross-examining Whitmore. While the court ultimately recognized its error, completing cross-examination through video conference testimony was an insufficient remedy." (Page 19)

IV. Cumulative Error Requires Reversal

  • "In a case such as this, where the only meaningful evidence supporting Allison's conviction was the testimony of medical witnesses that J.A.'s injury could only be the result of child abuse, it was crucial to permit Allison to present evidence in his defense and to permit him to cross-examine the State's pathologist with the same vigor granted the State in its cross-examination of Allison's pathologist. The court's refusal to admit relevant evidence of J.A.'s medical history, to present evidence in response to the State's theory that special needs children were more likely to be abused, and to permit aggressive cross-examination of Whitmore had a significant and cumulative impact on the outcome of this trial." (Page 20)

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