Brief of the Appellee (State of Alaska)

Clayton Allison was wrongfully convicted on February 13, 2015. Due to the automatic and expected delays of the appeal process, the State of Alaska was not required to submit their Brief of Appellee until November 20, 2017.

When you read the State's reply, please be aware that numerous elements stated in the brief are blatantly false; as can be proven through the record and court transcripts of the actual trial. Therefore, we have decided to submit a response from the family on this page. It's a little choppy because we've organized it to correspond to the sections of the State's argument.

Clayton's attorney had to submit a reply that included the core arguments, and all supporting legal references, in a limited 20 pages. It is also written for an audience familiar with legal jargon. We hope that the content outlined below will help those of you without law degrees to understand where the state's arguments fall apart in context of the actual facts of the case, instead of just the law itself.

The reply below was not authored by attorneys, and has not been filed in an official court document anywhere. It is our choice to exercise our first amendment rights to discuss the State's false and misleading arguments, and we hope it provides you with more context on where facts are being misstated from the trial record. You can also listen to some of the most critical court audio being referenced through our SoundCloud account.

If you have any questions after reading our response below, please direct them to claytonallisoninfo@gmail.com.


Family's Personal Response to the Brief of Appellee

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


Statement of Facts Section:

The State frames an argument that “multiple experts... concluded that J.A.'s injuries were not consistent with a fall down the stairs.” [Ae.Br. 3] However, the evidence at trial indicated that Jocelynn’s injuries had an additional major contributing factor - the wooden chair on the landing at the bottom of the stairs with a large, heavy file box on it. [Tr. 903, 955, 965, 1230, 1268, 1291-97, 1525-26, 1982-85, 2001-03, 2032, 2114, 2127, 2771-73, 2796, 2801, 3142-43, 3210-16, 3276-78, 3290, 3562] Joy Vaughn testified that she found out Jocelynn had been hurt when her husband told her that she “had fallen down the stairs and hit her head on the chair.” [Tr. 3278] Investigator Ferno explains that there were indentations in the carpet that indicated exactly where the chair had been sitting, and they’d placed the chair (which had been moved) onto those indentations to give an accurate photo representation. [Tr. 2114, 2127]

The State’s witness said that Jocelynn died as a result of blunt force trauma. [Tr. 1734-36] Blunt force trauma references the type of impact that would be observed from striking a hard surface like a wooden chair.

In addition, Jocelynn presented with both an acute and chronic subdural hematoma at the hospital. Multiple witnesses testified that short falls can cause the type of injuries she presented with at the hospital [1947, 2330, 2366-71, 2941-42, 3351], and that the complication of a chronic subdural hematoma could lead to a “sudden deterioration from... a relatively innocuous impact.” [Tr. 2327] Dr. Ophoven also testified that short falls are the most common cause of traumatic brain injury in children. [Tr. 2491]

The State’s description of Jocelynn’s level of mobility is directly contradicted by testimony from multiple witnesses. [Ae.Br. 3-4] While Jocelynn could not walk on her own at the time of her death, Clayton specifically tells the 911 dispatcher that “Jocelynn was just learning to walk,” [Tr. 861] and that he was specifically conducting physical therapy exercises with her related to walking, before she fell. [Tr. 864] Witnesses described a dramatic improvement in her mobility in the weeks before her death, and detailed that she was able to: pull herself up to standing independently on objects, walk along objects with support from her own hands, and could even independently pull herself up onto couches. [Tr. 1300, 2811-12, 2793-95, 2800, 3291-93]

The State implies that Jocelynn would have been unable to follow Clayton around the couch and over to the stairs. [Ae.Br. 4] However, Melody McIlroy specifically described watching Jocelynn follow her from the front of the couch around towards the bathroom, and then turn towards the stairs which were only a few feet away, three days before her death. [Tr. 2795] Joy Vaughn was the other person present at the time, and testified that she watched Jocelynn follow Melody towards the bathroom beside the stairs that day saying, “to me, it was like I had seen the weekend before. As soon as I heard what happened, I realized I had seen Jocelynn do exactly what she did the day that she died.” [Tr. 3293-94]

Melody explained that, “she didn’t used to be that fast. It was very surprising that -- you can really tell that the physical therapy was helping her.” [Tr. 2798] The only physical therapy being conducted with Jocelynn at that time was being done by Clayton and his wife, as Jocelynn was no longer attending physical therapy appointments in Anchorage. [Tr. 1516-17, 1536, 2791-92, 2806-07, 2816, 3099-3100, 3219]

The State claimed that Clayton was “downplaying” and contradicting his mother’s statements to the 911 dispatcher, and went so far as to say that he “rebuked” her. [Ae.Br. 5] His mother is shouting and upset in the background of the audio recording, and Clayton is acknowledging her concern, but she is saying she "can’t" calm down. [Tr. 862] The dispatcher even asks him to, “Tell her that I can’t hear you when she’s talking in the background.” [Tr. 862]

Clayton had experience as a Central Station Dispatcher through Guardian Security. [Tr. 3023] He explains to his mother that, “It doesn’t help them when we’re not calm.” Because of his experience as an emergency dispatcher, he is responding with the understanding of what the person on the other end of the phone needs to hear, in order to get help as soon as possible. Clayton is the person specifically detailing out Jocelynn’s condition - eyes, skin color, breathing, heartbeat, movements, and checking for external injuries - in detail while his mother is shouting the same statements over and over again in the background. [Tr. 865-68]

I. THE JUDGE ERRED IN EXCLUDING EVIDENCE THAT JOCELYNN MAY HAVE HAD A GENETIC CONDITION THAT COULD HAVE IMPACTED THE BLEEDING THAT LED TO HER DEATH.

Mischaracterization of EDS Diagnosis:

The State consistently mischaracterizes Clayton's wife, C.J. Allison’s, diagnosis - from the Mayo Clinic in Rochester, MN - of “Ehlers-Danlos Type 3 appearance with hypermobile joints” [R. 2477] as an “EDS-appearance” diagnosis. [Ae.Br. 8-18] In fact, they use this intentionally altered presentation of the language twelve times in their argument, but the words “EDS” and “appearance” are never hyphenated in the original diagnosis paperwork. They also use an additional, even more confusing variation, of “hypermobility-type EDS ‘appearance’” where the hyphen seems to have moved for the simple purpose of emphasis, with blatant disregard for how this changes the definition of the facts at hand.

In clinical settings, the word “appearance” is not used to imply a similarity, but instead to communicate a direct observation or manifestation of a particular symptom or condition. Their use of the intentionally altered term implies that C.J.’s diagnosis is not a genuine diagnosis of a form of actual EDS, but instead “something like EDS” or some kind of mimicking condition. Nothing could be farther from the truth.

Additionally, the State uses the term “tentative” to describe C.J.’s diagnosis on two occasions, and this language does not appear anywhere in C.J.’s diagnosis document. [R 2454] Instead, the diagnosis paperwork clearly states, “Our final diagnoses were” (emphasis added). [R 2454].

The State claims that it was “undisputed” that C.J.’s diagnosis was a “rule-out” diagnosis. [Tr. 1616] However, this is not a fact simply because the judge voiced it as such on the record. In fact, the judge’s own description of her understanding of what a “rule-out” diagnosis is presumes that the treating physician has already decided that some form of EDS is involved despite the inability to identify the specific gene(s) being affected. [Tr. 1562] The State implies that it is a “rule-out” diagnosis because it has not been identified by a genetic test; however, even today this form of EDS can only be diagnosed clinically, based on a very specific medical history and set of symptoms. The Mayo Clinic does not have a history of handing out diagnoses because individuals show up and ask for them.

The State’s argument is dependant upon their claim that “the relevant type of EDS that could have contributed to J.A.’s death was ‘vascular Ehlers-Danlos,’” [Ae.Br. 10] While Ophoven does state that “the issue here is the vascular Ehlers-Danlos and whether or not... the blood vessels in this child’s... brain were vulnerable.” [Tr. 641] Dr. Ophoven also testified that C.J.’s diagnosis of Ehlers-Danlos Type 3 “is an important part of Jocelynn's inherent medical background.” [Tr. 643]

According to the Ehlers-Danlos Society, “There are 13 defined types of EDS, as well as a number of mutations identified as Ehlers-Danlos Syndrome that fall outside the current system,” and “there is substantial symptom overlap between the Ehlers-Danlos Syndrome subtypes.” That is exactly why Dr. Ophoven explained that “[t]he subtypes of Ehlers-Danlos may be very difficult to distinguish, so to me, if there is a positive family history of Ehlers-Danlos Syndrome, then the issue of vascular integrity and bony integrity has to be considered... if you have a possibility of a history of Ehlers-Danlos Syndrome in the family, and there is an atypically severe aspect of bleeding in a case, that has to be put forward for consideration.” [Tr. 640]

Indeed, per a medical journal article cited in the original brief - the current medical consensus is that easy bleeding and bruisability is associated with all forms of EDS, and is not isolated to a singular subtype of the condition. [At.Br. 30]

Dr. Smith Feared Future Discrimination Against Jocelynn:

Dr. Roderic Smith, Jocelynn's treating pediatric neurologist, explains in detail that he was only awaiting genetic testing to identify Jocelynn’s documented and undiagnosed condition. He was concerned that “I look like I was negligent in some way going forward with this, I was just trying not to bankrupt the family” due to the costs of that genetic testing. [Tr. 1613] He also explains in detail that he did not document the possible genetic conditions he was considering in Jocelynn’s medical records, despite his suspicions, because he was afraid of the potential for her to be discriminated against in employment in a future where genetics and medical records information would be much more easily accessed by potential employers. [Tr. 1614] Essentially he explained that even though he considered EDS in the potential differential diagnosis for Jocelynn, he did not document it out of fear of repercussions against her.

Jocelynn’s Established History of Abnormal Bleeding:

The State notes that their witness, Dr. Galloway, and Clayton’s witness, Dr. Joseph Scheller, agreed that Jocelynn had no history of a bleeding problem. [Ae.Br. 10] However, Galloway was unaware of either Jocelynn's or C.J.’s medical histories, and it is unknown whether Scheller had ever been informed of C.J.’s diagnosis when forming his opinion. In fact, trial testimony established that Jocelynn did have medical findings that indicated a history of unusual bleeding, as discussed in reference to the preexisting chronic subdural hematoma, and intraventricular hemorrhage, both of which are bleeding observed in the brain. The term “chronic subdural hematoma” refers to a bleed that is long-term. [Tr. 659, 1718, 1814, 2357-58]

Dr. Ophoven discusses Dr. Whitmore’s observation of an intraventricular hemorrhage, because of its rarity and typical non-trauma-related presentation. She states, “In this case, [Whitmore] describes intraventricular hemorrhage, which is an extremely unusual finding and -- and actually pertains more to her large head and perhaps her underlying problems than trauma. That is not where the blood typically appears from classic blunt force trauma.” (emphasis added) [Tr. 2356] She goes on to explain that a hemorrhage of this type can actually be an indicator of, or even become the cause of, other disease processes. [Tr. 2356] This is yet another observation of unexplained bleeding which Ophoven does not connect with trauma, which she says could be related to Jocelynn’s macrocephaly (or big head). [Tr. 1315-16, 1618-28, 2357-58, 2723] If the intraventricular hemorrhage was indeed the cause of Jocelynn’s macrocephaly, this would indicate an additional form of abnormal, chronic bleeding. Unfortunately, Dr. Whitmore’s failure to preserve any samples of this observation makes it impossible to verify its appearance or potentially chronic nature.

Fact Witnesses Also Affected By Judge's Improper Ruling:

The State claims that exclusion of EDS did not substantially infringe upon Clayton’s right to present a defense, because experts were still allowed to testify. However, experts were not allowed to speak of the family history of EDS at the trial and expound on how it may have been relevant to her injuries. Key state experts, including the medical examiner who made the cause of death determination, and the state’s expert who stated, “if I don't have a history, then child abuse ends up rising to the top of my differential diagnosis,” [Tr. 2171] were also unaware of the family history of EDS and Dr. Smith’s preliminary consideration of it as a possible diagnosis for Jocelynn. Dr. Smith was suppressed from providing relevant testimony as a fact witness, not only as an expert witness.

The experts were not the only individuals whose testimony was altered by the EDS exclusion. All family members were instructed not to speak on the subject, even if it was relevant to what they were directly asked.

II. THE JUDGE ABUSED HER DISCRETION AND VIOLATED CLAYTON’S RIGHT TO PRESENT A DEFENSE WHEN SHE EXCLUDED EVIDENCE THAT HE WAS TRAINED AND EXPERIENCED IN WORKING WITH CHILDREN AND YOUNG ADULTS WITH BEHAVIORAL DISORDERS.

Clayton Had Experience Working With Challenging Children Without Incident:

From 2005-2007 Clayton worked with special needs members of the community as an activity therapist for Hope Community Resources. His supervisor at the time was Jennifer Moore, and the judge banned her testimony from trial.

Clayton’s performance at work specifically demonstrated an ability to work with extremely high-stress clients without any difficulties or anger problems having been documented. [Tr. 3016] Clayton specifically worked with children with severe emotional disturbances who suffered from conditions like: Oppositional Defiant Disorder, PTSD, and aggression. [Tr. 3002-04] There were no reports of problems from any of the children Clayton worked with [Tr. 3007] even though his supervisor, Jennifer Moore, explains that she would “check in with the kids as well, so I knew what was going on.” [Tr. 3014]

Excluding this evidence was not harmless. No evidence could be more directly relevant to the accusation that Clayton lost his temper when frustrated with Jocelynn as a special needs child, than his professional experience working with aggressive, special needs children.

State’s Assertions About Training Unsupported in the Record:

In the State's argument that Moore’s testimony was not relevant, and so it was harmless to his case to withhold from the jury, they make an unsupported assertion that the training may be different between employees of the Anchorage and Wasilla offices of Hope. Yet, Moore specifically states that, “Activity therapists [like Clayton] get the same training of any employee that would come into Hope gets.” (emphasis added) [Tr. 3011-12, S.R. 24] “Any employee” implies a uniformity in expectation, which means not only would Clayton have gone through this training, but his supervisor would have personal knowledge of it not only as a supervisor, but as someone who had been through the training herself. The State claims that the exclusion of Moore’s testimony on this point did not hurt his case because his lawyers could have elicited testimony about Hope’s training from Phillip Allison; however, Phillip Allison’s testimony had already been completed.

Although Clayton’s supervisor at Hope did not state that Clayton had any training in physical therapy, she did state that he had experience in implementing plans of care. [Tr. 3006] The at-home exercises a physical therapy patient is sent home with are part of their plan of care. Jocelynn’s parents were given specific instructions on at-home activities to perform with her to facilitate progress, and they had to demonstrate understanding of these activities at the end of every physical therapy appointment they ever attended. [Tr. 1374, 1395, 3097-98] Multiple witnesses testify about Clayton conducting these exercises with her [Tr. 1516-17, 1536, 2791-92, 2806-07, 2816, 3099-3100, 3219], and Clayton informs the 911 dispatcher that he had been doing the exercises with her just before she fell. [Tr. 864]

III. THE JUDGE’S RESTRICTIONS ON THE DEFENSE ATTORNEY’S CROSS-EXAMINATION OF DR. WHITMORE VIOLATED CLAYTON'S RIGHT TO CONFRONT AN ADVERSE WITNESS.

All Offered Remedies Were Insufficient to Cure Original Harm:

The remedies the judge presented to Clayton's attorneys were insufficient to cure the original harm done by the judge’s admitted error. Clayton's attorney voices this when she states that, “Your Honor has ruled that because Dr. Whitmore did not read the materials that I sent him, that I then cannot cross-examine him.” The judge confirms that, “I have said you can’t impeach him with something he hasn’t read.” The judge later admitted this was in error, but the harm could not be cured by the time it was acknowledged. The damage had been done.

The State suggests that Clayton's attorneys could have proposed a moderate remedy of striking relevant portions of Whitmore’s testimony, [Ae.Br. 40] but you can neither strike or add testimony that was never allowed to occur in the first place. The goal of a rigorous cross-examination by learned treatise was to demonstrate to the jury how Dr. Whitmore would respond to being required to read-aloud and reply to medical articles and reports that directly contradicted his opinions and conclusions about Jocelynn's injuries.

The nature of impeachment lies not only in providing information to the jury that suggests that an expert’s opinion is incorrect, but in demonstrating the demeanor of the expert’s response (i.e. their discomfort, candor, confidence, etc.) when forming their responses. This was completely circumvented by the court ruling in error that Clayton's attorney could not cross-examine Dr. Whitmore with the learned treatises.

Even in the video cross-examination that occurred later, Clayton's attorney stated multiple times that it would be preferential to have Dr. Whitmore read the article’s contents to the jury himself, and then be challenged on them. [Tr. 3233, 3235] However, his attorney’s expectation after her previous experience with such a “recalcitrant witness,” proved to be true when Dr. Whitmore still did not have the learned treatises available to be able to read from his side. [Tr. 2827, 2869, 3233, 3235] The State’s suggestion that Clayton's attorney could have faxed Dr. Whitmore the treatises is unrealistic when comparing the ability to fax contents like a few pages of medical summaries and appointment records in contrast to stacks of journal articles and textbook contents. [Ae.Br. 49]

The State also suggests that the video screen could have been moved “directly in front of the jury” to provide them a “better and closer view of Dr. Whitmore’s body language and facial expressions.” [Ae.Br. 48] This is pure conjecture and speculation. The projection screen in Courtroom 6 of the Palmer Courthouse, where the trial took place, is affixed to the ceiling, and not something that can be moved around to suit one’s personal preferences. In addition, there are no recordings available to be able to demonstrate what the visual quality of the video connection was at the time of the cross-examination, or the difference in the witness's manner of dress. The video quality of the connection was not the best, and Dr. Whitmore was sitting in his office, dressed in surgeons scrubs instead of sitting at the witness stand in business casual clothes.

The State notes that “Allison had been allowed to cross-examine Dr. Whitmore extensively with hypotheticals drawn directly from the other proposed learned treatises…”. [Ae.Br. 50] Hypotheticals are an insufficient replacement for confronting a witness with facts and documented examples found in specific medical studies and case studies. A hypothetical allows a witness to give responses like “That makes it even more unbelievable.” [Tr. 1773] The jury could decide with responses of this nature that his skepticism or incredulity is valid, in a way they may not do if they could hear him confronted with specific facts and events documented by witnesses; which he would be forced to respond to differently.

The effect of the inability to confront the medical examiner with impeachment evidence in this case was more profound than any other witness. The indictment itself is based upon the findings from the autopsy Dr. Whitmore conducted - an autopsy conducted so questionably that the autopsy report was ruled as inadmissible hearsay. [R. - Judge White’s 12/8/14 Order] Additionally, expert witnesses complained that the expected samples were not preserved from this autopsy; so, the existence or nonexistence of the majority of the findings was based solely on his word. [Tr. 649-652] The investigation that was conducted by police was based upon his finding of homicide as the cause of death. The magnitude of the judge’s error is not measured by whether or not the contents of the articles was read to the jury, but whether or not the defense was prevented from clearly demonstrating the questionable competency of the professional that declared Jocelynn’s inaccurate cause of death.

The video therefore completely sabotaged Clayton's attorney’s preferred trial strategy. A “monologue recitation of the treatises into the record” became the only viable option remaining to attempt to cure the judge’s error in any form, but it was vastly insufficient to cure the impeachment harm that had already been caused. [Ae.Br. 47] Clayton's attorney states that, “[Whitmore's] reactions would have been significant.” [1857-58] No method of reading the contents of the learned treatises into the record could cure the harm done by not being allowed to rigorously and directly confront the witness with this information.

IV. THE JUDGE’S RULINGS AND BEHAVIOR REGARDING THE TESTIMONY OF DR.’S WHITMORE AND OPHOVEN - AS WELL AS THROUGHOUT THE REST OF TRIAL PROCEEDINGS - COMMUNICATED OBVIOUS BIAS TO THE JURY AND VIOLATED CLAYTON’S RIGHT TO DUE PROCESS.

Mischaracterization of Cross-Examinations:

The State’s assertion that Dr. Whitmore was being a more direct and cooperative witness, while Dr. Ophoven was confrontationally cross-examined due to her own behavior and attitude, is a blatant mischaracterization of both cross-examinations; which can only be properly addressed through listening to the audio of the two encounters. No transcript can accurately communicate the tone that was being used as the prosecutor was extensively “badgering” Dr. Ophoven. [Tr. 2544-45]

The reference to the judge saying Dr. Ophoven was “paint[ing] the picture the way she want[ed]” [Ae.Br. 61, Tr. 2300-03] was a reference from her introduction where Dr. Ophoven was describing her career, and had nothing to do with cross-examination or her medical opinion of the case. The State also makes the assertion that Dr. Ophoven “belittled what she characterized as the prosecutor’s limited understanding of the case.” [Ae.Br. 57] However, it was the prosecutor himself who repeatedly vocalized confusion in things like “I don’t even know what this is,” and described himself has “nonplussed,” “dumb person,” and “the dummy who is asking you questions.” [2470, 2468, 2523, 2530] Unfortunately, because trials in Alaska are not video recorded, the official court record did not preserve the fact that the prosecutor was dramatically pointing to himself as he was making these statements.

Prosecutor Used Unprofessional Behavior as an Effective Strategy:

Listening to the audio as a whole clearly demonstrates that the prosecutor was not merely employing an aggressive or confrontational tone during cross examination. His declarations of his confusion, and references to himself as a “dummy,” are a clever ruse being employed to hide his intentional attempts to confuse and exhaust the jury as they attempt to absorb complex medical explanations. Throughout the entire cross-examination, he is repeatedly re-stating Dr. Ophoven’s testimony incorrectly, under the guise that he does not understand her, and forcing her to attempt to re-explain his misstatement in a new way. [Tr. 2396-2596] He even acknowledges at one point that, “I wouldn’t hold you to that characterization. That was a paraphrasing of mine.” [Tr. 2495]

Earlier in trial the prosecutor was also taking advantage of his physical proximity to the jury in order to cause disruption and distraction from defense arguments. In addition to loudly and continually interrupting Clayton's attorney’s cross-examination of Dr. Whitmore [Tr. 1450-53] and disrupting its flow, it is also noted in the record that the prosecutor is laughing and speaking with his co-counsel in a manner that the jury can hear, without being admonished by the judge. [Tr. 2608] Such behavior is not only unprofessional, but can easily influence and distract the jury from ongoing witness testimony.

During his cross-examination of Dr. Ophoven, the prosecutor is clearly painting a misleading picture to the jury that he is frustrated because he is being lied to. He states to the court that Dr. Ophoven is saying there is no literature on shaken baby syndrome (SBS) at all, when she has specifically noted the controversy and evolving literature on the subject. [Tr. 2484] He states before the jury that, “we have to rely on your candor and your openness…” [Tr. 2486] Then when Dr. Ophoven expresses exasperation of how to describe her answer more clearly yet again, the prosecutor directly accuses her of lying before the jury by stating, “Tell the truth. That works.” [Tr. 2530]

When Clayton's attorney objects to the fact that she “got admonished for my tone. And my tone was nothing like this,” (emphasis added) the prosecutor admitted that, “That’s right and you can tell the jury that. I do apologize.” [Tr. 2530] However, the judge leaves the jury with the simple statement that “Perry misbehaved.” The judge does not give the jury any explanation whatsoever about in what context Perry misbehaved. They could presume that it was only his tone, or his aggression, or his wording, or the accusation, or any number of other factors they had been observing for literal hours. They could ponder on what it was that finally crossed the line in the mind of the judge, but they were forced to simply speculate.

The Judge Voices Mental Exhaustion:

Initially the judge states that, “I don’t think that any of us can read the jury’s mind about comparing [the defense’s] cross-examination and others.” [Tr. 2484] However, the judge does voice the need later, specifically after the prosecution’s badgering of Dr. Ophoven, to provide an additional instruction to the jury about not considering the tone of the attorneys. [Tr. 2625] In addition, while the jury is not in the room the judge tells the prosecutor, “you were behaving a bit menopausally today,” and he agrees. [Tr. 2538] Then, when informing Dr. Ophoven that she would be subjected to more questions the prosecutor claimed to have forgotten, the judge engages in the following dialogue with Dr. Ophoven:

Judge White: “Do you have something to drink Dr. Ophoven? Are you comfortable?”
Dr. Ophoven: “I -- I’m very comfortable. Thanks for asking.”
Judge White: “Alright. I’d switch to vodka
.” (emphasis added)

[Tr. 2587]

The judge makes these statements outside of the presence of the jury. However, they clearly communicate the character of the prosecution’s style of cross-examination, and the exhaustion being caused by it from at least the point of view of the judge.

The Judge Demonstrated Bias:

The judge demonstrated significant bias when she willfully chose to warn Clayton's attorney about a mildly confrontational tone, yet allowed the prosecution to: badger a witness for an extended period without admonishment; conduct a cross-examination designed to cause confusion and exhaustion in the minds of the witness, judge, and jurors (which the judge herself voiced); and state in front of jurors that the witness was being dishonest without the support of evidence and without instruction to the jury of how he misbehaved. Whether the jury heard the warning to the defense about tone or not is irrelevant, when they were observing the defense having to rephrase and adjust the tone of their questioning after speaking with the judge at the bench multiple, multiple times.

The record is clear that Dr. Ophoven is being badgered. In contrast, the judge states, outside of the presence of the jury, that Dr. Whitmore is a “recalcitrant witness,” who is completely uncooperative in efforts to get his testimony in the case. [Tr. 2827 & 2829] When he becomes non-responsive, Dr. Whitmore’s question of “Why?” is not asked as clarification. “Why” is being used as a challenge, or an evasive reply. The judge had even provided Dr. Whitmore earlier with the idea for being evasive when she stated, “The witness can answer the question, or he can say, ‘I don’t know.’” [Tr. 1751] After this statement is made by the judge, Dr. Whitmore begins responding to the majority of impeachment questions with “I don’t know” or “I guess” or similar evasive responses. The medical examiner’s “Why” was non-responsive, and the judge chose to rehabilitate his answer. The witness, as a forensic pathologist, clearly has experience in the field to know why the microscopic examination of tissue is conducted and applied. His answer is an evasion of the confrontation that he did not choose to conduct such an examination.

In contrast, the judge declared Dr. Ophoven unresponsive when she answered a question with, “Well, that’s the -- that’s medicine. I mean, how come you can’t cure cirrhosis?” [Tr. 2533-34] From the first time that the prosecutor asked her a variation of this specific question, and when Dr. Ophoven finally runs out of ways to answer it, spans over 22 pages of transcript. The question is asked at least four different ways. [Tr. 2511-2533] The prosecutor is implying that it is ridiculous to say that Jocelynn could heal from external injury while injury in her brain was healing at a slower rate, or not at all. Despite Dr. Ophoven’s multiple attempts to explain, in extreme detail, how the internal systems of the brain are different than other places in the body, and that medical science has yet to determine exact causes of different rates in healing, the prosecutor continues to ask the question in new ways. “[H]ow come you can’t cure cirrhosis?” is an example of her statement that it is a “medical fact” that she has attempted to describe in as much detail as possible already.

TO SAY THE EXAMPLES OF MISCONDUCT IN THIS CASE WERE HARMLESS WOULD PROMOTE A PUBLIC POLICY OF UNPROFESSIONAL BEHAVIOR:

The prosecutor’s tactic appears to confuse and exhaust all the members of the court including, one could reasonably assume, the jury. Clayton's attorney specifically notes the concern she has about the effect of the prosecutor’s ongoing disruptions and unprofessional demeanor, which were “demeaning” to both defense and the judge. [Tr. 1865] The judge does issue an additional jury instruction that jurors are not supposed to base their decisions upon the demeanor of the attorneys. [Tr. 2625] However, there is no instruction that any judge could provide that would bring clarity to a confused or exhausted mind, or help jurors to recall information more accurately after continually hearing each piece of expert testimony restated inaccurately.

To say that this behavior, allowed to go on for days without serious reprimand or repercussions from the judge, was harmless would be to promote a public policy of unprofessional behavior in the courtroom whenever it could benefit one’s case. This policy would reward prosecutors, as well as defense attorneys, for misbehaving. It would reward them with victories in cases based more on the misconduct of counsel than the facts of the case being tried. For this reason, we believe the appeals court must find that significant harm was caused by this tactic of intentionally rewording and confusing an expert’s detailed medical testimony, and requires reversal of Clayton’s conviction.

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