Before a Juneau man accused of murdering his girlfriend’s 4-month-old baby stands trial in July, a judge must decide if his confession of accidently dropping the infant on a bathroom floor was involuntary.

Defense attorney Eric Hedland claims his client, David James Paul, was tricked by police into giving an admission after taking a polygraph, which police told him he failed.

“The whole intent to have him take the polygraph was just a ruse to tell him he failed the polygraph regardless of how he did, is what I think was going on,” Hedland said during an evidentiary hearing Thursday, “and then to go back and get more statements out of him based upon on that.”

But the primary issue, Hedland argued, was that polygraph and subsequent confession took place after Paul repeatedly said he wanted a lawyer. His request was ignored.

“The bigger point is that the polygraph was an interrogation technique, and it was issued notwithstanding Mr. Paul’s unequivocal invocation of a right to counsel,” Hedland said. “So then bootstrap that to another two, two and a half hours of interrogation where it’s clear that Mr. Paul responded to the purported results.”

Hedland requested Juneau Superior Court Judge Philip Pallenberg suppress Paul’s statements obtained after he invoked his right to counsel, and to also dismiss the indictment.

Paul, who turns 23 next week, was indicted by a Juneau grand jury in July 2011 on two counts of second-degree murder and one count of manslaughter in connection to death of Rian Jambi Orr. Second-degree murder is an unclassified felony that can carry up to 99 years in prison, and manslaughter is a class ‘A’ felony that can carry up to 20 years in prison.

Orr, who was 12.9 pounds and 22 inches at the time of her death, died at Harborview Medical Center in Seattle about 11 months earlier on Aug. 15, 2010.

The King County Medical State Examiner in Seattle ruled the death a homicide, listing the cause of death as blunt force injury to the head with a subdural brain hematoma and subarachnoid hemorrhage. That means there was bleeding between the brain and the thin tissues that cover the brain, and the examiner testified blood was found around, over and inside the brain.

“So the brain basically died due to an injury event that resulted in lack of blood flow, lack of oxygen going to the brain for a period of time around the injury,” said the chief medical examiner for King County, Wash., Dr. Richard Harruff, according to a transcript of the grand jury proceedings. “The child (lived) for several days under, you know, artificial means, but, by the time we did the examination, the brain was dead due to damage that was initiated by the injury at or around the time of admission.”

The examiner also said Orr had older injuries that predated the head injuries, according to court documents, including multiple rib fractures that were about two weeks old, a femur fracture and bruising on her chest.
Orr was taken to Bartlett Regional Hospital the morning of Aug. 9, 2010, after Paul and his girlfriend who is the baby’s mother, Jacqueline M. Orr, noticed the infant was seizing. They took her to BRH, where it was discovered she had a massive brain injury. The baby was medevaced to Seattle that night and required brain surgery.

Court records indicate Jacqueline Orr now lives in Pacific, Missouri.

Prosecutors argue Paul caused the head injury by either dropping the baby, or by shaking her, and the bruises from gripping her too tightly.

Assistant District Attorney Angie Kemp said Paul denied dropping the infant when initially interviewed by police at BRH before the baby was medevaced to Seattle.

But then during the Aug. 18, 2010, interview at the police station, Paul admitted that Orr’s head hit the floor, twice, when he accidently dropped her.

“He described dropped R.O. from the momentum of hitting the door frame,” Kemp wrote in an recent motion. “When she fell, he claimed her head hit once and then a second time before he was able to pick her up. He further claimed that he caught her by the leg when her head hit and then her head dropped back down and she hit again.”

During a later interview just after his arrest on July 9, 2011, prosecutors claimed Paul once again repeated that, saying in essence, “I was holding (R.O.) in a cradle position in my arms and accidently dropped her to the floor.

When I picked her up she was crying so I said “Hey!” and shook her only one time. I had my hands to her side, my pinkies holding her back and my thumbs tight on her chest. When I did that her head flopped about three times. It went back once, forward, back and she caught herself. I may have squeezed hard enough to cause the bruises on her chest. She stopped crying after that.”

Kemp also alleges a now 10-year-old child that Paul baby-sat for was interviewed by police and said that when the infant would cry, Paul would tell the baby to “shut up.”

“Further, when they wanted the baby to calm down, they would put her into the car seat and start shaking the car seat really fast until she fell asleep,” Kemp wrote.

One of the doctors who examined the infant at Harborview, Dr. Naomi Sugar, testified during the grand jury proceeding that she thought the baby’s multiple injuries were caused by child abuse.

But Sugar also said Orr’s brain injury did not appear to be an “impact injury” from hitting her head on a hard surface since there was no skull fracture.

When asked by a grand juror if the cause of the brain hematoma was Shaken Baby Syndrome, Sugar replied, “Or something like that. We don’t really have scientific confirmation exactly what happens to cause this devastating injury to infants. The hematoma on the brain was not, in itself, the devastating injury. The devastating injury was that her brain was injured.”

Hedland argued the doctor’s testimony disproves the state’s theory.

“According to the testifying doctors, R.O. died either as a result of ‘something like’ shaken baby syndrome or by ‘blunt force’ with a ‘soft object,’” Hedland wrote in his motion to dismiss the indictment.

Regardless, Hedland goes on to argue that the admission that Paul dropped Orr was improper, and asked the court to consider whether Paul was “in custody” after his request for a lawyer was ignored when he was interrogated by police on Aug. 18, 2010.

The U.S. Supreme Court ruled in Miranda v. Arizona that a police interrogation, where an individual is in custody, must cease after the person states he or she wants an attorney.

Kemp called JPD Det. Kim Horn, the case’s lead investigator, to testify Thursday that Paul was not in custody.

Horn said she told Paul at the beginning of the interview that he was free to leave at any time. She said he was specifically seated closest to the door of the interrogation room to be reminded of that.

There were no uniformed police officers guarding the door to keep him there, nor was he ever patted down, handcuffed or placed under arrest, Horn testified.

Horn further stated that Paul never indicated he wanted to leave and go home. She said when he requested an attorney, he was read his Miranda rights and the interview continued. He agreed to do a polygraph test at Horn’s request.

Thursday’s hearing was adjourned due to time restraints before cross-examination. Pallenberg scheduled the hearing to be continued next week on May 9.

Editor's note: A shortened version originally appeared online. What appears now is the extended version of the story.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.