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Prior injury evidence takes hold in murder case

Attorney for David J. Paul asks judge to dismiss second indictment

Posted: September 6, 2012 - 11:14pm

As the murder trial nears for a Juneau man accused of causing the death of his girlfriend’s baby, the issue of the baby’s alleged prior injuries are coming to the forefront of the case.

Attorneys argued Wednesday before Judge Philip Pallenberg in Juneau Superior Court about if and how such evidence should be presented to a jury at trial and how it should have been presented to the grand jury two months ago.

When the infant — 4-month-old Rian Jambi Orr — was initially taken to Bartlett Regional Hospital for seizing, prosecutors say doctors not only discovered the head injury that resulted in her death, but older injuries as well.

Assistant District Attorney Angie Kemp alleges the prior injuries include bruising on the baby’s chest, healing rib fractures and a fracture on the right distal femur, or thighbone.

Orr, who required brain surgery, died at Harborview Medical Center in Seattle a few days later on Aug. 15, 2010, after being taken off life support. David J. Paul, 23, the mother’s live-in boyfriend and one of the baby’s primary caretakers, was charged nearly a year later for allegedly causing her death.

Paul is facing two counts of second-degree murder and one count of manslaughter, felonies that can carry up to 99 years in prison and 20 years in prison, respectively. His trial is slated to begin in Juneau in December.

Kemp recently filed a motion with the court stating prosecutors intend to call medical witnesses to the stand at trial to testify about the prior injuries, and additionally, intent to call experts to testify about what would be required to cause such injuries.

Kemp argued the prior injury should be admissible to show 1) the identity of the defendant as the person who caused injuries that allegedly caused Orr’s death, and 2) absence of mistake or accident in causing those injuries, which is another way of saying intent.

Pallenberg responded in a ruling last month that the alleged prior injury evidence was admissible under one subsection of the Alaska Rules of Evidence, but not another, and is only admissible for the limited purposes, such as identity and causation.

The judge specifically noted that if the issue does come up under the admissible subsection, the jury or grand jury should be instructed that the evidence is admitted only for those limited purposes — not to show the defendant’s propensity to harm the infant.

“The jury should also be cautioned that it may only consider evidence of any prior injuries to R.O. as to causation or identity if the jury finds that David Paul committed those injuries,” Pallenberg wrote in the July 9 ruling.

He added in a footnote, “If the state proceeds again to grand jury, it should omit such a limiting instruction only if the State can establish by evidence in the grand jury record that Mr. Paul committed the alleged prior injuries.”

The judge further noted that if prosecutors want to bring up the prior injuries at trial for other reasons or under another subsection of the Rules of Evidence, then that would require a hearing outside the presence of a jury.

Paul’s attorney, public defender Eric Hedland, argued Wednesday that Kemp did not heed the court’s order when instructing a grand jury that convened on July 20, which subsequently handed up an indictment. Hedland requested the indictment be dismissed.

Pallenberg had previously dismissed the first indictment against Paul, issued in July 2011, due to circumstances surrounding a police interrogation that resulted in Paul admitted he dropped the baby on the bathroom floor and shook her once immediately afterward so she would stop crying. The judge ruled in June Paul’s statements were not made voluntarily after hearing a round of evidentiary hearings, and he dismissed the indictment in June.

After Wednesday’s hearing, Pallenberg thanked the attorneys for their arguments and said he would consider them as he’s deciding whether to dismiss the second indictment.

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

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