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Testimony begins in David Paul murder trial

Defense questions validity of Shaken Baby Syndrome theory

Posted: May 24, 2013 - 12:09am
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Assistant Public Defender Eric Hedland shows the jury a picture of Rian Jambi Orr in Juneau Superior Court on Thursday during his opening statement in the trial of David J. Paul in the death of Orr in August 2010. Hedland said the picture was taken around June 2010 when Orr was healthy.  Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Assistant Public Defender Eric Hedland shows the jury a picture of Rian Jambi Orr in Juneau Superior Court on Thursday during his opening statement in the trial of David J. Paul in the death of Orr in August 2010. Hedland said the picture was taken around June 2010 when Orr was healthy.

Remembering the birth of her child, who would die four months later, Jacqueline Orr choked up and quietly cried on the witness stand during the first day of testimony in the murder trial against her then-boyfriend accused of causing the infant’s death.

“I held her ... on my chest,” she said in response to a prosecutor’s question, wiping her eyes with a tissue.

The jury learned about Rian Jambi Orr, whose August 2010 death was ruled a homicide, through testimony, attorneys’ opening statements and pictures on display. Rian was born 10 days early on March 30, 2010, weighing 5 pounds, 3 ounces. She drank Similac baby formula, ate Gerber baby food and had a pastel pink pacifier. She slept on her back. Her time of death was 11:02 p.m. Aug. 15, 2010.

Assistant District Attorney Nicholas Polasky said in opening statements the baby died due to injuries — akin to Shaken Baby Syndrome, although he didn’t use that phrase — suffered at the hand of defendant David J. Paul a week prior on Aug. 9, 2010. He said the state will show during the next couple of weeks that Rian Orr was a healthy baby up until that point.

“All of the evidence is going to be presented, is going to be based on what happened during that period of time, on the morning of August 9,” Polasky said.

He wrote the date on a paper easel board and circled it for emphasis.

But Paul’s attorney Assistant Public Defender Eric Hedland says the story begins much earlier than that. Hedland said while Rian’s brain injuries were first observed that morning, they didn’t occur then.

“It occurred earlier,” he said.

Hedland said his experts will testify that Rian Orr suffered from chronic subdural hematoma and a clotting problem, as evidenced by a bone formation in her brain.

That leaves how to interpret the morning of Aug. 9, 2010, up for the jury to decide.

 

Aug. 9, 2010

At the time of Aug. 9, Jacqueline, who goes by Jaki, and Paul were staying at her father’s house on Julep Street, house-sitting for him as he was away. They were also baby-sitting two other children for a friend.

Jaki and Paul had dated in the past and rekindled their relationship as Jaki was three months pregnant with another’s child. Though Paul is not Rian’s biological father, he is listed on the birth certificate as the father, and, as Jaki testified, they were the child’s primary caregivers and parents.

According to Polasky, the couple had put Rian to bed the night of Aug. 8, and Paul tended to Rian when she woke up early in the morning around 5 a.m. The baby was fine at that point, Polasky told the jurors.

Around 9 a.m., however, Rian woke up for a second time, and Paul tended to her again, Polasky said.

“After that period of time, Rian’s condition changed,” Polasky said.

The state’s theory is that during that time slot Paul dropped Rian in the bathroom and shook her once forcefully to make her stop crying.

Jaki noticed a short time later that something wasn’t right with Rian, Polasky said. She was making half-cries, her eyes couldn’t focus, and she began to seize up. The couple loaded the kids up in a car and drove to Juneau Urgent Care and Family Medical Clinic, where they were instructed to go to the hospital. Once at Bartlett Regional Hospital, doctors conducted tests and found she had a traumatic brain injury. A few hours later she was medevaced to Harborview Medical Center in Seattle for advanced care.

Hedland attacked the state’s Shaken Baby Syndrome theory in his opening statements, saying it’s not a valid scientific theory to explain Rian’s injuries. The SBS theory has been in existence since the late 1960s and wasn’t critically examined until the 1980s, he said. A doctor in 1987, Hedland explained, found that one cannot shake a baby hard enough to cause brain injury without breaking the baby’s neck.

Hedland said he intends on calling experts to testify why the SBS is a “non-evidence based theory” that doesn’t hold up. Another expert witnesses, the head of pediatric radiology at Stanford University, will testify about how he interprets Rian’s radiology imaging differently, the attorney said.

Hedland also stressed that jurors should evaluate how Rian was treated by her parents during her life. He described Paul as doing almost all of the care giving for Rian, from feeding and bathing to changing diapers.

“You’re going to hear that nobody, not a soul, who ever observed David with Rian ... observed him do anything that was other than loving,” Hedland said.

Meanwhile Jaki was a “disinterested” mother, Hedland said, who suffered from depression and didn’t do much. He said she originally wanted to have a natural birth but was asked to leave the birthing center when she refused to follow doctor’s orders such as eat more and take prenatal vitamins. (She refuted the latter claim while on the stand saying the one-inch pills tasted bad and were hard to swallow but she took them.)

 

Medical evidence

Both attorneys told the jury to expect much medical evidence over the next two weeks as they call doctors who treated Rian both at BRH and at Harborview, as well as experts in the medical field.

The first such witness to be called at trial was the emergency room doctor at BRH, Dr. James Thompson, who testified he knew something was obviously wrong with Rian when she was brought in, but he didn’t know what the cause was.

“At no time was she ever awake and normal,” he added.

The doctor said he gave her medication to help with the seizing then ordered CT scans and blood tests. After observing two bruises on Rian’s chest, he said his “suspicion was growing” that the bruises were not accidental. He ordered a bone survey to check for other injuries and a chest X-ray. He said the latter tests revealed Rian had two rib fractures that were maybe six weeks old and were in the process of healing.

The state has held up the bruises as evidence of prior child abuse, which the defense pushed back on under cross-examination of Thompson. The defense also contended that much of the initial assessments of Rian’s injuries ended up being wrong.

Under examination from Assistant District Attorney Angie Kemp, Thompson said he thought the bruising was “unusual” and “striking” to him since Rian was unable to walk or crawl and could barely roll over on her own. Thompson said he asked Paul about it and that Paul said it could perhaps have been caused by the way he picks up and holds Rian.

Under cross examination from Hedland, Thompson said the bruises would not line up from the way most people would hold a baby, poking a hole in the state’s theory that the bruises were consistent with Paul’s thumbmarks.

Regarding the rib fractures, Thompson told Hedland he couldn’t offer an opinion on if the fractures were more than six weeks old or from birth. He said he’s making an inference on how many fractures there are based on the calcium formations.

Thompson, still under cross, also said babies can be born with subdural hematomas, though it is rare. He said people can also have seizures without exhibiting outward physical symptoms of them.

He readily conceded he is not an expert in Shaken Baby Syndrome, and that he learned about it in medical school 40 years ago and hasn’t kept abreast with recent literature about it. When asked by Hedland how many Shaken Baby cases Thompson has seen in his 29 years as a doctor in Juneau, Thompson said zero. He did note he has considered it as a diagnosis before.

Thompson was on the stand for most the day before Jaki was called. She was on the stand for about 30 minutes answering basic questions about herself and Rian before the judge wrapped up proceedings. Prosecutors will continue examining her Friday, and the defense will have a chance for cross-examination.

Jaki did say that she and Paul stayed together for a while after Rian’s death, but they broke up when she moved to Missouri in February of 2012. She said she ended up becoming pregnant by Paul, and she gave birth to their baby on Christmas day 2012 in Missouri.

Paul is facing two separate counts of second-degree murder and one count of manslaughter in connection to Rian’s death. If convicted, he could face up to 99 years in prison for each count of murder, plus 20 years for manslaughter.

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

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