Judge drops one murder charge against accused Juneau father

A judge granted, in part, a motion for acquittal in the trial against the Juneau father accused of causing the death of his 4-month-old daughter and dismissed one of the two second-degree murder charges against him.


Juneau Superior Court Judge Philip Pallenberg ruled that a reasonable juror, even when examining the evidence in light most favorable to the state, could not conclude that David J. Paul’s conduct was “substantially certain” to cause the infant’s August 2010 death.

“Murder two requires knowing that the conduct was substantially certain to cause death or serious physical injury, and as I said earlier, I don’t think anyone in this courtroom knows that shaking a baby is substantially certain to cause death or serious physical injury,” Pallenberg said. “I think we all know that it creates a risk of that. This requires much more than knowing there was a substantial risk. This requires knowing that it’s substantially certain.”

The defense argued for an acquittal after the state rested its case Wednesday morning, the third week of trial and the ninth day of testimony. Prosecutors say Paul, the boyfriend of the baby’s mother, admitted to shaking Rian Jambi Orr once after accidentally dropping her the morning of Aug. 9, 2010. Orr died a week later at Harborview Medical Center in Seattle.

Assistant Public Defender Eric Hedland said neither of the state’s key witnesses testified that Orr’s fatal head injuries were consistent with Paul’s statement to police that he gave Orr “one forceful shove back” the morning of Aug. 9, 2010. Orr was observed seizing hours later and was taken to Bartlett Regional Hospital then flown to Seattle.

“The state didn’t present any evidence — any evidence — as to ... what the state has said what Mr. Paul did could have caused Rian’s death,” Hedland said. “So just in terms of causation and math, the state didn’t present anything. I mean, nothing concrete is a better way to put it. No witness got up there and said that Mr. Paul’s statements are consistent with Rian’s injury and death. Not even consistent, let alone cause.”

Hedland added the state’s witnesses testified that Shaken Baby Syndrome is an unproven theory that is disputed in the medical field. He said a case should be dropped once the state’s witnesses concede that the theoretical mechanism of Orr’s injuries — being shaken — may not even be possible.

“How do we evaluate a theory, an unproved theory, how do we weigh that in terms of with somebody who’s charged with second-degree murder and accused of killing his baby?” Hedland asked. “I don’t know how to do that, but I would say that the rule should be if your theory — not about what Mr. Paul did, but about what anybody could do — is not provable, then the case needs to be dismissed because at a minimum you should be able to say that our theory if proved is true. The state’s theory is ‘Our theory, if proved, might still not be possible’.”

Assistant District Attorney Angie Kemp responded that the state’s theory is not that the baby died from the “one forceful shove back,” but that there was more to what happened that morning that Paul is hiding.

“The state’s theory is that the person who knows what happened when these injuries were sustained is Mr. Paul, and he’s not saying,” Kemp said. “He’s not giving the full story.

Kemp pointed to Paul’s “ever-evolving statements,” as she described it, wherein Paul initially denies wrongdoing, admits after the baby died that he accidentally dropped her the morning of Aug. 9, and then admits nearly 11 months later that he gave her the one shake after he dropped her.

Kemp noted she interpreted the medical evidence put forth by her witnesses differently, and that they testified a child can die from being shaken violently, despite backing away from using the term ‘Shaken Baby Syndrome.’

“The suggestion is and the evidence is that the rotational acceleration forces, inertial forces, their testimony is that you can kill a child using those forces,” Kemp said.

In the end, Judge Pallenberg sided with Hedland, saying, “Let’s say that it’s proved, or that we assume for the purposes of discussion, that Mr. Paul violently shook Rian Orr to death. We all agree that if that happened it’s a terrible thing, extremely dangerous conduct and the medical evidence is that that can cause serious injury or death. There’s not evidence that is substantially certain to cause death. None of the doctors said that. The doctors all said it can cause, not that it absolutely every time will cause, and that’s what murder two theory requires.”

Paul is still facing the one remaining count of second-degree murder, an unclassified felony that has a maximum 99-year prison sentence, under the theory that his conduct resulted in Orr’s death under circumstances that manifested an “extreme indifference” to the value of human life. The judge reserved his ruling on whether to acquit Paul of that charge until he reviews additional briefing from attorneys on relevant case law.

Paul is also still charged with one count of manslaughter, a class ‘A’ felony that can carry up to 20 years in prison and defined in state statutes as “recklessly” causing the death of another person. Pallenberg denied the motion to acquit Paul on that charge.

The defense called its first witness to the stand on Wednesday, Dr. Jan. Leestma, a forensic neuropathologist consultant whom the Office of the Public Defender Agency requested to look at the case. Leestma testified that the subdural hematoma bleeding in Orr’s brain was present for several weeks or longer, which goes along with the defense’s theory that Orr’s fatal injuries were not caused on Aug. 9, 2010. He said Orr had “re-bleeds” wherein capillaries break during the healing process and starts the process over again.

“We clearly have a spectrum of ages, this isn’t just one bleed, I think it’s re-bled,” Leestma said.

Leestma said the presence of a subdural neomembrane was the product of a healing subdural hematoma, and there was a bone formation that would have taken weeks to form, maybe longer. He said he observed swollen veins in the brain as evidence of a clotting problem, but said under cross he did not see a blood clot itself in the samples he was provided.

Kemp also noted that Leestma has never treated a live patient since he is not a treating physician. Kemp will continue to cross-examine Leestma on Thursday.

The defense says it will likely take another week to present their case, and that the case will likely go to the jury next Wednesday.

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


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