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Deliberations begin in murder trial

Attorneys give closing arguments Thursday in 'shaken baby' case

Posted: June 13, 2013 - 8:55pm  |  Updated: June 13, 2013 - 11:07pm
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Juneau court security officer Al Fenumiai escorts David J. Paul, 24, out of Juneau Superior Court on Thursday during a break in his trial for the death of 4-month-old Rian Jambi Orr in August 2010.  Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Juneau court security officer Al Fenumiai escorts David J. Paul, 24, out of Juneau Superior Court on Thursday during a break in his trial for the death of 4-month-old Rian Jambi Orr in August 2010.

After four weeks of trial, the case of the Juneau father accused of killing his girlfriend’s 4-month-old baby in August 2010 is now in the hands of the jury.

The jury broke to deliberate at about 3:20 p.m. Thursday after hearing closing arguments from attorneys in Juneau Superior Court.

Two of the jurors were randomly selected as alternates and dismissed from service, leaving 12 jurors (six men and six women) to decide whether 24-year-old David J. Paul is guilty of second-degree murder and manslaughter in connection to Rian Jambi Orr’s death on Aug. 15, 2010.

Appealing to the jurors’ emotions and even bringing one of them to tears, Assistant District Attorney Angie Kemp pointed to pictures of Rian projected on a screen in the courtroom in a slideshow presentation and asked them to remember that this case is about her.

“It’s easy to forget that Rian was a person,” Kemp said, noting the bulk of testimony focused on medical evidence whereupon Rian was talked about in passing or through images such as those from her autopsy. “... Rian was never in a position to be able to speak her first word, she was never in a position to be able to ride her first bike, go to school, make a friend. Rian’s life was cut short, and it was because of the actions of the defendant.”

Prosecutors say Paul abused the infant on Aug. 9, 2010, resulting in her fatal brain injury. Older injuries, including bruises on her chest and rib and leg fractures, also pointed to prior abuse, they say.

Kemp reminded the jury of testimony from doctors who treated Rian at Bartlett Regional Hospital and Harborview Medical Center, as well as the chief medical examiner who conducted the autopsy, who all said the infant’s ‘constellation of injuries’ led them to believe the child died from child abuse.

As for the question of how the abuse occurred, Kemp says it’s unknown because Paul isn’t saying. She said the jury can glean “small amounts of information” about what happened the morning of Aug. 9 from incriminating statements Paul made to police during interrogations, which is that he accidentally dropped the baby then shook her once right afterward.

Paul’s statements to police do not “make perfect sense” in and of themselves, Kemp readily conceded. She said if the baby had truly been dropped from three feet on her head on the linoleum bathroom floor during her morning feeding on Aug. 9, there would have been external evidence of that, such as a bump, knot or fracture on the head, and, as the defense points out, none of the expert witnesses at trial asserted that the ‘one shake’ Paul admitted to could have caused the kind of fatal brain injuries Rian died from.

“There is more to what happened,” Kemp said. “And Rian’s not speaking for herself.”

The defense says that explanation isn’t good enough.

“What is the state’s theory as to how Rian died?” Assistant Public Defender Eric Hedland asked the jury. “Can you answer that question in your own mind’s eye right now? What is the state’s theory? Some ‘thing’? Some shaking and then maybe some other ‘thing’? Is that the theory? What witness got up here and said that what Mr. Paul said accurately describes the way she could have died? Zero, right? Dr. Sugar did not say that, Dr. Harruff said in fact the opposite, and of course Dr. Hayes said the same.”

Hedland also showed an image to the jury on the courtroom’s projection screen. It was an image of M. C. Escher’s “Waterfall,” a print that illustrates a paradox of water flowing downstream in an aqueduct and flowing back up again in a singular motion.

“I was reading an article, I don’t know, a year or so ago, that had the word ‘lacuna’ in it,” he told the jury. “I probably should have known what it meant, I didn’t know what it meant. I looked it up. It means a gap. Something’s missing. There’s empty space or some logical leap that can’t be bridged.”

Using “Waterfall” as an analogy, Hedland argued the state is trying to make the facts of this case fit into the typical narrative one could expect to see in a Shaken Baby Syndrome case, which is that a parent who is at his or her wit’s end at a baby who cannot be consoled shakes their child in frustration. But it doesn’t fit, he said.

“See?” he said, pointing to the image. “I can prove it based on a Power Point, right? But it’s not, as we all know, logically possible, right? And it’s circular, right? It has appeal, and we can argue that looking at this photo, in fact, proves something, but it doesn’t prove anything. And that’s sort of the point.”

Hedland asked the jury to consider science, math and physics — rather than emotions — when determining whether Orr died from being shaken. He pointed to his experts who testified Shaken Baby Syndrome was a myth and not a provable valid scientific theory.

The defense presented an alternate theory on how Orr died, which is from a preexisting brain injury. His experts testified Orr had a bone formation in her brain that they say was evidence of a healing process at least several weeks old. That would mean the injury predates the Aug. 9 incident. They also say she had rickets, which accounts for the older fractures seen on her leg and ribs.

During re-direct, Kemp asked the jurors if Rian could have really been that “unlucky.” She called the defense’s theory a red herring.

Kemp argued that after Paul abused the baby in the bathroom that morning, he lied about it to his girlfriend instead of calling for help, allowing Rian to languish for about two hours before the girlfriend realized the baby was have seizures and was taken to the hospital. Then at the hospital, Kemp says, Paul again covered up wrongdoing to the doctors treating Rian and also to the police. His withholding of information may have cost the baby her life and demonstrates his “extreme indifference” to the value of the baby’s life, an element of second-degree murder, Kemp argued.

Paul’s motive for lying, she said, was that he was too scared and embarrassed to admit his act to his girlfriend, whom he was in a “codependent, bizarre” relationship with, because he thought that he would lose her, she said.

The jury will continue deliberating Friday morning, and if a verdict is not reached by then they will resume on Monday morning.

If Paul is convicted of second-degree murder, he could be facing a maximum penalty of 99 years in prison, plus an additional 20 years for manslaughter.

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

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