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Man convicted of manslaughter wants acquittal, or alternatively, new trial

Posted: June 27, 2013 - 12:06am

The Juneau man recently convicted of manslaughter for recklessly causing the death of his girlfriend’s 4-month-old baby in August 2010 is asking for an acquittal, or alternatively, a new trial.

David J. Paul’s attorney Eric Hedland filed the motion in court Tuesday, arguing the evidence to support such a conviction is insufficient.

In a 20-page motion, Hedland says the state offered no evidence as to how Rian Jambi Orr’s fatal head injuries occurred and instead merely speculated that Paul “committed some act of violence” on the morning Orr was found seizing.

“The state did not even postulate, as it had earlier at grand juries, that Mr. Paul inflicted some kind of impact to Rian’s head by striking it on a soft surface,” Hedland wrote. “It instead changed its argument at closing to this: Mr. Paul did some unidentified thing and then exacerbated this unknown act by refusing to seek medical care for Rian.”

A jury acquitted Paul of a more serious charge, second-degree murder, but convicted him of manslaughter following a four week-long trial that wrapped up earlier this month in Juneau Superior Court. Paul, 24, is scheduled to be sentenced in September and is facing a maximum penalty of 20 years in prison.

State prosecutors argued at trial that Paul abused Orr on Aug. 9, 2010, possibly by shaking, which resulted in her fatal brain injuries, while the defense argued Orr died from a preexisting medical condition. Assistant District Attorney Angie Kemp said Orr was only taken to the local hospital several hours later when the mother realized she was seizing. Orr was flown to a Seattle hospital and died a week later.

Jurors saw videotapes of police interrogations and watched Paul admit to accidentally dropping the baby then shaking her once afterward to make her stop crying, an admission the defense at trial argued was a false confession. Experts agreed at trial that the drop did not cause the fatal brain injuries; the state’s expert witness was not asked whether the “one shake” as described by Paul could have caused the fatal brain injury, and the defense’s witnesses agreed that it could not.

The evidence was circumstantial, and during closing arguments, Kemp asked the jury to consider whether something else happened that morning that Paul didn’t tell police.

Hedland, however, argues in his motion that the state presented no evidence of such an act.

“It is fundamental that a Defendant cannot be convicted on mere speculation alone,” he wrote.

Hedland continued, “Even if one accepted the premise — which Mr. Paul does not accept — that Mr. Paul’s false story about dropping Rian and shaking her once is evidence that he did some other thing, the state still has the obligation to provide evidence of the suspected act such that a reasonable juror can find beyond a reasonable doubt that the evidence, rather than mere speculation, supported the proposed fact that he committed a reckless act that caused Rian’s death. Because the state did not provide evidence of causation such that a reasonable juror could conclude that Mr. Paul committed such an act, the Court should vacate the jury verdict and enter an order for judgment of acquittal.”

Should the court deny that finding, Hedland requested the court set aside the convictions and grant a new trial. In arguing this point, Hedland took issue with the state’s closing arguments wherein prosecutors say Paul allowed the baby to languish for two hours before she received medical treatment.

Hedland points out that that “inaction” takes place after the alleged abuse, which he says would be irrelevant in deciding whether Paul acted with “extreme indifference to the value of human life,” an element of second-degree murder, or “recklessly,” an element of manslaughter. The judge had instructed the jury that the “extreme indifference” element can only be applied to make determination of Paul’s state of mind at the time of the theorized act at 9 a.m. on Aug. 9, Hedland says.

“As the defense anticipated, the jury did not, based upon its questions, understand the nuance that the “extreme indifference” factors were relevant only to Mr. Paul’s state of mind at the time of the suspected act,” Hedland wrote. “The state encouraged this later miscomprehension by repeatedly arguing to the jury that it could find Mr. Paul guilty of murder (or manslaughter) based upon the theory that he failed to act to obtain medical treatment for Rian for two hours — that the conduct of failing to act killed Rian.”

Hedland also says the theory of inaction is at variance with the theory the state presented to the grand jury. He says that’s grounds for a new trial since 1) the defense had no notice they would need to defend against an alternative theory, and 2) in felony prosecutions, a defendant cannot be convicted of an offense unless the state has obtained a grand jury finding on every essential element to the offense.

“This theory of homicide — failure to seek medical attention for injuries that Mr. Paul caused — is at variance with the state’s theory at grand jury, which was that Mr. Paul caused Rian’s death by inflicting “inertial forces” or “blunt force injury” by shaking and/or slamming her into a ‘soft object.’ Moreover, this argument is disingenuous given that the state’s main experts opined prior to trial that nothing would have changed Rian’s course of care once her brain injury occurred. The state presented no evidence at trial that earlier medical intervention would have changed Rian’s prognosis.”

The state originally charged Paul with two counts of second-murder under differing theories. The first theory was that Paul knew his conduct would be “substantially certain” to cause death or serious physical injury. The second theory was that Paul knowingly engaged in conduct that resulted Orr’s death under circumstances manifesting an extreme indifference to human life.

As the trial was ongoing, Judge Philip Pallenberg dismissed the murder charge under the first theory, saying the state did not put on evidence showing Paul’s conduct was “substantially certain” to cause Orr’s death. The jury acquitted him of the remaining murder charge under the second theory.

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

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