Jonathan Eisenstat — Direct/Cross/Voir Dire
800 linesMONDAY, FEBRUARY 27, 2023
(Court resumed at 9:40 a.m.)
JUDGE NEWMAN: I want to remind everyone in the courtroom that the courtroom decorum must be maintained at all times. You are not allowed to react to any testimony, cheer, jeer, nor speak in the courtroom unless it's during the time I say let's take a stretch break. You can speak at that time, but otherwise we need to maintain decorum. Anything before the jury comes?
MR. WATERS: Nothing from the State, Your Honor.
MR. HARPOOTLIAN: Your Honor, a couple of important housekeeping matters. One is we with expect to rest today. We've got three witnesses. I don't know how they could go all day but they -- I mean, direct ought to be relatively quick. We're going to rest today, I believe, and then the State is going to call several -- somewhere we've been told up to four, maybe it's five, maybe it's six, whatever. I think there's a high likelihood that we will -- they will rest on their reply case by tomorrow afternoon, or Wednesday morning?
MR. WATERS: Tomorrow afternoon I believe we can get done and be on track to close and charge on Wednesday, Your Honor.
MR. HARPOOTLIAN: With this caveat. We believe it would be useful for the jury to visit Moselle, both the area in the -- the area of the kennels and the house just to get some understanding of the spacial of relationships, and so what we would ask is that you ask the jury if they want to do that. I mean, I know -- I wouldn't -- if they don't want to do it, I don't want them to do it. If they want to do it, that would be fine with me, and it needs to be done in an expeditious way. And obviously Your Honor has dealt with this before. I don't know what -- we're not going with them, but I don't know who does go with them. No one is obviously going to be able to answer questions. They can see it. And that's -- I don't know whether that should take any more than -- Moselle is about 30 minutes from here? About 40 minutes from here, so that's 40 there, 40 back. And I want to say maybe 3 hours -- and I just throw that into the mix, not wanting to get this case closed, but we believe they ought to be given the opportunity to ask to see if they want to see it. I don't know whether that's done by majority vote, I don't know how all of that is done, but we're asking they be allowed to do that if they want to do it.
MR. WATERS: Your Honor, I don't know that I've heard of just asking the jury and have them take a vote on that. I'm -- the State is not asking for there to be a jury view of the scene. If anything, I think that that would require additional testimony because the scene is different than it existed on the night of June 7, 2021. And a big factor which I think is very relevant to some of the issues here is that trees that were planted that separate the kennels and the house are remarkably taller and thicker than they were on June 7th. The State is not asking that, that there be a jury view, and I don't think the defense is either. I'm not aware of procedure where we just kind of throw it into the jury's, you know, hands to take a vote, so we would object to that proposal.
MR. HARPOOTLIAN: Your Honor, if Your Honor wanted to instruct them they're only there to see the kennels, there's no issues. They should be viewing the house or because the scene -- that has -- we've conceded that that's changed, but the kennels, the spacial -- you know, how small the feed room is, the space between where -- and, and they've seen the pictures -- where the feed room is compared to where Maggie's body was, compared to the where the quail pens are, where the dog house is. I mean, you just can't really appreciate the spacial issues without actually seeing them. And if you want to limit it to just the kennels and them not being allowed to any way deal with the relationship between the house and the -- we've got -- actually do have some photos that night and the next day. I mean, I think you can put restrictions on it that would assist the jury if they want it. I don't know that they vote, or whether you ask the forelady. I mean, I have seen it done where the judge asks the jury, do you want to go to the scene? Now, I can't -- it's been awhile. I can't remember whether it was a vote, but he did ask the jury. It was some time in the dark ages or the early days.
MR. WATERS: And we certainly would object to putting any sort of vote to the jury at this point in time. I've never heard any such a thing. Generally jury views are at the request of a party and --
MR. HARPOOTLIAN: I'm requesting.
MR. WATERS: Well, again, I don't know that it's necessary in this particular instance, or that it would be a particular help or aid to the jury, and, if anything, it may confuse the issues, again, because the property has changed since the night of June 7, 2021.
JUDGE NEWMAN: All right. Anything else?
MR. HARPOOTLIAN: No, sir.
MR. WATERS: Nothing from the State.
JUDGE NEWMAN: Upon request of either side, the Court will allow a jury view. I will not ask the jury to decide whether or not they want to do it. I think that would invite -- would clearly invite premature deliberations in the case. So, just the mere fact they would discuss that issue I think would invite premature discussions of relevant facts, what might be relevant facts. If either side wants the jury to view -- arrange a view, a jury view, then the Court will go. The lawyers may go if you want to go. Of course, there are so many lawyers that's a mammoth team in and of itself. I think I can advise the jury that part of going to the scene that the -- certain things may not be the same as they were two years ago, whenever the period of time is. So -- and if the defense wants to jury view, then the Court will arrange a jury view.
MR. HARPOOTLIAN: Your Honor, thank you. And I just bring this to the Court's attention. There were literally dozens of people at Moselle last weekend trespassing to get selfies in front of the feed room. I mean, most distasteful kinds of things I've ever seen. So, perhaps before they head out there, could some of the security could be in place and --
JUDGE NEWMAN: We'll have law enforcement secure the scene and ensure no -- no one is there. Unless, you know --
MR. HARPOOTLIAN: John Marvin, his brother, is maintaining that property. He had to call the sheriff's department to come and remove them, and it seems they have a more sort of carnival attitude about this case than what we have to deal with. So, I don't want the jury influenced by, you know, crazy paparazzi.
JUDGE NEWMAN: No one can be there. The scene will be secured; no one will be there during a jury view. Now, do you want a jury view -- does the defense want a jury view?
MR. HARPOOTLIAN: I do. I just want to ensure that security is not caught unaware as to what a circus it's going to be outside of the property. And they might -- they've got the authority to close off the road, so, I mean, I'm not telling them how to do their job, but I am suggesting these are things that we became aware of over the weekend.
JUDGE NEWMAN: We'll arrange for a jury view with law enforcement. All right, anything else?
MR. WATERS: Nothing from the State, Your Honor.
MR. HARPOOTLIAN: Nothing else, Your Honor.
JUDGE NEWMAN: Okay. You may bring the jury.
(The jury returned to the courtroom.)
COURT BAILIFF: The jury is present, sir.
JUDGE NEWMAN: All right. Thank you. Good morning.
(Jury responded good morning.)
JUDGE NEWMAN: Welcome back once again, day number twenty-five. The defense's case. You may proceed.
MR. HARPOOTLIAN: Please the Court, Your Honor? The defense would call Dr. Jonathan Eisenstat to the stand. And, Your Honor, while he's coming around, Dr. Eisenstat is a pathologist. We're going to be, first of all, showing some pretty graphic photos on the computer and the ELMO. And secondly, we're going to be talking about some pretty graphic details. So, we will be offering exhibits. We should -- and I don't think -- we don't have to do it out of the gate, but certainly 10 minutes into his testimony we're going to be showing some pictures and discussing matters that -- it's going to be pretty graphic. So, a number of these exhibits, not all of them, but 90 percent of them are going to be introduced under seal. Some of them are already introduced under seal, and we've warned the family if it gets too graphic, they can leave. So, if Your Honor sees some of Murdaughs getting up and walking out, that would be because it's again extremely graphic. So --
JUDGE NEWMAN: Yes, sir.
The witness, JONATHAN EISENSTAT, M.D., was first duly sworn and testified as follows:
COURT CLERK: Take a seat in the witness stand. You can adjust the mic. Please state your name again for the record. Spell your last name.
JONATHAN EISENSTAT: Jonathan Eisenstat, E-i-s-e-n-s-t-a-t.
VOIR DIRE EXAMINATION
BY MR. HARPOOTLIAN:
MR. HARPOOTLIAN: Doctor, what do you do for a living?
JONATHAN EISENSTAT: I am a medical doctor whose specializes in forensic pathology.
MR. HARPOOTLIAN: And where do you practice medicine?
JONATHAN EISENSTAT: In the State of Georgia.
MR. HARPOOTLIAN: Can you tell the jury, please, what forensic pathology is?
JONATHAN EISENSTAT: Sure. Forensic pathology is a subset of pathology, which really deals with investigating the cause and the manner of someone's death.
MR. HARPOOTLIAN: Okay, and let's get a little bit of your history. So, if -- and I'm looking at this. You went to the same medical school as Dr. Riemer?
JONATHAN EISENSTAT: I did.
MR. HARPOOTLIAN: And then after -- I think you went to the University of California-Davis undergraduate?
JONATHAN EISENSTAT: That's correct. I grew up in California.
MR. HARPOOTLIAN: And graduated from there in '93. You went to the Sacra School of Medicine, as did Dr. Riemer, and you graduated in '98?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And then you did a residency where?
JONATHAN EISENSTAT: Well, when I came out of medical school I initially wanted to be a surgeon, so I started out in general surgery in Staten Island, New York, and quickly realized it was not profession I wanted. A beautiful profession but not for me. So, I transferred into a pathology program. This is all up in New York out in Long Island. And to become a forensic pathologist, you first have to do what's called anatomic pathology, which is hospital based pathology. If you've ever had anything taken out of your body, surgery, or blood, or anything, that goes to the pathology department. We look at it, we diagnose it, we tell your doctor, and your doctor will tell you what the diagnosis is. After doing all of that training, I did a year of pediatric pathology at New York University to study diseases of childhood. After that I did a year of forensic pathology fellowship in the Office of Chief Medical Examiner in New York City. I then stayed on one more year in New York City as a medical examiner, or a forensic pathologist, while doing more training in forensic neuro and cardiac pathology.
MR. HARPOOTLIAN: And that would have been in 2000 -- well, that would have been through 2004.
JONATHAN EISENSTAT: Correct. My forensic pathology training started in 2004 until 2005; then from 2005 until 2006 I did my forensic neuro and forensic cardiac training.
MR. HARPOOTLIAN: So, would that have been with the Office of the Chief Medical Examiner of the City of --
MS. GOUDE: Objection. Leading.
MR. HARPOOTLIAN: Who would that have been with?
JONATHAN EISENSTAT: With the Office of the Chief Medical Examiner in New York City.
MR. HARPOOTLIAN: Okay, and how long did you do that?
JONATHAN EISENSTAT: Well, the forensic pathology was one year, and forensic neuro and cardiac another year. So, that's two total.
MR. HARPOOTLIAN: At some point did you leave New York?
JONATHAN EISENSTAT: Yes. After I completed those forensic subspecialties, I was offered a job at the Georgia Bureau of Investigation in Atlanta. I accepted the job and moved to Atlanta in July of 2006.
MR. HARPOOTLIAN: Did the Georgia -- what if -- I mean, did the Georgia Bureau of Investigation have their own medical examiner?
JONATHAN EISENSTAT: Yeah. So the State of Georgia, there are -- Metro Atlanta has its own medical examiner officers, so there's Fulton County, Cobb, DeKalb, Gwinett. So, four of the 159 counties in the State of Georgia has their own medical examiner.
MR. HARPOOTLIAN: Per county or total?
JONATHAN EISENSTAT: Per county.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: So, one for each of those counties. And then the GBI, for short, covers the other 155 counties in the state, and when I first started there, there were, I believe, five or six offices, and then over time it sort of shrunk down to three offices. And I was at the headquarters office in Atlanta.
MR. HARPOOTLIAN: So, when you initially started with the medical examiner's office in Georgia, who did you start with?
JONATHAN EISENSTAT: So, I was with the GBI as my full-time job.
MR. HARPOOTLIAN: Right.
JONATHAN EISENSTAT: But I did do some moonlighting pretty much while at the Fulton County office, the Cobb County office, and the DeKalb County office.
MR. HARPOOTLIAN: So, those three counties are -- they comprise the metropolitan area of what city?
JONATHAN EISENSTAT: Of Atlanta.
MR. HARPOOTLIAN: Okay. So -- and is that a rather large metropolitan area?
JONATHAN EISENSTAT: Yes. That's why each one of those have counties their own freestanding medical examiner office.
MR. HARPOOTLIAN: And -- but you did part-time work for all three?
JONATHAN EISENSTAT: Yes, and I actually still do now for Fulton County, and then hopefully soon one of the other counties.
MR. HARPOOTLIAN: Okay. So, tell me about your work with the GBI, and how did that differ from what you're doing for these other counties?
JONATHAN EISENSTAT: So at the GBI, that was my full-time job.
MR. HARPOOTLIAN: What did you do? Was your job?
JONATHAN EISENSTAT: My job was -- I was one of workhorse pathologists doing -- when I first started, I believe it was about 250 autopsies each year, and then as time went on the caseloads increased, and so I would say I was doing anywhere between 250 to maybe 350 autopsies per year. I would be testifying in court. We have residents that would rotate. So, the hospital pathology residents would rotate in our office. We would lecture, and then that went until 2014 when I was promoted to deputy chief medical examiner.
MR. HARPOOTLIAN: Okay. Now, on the autopsies you were doing and -- would you generate reports for each one of those?
JONATHAN EISENSTAT: Absolutely.
MR. HARPOOTLIAN: And were these -- you indicated earlier in your career you were doing general pathology. That is if you had a polyp taken out during your colonoscopy, you would be doing those.
JONATHAN EISENSTAT: Yes. That's a requirement to be able to take the forensic pathology fellowship and boards.
MR. HARPOOTLIAN: So, at this stage in your career when you're doing autopsies, typically how did those folks expire?
JONATHAN EISENSTAT: So, those are sudden, unexpected deaths. Whether they are just -- we don't know what happened, you know. A forty-five year old individual found dead in their residence, no one knows why they died, we would get those cases. But then obviously all of the traumatic and non-natural deaths would be investigated by the medical examiner. So, anything from car accidents, to gunshot wounds, stab wounds, fights and somebody died, things of that sort.
MR. HARPOOTLIAN: Okay. So, you did autopsies on people who died under traumatic circumstances?
JONATHAN EISENSTAT: Absolutely.
MR. HARPOOTLIAN: Including gunshots.
MR. HARPOOTLIAN: And now you were -- you just indicated promoted to deputy chief medical examiner for the GBI. How did that change your duties?
JONATHAN EISENSTAT: So, that adding a little bit of administrative duties, thus I sort of dropped back a little bit in the number of cases. So, I -- probably at that time I would be doing about 200 autopsies. That was just for one year until 2015, so maybe about 100 autopsies, but now I was overseeing other doctors, investigators. And then we have a unit at the GBI which is called the Child Abuse Investigative Support Center, and so we would actually do -- I oversaw it but I wasn't a doctor in it. So, I know that sounds a little weird, but the person who did most of work in that was a doctor and an investigator. But as I moved up, you know, that sort of became under the umbrella of what I would oversee.
MR. HARPOOTLIAN: Were those child deaths or --
JONATHAN EISENSTAT: They were living consults and deaths. So, district attorneys would, or CFR, I'm sorry, the Child Protective Services from around the state may come and ask, hey, is this an accidental injury? Could the child have fallen off a bike? Or was this abuse?
MR. HARPOOTLIAN: And did you review those cases?
JONATHAN EISENSTAT: A few of them. But really the vast majority was done by one of the other doctors.
MR. HARPOOTLIAN: Were you still reviewing death cases?
JONATHAN EISENSTAT: Oh, absolutely.
MR. HARPOOTLIAN: Okay. So, if somebody did an autopsy on somebody who died of trauma, would you review their findings and the evidence?
JONATHAN EISENSTAT: Well, I was doing plenty of autopsies still myself. And what we had started doing was we would do rounds on all of the bodies that were in the morgue in the morning, and so we would discuss them all. It really wasn't -- excuse me, and then in the afternoon we would revisit all of those in the meeting and discuss. Hey, does this look -- if we're focusing on gunshots -- do you think this is a contact? A close range? A distant range? If we're not sure about the directionality, we would discuss that. That wasn't specifically me. That was all of the doctors. But then when I became chief all of that, the scheduling and the meetings become my responsibility.
MR. HARPOOTLIAN: So, did you -- what -- after you were the deputy, what happened?
JONATHAN EISENSTAT: So, then in November of 2015 I became the chief medical examiner for the state.
MR. HARPOOTLIAN: For the State of Georgia?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And you continued to do autopsies?
JONATHAN EISENSTAT: I did because I wanted to -- I didn't want to lose my skills, so I did continue doing autopsies. At that time I dropped down to about 100 autopsies that I would --
MR. HARPOOTLIAN: Per year?
JONATHAN EISENSTAT: -- personally perform per year.
MR. HARPOOTLIAN: Per year?
JONATHAN EISENSTAT: But I, you know, I was now involved in more policy writing, administrative duties, going down to the legislature and lecturing. You know, it was during the opioid epidemic, so there were a lot of things going on. But if there was a case that was very difficult, it's written in the policy of the GBI Medical Examiner's Office that the chief medical examiner was the final arbiter of those cases.
MR. HARPOOTLIAN: Okay. Now you did that, you said, until January of '22.
JONATHAN EISENSTAT: That's correct.
MR. HARPOOTLIAN: Which would have been last year.
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: What -- now, have you been doing other things during that period of time in addition to being chief medical examiner?
JONATHAN EISENSTAT: Well, yes. I was doing some consulting work. I would do that at night and on the weekends unless I, you know, was in a deposition. Then I would take personal leave to go do that. But those were the two main things I was doing.
MR. HARPOOTLIAN: Did you form a private consulting firm in 2008?
JONATHAN EISENSTAT: I did. Not in 2008. I started -- my first consulting case was in 2008. It was a cardiac death in New York, and the ME's office in New York referred the attorney to me. But I don't believe I started my actual, you know, business probably until about 2013 or '14.
MR. HARPOOTLIAN: Okay. I misread this. So, tell us what that's called and what you do.
JONATHAN EISENSTAT: So, that's called Eisenstat Forensic Pathology. It's nothing fancy. And really what I do is an attorney or a family may call me asking me to review a case or to perform a private autopsy, and if I have the time I'll accept that. I will look over the documents. I may do an autopsy if that's what the family has requested. And then if it's an autopsy, I'll tell the family what my findings were, and, you know, I recently had one who I referred the family to a -- I told them to go to their cardiologist and get tested because I believed the person had a genetic disease that could be transmitted to their offspring. If it's just a record review, I will review the records and I will tell the attorney what my opinions are. If my opinions support what they are hoping, then I may hear back from them. If my opinions don't, I probably don't ever hear back from them.
MR. HARPOOTLIAN: So, did you have permission from the GBI to do that?
JONATHAN EISENSTAT: I did. Every single -- while I was at the GBI, every single consult case that I did, I got written approval by my superior, who was the deputy director of the agency.
MR. HARPOOTLIAN: Now, have you ever been qualified to testify as an expert in the area of forensic pathology, especially in gunshot wounds, in any state or federal court?
JONATHAN EISENSTAT: Yes. So, throughout the State of Georgia, obviously. As far as gunshot wounds in other states, I've been qualified as an expert in forensic pathology in a number of states.
MR. HARPOOTLIAN: How many states have you been qualified to testify in as a forensic pathologist?
JONATHAN EISENSTAT: Oh --
MR. HARPOOTLIAN: Just --
JONATHAN EISENSTAT: -- probably in the area of twenty, twenty-five.
MR. HARPOOTLIAN: Okay, and you've been qualified in the State of Georgia by both state and federal courts to testify about gunshot wounds specifically?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And have you done autopsies on people who were the victims of a shotgun wound?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: Do you have any idea on how many occasions you've done that?
JONATHAN EISENSTAT: Oh, I'm sure myself I've probably done 75 to 100, or something to that effect, and then been involved in many more.
MR. HARPOOTLIAN: Okay. Tell me what the National Association of Medical Examiners is.
JONATHAN EISENSTAT: So, that's actually the primary national organization that -- you know, every profession has their own national organization and for us, for short we call it NAME. NAME is really the main national organization for forensic pathologists, and they write position papers. We have annual meetings. There's a journal that comes through that organization. So, it's the prime organization for forensic pathologists.
MR. HARPOOTLIAN: And do you enjoy any position with NAME?
JONATHAN EISENSTAT: I do.
MR. HARPOOTLIAN: What, what, what position, or what positions?
JONATHAN EISENSTAT: So, I'm currently on the board of directors, and I sit on a few committees for NAME.
MR. HARPOOTLIAN: Okay. Now, you're licensed in the State of Georgia and New York?
JONATHAN EISENSTAT: Not New York anymore. When I left New York, I let my license lapse because I had a feeling I wasn't going back for quite awhile, so currently I'm licensed in Georgia.
MR. HARPOOTLIAN: Are you board certified?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: In forensic pathology?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And you've got a number of different articles and books, and you teach at what schools?
JONATHAN EISENSTAT: So, I was teaching at Augusta University, and that's the medical school Forensic Pathology Fellowship Training Program that I started at GBI. They were the sponsoring agency. But I've lectured at St. Louis University at their Master's course in death investigation. I've lectured all over the State of Georgia to law enforcement, to coroners.
MR. HARPOOTLIAN: How about Emory School of Medicine?
JONATHAN EISENSTAT: Yes. Well, at Emory I -- we had residents and fellows that would rotate through the medical examiner's office in Fulton County, as well as actually GBI, so we would teach them at well.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Your Honor, I move to have Dr. Eisenstat qualified as an expert in the area of forensic pathology.
JUDGE NEWMAN: What says the State?
MS. GOUDE: No objection, Your Honor.
JUDGE NEWMAN: He's so qualified.
DIRECT EXAMINATION
BY MR. HARPOOTLIAN:
MR. HARPOOTLIAN: Okay. Let me talk to you -- let's get to this before they get to it. Are you being paid for your testimony? When I say paid for your testimony, are you being compensated to evaluate and testify?
JONATHAN EISENSTAT: Yes. I'm being compensated for my work.
MR. HARPOOTLIAN: And how much are you being paid?
JONATHAN EISENSTAT: So, up until this point I've been paid $3,000. And then I have another invoice that will come out after trial, which will probably be a number of thousands of dollars. I don't recall exactly.
MR. HARPOOTLIAN: Are you compensated by the hour or by the task or what?
JONATHAN EISENSTAT: No, by the hour. So, when I review documents, I charge $600 an hour, and then for testimony I charge per day, so 24 hours, and that's $5,500 per the day.
MR. HARPOOTLIAN: Okay. So -- and is that unusual for doctors who testify, consult and testify, or is that the normal practice?
JONATHAN EISENSTAT: In my field of forensic pathology, I've been told I actually undercharge. But, you know, there's some that charge less than me. There's some that charge more than me.
MR. HARPOOTLIAN: Okay. I've got a number of topics I want to talk to you about today. But some testimony we had last week -- I was going to say earlier this week. The weeks are beginning to bunch together.
MS. GOUDE: Objection. Comments.
MR. HARPOOTLIAN: I'm sorry, Your Honor. I'm an old guy. I forgot things. I'm not sure what week it was. I apologize to the Court and the State for my faulty memory.
JUDGE NEWMAN: You may proceed.
MR. HARPOOTLIAN: So, some time, I believe, last week we heard from the coroner for Colleton County. Were you -- did you watch that testimony or hear that testimony?
JONATHAN EISENSTAT: Not the coroner. I saw Dr. Riemer's, the medical examiner's, but I did not see the coroner's.
MR. HARPOOTLIAN: Okay. Tell the jury, please, if a medical examiner or coroner comes on the scene of a suspected homicide, how would one as a physician or medical examiner, how would one determine time of death? What procedure would you follow?
JONATHAN EISENSTAT: Oh, well, whether it be a homicide or not, any -- there -- any death scene, you want to try to get an idea. It's not an exact science, but you want to try to get an idea of what the body temperature is as compared to the ambient temperature.
MR. HARPOOTLIAN: Why?
JONATHAN EISENSTAT: Why? Because it can give you an idea of how long the body has been there, but there's -- there is a lot of factors. So, the way that I always taught the investigators and coroners is that if you walk into a room, or you walk into an environment where there's a dead body, the first thing you do is put the -- put a thermometer down. Don't look at the thermostat on the wall. Don't, you know, look at the computer to see what it says. Put the thermostat down, look in the area, start your investigation, come back and look at the thermometer. That will be your ambient temperature.
MR. HARPOOTLIAN: Ambient temperature means what?
JONATHAN EISENSTAT: The temperature of the air in that area.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: And obviously you want to put it near where the body is. And then you take the thermometer and you do a rectal temperature. You put it in the rectum, but you leave it there and you start doing more of your scene investigation. Then you come back, you take it out, and then you have the closest to what we can get for a core body temperature, and you document those two. And then there's other things you look at. You look at blood settling, and you look at what's called rigidity, so stiffening of the muscles.
MR. HARPOOTLIAN: So, why would you want a core temperature and ambient temperature? What do you do with that?
JONATHAN EISENSTAT: Well, then you can -- the body -- the body will equilibrate.
MR. HARPOOTLIAN: Will what?
JONATHAN EISENSTAT: Will sort of even out with the ambience, or the outside temperature between 1 to 1 and a half degrees per hour. I will say it's not an exact science because obviously if -- you know, right now I'm sure my body temperature is a little higher because I'm on the stand, so I may not be 98.6 degrees right now, which is normal.
MR. HARPOOTLIAN: And if you were to die right now, it would not be appropriate -- I mean, I'm not saying you should die right now -- but so your temperature is up a little bit. Does that mean that you would start at a -- in your calculations at a higher temperature? What do you would?
JONATHAN EISENSTAT: Right. So, that's the problem is, is that let's say I'm 99.5 right now, so that's one degree higher. That already moved -- we're starting to move that timeframe out to it could have an hour faultiness to what you're going to do. So, it's 100 degrees outside, my core body temperature is 99 degrees, so we have one degree difference. So, you may say it's been about an hour but, you know, unfortunately television shows have made it seem like you can say it happened at this time. But in all honesty you can't, but by far the best methodology is to do a core body temperature.
MR. HARPOOTLIAN: And an ambient temperature.
JONATHAN EISENSTAT: And an ambient temperature, yes.
MR. HARPOOTLIAN: So, tell me what you would learn by sticking your hand under the armpit of a deceased.
JONATHAN EISENSTAT: You wouldn't learn anything.
MR. HARPOOTLIAN: Really?
JONATHAN EISENSTAT: Well, you may learn that the arm can't come down because of rigidity, but as far as temperature, you have your own body temperature. You have -- you're sticking it in an armpit, which is exposed to the ambient temperature, so it's just not a valid method to try to make a determination of time of death.
MR. HARPOOTLIAN: It's just a guess.
JONATHAN EISENSTAT: It's a guess, yes.
MR. HARPOOTLIAN: Okay. So, let's talk a little bit about --
MR. HARPOOTLIAN: Do we have -- we're going to be dealing with some sealed material. Is everybody -- is that TV off over there?
(Break in proceedings.)
MR. HARPOOTLIAN: So at our request, and we're Mr. Murdaugh's lawyers, did you examine materials in this case?
JONATHAN EISENSTAT: Yes, sir, I did.
MR. HARPOOTLIAN: And let me first of all ask you if you examined these two documents.
(Break in proceedings.)
MR. HARPOOTLIAN: Your Honor, I'm showing the witness Defendant's Exhibit 177 and 178.
JONATHAN EISENSTAT: So, 178, yes.
MR. HARPOOTLIAN: And tell us what that is.
JONATHAN EISENSTAT: That is the Medical University of South Carolina's autopsy file. So, it's more than just the report. It's essentially the file for the medical examiner.
MR. HARPOOTLIAN: Okay, and you examined this?
JONATHAN EISENSTAT: Yes, sir, I did.
MR. HARPOOTLIAN: Okay. Go ahead. What's the next one?
(Break in proceedings.)
JONATHAN EISENSTAT: So, 177 I did examine, and this is the MUSC file for Maggie.
MR. HARPOOTLIAN: This being 177?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: So, Maggie is 177 and Paul is 178.
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: Your Honor, we would offer these into evidence.
JUDGE NEWMAN: What says the State?
MS. GOUDE: Your Honor, the State would object to these documents coming into evidence.
MR. HARPOOTLIAN: I'm sorry, I don't understand the basis.
JUDGE NEWMAN: The basis for the objection?
MS. GOUDE: Your Honor, Dr. Riemer testified to her reports. These are reports by Dr. Riemer. These are not reports generated by Dr. Eisenstat. He has reviewed those reports. He can testify to the substance of those reports, but we would object to the reports themselves coming in as evidence.
JUDGE NEWMAN: All right. What says the defense?
MR. HARPOOTLIAN: Your Honor, these are business records that are kept that the ordinary court of business, according to Dr. Riemer, and there's nothing in here other than her findings basically. So, we would object -- I mean, these are what Dr. Riemer relied on, these documents. Certainly under the business records exception they would be admissible. I don't quite understand the State would not want this jury to be able to see --
JUDGE NEWMAN: Well, they've objected so they --
MR. HARPOOTLIAN: I'm sorry.
JUDGE NEWMAN: The State has objected. The argument is not why they would not want them.
MR. HARPOOTLIAN: Business records exception, I'm sorry.
JUDGE NEWMAN: I haven't seen the exhibit. I can't rule without seeing what those are.
(Break in proceedings.)
JUDGE NEWMAN: They are admitted over objection.
MR. HARPOOTLIAN: Thank you, Your Honor.
(RECORDS MARKED AS DEFENDANT'S EXHIBIT NUMBER 177 WERE RECEIVED INTO EVIDENCE.)
(RECORDS MARKED AS DEFENDANT'S EXHIBIT NUMBER 178 WERE RECEIVED INTO EVIDENCE.)
MR. HARPOOTLIAN: And, Doctor, we'll come back to these in a little bit, but I'm primarily interested in just her determinations and some sketches that she did that were in there. Okay?
JONATHAN EISENSTAT: Okay.
MR. HARPOOTLIAN: So, you examined her -- her report, correct?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And can I have the ELMO, please?
(Break in proceedings.)
MR. HARPOOTLIAN: Let's talk about Maggie to begin with. Okay?
JONATHAN EISENSTAT: Okay.
MR. HARPOOTLIAN: And I'm going to put this on the ELMO. Can you tell me what this is, please?
JONATHAN EISENSTAT: That's a standard body diagram for a female.
MR. HARPOOTLIAN: And you reviewed this?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: Okay. Let's put this on the ELMO. Could I have the easel?
(Break in proceedings.)
MR. HARPOOTLIAN: So, what do you see on the screen?
JONATHAN EISENSTAT: I see the female body diagram from the autopsy of Maggie Murdaugh.
MR. HARPOOTLIAN: Okay. So, let's -- you know, if you could put it in that doorway over there, that might allow the jury to see it a little better. Maybe push it back. There you go. So, let's put this on it.
MR. HARPOOTLIAN: Okay. So, by way of -- let's walk through the wounds on Maggie. Okay?
JONATHAN EISENSTAT: Okay.
MR. HARPOOTLIAN: So, look at the sketch in front of you and walk the jury through -- and if you need to come down here with a pointer or could can you do it from up there? Whatever is more convenient for you.
JONATHAN EISENSTAT: There's a lot of writing, so it may be easier for me to point it out. I don't know if is a touch screen or not.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: So, we had a pointer. Do we still have a pointer? I actually had a pointer, but that's okay, we'll use that.
MR. HARPOOTLIAN: Okay. So, what I want you to do is step down here, please. And I would like for you to stand here so that those jurors over there can see, so you probably need to stand over there.
JONATHAN EISENSTAT: Sure.
MR. HARPOOTLIAN: Okay. So, how about walk them -- yeah, okay. Walk them through the --
JONATHAN EISENSTAT: So, I think the easiest would go -- would be to go from the bottom up.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: So, we have a -- these are all rifle wounds. They're all caused by a rifle. We have an entrance wound on the left thigh, and then the entrance wound on the left thigh has on the diagram little dots, which is stippling, which makes it an intermediate range rifle wound.
MR. HARPOOTLIAN: What does that mean, intermediate range?
JONATHAN EISENSTAT: We're talking up to, you know, 1 to 3 feet. The end of the barrel to the actual skin where the bullet goes through.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: And I agree with what Dr. Riemer put here. That's the medial left thigh. Now, we flip the body over and we have the -- on the diagram, so this is now the left side, and we have the corresponding exit wound on the back of the left thigh. So, I agree with the range of fire, the directionality, that it's an intermediate range rifle wound.
MR. HARPOOTLIAN: So, you and Dr. Riemer agree.
JONATHAN EISENSTAT: Yes, we agree on this one.
MR. HARPOOTLIAN: Okay. Next.
JONATHAN EISENSTAT: Moving up, we can go here to the torso. So, we have another entrance rifle wound on the upper right torso. It's as per -- I obviously can't see the inside in this, but as per the autopsy, it goes through a number of organs. It goes across and comes out the bottom left back of the torso. And I agree with that, with her finding on that as well.
MR. HARPOOTLIAN: Let me interrupt you one second.
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: Prior to your agreement or disagreement, did you look at the autopsy photos?
JONATHAN EISENSTAT: Oh, absolutely.
MR. HARPOOTLIAN: Did you look at her report and her notes?
JONATHAN EISENSTAT: Absolutely.
MR. HARPOOTLIAN: Anything else you looked at?
JONATHAN EISENSTAT: I looked at some scene photos, and I believe that was it.
MR. HARPOOTLIAN: Okay, but you're relying on her photos.
JONATHAN EISENSTAT: Yes. The most important for me is the autopsy report, the autopsy diagram, and the autopsy photos.
MR. HARPOOTLIAN: Okay. I'm sorry. Go to the next one.
JONATHAN EISENSTAT: Okay. So, we now have -- we've talked about one gunshot wound, a rifle wound, two rifle wounds. Now we have a rifle wound on the left wrist and forearm. We have an entrance on the back of the left wrist, which is the dorsal surface, and this is the ventral or volar surface, and the exit is on the volar left forearm. I agree with that as well. Oh, I'm sorry, I also looked at x-rays.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: That was part of the photos. On the x-ray there are some little fragments of -- you can tell it's a rifle round in the left wrist.
MR. HARPOOTLIAN: It went through?
JONATHAN EISENSTAT: It went through, yes.
MR. HARPOOTLIAN: And entrance on which side?
JONATHAN EISENSTAT: On the back of the left wrist.
MR. HARPOOTLIAN: Okay. Next?
JONATHAN EISENSTAT: So, we've now talked about three of them. Now we have two. I'll start with the first one, which I agree with her findings, and then the second one is where I have -- there's a discrepancy. So, if we now look at rifle wound E, which is the one that's here on the back of the head, the directionality is correct. And I can explain why I believe the one on the left breast, the directionality was wrong. But we have a almost tangential, meaning that it doesn't go super deep into brain. It comes here, but a rifle has a lot of kinetic energy and can -- so, it has a lot the force to it, and it can cause severe disruption. And it's coming along here. It goes through the brain, and when this one goes through the brain, it causes an injury to the brain stem. That would make her die immediately. So, this one came here -- and then -- which is the entrance on the back right of the head --
MR. HARPOOTLIAN: And that's labeled what?
JONATHAN EISENSTAT: That's labeled E.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: And then the -- you can see on the x-ray there's a little fragment, or a few little fragments in the head. And so a rifle round will fragment. We call it a lead snowstorm. It's sort of -- on x-ray looks like a snowstorm, a bunch of little white pieces. It breaks up. Pieces of projectile come through down into the back and continue down into the right chest. So, this is -- now, remember, we're talking about directionality. This is top, this is bottom, and so on the body it's going downwards, but obviously we have a moving situation. So, if she's like this, it may have been coming straight, but on the body the directionality is downwards. And there are some up arrows here on the injuries to the upper back. I don't know why because in her report they go down, so that's all part of gunshot or rifle wound E. That's actually the lethal rifle wound immediately. And now I'll focus on A, C, and then the abrasions, or the graze wound to the abdomen, and this is where I differ in opinion of the directionality.
MR. HARPOOTLIAN: So, you agree with her on everything except this one?
JONATHAN EISENSTAT: On Maggie, that's correct.
MR. HARPOOTLIAN: Okay. Go ahead.
JONATHAN EISENSTAT: Okay. So, if we look at the autopsy photos, that's going to be extremely important.
MR. HARPOOTLIAN: We will in a minute.
JONATHAN EISENSTAT: Okay. So, we do have a wound on the left breast, we do have a wound on the left chin, and we do have this abrasion under the left breast. And sometimes there are characteristics that we look for to try to give us directionality of the superficial gunshot or rifle wounds. And what you're looking for when it's a tangential wound is you're looking for a skin tag. So --
MR. HARPOOTLIAN: Tell me what a skin tag is.
JONATHAN EISENSTAT: Sure. So, if you think about it, if a bullet is coming and it hits the skin, and you can see how it's pushing the skin like this, so you're going to get these tears in the skin, and the tears in the skin are going to be in the direction that the bullet is coming. But if you let that go, between those two tears is a triangular piece of tissue left, right? So, we have a tear over here, we have a tear over here, and then you let it go and you have a skin tag. You have a piece of tissue pointing in the direction that the bullet came from. And so when I look at the picture of the rifle wound to the back of the head, you can see all of those skin tags are pointing up this way, so the bullet came here. When I look at the left breast, and I look at the wound to the left side of the head -- or excuse me, the left chin or jaw, I see skin tags pointing this way. So, that would make this rifle wound come from here. It would be superficial. But remember we have all of that kinetic energy, so that's why we get the splitting of the skin, the fracture of the chin. Then it comes down through the breast, and then it grazes the upper left chest. And it sort of makes sense when you think about it. If a person is leaning forward and you've got one going down this way, you've got another one going essentially in the same exact direction. So, there's the scientific aspect by looking at the actual outline, or the actual look of the wound, and then you also have two wounds from a rifle that are right next to each other going in the same direction.
MR. HARPOOTLIAN: And you indicate that both of the directions -- both of those, one that goes down this way to the -- and severs the brain stem, and then the other one that goes down and through her breast, unless somebody were very, very tall, is there an explanation on how those wounds would have come about?
JONATHAN EISENSTAT: Yes. So, I mean, really we know it's coming from the top of the head downwards, right? So unless someone is standing in an elevated position, or someone is lying down on their stomach and then you have a sniper who's on the ground going this way, really, and we see this in people who are going to open the door because someone is knocking on the door and a gunshot comes through, if you're leaning -- as I was saying earlier, if you're leaning forward, let's say the first shot here gives her significant pain, and I agree with Dr. Riemer on that, and she's leaning over like this, then if I have -- I don't mean to hit you, I'm sorry. I have a gunshot coming like this, now I look at it -- the body lying flat on the table, you can see how it goes straight down. So, the explanation that I think is probably most feasible to it is that she's leaning forward, most likely probably in pain from the abdominal wound.
MR. HARPOOTLIAN: And the second shot?
JONATHAN EISENSTAT: Same thing.
MR. HARPOOTLIAN: So, she's leaning forward, one back in the -- one back here, and where does the second shot come from?
JONATHAN EISENSTAT: The second shot goes right next to the left ear. And on the autopsy photos you can see a ring of contusion, or a bruise, and it looks very, very similar to her earring that was found there. And, again, that's from the energy would push the earring up. It comes -- the bullet comes down, it goes through the breast, and out.
MR. HARPOOTLIAN: So, that shot blew her earlobe off or blew --
JONATHAN EISENSTAT: Pretty much, yes.
MR. HARPOOTLIAN: And the earring they find at the scene, right?
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: So, let's walk through the photos. And if you would stay right where you are, then I'm going to maybe have you draw something up there. I haven't quite decided yet.
MR. HARPOOTLIAN: Can I have Defendant's Exhibit 169, please? And I would remind everyone we should be covered for this. I'm sorry, 159, not your fault. Right.
MR. HARPOOTLIAN: And again, I apologize for the graphic nature but this is what you do every day, right?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: Okay. So, tell us what this depicts.
JONATHAN EISENSTAT: So, this depicts Maggie's body on the autopsy table. And when we're doing our measurements on the body, that's how we're looking at the body, lying on her back or on the person's back on the autopsy table. And we're looking at the left side. Here is that wound with the left ear and left chin, and here is her left breast, and then right above this wound here we have that semicircle, which is consistent with the earring.
MR. HARPOOTLIAN: So, this is the shot you would disagree with Dr. Riemer about?
JONATHAN EISENSTAT: Yes. This is the only shot I disagree with.
MR. HARPOOTLIAN: And her explanation of this is what? What would -- I mean, that it was going up?
JONATHAN EISENSTAT: Yeah. She stated that it was going upwards.
MR. HARPOOTLIAN: It would have entered the breast and then gone up.
JONATHAN EISENSTAT: Right.
MR. HARPOOTLIAN: And the reason you disagree with that is?
JONATHAN EISENSTAT: Well, number one, there's skin tags. When we look closer at the breast and we look closer at the left side of the chin, skin tags are pointing upwards, showing that that's where the bullet came from. And the other is, you know, there's also a part of our job where just sort of common sense, and I just -- it just seems very odd that that when you have one going this way, you have to be in a very bizarre position to able to get it to go up. But from a scientific standpoint, it's how the wound looks.
MR. HARPOOTLIAN: And you believe those wounds -- those wounds are caused by bullets fired in succession?
JONATHAN EISENSTAT: Oh, I wouldn't be surprised.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Could we go to Defendant's Exhibit 160?
MR. HARPOOTLIAN: What does this depict?
JONATHAN EISENSTAT: So, this is the left side of her jaw, and it's pulled forward but you can see up here, and I want to -- I'll use any finger. You see this skin tag is pointing this way, right? The laceration is coming down here, and if I were to flip this back up, these skin tags point up as well.
MR. HARPOOTLIAN: Point to a skin tag again.
JONATHAN EISENSTAT: This is a great example of a skin tag that's like this.
MR. HARPOOTLIAN: Could you blow that up a little bit for me, please? Right around the -- right below the ear. Yeah, right. Perfect.
MR. HARPOOTLIAN: Okay. Show me the skin tag.
JONATHAN EISENSTAT: Okay. Well, there's -- if we were to -- you see here that this is sort of in a triangular shape, and if I flipped it back up, it would fit right into here.
MR. HARPOOTLIAN: Right.
JONATHAN EISENSTAT: So, the skin tag is pointing upwards in the directionality of where the bullet comes. It will be easier to see on the breast actually.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: So, could we go to --
MR. HARPOOTLIAN: Doctor, this one?
MR. HARPOOTLIAN: Okay, that would be Defendant's Exhibit 161.
MR. HARPOOTLIAN: Okay. Tell me, is that the area you want -- does that help?
JONATHAN EISENSTAT: Yes, but I think before we blow it up, I think what's important is for orientation purposes you can see that her head is up here. So, this would be up. This would be down.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: And now if we need to blow that up -- you can see the skin tags are pointing up. The lacerations, the splitting in the skin is pointing down. So, that indicates an up to down directionality.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: And could we see State's Exhibit 498?
MR. HARPOOTLIAN: Tell me what this depicts.
JONATHAN EISENSTAT: This is a beautiful depiction. I hate to -- I don't mean to use that word. I'm sorry.
MR. HARPOOTLIAN: Beautiful is not --
JONATHAN EISENSTAT: I didn't mean that. That's -- from a forensic pathologist, it's a classic book example of the lacerations coming and pointing downwards. The skin tags are pointing upwards. So, skin tag, skin tag, skin tag, all pointing up where the bullet is coming from. The lacerations are pointing down, which is the direction the bullet is going in.
MR. HARPOOTLIAN: Now, did you and Dr. Riemer agree or disagree on this?
JONATHAN EISENSTAT: We agreed on this.
MR. HARPOOTLIAN: Okay. Now, the other thing is it appears her head was shaved. Why is that?
JONATHAN EISENSTAT: Right. So, any gunshot wound to the head, if you're trying to make a determination of entrance or exit, or trying to get a better idea of what it looks like, you also want to look for -- if there's any gunshot residue, you shave that area. Most of the time it's to look at the actual outline of it; sometimes it's to preserve evidence for further testing.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Could I have 168, please?
MR. HARPOOTLIAN: And what is this an x-ray of?
JONATHAN EISENSTAT: So, this is an x-ray of her head and neck. And it's -- it might be hard to see, but we have -- right here in the center we have a fragment of possibly jacketing or -- but a fragment of a projectile right here in the midline with a few smaller pieces. We have nothing over on the left side where this injury is, so nothing went in here and stayed. All of the projectiles -- and then we'll continue down to the chest. It's one rifle that went down, and then you'll see that lead snowstorm, which is consistent with it going back into the back and down to the chest.
MR. HARPOOTLIAN: Okay, and could you go to 169, please?
JONATHAN EISENSTAT: So, you can see here how it continues down into the right chest, and it sort of looks like a snowstorm? That's a rifle round.
MR. HARPOOTLIAN: Okay. Thank you. Go ahead, and take the stand, please. So, your job is to look at the photos and determine whether or not the original pathologist was correct or incorrect. Is that -- that's what we hired you to do, right?
JONATHAN EISENSTAT: Well, really, you know, what you asked me to do was look at the autopsy report, look at the photos, and give my opinion on the gunshot wounds. That was it. I wasn't even asked to say, you know -- I wasn't even asked is she right or wrong. You just asked me to look at them and give you my opinion.
MR. HARPOOTLIAN: And how many bullet holes do we have here? How many shots?
JONATHAN EISENSTAT: Well, we have five shots.
MR. HARPOOTLIAN: And of the five, you agree with her on four?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And disagree with her on one?
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: Okay. So, let's move on for just a moment, and let's look at -- we'll go to Paul's autopsy report, and we'll go to his sketch. Put this material away. Okay. So, let's have you step down with your pointer, please. It's right here.
MR. HARPOOTLIAN: Your Honor, may he?
JUDGE NEWMAN: Yes.
MR. HARPOOTLIAN: Thank you.
MR. HARPOOTLIAN: So, how about detail what she indicates are the wounds to Paul, and we'll start, I guess, at the bottom and go up?
JONATHAN EISENSTAT: Sure.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: So, there's two shotgun wounds to Paul. One is on the chest, and one is on the head.
MR. HARPOOTLIAN: Okay. Let's talk about the chest wound first.
JONATHAN EISENSTAT: Sure. So, the chest wound is also an intermediate range, so 1 to 3 feet, shotgun wound that goes across the chest, does not enter into the chest cavity. It leaves near the armpit, and then the pellets themselves disperse and some of them go through the arm. I agree with her on that, both on the range of fire and the directionality.
MR. HARPOOTLIAN: Okay. So, the other shot resulted in his head exploding?
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: Okay. Explain to the jury what she said, and then what you believe, and we'll talk about why the difference is in just a minute. Okay?
JONATHAN EISENSTAT: Sure. So, in her autopsy report, she stated that she believed the entrance was coming from the left side, went up, and then it exited the top of the head. To me this is a contact wound: shotgun wound to the top of the head that caused extreme pressure build-up in the head from it being contact, leading to these types of fractures. And that the pellets -- so that the shotgun wound comes in, the wadding will start to open up, all of that pressure basically, for lack of a better term, will explode what's there because the pressure needs to get out somehow. And then the head would have been down like this, and the pellets lodged here and went into the left shoulder, and then you can see that the pellets are going down into the tissues of the left shoulder.
MR. HARPOOTLIAN: So, you believe the wound that resulted in his head exploding was where? Where would the shotgun have been?
JONATHAN EISENSTAT: Well, it would have been to the top back of his head.
MR. HARPOOTLIAN: And how far away from that?
JONATHAN EISENSTAT: Oh, no, it would have been pressed against that.
MR. HARPOOTLIAN: So, it would be a contact wound to the back of the head.
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: And that would result in -- and we're going to talk about this in more detail in a minute, but if it was in the back of the head, tell me how we have the hole here and then a wound here. How does that work?
JONATHAN EISENSTAT: Well, you're shooting -- it's different than shooting into a space where it can expand. It's not up against a firm surface, so shooting into the abdomen is different. The pressure will still go in if it's a contact to the abdomen, but the abdomen can stretch the, the, the, the pressure and the gas can disperse because it's sort of an open space with skin that can stretch out and back. The skull really only has one hole at the very bottom. So, if I'm taking -- if I were to take a shotgun and press it against this, a pile of paper here, and I were to shoot it, this paper would blow up because the pressure has nowhere to go, so it's got to blow everything up that's right there. If I were to take that shotgun and shoot it from here, the pressure is open. It's open to the free atmosphere, right? So, it's going to come out of the barrel, and it's going to spread out. It'll go a little distance, and that's why we get soot in close range shotgun wounds. It'll go a little distance, but then it'll disperse. So, if you were here and I were to shoot down at this paper, the paper is going to get a whole bunch of holes in it, but it's not going to completely explode.
MR. HARPOOTLIAN: And this is birdshot, correct?
JONATHAN EISENSTAT: In the head it's birdshot.
MR. HARPOOTLIAN: In the chest it was --
JONATHAN EISENSTAT: It appears it was buckshot.
MR. HARPOOTLIAN: Now -- so, her opinion was -- and tell me the path.
JONATHAN EISENSTAT: So, unfortunately the top of the head wasn't shaved, so I can't tell you the exact entrance, but it absolutely is a contact range shotgun wound to the head. And from the way it was described by Dr. Riemer, which she described as an exit wound, was that it was near the top of the head and a little bit back on the right. So, probably about right here.
MR. HARPOOTLIAN: Okay. Now, let me talk to you a bit if you would take the witness stand again, please.
MR. HARPOOTLIAN: Defense Exhibit 116. Okay. So -- Yeah. If you can blow that up a little bit.
MR. HARPOOTLIAN: This is in evidence. Where did this exhibit come from? Is there a book?
JONATHAN EISENSTAT: Yes. This is from the main textbook on gunshot wounds by Vincent Di Maio.
MR. HARPOOTLIAN: And it has been described as the bible for gunshot wounds. Is that correct?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And that's -- I think we have asked Dr. Riemer about this book and she agreed, right?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And this -- these pictures are from that book.
JONATHAN EISENSTAT: Yes, it is.
MR. HARPOOTLIAN: Okay. So, this depicts a shotgun shell being fired, correct?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And tell the jury, please, this is the initial firing, correct?
JONATHAN EISENSTAT: The very top image? Correct.
MR. HARPOOTLIAN: And what is that coming out?
JONATHAN EISENSTAT: What's coming out are actually flames and gas. So, sometimes you'll see a little bit of burning because the gunpowder is ignited, so you have a little bit of flame and then gas.
MR. HARPOOTLIAN: Now, if they had shaved Paul's head -- which they did not, correct?
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: Would they have seen some evidence of that gas and flame coming out?
JONATHAN EISENSTAT: I would say most likely, yes. You don't always see it. But, yeah, most likely there would be some soot or what we call searing burning.
MR. HARPOOTLIAN: Okay. The next one down, B, what is that showing us?
JONATHAN EISENSTAT: So, now what we're seeing is at the front you can see all the pellets that are still sort of in a cylindrical form because the wadding itself has not completely opened up yet. So, you know, the pellets are all -- you have a plastic tube in essence, and then the pellets are all at the top, and then there's a piece of wadding, so like a plastic disc or something, and then underneath it you have the gunpowder. The gunpowder gets ignited, the heat builds up the pressure, it pushes out the plastic tube between the barrel of the weapon, and that's when -- that first image you see that. The second image, you see that the -- we still have all of the shot where the pellets are still within the plastic tube, and so that's going to go for a little distance. Behind it we see the cloud of gas. We see the pressure from the cloud of gas. And this is still very early on in the shot.
MR. HARPOOTLIAN: Okay, and what's the next -- C, what does that depict?
JONATHAN EISENSTAT: Right. So, now we're a little bit further out, a little bit later after the weapon has been fired. We still see that the pellets are in sort of a cylindrical form, and you can see that the cloud of gas is getting bigger, right? The reason the cloud of gas is getting bigger here is because it's going to go where? Via the path of least resistence. So, it's going to go -- it's going out into the atmosphere. This is not pressed against anything. This is just if I were shooting in the air and the gas is coming out.
MR. HARPOOTLIAN: And the last one, D?
JONATHAN EISENSTAT: A little further on you can now see the pellets are just starting to separate, and we see this big cloud of gas, so the pressure is dispersing into the atmosphere.
MR. HARPOOTLIAN: And if we've had another shot 3 foot down or 4 feet down, what would be happening with those pellets?
JONATHAN EISENSTAT: So, now you're starting to get individual pellets that are -- that the pellets would be opening up, so they wouldn't still be in that cylinder if we're talking 3, 4 feet, or further. So, on the skin we would start seeing a little outline of individual holes from individual pellets. It's not like they all have separated yet, but we would see a sign.
MR. HARPOOTLIAN: 10 feet, would they be separated?
JONATHAN EISENSTAT: Oh, yes.
MR. HARPOOTLIAN: Okay. So, you see a pattern of shot.
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: Individual pellets.
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: Okay. So, let's follow this back. If -- let's go with her scenario first.
JONATHAN EISENSTAT: Okay.
MR. HARPOOTLIAN: And the testimony, I think, has been 3 feet, the muzzle of the shotgun was 3 feet from -- and let me maybe put one of these.
MR. HARPOOTLIAN: Okay. Let me have State's Exhibit 478, please.
MR. HARPOOTLIAN: Now, the wounds in the center of his chest, you and she agree on directionality. It came out under his arm, pellets penetrated his arm, and then went on. I think we've heard out the back window.
JONATHAN EISENSTAT: Right. So, directionality and range of fire, I agree with her on that one.
MR. HARPOOTLIAN: Okay. So, when you look at the wound in his shoulder and his neck, and, of course, his head, tell us where Dr. Riemer got it wrong.
JONATHAN EISENSTAT: Well, I think she has it reversed. And the reason being is now that you've seen where all the pressure would go, if the entrance wound is here on the left shoulder -- and we're saying that we're at least 3 to 4 feet away from there because we have no soot, we have no stippling on the skin -- then by the time it gets to the left side of the chin or over here at angle of the mandible, the jaw, we've lost a lot of energy. And so, yes, you can get some pellets still going up into the head, but you're not going to have the top of the head completely blown off. And if you look at the photograph here you can see, you know, for all of us it curves over and goes around because the top of our skull is there. If you look here, it goes flat. He's missing the top of his skull. That would not have happened from a 3 to 4 foot -- 3 or -- I should say 3 feet or further shotgun wound coming in on the left side.
MR. HARPOOTLIAN: And the wound on his shoulder, let's look at that real quick.
UNIDENTIFIED SPEAKER: Say that again, Counsel.
MR. HARPOOTLIAN: Shoulder, please.
MR. HARPOOTLIAN: That's a pretty big wound, is it not?
JONATHAN EISENSTAT: It is. And there's pellets that are going down into the tissue.
MR. HARPOOTLIAN: And what is the evidence of that?
JONATHAN EISENSTAT: Well, there's photographs that are taken looking down into the wound, and you can see pellets there, and there are x-rays that are taken that you can see there's pellets down into the left shoulder.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: If you go to Defendant's Exhibit 162.
MR. HARPOOTLIAN: Okay. Step down here, please.
JONATHAN EISENSTAT: Yes, sir.
JONATHAN EISENSTAT: May I?
MR. HARPOOTLIAN: Your Honor, may he step down?
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: Thank you.
MR. HARPOOTLIAN: Show the jury, please, the individual pellets.
JONATHAN EISENSTAT: Oh, well, this is probably the easiest one to see, round and silver. I'm going to have to come around for a moment, I'm sorry. There is one here. There is one here. It's not projecting well, but I know that I saw a few down here, but then on x-ray it will become more apparent.
MR. HARPOOTLIAN: Okay. Well, let me do this. Let's go ahead and put the x-ray up while we're talking about this, which would be -- which one of these --
JONATHAN EISENSTAT: We can do this one.
(Break in proceedings.)
MR. HARPOOTLIAN: Any objection? Your Honor, I would offer into evidence Exhibit -- Defense Exhibit 112 and ask that these would be put under seal.
JUDGE NEWMAN: What says the State?
MS. GOUDE: No objection.
JUDGE NEWMAN: It's admitted.
(PHOTO MARKED AS DEFENDANT'S EXHIBIT NUMBER 112 WAS RECEIVED INTO EVIDENCE FOR A SECOND TIME.)
MR. HARPOOTLIAN: All right. Tell us what exhibit --
MR. HARPOOTLIAN: Do you have that? 112?
UNIDENTIFIED SPEAKER: 112? I do not actually have that one.
(PHOTO OF BOOK PAGE MARKED AS DEFENDANT'S EXHIBIT NUMBER 189 FOR IDENTIFICATION.)
MR. HARPOOTLIAN: Tell the jury, please, what we're looking at here.
JONATHAN EISENSTAT: Sure. So, any case that comes to a medical examiner's office that has any type of penetrating injury, the medical examiner will do x-rays to see if there's anything left in the body, and then also for safety reasons. But what we're looking at here is this is the spine. These are the ribs. So, we're looking at the chest, the left shoulder because we're coming out here to the left arm, and all of these dots are the pellets from the shotgun wound. And what we can see here is that these pellets are coming down all the way. So, this is the first rib right here. The first rib is about right here, so we have pellets all of the way down to this level.
MR. HARPOOTLIAN: Is that consistent or inconsistent with a shot being fired from his left, apparently going upward to the brain?
JONATHAN EISENSTAT: Right. That wouldn't be consistent, and the reason being is then it would have to -- the pellets would have to go up, curve, and come down, while the rest of them are continuing this way.
MR. HARPOOTLIAN: Okay. So, can I have this one next?
JONATHAN EISENSTAT: Sure.
MR. HARPOOTLIAN: Defense Exhibit 111. Okay. This should be up on the screen now. Can you -- we're talking about the lower right hand --
JONATHAN EISENSTAT: The left side of body?
MR. HARPOOTLIAN: The left side of the body.
JONATHAN EISENSTAT: The R stands for right, so the x-ray is being taken like this, right side, and this is the left side.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: So, could you blow up the lower right corner, please? There you go.
MR. HARPOOTLIAN: Now, what does this depict?
JONATHAN EISENSTAT: So, this is showing here on the left side of the jaw. And we see all of these pellets that are here. So, the jaw is right here, and you can see these pellets are in the left side of the jaw, in the neck, and they're going down into the upper left chest.
MR. HARPOOTLIAN: So -- and you believe the directionality of these is down.
JONATHAN EISENSTAT: Well, from the totality of the evidence, I believe, yes, they're down, yes.
MR. HARPOOTLIAN: Okay, and --
JONATHAN EISENSTAT: But this x-ray has other findings, I think, that are important for that opinion.
MR. HARPOOTLIAN: Okay.
JONATHAN EISENSTAT: And, I mean, you can see the severity of the fractures of the skull. The skull should -- actually I think it was better if we go back. The severity of skull should obviously come all the way around, right? There's no skull here. That's probably the area where the shotgun was pressed against the head, and we've got all of these fractures. In medical terms we call it multiple comminuted fractures. This is, I mean, textbook for a contact range shotgun wound to the head, to the top of the head, not down.
MR. HARPOOTLIAN: And -- okay. So, in your opinion if it had happened the way Dr. Riemer said, you would not have the directionality of those pellets in the shoulder down.
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: And you would not have that kind of devastation to the skull. There wouldn't be enough energy.
JONATHAN EISENSTAT: That's correct. You may have some what we call linear fractures, some little lines of fractures, but you wouldn't have the top of the skull completely gone.
MR. HARPOOTLIAN: So, explain to me, not being a hunter, how does the gas -- you've got gas coming first, pellets coming second, right?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: So, how do you get the gas going in and the pellets continuing on?
JONATHAN EISENSTAT: Well, the pellets are projected by the gas causing pressure to push out the shot and then the pellets within it. So, you know, think about a rocket that's going up into space, right? So, you see all of the cloud underneath the rocket, and the rocket will continue going up but the cloud goes out because that's the area of the least resistence, but the rocket will still continue, so that's pretty much the same mechanism. The shot puff is going to be pushed out. The energy from all of that gas needs to go somewhere, and when it's being pressed up against a firm surface like a skull, that pressure is going to build up in the -- it's going to go through the hole that's caused by the entrance wound, and it's got nowhere else to go. So, it's -- and, of course, this is all happening in milliseconds, but all of that gas is expanding the inside of the skull, and the least resistence is right here at that opening now. So, it's going to cause that area to basically pop out.
MR. HARPOOTLIAN: And some of the pellets would go through -- most of the pellets would go through?
JONATHAN EISENSTAT: Oh, the pellets will continue through. There may be -- the brain is not here, right? And so there's probably pellets within the brain, but I -- we don't have an x-ray of the brain.
MR. HARPOOTLIAN: They didn't x-ray the brain.
JONATHAN EISENSTAT: Correct.
MR. HARPOOTLIAN: So -- and the skull, I mean, the brain would leave the cavity? Or in this case did it leave the cavity?
JONATHAN EISENSTAT: Yes, it did.
MR. HARPOOTLIAN: And under what kind of force?
JONATHAN EISENSTAT: I can't give you an exact, you know, number. The forces are usually called Newtons, but it -- the build up of that pressure in the skull, it's -- even in that textbook, the brain is being eviscerated in, in shotgun cases from contact wounds.
MR. HARPOOTLIAN: So, if you're the person holding the gun to the skull, does any of that energy go up the barrel of the gun?
JONATHAN EISENSTAT: Well, yes. Once that -- like I said, it builds up in the head, and then it comes back up. So, that's what causes the brain to be pushed out. There's going to be pellets that will come out. There will be other bodily fluids that will come out and will go up along -- it'll basically be what we call back spatter or back motion.
MR. HARPOOTLIAN: But in a violent way.
MR. HARPOOTLIAN: And the person holding that gun, would they be subject to being covered in that material?
JONATHAN EISENSTAT: Yes, they would.
MR. HARPOOTLIAN: In a very forceful way?
MR. HARPOOTLIAN: Okay. So, let me show you a couple other pictures.
MR. HARPOOTLIAN: Would you put Defense Exhibit 113, please? I believe this is in evidence. Okay.
MR. HARPOOTLIAN: Tell us what that depicts.
JONATHAN EISENSTAT: So, now we've moved over to the side, to the left -- more of the left shoulder and showing some of left arm. And, again, you see how the pellets are sort of dispersed, and they're coming down. This is your shoulder blade, your scapula, and so it's even down to the level of the collar bone here and the shoulder blade.
MR. HARPOOTLIAN: Is that consistent with a shot coming up and across the shoulder and into the neck, or is it consistent with something coming down?
JONATHAN EISENSTAT: Well, yeah, with the totality of everything, this is absolutely going down.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Now let me see State's Exhibit 487. I'm sorry. I'm sorry.
(Break in proceedings.)
MR. HARPOOTLIAN: Tell us what we learned from this.
JONATHAN EISENSTAT: Well, for lack of a better term, we have no brain at the top of the skull. It's completely gone with multiple fractures.
MR. HARPOOTLIAN: Was his hair shaved?
JONATHAN EISENSTAT: No, sir, it was not.
MR. HARPOOTLIAN: Would that have been the normal practice? The prudent practice? The required practice?
JONATHAN EISENSTAT: Yes. I would have like to have seen it shaved to help determine the entrance and exit wounds.
MR. HARPOOTLIAN: Okay, but with this autopsy photo, you can't really tell. What would you expect if it was an entrance wound, a contact entrance wound?
JONATHAN EISENSTAT: Right. Well, I can tell with this photograph that it is a contact entrance wound due to the severity of the injury. But what would have been nice is if the hair was shaved, I would be looking for gunpowder residue. I would be looking for burning on the skin itself with -- on the brain itself, and on the skull itself.
MR. HARPOOTLIAN: So, when this goes to --
MR. HARPOOTLIAN: Back up for just a second.
MR. HARPOOTLIAN: The first shot, I believe you agree is to the chest, if Dr. Riemer is correct.
JONATHAN EISENSTAT: I do.
MR. HARPOOTLIAN: This shot, which would be on the top right back, is -- can you tell, or would you have an opinion as to his posture at the time of that shot?
JONATHAN EISENSTAT: Well, it's sort of similar to what we were talking about with Maggie. Unless somebody is in an elevated position where they're high enough where it can come down like this, he's most likely bent over --
MR. HARPOOTLIAN: Further than that, about that? I mean --
JONATHAN EISENSTAT: That's hard for me to say. I mean, his head is over like this because we have the smaller wound. The bigger wound as it's expanding out here, the directionality goes like that. I can't tell you how far down he was actually bent over.
MR. HARPOOTLIAN: And why would he be bent over?
JONATHAN EISENSTAT: Well, the second you get this shot, you're immediately deceased.
MR. HARPOOTLIAN: No, I'm talking about before the shot.
JONATHAN EISENSTAT: Right, and so that -- and we know that he fell forward. He has abrasions to his face, so that indicates to me that the belly shot was first --
MR. HARPOOTLIAN: When you say the belly shot --
JONATHAN EISENSTAT: I'm sorry, the shot that comes across the chest, not the belly, and that would be extremely painful. So, that would cause -- you know, he may be bent over from the pain and then came the shot.
MR. HARPOOTLIAN: Would that first shot affect his ability to breath at all?
JONATHAN EISENSTAT: It would.
MR. HARPOOTLIAN: In what way?
JONATHAN EISENSTAT: Well, Dr. Riemer documented what's called pulmonary contusion, so bruising of the lung. It's hard on a postmortem x-ray to see if you have what's called a pneumothorax, so air that's around the lung, so it will be difficult for him to breath.
MR. HARPOOTLIAN: Can you take that down, Doug, please?
MR. HARPOOTLIAN: Okay. So, you believe that he was in pain as he bent over, and then the -- somebody shot him at the top of the head?
JONATHAN EISENSTAT: Well, yes. This is a painful injury.
MR. HARPOOTLIAN: Okay. Now, let me ask you about just a couple of more things.
JONATHAN EISENSTAT: Should I go back up?
MR. HARPOOTLIAN: Yes, please. Well, yeah, go back up.
MR. HARPOOTLIAN: Could I have Defendant's Exhibit 189, please?
MR. HARPOOTLIAN: Tell us what this is, please.
JONATHAN EISENSTAT: So, this is --
MR. HARPOOTLIAN: Wait one second.
JONATHAN EISENSTAT: Oh, I'm sorry.
(Break in proceedings.)
MR. HARPOOTLIAN: Have you seen this before?
JONATHAN EISENSTAT: Yes, sir, I have.
MR. HARPOOTLIAN: And is it from the same book as the gunshot, the shotgun?
JONATHAN EISENSTAT: Yes. It's from the Di Maio gunshot wound book.
MR. HARPOOTLIAN: And what does it depict? I mean, I'm not telling you specifically, but what does it depict?
JONATHAN EISENSTAT: What the appearance on the body would be at different ranges for shotgun wounds.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: I offer this into evidence, Your Honor.
MS. GOUDE: Your Honor, the State objects. This is hearsay. This is a bullet -- page from a book by somebody else, not the witness who's testifying.
MR. HARPOOTLIAN: Your Honor, she has not objected to two other -- her witness and this witness relating to the same book, different page. It's a learned treatise, and it's the bible of gunshot wounds for -- I mean, both Dr. Riemer and this witness have testified it's something they all rely on. I can have him sketch it out, or we can just put this in.
JUDGE NEWMAN: What says the State?
MS. GOUDE: It's hearsay, Your Honor.
JUDGE NEWMAN: May I see it?
MR. HARPOOTLIAN: Yes, sir.
JUDGE NEWMAN: Ladies and gentlemen, I'll have you go to the jury room for a break. Please do not discuss the case.
(The jury left the courtroom.)
JUDGE NEWMAN: Everyone be seated.
(Break in proceedings.)
JUDGE NEWMAN: Doctor, this page 189, what is it?
JONATHAN EISENSTAT: So, this is a photocopy from the page of the gunshot wound book that gives a pictorial diagram of what different range of fires would look like on the skin of a shotgun victim.
JUDGE NEWMAN: Okay. Anything else from the State or the defense?
MR. HARPOOTLIAN: Your Honor, under 803 hearsay, the -- number 18: Learned treatise, to the extent called to the attention of an expert witness on cross- examination or relied by the expert on direct examination, statements contained in a published treatises, periodicals, or pamphlets on a subject of history, medicine, science, or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, may be read into evidence but may not be received as -- I'm sorry. So, I'll withdraw it as an exhibit and I'll have him do a drawing.
JUDGE NEWMAN: All right. Okay. Well, take 15 minutes.
(A break was taken.)
JUDGE NEWMAN: You may bring the jury.
(The jury returned to the courtroom.)
COURT BAILIFF: The jury is present, Your Honor.
JUDGE NEWMAN: Thank you. You may proceed. The last exhibit has been withdrawn.
MR. HARPOOTLIAN: Beg the Court's indulgence one moment, please.
(Break in proceedings.)
CONTINUED DIRECT EXAMINATION
BY MR. HARPOOTLIAN:
MR. HARPOOTLIAN: So, let me have you do some things. We attempted a moment ago to use a page out of a book, and I think we're going to have you sketch this out. So, how about step down, please, with permission of the Court?
JONATHAN EISENSTAT: May I?
JUDGE NEWMAN: Yes.
MR. HARPOOTLIAN: How about stand on that side there. And do you remember what that page was in the book?
MR. HARPOOTLIAN: And so what I want you to do is you can't put that in, but replicate that for the jury and tell them what it means.
JONATHAN EISENSTAT: Sure.
MR. HARPOOTLIAN: And do you want to take them one at a time?
JONATHAN EISENSTAT: Yes, I will.
MR. HARPOOTLIAN: Okay, great. Thank you.
JONATHAN EISENSTAT: So, talking about shotgun wounds to the body and trying to figure out what the range of fire is, a perfect circle, which I am not a great artist, but let's just say that's a perfect circle. That means that the end of the barrel, right, that circle is pressed up against the skin. Now, this would be down here on the abdomen where you have leeway. It would end up being a perfect circle. If you have it up where it's going up against something firm, then you would have the circle, but you would have the splitting from that build up of pressure. So, this is a contact range. If we have some burning around it, contact range or close range, if we have soot around it we're close range. Now, from the initial -- the first picture that we looked at, all of those pellets come in, and then they start to slowly open up, so now what we've got is sort of looks like a cloud, right? We call it scalloped margins. So, now we're moving out a little bit further. We are, you know, in that area of maybe 2 to 3 feet or so, and then as we continue moving further and further we get the scalloped margins, but then we get holes. And it doesn't have to be perfectly around it, but we get holes from the individual pellets that have now moved out. And so if we start seeing individual pellets, we're saying usually the end of the weapon is 4 feet or further, and then to be more specific, is it 4 foot or 5 feet or 6 feet? Then you have to test fire.
MR. HARPOOTLIAN: Okay. So, as the muzzle gets closer to the wound, there either is no spreading of the pellets within a contact wound, but the further away pellets begin to expand, and the further away, you get more of an individualized pellet pattern?
JONATHAN EISENSTAT: That's correct. It is like a -- when it comes out, it comes out, and it goes triangular. So, it gets bigger, and as it goes triangular -- it's almost like playing pool. And you take the cue ball and you hit the pool balls, the billiards, and they start to open up.
MR. HARPOOTLIAN: Okay. Let me -- if you put up --
MR. HARPOOTLIAN: Is Defense Exhibit 162 in evidence? I don't believe it is.
(Break in proceedings.)
MR. HARPOOTLIAN: Okay, well let me show it. Any objection?
MS. GOUDE: No objection.
MR. HARPOOTLIAN: Well, let me -- while she's doing that, let me push this out of the way.
(Break in proceedings.)
MR. HARPOOTLIAN: Is everything off over there?
(Break in proceedings.)
MR. HARPOOTLIAN: I offer this into evidence, Your Honor without objection and ask that it be sealed.
JUDGE NEWMAN: What says the State?
MS. GOUDE: No objection, Your Honor.
JUDGE NEWMAN: It's admitted without objection.
(PHOTO MARKED AS DEFENDANT'S EXHIBIT NUMBER 162 WAS RECEIVED INTO EVIDENCE.)
MR. HARPOOTLIAN: Put it up on the screen, please.
MR. HARPOOTLIAN: Okay. Now, here we see -- and there's measurements here -- a rather large wound on the shoulder. Is that correct?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And then a smaller wound in his chin.
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: What does that tell you about the directionality?
JONATHAN EISENSTAT: Well, it's not just that. It's also that we have no surrounding individual pellets, pellet holes. To me looking at this, this is not going left to right. I can understand the thought that maybe it was like a tangential graze, but then the pellets wouldn't have gone down and they would have opened up onto the left chin. So, again, using the totality of the evidence, these are pellets that are coming down from the top. They're starting to open up. They go through here, and they have to go through another bone so they're going to open up further and disperse through the left shoulder.
MR. HARPOOTLIAN: So -- and maybe this it too simplistic. Do shotgun wounds, do they -- and, of course, as you've just testified they expand, right? The pattern --
JONATHAN EISENSTAT: The -- you'll get a different pattern, and for a certain distance the actual hole will expand, but then you lose that hole and it becomes just individual small holes.
MR. HARPOOTLIAN: So, you've got a smaller hole in his chin and a larger hole in his shoulder. Does that indicate anything? I mean, am I being too simplistic? Smaller meaning it's expanding at that point?
JONATHAN EISENSTAT: Right. Not to be offensive, I think that it is a little too simplistic because we also have to look at what's around the wound. But yes. Again, the totality of everything, this is definitely coming downwards from right to left. The only way I could see larger wound on the left shoulder, smaller wound on the left chin is if you consider this a graze wound. But again, using the totality of everything, the size of this wound, the location of the pellets going down into the shoulder, this is not going left to right.
MR. HARPOOTLIAN: Okay. Now, let me also ask you this. If the wound is in the head, then why isn't the brain macerated? Why isn't the brain shredded by those pellets? Why does the brain exit the skull, as we saw a minute ago, without being shot to pieces?
JONATHAN EISENSTAT: Because, again, you're having one -- the shotshell --
MR. HARPOOTLIAN: Take it down.
MR. HARPOOTLIAN: I'm sorry. Go ahead.
JONATHAN EISENSTAT: That's okay. Everything is still within that shotshell as is goes in. The pressure is just going to form around it and push it out. Sometimes you'll see, in my experience, a complete intact brain that may have some holes here and there. Sometimes you'll see a brain that is split in half, and sometimes you will see completely macerated. But from what I saw in the photograph in reading Dr. Riemer's autopsy report, she does state that the brain was received in another bag and that it was -- I don't remember exact words -- but that it was severely traumatized.
MR. HARPOOTLIAN: But there's no x-rays to that brain.
JONATHAN EISENSTAT: There's no x-rays of the brain. I'm sure there are pellets within the brain.
MR. HARPOOTLIAN: And are there -- were there any shots -- do you see any actual autopsy photos of the brain? I mean, just the brain.
JONATHAN EISENSTAT: No. I saw scene photos, but I did not see autopsy photos of just the brain.
MR. HARPOOTLIAN: Okay. So, you would not -- well, let me back off for just a second. You've actually done autopsies on contact wounds by shotgun to the head?
MR. HARPOOTLIAN: And what you're telling us is based on that experience?
JONATHAN EISENSTAT: Well, experience, training, the textbooks. I mean, articles aren't written about it because it's fairly common knowledge.
MR. HARPOOTLIAN: Okay, and let me do a little housekeeping. I've got a number of photos I want to show you that may be used -- or were they used by you in your reaching your opinion? Okay.
JONATHAN EISENSTAT: Okay.
MR. HARPOOTLIAN: Your Honor, I intend on showing this witness Defendant's Exhibits 169, 168, 161, 160, and 159 to determine whether or not he relied on these to come to the conclusion he has come to. I don't think there's any need to publish them to the jury at this point, and I believe the State consents to their admission.
MS. GOUDE: No objection.
MR. HARPOOTLIAN: If I might proceed.
MR. HARPOOTLIAN: Would you look at these photos, please?
JONATHAN EISENSTAT: Yes, sir.
(Break in proceedings.)
MR. HARPOOTLIAN: Okay. Are those photographs autopsy photographs, or x-rays, that you relied on in reaching the opinions you've expressed to this jury today?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: Your Honor, we would offer these into evidence.
MS. GOUDE: No objection.
JUDGE NEWMAN: They're admitted.
MR. HARPOOTLIAN: Your Honor, for the record we're offering Defendant's Exhibit 160, 161, 168, 169, and 159, and 160 -- I think I already said 160. Give those to you. And, again, all under seal, please.
(PHOTO MARKED AS DEFENDANT'S EXHIBIT NUMBER 159 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS DEFENDANT'S EXHIBIT NUMBER 160 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS DEFENDANT'S EXHIBIT NUMBER 161 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS DEFENDANT'S EXHIBIT NUMBER 168 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS DEFENDANT'S EXHIBIT NUMBER 169 WAS RECEIVED INTO EVIDENCE.)
MR. HARPOOTLIAN: So, just a couple of more questions.
MR. HARPOOTLIAN: 162 is already in evidence, right? So let me hand that back to you before I do something with it.
MR. HARPOOTLIAN: So, the opinions you've given here today you've given to a degree of medical certainty more probably than not?
MR. HARPOOTLIAN: And you would agree with me that you are not an expert on the vectors of this shot, either one -- any of these shots, except you've talked about a probability on Maggie on the two shots that would go down, right?
JONATHAN EISENSTAT: Right. I just -- I want to make sure I'm answering correctly. So, I'm an expert on the directionality within the body that projectiles go: entrance, exit, the direction within the body. As far as -- and I think this is what you're asking. As far as crime scene and reconstructing, things of that sort, that's not my area of expertise.
MR. HARPOOTLIAN: Okay, but you have given an opinion, and I want to make sure that we all understand what you've said. You've given an opinion that Dr. Riemer was wrong on the shot that blew Paul's brain out of his skull and it landed on the ground, correct?
JONATHAN EISENSTAT: That's correct.
MR. HARPOOTLIAN: And you believe it was a shot in the back right of the skull?
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: And you believe that it was going through his skull, out his neck, and into his arm.
JONATHAN EISENSTAT: Into the left side, yes, sir.
MR. HARPOOTLIAN: Left side. All right, and we found a number of x-rays showing the pellets. We've seen forensic evidence that you, in the normal course of your work, rely on to draw opinions, right?
JONATHAN EISENSTAT: That's correct.
MR. HARPOOTLIAN: And you've done that thousands of times.
JONATHAN EISENSTAT: Yes, sir.
MR. HARPOOTLIAN: Let me make sure the jury understands this. When you're submitted materials like we submitted to you in cases, you report -- I mean, are you paid to give an opinion, a specific opinion?
JONATHAN EISENSTAT: No. I wouldn't accept a case if someone said this is what we want.
MR. HARPOOTLIAN: Okay, and you come to conclusions based on the materials given to you?
JONATHAN EISENSTAT: Absolutely.
MR. HARPOOTLIAN: And that's your conclusion here today?
JONATHAN EISENSTAT: The conclusions that I've stated? Yes.
MR. HARPOOTLIAN: Beg the Court's indulgence.
(Break in proceedings.)
MR. HARPOOTLIAN: So, you've indicated and testified that it would be -- the blood, brains, pieces of skull, other material would blow out the direction of the hole and the muzzle of the gun would have been pressed against the skull, correct?
JONATHAN EISENSTAT: The muzzle of the -- the end of the barrel of the shotgun would be pressed against the skin firm enough that there would be pressure onto the skull, and then you would have blowback as the skull opened up.
MR. HARPOOTLIAN: And would that blowback follow the barrel of the gun?
JONATHAN EISENSTAT: Well, it would come back up the barrel of the gun, but it would also distribute.
MR. HARPOOTLIAN: Right, and what about the barrel of the gun? Would there be biological material jammed into that?
JONATHAN EISENSTAT: Absolutely.
MR. HARPOOTLIAN: I'm sorry?
JONATHAN EISENSTAT: Absolutely.
MR. HARPOOTLIAN: Okay. So, there would be brains, blood, skull, whatever jammed back up the barrel of the shotgun?
JONATHAN EISENSTAT: Right. What we say is biologic material.
MR. HARPOOTLIAN: Okay. Thank you. Please answer any questions Ms. Goude has.
JUDGE NEWMAN: Cross-examination.
MS. GOUDE: Thank you, Your Honor.
(Break in proceedings.)
CROSS-EXAMINATION
BY MS. GOUDE:
MS. GOUDE: Hi, Dr. Eisenstat.
JONATHAN EISENSTAT: Good morning.
MS. GOUDE: Now, when you first started your testimony, you talked a little bit about time of death.
MS. GOUDE: Is it the pathologist's job to determine the time of death?
JONATHAN EISENSTAT: Depends on the jurisdiction, but pathologists are trained in talking about what is consistent or what's not consistent. But I believe -- like in Georgia, I believe here in South Carolina the coroner, in the majority of counties, the coroner goes to the scene and does the investigation. So, I don't know how it works here, but there's no doubt that part of a forensic pathologist's training and knowledge is determining cause of death from information given -- excuse me, time of death from information given to them.
MS. GOUDE: And it's not customary for a pathologist to actually go out to the crime scene, is it?
JONATHAN EISENSTAT: I would say more often than not the pathologist does not go out.
MS. GOUDE: All right, and now in this case, because this appeared to be homicides, the county coroner would be the one to have requested an autopsy. Is that right?
JONATHAN EISENSTAT: That's my understanding. Definitely in Georgia. It's my understanding here, yes.
MS. GOUDE: And Dr. Riemer performed the autopsy here?
JONATHAN EISENSTAT: Yes, ma'am.
MS. GOUDE: And she performed an independent autopsy.
JONATHAN EISENSTAT: She did.
MS. GOUDE: Did you perform an autopsy of either of the victims in this case?
JONATHAN EISENSTAT: I did not.
MS. GOUDE: And you relied on, I think you testified, on Dr. Riemer's x-rays, crime scene photos, and autopsy photos in determining your opinion.
JONATHAN EISENSTAT: That's correct.
MS. GOUDE: And you were hired, right?
JONATHAN EISENSTAT: Yes, I was.
MS. GOUDE: And you were here on Friday, weren't you?
JONATHAN EISENSTAT: I was.
MS. GOUDE: Okay. So, that would mean you've made over $10,000 in evaluating or taking part in this case.
JONATHAN EISENSTAT: At the end of the day, that's correct.
MS. GOUDE: Did you do a report?
JONATHAN EISENSTAT: I was not asked to do a report, no.
MS. GOUDE: Wouldn't you agree that a report would have been helpful to explain the scientific methods or investigation that you used to come to your conclusions?
JONATHAN EISENSTAT: Oh, I -- you know, different jurisdictions do it differently, so I have no idea how it's done here. But, I mean, my report would have been exactly the same as my testimony, so I guess it would be on paper instead of, you know, verbally.
MS. GOUDE: Well, you saw Dr. Riemer's report and that was actually entered into evidence, right?
JONATHAN EISENSTAT: Yes, I did.
MS. GOUDE: All right. You spoke a little bit about Maggie --
JONATHAN EISENSTAT: Yeah, that's correct.
MS. GOUDE: -- and her autopsy. And I believe you said in your testimony that Maggie's shooter could be taller than Maggie. Is that right?
JONATHAN EISENSTAT: Oh, no, that's not what I said.
MS. GOUDE: What did you say?
JONATHAN EISENSTAT: No. No. What we were talking about was if Maggie's gunshot or rifle wounds to the top of her head and to the side of her head were with her standing up, that would have to be somebody at an elevated position. So, I did not -- I didn't give an opinion that the shooter had to be taller because we talked about how she could be bent over.
MS. GOUDE: But an elevated position could mean the shooter was taller, right?
JONATHAN EISENSTAT: Oh, but that -- I mean, it could be. It could be that the shooter was taller, but that would still have to be somebody in an extremely elevated position shooting down. I'll leave it at that.
MS. GOUDE: And you said that determining trajectory is not something that you do.
JONATHAN EISENSTAT: At the scene, that's correct. On the body, that's what I do all the time.
MS. GOUDE: All right. Let's move on to Paul. Would you agree that when a gun is shot, a lot of energy and momentum is generated, and that momentum and energy tears through a person's body?
JONATHAN EISENSTAT: Depending on the range of fire, the type of ammunition, yes, I agree with that.
MS. GOUDE: And when pellets are shot, they spread out.
JONATHAN EISENSTAT: Eventually, yes.
MS. GOUDE: So, if Paul was shot in the back of the head and those pellets start spreading out, did they come back together when they exited this way?
JONATHAN EISENSTAT: No. No. No. But that's, that's where we're talking about the same thing as range of fire. So, those pellets -- I mean, if you go from the top of the head down to here, this is about 6 inches, so about 6 inches -- we have maybe a foot, right, from here to here. Those pellets can still be together and starting to spread out. So, no, they're not going to go out and come back together. Some -- that's why I was talking about that billiard ball effect, some -- if you, you know, hit that cue ball, the side ones are going to pop out, and the middle ones will still be together. So, no, they won't go out and come back. But I have no issue with 1 foot from here to here, and having still a whole cluster of pellets going through.
MS. GOUDE: But the pellets would be closer together when they first enter the body.
JONATHAN EISENSTAT: For a certain distance, yes.
MS. GOUDE: And we also talked about soot or stippling. Now in Dr. Riemer's report, she does note that there was soot and stippling for certain injuries, right?
JONATHAN EISENSTAT: Yes, ma'am.
MS. GOUDE: And she did not note that for the injury to the shoulder and head.
JONATHAN EISENSTAT: Agreed.
MS. GOUDE: And wasn't the top of Paul's skull missing?
JONATHAN EISENSTAT: Yes, it was.
MS. GOUDE: And Paul's face, it wasn't blown off, was it?
JONATHAN EISENSTAT: It was not.
MS. GOUDE: His brains weren't splattered all over the floor?
JONATHAN EISENSTAT: Well, I mean, it depends on what you mean by that. But his brain left his head and ended up being on the floor. There were some smaller pieces in other areas and a large piece in one area.
MS. GOUDE: I'm going to show you what's been entered as State's 24 under seal. I don't know if you can tell from this picture.
JONATHAN EISENSTAT: I can.
MS. GOUDE: Can you?
JONATHAN EISENSTAT: Yes, ma'am.
MS. GOUDE: Does that brain look macerated or splattered everywhere?
JONATHAN EISENSTAT: No, but that brain has been extruded from the head, and there are, when you do a zoom-in on it -- unfortunately no x-ray, but when you zoom in on it, you can tell if there's injury to the brain. But the brain, yes, I agree it's not macerated.
MS. GOUDE: And there were pellets on the floor of that feed room?
JONATHAN EISENSTAT: That's my understanding.
MS. GOUDE: I'm going to show you State's 26 and 43. Do you see that is the door to the feed room?
JONATHAN EISENSTAT: I do.
MS. GOUDE: And State's 43. Is that blood spatter on top of the door?
JONATHAN EISENSTAT: That looks like blood spatter at the top of the door, yes.
MS. GOUDE: And no blood spatter out there on the sidewalk from his brain being blown out from his head and his face being left intact, right?
JONATHAN EISENSTAT: Right. The brain would come out the top of the head.
MS. GOUDE: And it's on the top of that door.
JONATHAN EISENSTAT: I'm sorry, ma'am?
MS. GOUDE: And the blood spatter is on the top of the door there.
JONATHAN EISENSTAT: Right, that's blowback. That's from here, the pressure pushing it backwards.
MS. GOUDE: And did you see any crime scene photos of the feed room where there were some containers on the shelf?
JONATHAN EISENSTAT: I did.
MS. GOUDE: So, the containers on the shelf, I believe, would be to the right side on this picture?
JONATHAN EISENSTAT: Looking at the picture I believe, yes, inside on the right there's some shelves with a number of items on it.
MS. GOUDE: And was there kind of a demarcation line showing blood going to the top of the feed room?
JONATHAN EISENSTAT: Oh, I don't recall. In all honesty, you're starting to get into an area that's not my area of expertise.
MS. GOUDE: Into trajectory, right?
JONATHAN EISENSTAT: Outside of the body, yes.
MS. GOUDE: And did you determine the manner of death for these victims?
JONATHAN EISENSTAT: I did.
MS. GOUDE: What was that?
JONATHAN EISENSTAT: For both of them it was homicide.
MS. GOUDE: Thank you. Nothing further.
JUDGE NEWMAN: Anything further?
MR. HARPOOTLIAN: Nothing further, Your Honor.
JUDGE NEWMAN: Thank you. You may step down.
JONATHAN EISENSTAT: Thank you.
(The witness exited the stand.)
MR. HARPOOTLIAN: Your Honor, may the witness be excused?
JUDGE NEWMAN: Yes.
MR. HARPOOTLIAN: Thank you.