Defending a Father Charged with Murdering his Child

This was a very big case at the time, a capital murder case. My client was charged with killing his 7 month old child. Capital murder means that the state is trying to get the death penalty for your client. The detectives in the case ̶ in their limited investigation ̶ had concluded that my client had murdered his 7 month old child. I call it limited because the investigation didn’t go very deep. Their findings convinced his wife that her husband, our client, had murdered their infant child, so she divorced him. My client sat in custody for over 2 years waiting for this trial.

Two years waiting for a trial? Is that normal in Arizona?

On capital cases, you can have a lot of delay because there are so many issues that come up, and it’s really unfortunate. In a capital case, there is no bail. In this particular case, my client was indicted for murder in the first degree before the tissue samples even came back from the lab testing. When we get the tissue samples back, 4 months into the case, we had to try to understand the findings. They showed that in all areas of the child’s head, what existed there were “hemosiderin laden macrophages.” Hemo means blood, siderin is iron, and a phage is a cell that eats dead cells. These tissues from the skull, under the skull, around the skull, all showed the same thing. What we learned from our own expert, is that siderin, or iron, doesn’t show up in the blood until at least 3 days after the death of the victim. Well, my client, 3 days before, wasn’t in the presence of his child, and it demonstrated that he couldn’t have been the killer. We demonstrated that the child was with the child’s grandparents at the time, my client’s in-laws.

It was a very technical argument. This was a 6 week trial. In my opening statement, the first words out of my mouth were, “Hemosiderin laden macrophages. That doesn’t mean anything to you right now, but by the end of this case, I’m hopeful that you will be able to explain to anyone what a hemosiderin laden macrophage is, and what its significance is.” I had to teach the jury about hemosiderin laden macrophages, and by the way, in the process, taught the prosecutor what it meant too, so by the time we are in closing argument, she’s not even arguing what the child had died from. She changed the theory of her case during the trial.

Is that unusual? Does the prosecution change their theory mid-case like that?

It is unusual, but I anticipated this in my opening statement. I said to the jury, “You just heard the state’s opening statement. Now I expect you to hold her to that opening statement, just like I expect you to hold me to my opening statement.” Now I could get up in closing 6 weeks later and say, “Remember what I told you? Now listen to what the prosecution is saying today; they have a completely different theory of how the child died.”

We won that case. My client was acquitted of capital murder. In other words, they didn’t convict my client of murder 2, or manslaughter, or negligent homicide; he was acquitted.

Were there expert witnesses brought in on both sides?

It’s a typical part of defense work, but just as in other parts of your preparation, when you cross examine an expert, in my view, I need to know more about that very narrow area than they do. So I can speak to them at their level, but more importantly, if I need to, I can impeach them if they don’t testify consistent with what I know. I had to do that with the state’s expert, who was the assistant medical examiner. This was a very arrogant doctor, and that was a fun part of the case. The fun thing at the end was when we got a good verdict and the jury didn’t like what the state did at all. Because now you have a man, my client, who all the detectives had been, for years, calling a monster. As I said, they convinced the wife the husband was the monster, so his marriage was over. The wife was in the courtroom the whole time, but she hears this evidence, which I guarantee you she had never heard before, and she had to be wondering.

That’s awful.

Yeah. And she was already remarried before the trial even began.