Spotlight on Dr. Kevin Horn

jatrial

The Jodi Arias Trial    On The Horn of a Dilemma

 

Fact based reporting

By Amanda Chen with Rob Roman

horn 3 images (9) 

 attack new

At the trial, Jodi Arias said something very true about Dr. Horn and the prosecution. She said “I disagree with the order of injuries”.

 The diagram above is how Jodi explained the gunshot. A not incapacitating shot stunned Travis, and he fell to the bathroom floor, before going to the sink. This diagram is not scientific. The shot (red line) would have to come from above Travis’ head and to his right on a roughly 45 degree downward angle.

This theory fits the forensic evidence. Jodi Arias may have gone to his aid, when the deadly struggle resumed. Dr. Horn made the jury and all of us certain that this could not be so. So we should take a look at the very important testimony of Dr. Kevin Horn.

There are many ways a prosecutor can win a case. There is hard work, attention to detail, experience, excellent direct and cross-examination of witnesses, and preparation. There is also a fierce devotion to the job of bringing a dangerous criminal to justice. Finally you will need a good grasp of the evidence, and know how to explain and persuade a jury that your evidence is sound.  

Detective Flores was very convinced before the trial that the gunshot was first. He told the 48 hours interviewer three times that this was so. Was this because he trusted what Jodi Arias told him? I don’t think so. Detective Flores said that he is not a medical doctor and he cannot determine the order of injuries. He must rely on the medical examiner to be so confident that the gunshot was first or last.

Why does it matter? If the gunshot was last, this means many things that Jodi Arias said on the stand about June 4th, 2008 must be lies. It means that the attack on Travis Alexander began with a knife. After so many knife wounds and slitting the throat of her victim, Jodi then shot Travis in the head in cold blood, just to be sure he was dead or maybe to create the illusion of two attackers. Here, there is no possibility of self-defense. 

 Pretend that it was proven that the gunshot was first. What does this mean? Here, there are two possibilities. Jodi shot Travis while he was sitting in the shower. The shot did not incapacitate or kill him and he was still moving about in pain. Jodi could not call the police or get help, because it looks very bad for her. So she gets a knife and “finishes him off”.

The other possibility is that Jodi was telling the truth. She shot him in self-defense and he continued to come at her, so she got hold of a knife and fought back. Then in a highly charged state fueled by adrenaline, she went too far. Her memory was impaired in some way.

If even one juror could believe this possibility, this jury could “hang”. If more jurors see the possibility, Jodi might not be found guilty of 1st degree murder. This is not a good position for the prosecution. Jodi Arias already tried to plead guilty to 2nd degree murder. Every member of the jury must be convinced that the gunshot was last for the prosecution to be certain of winning this case. 

horn 7Then we are introduced to Doctor Kevin Horn. Dr. Horn proved convincingly that the gunshot was last. During his testimony, the prosecutor asked over and over about this point. Dr. Horn testified three times during the trial, and each time he gave more testimony about the gunshot and the order of injuries.

A medical examiner is a trusted public servant, a scientist, and something of a detective. They are experts in their field and we can be sure what they say is true, right?

 If you saw the trial of George Zimmerman, you will remember Dr. Shipping Bao testifying for the prosecution. First he said Trayvon Martin could only live 3 minutes after being shot. Then he said Martin could live 10 minutes. He thought Martin could have been shot from .4 inches away or maybe from 4 feet away.Bao said Trayvon would be immediately incapacitated. Later, he said Martin could have walked 20 feet. He said that many things were “not my job”.  He read from notes that no one ever saw before. He admitted to improper procedures before, during and after the autopsy.

http://www.talkleft.com/story/2013/7/5/145044/7130/crimenews/Zimmerman-Medical-Examiner- Changes-Opinions

http://www.heavy.com/news/2013/07/medical-examiner-testifies-in-zimmerman-murder-trial/

 Why do I bring up Dr. Bao? It took Dr. Vincent DiMaio, a renowned medical examiner and gunshot expert, to discredit Bao’s testimony. It seems that many times, lower level workers and assistants do a lot of the work, and a supervisor signs off.

 Dr. Bao said something very interesting. ‘My opinion is mine, it belongs to me. I can change any time, my right to change.’ But a change in opinion in a capitol murder case can mean the difference between life and death.

There’s always plenty of other evidence and witnesses in a case. Can the testimony of a medical examiner be so critical to a case? Can a small change in the medical examiner’s report or opinion change the outcome of a trial? Let’s look at some recent cases:

 “Dallas, Texas — A jury found appellant, Victor Hugo Quinonez-Saa, guilty of murder and assessed punishment at 75-years confinement and a fine of $10,000.

In his first point of error, appellant asserts that the admission into evidence of autopsy photographs was reversible error because the medical examiner who testified had not performed the autopsy or viewed the body of the deceased. The autopsy had been conducted on the deceased by Dr. Auerlio Espinola, an assistant medical examiner.”

http://www.leagle.com/decision/19931564860SW2d704_11465

 “BROCKTON, Mass. — Massachusetts prosecutors have taken the highly unusual step of charging one of their own expert witnesses — Connecticut state medical examiner Dr. Frank Evangelista — with perjury for what they allege are inconsistencies in his testimony in a murder case.”

http://www.middletownpress.com/general-news/20120120/connecticut-assistant-medical-examiner-charged-with-perjury-in-massachusetts-3

images (7) “ST. PAUL, Minn. — After spending six years in prison, a Minnesota man has been exonerated in his daughter’s death. Avry was just four months old when she died. Mike lost his daughter and then six years of his life, after being convicted of killing her. A judge found the Ramsey County medical examiner gave false or incorrect testimony.”

http://minnesota.publicradio.org/display/web/2011/10/03/county-to-further-review-case-involving-medical-examiners-false-testimony

 “Highlands, Texas  — On May 5, 1999, Brandy Briggs found her 2-month-old baby Daniel Lemons limp, barely breathing and unconscious at her home. She called 911 and the baby was rushed to the hospital. On May 9, the baby died. Ms. Briggs was prosected for 1st degree murder. The evidence was based on the opinion of Dr. Moore, a medical examiner.

The trial court found that “Dr. Moore’s trial opinions were based on false pretenses of competence, objectivity, and underlying pathological reasoning, and were not given in good faith.” The trial court characterized her testimony as “expert fiction calculated to attain a criminal conviction.””

 Here is a passage from the court report on this case:

“The Due Process Clause of the Fourteenth Amendment is violated when the State knowingly or unknowingly uses perjured testimony to obtain a conviction. We held on direct appeal that false testimony resulted in a due process violation when there was a fair probability that the death sentence was based upon incorrect testimony.””

http://www.cca.courts.state.tx.us

 Medical examiners make honest mistakes like everyone else. Medical examiners are overworked and they are under pressure to help the prosecution team get a conviction. So, what do a few cases gone wrong really show?

 Doctor Horn appeared confident, thorough, and trustworthy. We should not try to implicate Dr. Horn because of mistakes in other states and under different conditions. He is very careful with his reports and testimony, isn’t he? Let’s take a look at two of Dr. Horn’s past legal cases:

images (8) “Ms. Randall operated a home day care business. She discovered a four-month-old child unconscious on her floor on April 18, 2007. She called 911. Paramedics transported the child to Phoenix Children’s Hospital. The youngster was taken off of life support the following day, and passed away.”

 “Kevin Horn, M.D. (“Horn”) performed an autopsy. A CT scan revealed a “possible skull fracture, secondary to brain swelling.” The Peoria police were notified and Detective Kevin Moran was assigned as the lead investigator. Subsequently, Dr. Horn concluded that the youngster died from “blunt force trauma of the head and neck.”

 A grand jury indicted Randall for the child’s death in November 2007.The Prosecutor’s Office announced they would seek the death penalty.”

 “Nearly two years later, the State finally withdrew its notice seeking the death penalty. After argument, the charges were dismissed with prejudice on August 4, 2010.

 Ms. Randall then filed a complaint. The amended complaint alleged eleven causes of action and the named defendants included Maricopa County, the Maricopa County Attorney’s Office, Thomas, Whitney, Horn, Moran, and the City of Peoria.”

http://statecasefiles.justia.com/documents/arizona

 Here, Dr. Horn seems to make a neutral diagnosis of injuries, which then changes to intentional infliction of injuries shortly after meeting with Detective Moran and the D.A.’s office. This death penalty case never made it to trial. In the next case, the self-defense case of Harold Fish, Dr. Horn seems to pass off mere speculation for scientific certainty.

 “ISSUE PRESENTED FOR REVIEW:

The speculative testimony of the Medical Examiner, Dr. Horn (in State v. Fish), was relied upon by the State as “forensic science” in arguing their case to the jury. Yet, the testimony of Dr. Horn failed to meet minimum evidentiary standards.” 

 “Although the Court of Appeals found that Dr. Horn ultimately focused upon “offensive” and “defensive” wounds as equally likely ….. we submit that expert testimony speculating about gunshot wounds as “defensive wounds” when they are no more likely than “offensive wounds” not only falls short of evidentiary standards, but is more prejudicial than probative.”

 “The State relied upon the testimony of Dr. Horn as essential evidence to support its conviction. It is obvious that the State would not have prevailed (in State v. Fish) without the testimony of Dr. Horn.”

“An expert opinion must be within a reasonable degree of medical probability which is an important evidentiary standard throughout the United States that must be enforced in order to prevent unreliable medical testimony from swaying juries, which is exactly what happened in Fish’s case.”

 “Dr. Horn’s interpretation of the wounds as “consistent with defensive wounds” was nothing more than a speculative judgment about one possibility within an array of many possible inferences.” 

 “The testimony of Dr. Horn not only swayed the jury, it was used as the decisive “evidence” against Fish. Dr. Horn’s testimony fell below evidentiary standards and was misleading. It violated due process of law.” 

http://www.haroldfishdefense.org

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In the Arias case, Dr. Horn said that the gunshot pierced the skull and therefore must have impacted the brain. Dr. Horn said the victim was shot in the frontal lobe and therefore would be “immediately incapacitated”. Dr, Horn’s report indicated that the brain was not impacted by the bullet, but he claimed it was a typographical error. All of this is highly questionable.

 Dr. Horn stated that he found no blood in the wound tract. Crime scene photos show blood pouring out of Mr. Alexander’s nostrils. Dr. Horn stated that the gases from the gunshot would cause a massive shockwave through the brain. If the brain was impacted, the wound tract through the brain could only be mere fractions of an inch.

http://www.youtube.com/user/croakerqueen123

 Shortly before the trial, Juan Martinez aksed Detective Flores to meet with Dr. Horn. They met to discuss possible death penalty aggravators. Detective Flores changed his opinion and his sworn testimony. Dr. Horn’s opinion and report also changed. Detective Flores stated all this at trial. Dr. Horn was insistent and adamant about his new opinion after holding the opposite opinion for years. Imagine that!

http://www.youtube.com/user/croakerqueen123

 Imagine this: Lisa Randall was a grandmother and Day care operator who faced the death penalty and three years of prosecution based on no evidence other than the faulty medical opinion of Dr. Horn.

 Harold Fish was a retired teacher and a Mormon father of 7. Fish was an avid hiker and hunter forced to kill a man who attacked him on a trail. His conviction was reversed and he was released from prison to enjoy three years of freedom before he passed away.

horn fish randall

 In both cases, there was no evidence at all to support a conviction. There is nothing anywhere in the past of either to suggest they would harm or kill another person. There are only the tragic events of one day and the testimony and opinion of Dr. Kevin Horn.

lisa randall 

  Lisa Randall:  Death Penalty and First Degree Murder Charges Dropped

fish freed 125

Harold Fish: Conviction Reversed 

The Prosecution was certain that the gunshot was last. It was a post-mortem gunshot and Travis Alexander was already dead. If so, then there is no question that this is “gratuitous violence”, needlessly inflicting a gunshot after the victim had died. If so, this easily proves the heinous and depraved prongs of the cruelty aggravator. Interestingly, heinous and depraved were not charged in this case.

 The prosecution took the gunshot last theory, persuaded the jury and most trial watchers, and got the conviction. Yet, the way the case was presented shows that the prosecutor does not even believe his own theory.

 Here is something else to imagine: the theory, using a presumption of guilt, that the gunshot was first and that Travis Alexander was shot above the right eyebrow while sitting down in the shower.

 This theory fits the forensic evidence. It has a much more profound “cruelty aggravator”, and it is a much more reasonable theory to seek a 1st degree murder conviction. Further, this is the only scenario under which the charges of both 1st degree premeditated AND felony murder make any sense at all.

 So you really need to ask yourself: Why, then, did the prosecution try so hard to disprove it?

 Death From Above

shower shot ta

I call this the “death from above” theory.

It’s not so scientific. Like Jodi, I’m an artist, so maybe I can see images in my mind and understand the dimensions easier than others. Maybe we need to use a dummy to truly see it.

If Travis was sitting in the shower, then taking a presumption of guilt, this is how he was shot. It’s a slightly angled downward shot from in front and above Travis. The prosecution didn’t want the jury to consider this theory because then the jury would also have to consider the defense theory, and the defense theory is the most reasonable of the three, according to the facts.

travis floor

 Post Traumatic Death on the Floor

This is the prosecution’s theory. After Travis Alexander is stabbed and his throat is cut, Jodi drags him still “bleeding out” near the bathroom sink where, for some reason, she shoots him at a slight angle. She doesn’t shoot him last in the shower, because he was found in the shower with his left side facing out.

 The average width of a human head is 18cm (7.1 inches). Let’s imagine Travis’ head diameter is 8.0 inches. The gun barrel would have to be somewhere near 8 to 12 inches above the floor.

 That makes good logical sense, doesn’t it, Dr. Horn?

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These are actual X-Ray and CT scans of the brain. Look at all that room right where Travis was shot. There is easily plenty of room for that gunshot to completely miss the brain. Travis was shot in the face through the skull and the nasal cavity. Travis was not shot through the frontal lobe. It was not “rapidly incapacitating”. Dr. Horn is wrong again. 

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The “Linebacker”  position

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Defense Theory

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Why Jodi Arias Will Get a Whole New Trial

Why Jodi Arias must have, and will get, a New Trial

Factual Reporting by

Amanda Chen and Rob Roman

WARNING: Graphic Crime Scene and Autopsy Photos!

may be disturbing to some people!

sherry stephens 1
joe and jan
juan and horshack
arias jurors
Jodi Arias must and will get a new trial. No matter if you think she is guilty or innocent or anywhere between the two. Jodi Arias, no different than you or I, has a constitutional right to a fair trial. This should not stand and the higher courts or the U.S. Supreme Court should reverse the conviction and remand the case back to court for a new trial. Her are the reasons why this was not a fair trial.
  1. Doctor Horn was called to the stand 3 different times and on all 3 occasions he answered the persistent questioning of prosecutor Juan Martinez about the order of injuries. It is very unusual and curious to be called to the stand at different times to testify about the same thing.
  1. Doctor Horn stated over and over again that the gunshot was last and probably post mortem.
  1. The reasons he gave were
               a)      No blood was found at the wound entrance (the blood had been washed off of the victim).
               b)      There was no blood found in the wound tract in the brain. Horn also testified that no wound tract was found in the brain. (How can you testify to what is or is not in a wound tract that you did not find?)
               c)      The bullet entered the skull and must have gone through the brain because the brain butts up against the skull. (This is not true. Travis Alexander was shot right above the orbital cavity and through the nasal cavity, it is very possible for a .25 bullet to not enter the brain at all.)
               d)     The shock wave caused by the hot gasses from the gunshot would cause immediate incapacitation. (Not if the wound tract doesn’t enter the brain. Even if the wound tract did enter the brain, the tract would be mere fractions of an inch.)
               e)      According to Dr. Horn, the medical report meant to say that the outer membrane of the brain was penetrated. But, he said there was a typographical error and the report said it was not penetrated. (There just happens to be a “typo” right at the point where the report is discussing whether or not the brain was penetrated.  What a coincidence!) Also when any M.E. reports penetration of the outer membrane of the brain, the report then goes on to describe this penetration, the size the direction, etc. This lends credence to the accusation that the “typo” is no typo at all.
               f)       There was no blood found in the wound tract (The wound tract goes straight through the nasal cavity. In the shower crime scene photo, there is clearly a large accumulation of blood below the victim’s nostrils.
ta nose light

A large amount of blood under the nose

not much blood coming out the mouth.

4. Dr. Horn tried to remain truthful while giving deceptive testimony, but he has clearly lied. It’s evident that by asking about the order of injuries so many times, that Juan Martinez clearly coordinated this effort with Dr. Horn to sway the jury with false testimony. (For more information, please see Spolight on Dr. Kevin Horn, Spotlight on Juan Martinez, Spotlight on the Jodi Arias Trial)
5. Detective Flores testified that the order of injuries changed from gun first to gun last when prosecutor Juan Martinez asked Detective Flores to meet with Dr. Horn to discuss possible aggravating circumstances for the death penalty.
6. Travis Alexander was left in the shower with his left side facing out. If the victim was shot last, it must have been as he was lying motionless on the bathroom floor. So why is the shot such a badly placed shot? Also in order for a shot to be made at this angle, the barrel of the gun needs to be around 8 to 12 inches off the floor. This is not a reasonable or natural position.
7. If Alexander went to the sink after suffering the deep incised wounds to his left hand, blood would be pouring out from his left hand and the sink would be covered with blood on the left side. There is none of this on the left side of the sink. This contradicts the prosecution theory that Travis Alexander was stabbed in the shower. This reinforces the defense theory and casts doubt on premeditation.
ta left hand 3 lightFrom the official autopsy report:
“A deep 1 ½ inch incised wound across the left thenar eminence (palmar with extension onto the dorsal left hand) with deep penetration and partial severing of the musculature and tendons of the thumb base.”
 “A 1 ¾ inch incised wound of the palmar webbing between the left thumb and index finger, with an adjacent separate ¾ inch linear incised wound.”
 “A 1 inch incised wound across the dorsal surface of the distal inter-philangeal joint of the left thumb.”

ta left hand 1 light

Deep incised wounds on Alexander’s left hand

jurors pus

Little blood on left side of the sink

8. Shooting someone post mortem is the infliction of “gratuitous violence”. This perfectly fits the requirements for the Heinousness and the Depravity prongs of the “especially heinous, cruel and depraved” aggravator. Incredibly, Arias was only charged with the cruelty prong of the aggravator.
9. Felony murder does not in any way apply to this case if the gun was last. If the gun was first, and Travis was wounded, prompting Arias to switch to a knife to kill Alexander to cover up her presence in the home, then this is the only way that Felony murder could possibly, technically fit this case.
10. Dr. Horn was involved in two other cases. One was a wrongful prosecution seeking the death penalty. This was a grandmother who owned a day care center where a baby died. The other was a wrongful conviction. This was a self-defense case against a Mormon retired school teacher with 7 children who was attacked on a hiking trail by a man and his two dogs. In both cases the indispensible part of the case was the testimony and the opinion of Dr. Horn. In both cases he was completely wrong.
11. Arias wasn’t charged with the heinous and depraved prongs of the aggravator and the Felony murder charge was not dropped, proving that the prosecution does not actually believe that the gun was last. It also suggests that the prosecution believes that Arias may not have been the only person involved. Yet, the prosecution argued vehemently against both of these possibilities
12. If Alexander was stabbed first in the shower, there is already water in the shower. The wounds can be seen easily. There is no need to go the bathroom sink and look in the mirror. Alexander must not have known what happened to him, and he must have wanted to find out. How could Alexander turn his back on his attacker and go to the sink in the middle of a knife attack? Even the prosecutor, Juan Martinez, proved at trial that he doesn’t believe this. Yet he persuaded the jury to believe yet another idea that he himself does not believe.
13. If you are a juror and you believe Dr. Horn, then Jodi Arias is guilty of 1st degree premeditated murder. There is no need to even present a defense or any further testimony or evidence. Therefore the testimony of Dr. Horn constitutes reversible error in the case of ArizonaState v. Jodi Ann Arias. Jodi Arias’ constitutional right to a fair trial has been violated. On top of this there are numerous other valid and cogent appealable issues.
Other appealable issues include:
  1. The State of Arizona’s cruelty prong of the “especially heinous cruel and depraved” aggravator is in violation of the Eighth Amendment to the United States Constitution because the statute along with the jury instructions are too vague and can be applied to almost any murder and used to target a particular defendant with the Death Penalty.
  1. The possibility that the jury was tainted by the omnipresent media coverage which was almost impossible to avoid. The jury should have been sequestered. Evidence exists that jurors discussed the case outside court and perhaps on social media. A juror stated that the jury was 12 – 0 for the guilty verdict at the very beginning of deliberations.
  1. The possibility that the jury did not understand jury instructions, for which direct evidence appears on video.
  1. Prosecutorial misconduct throughout the case and the trial. There is direct video evidence that Juan Martinez lied more than once during the commutation hearing of Robert Towery, in order to secure his execution. The prosecutor purposely tampered with evidence during the trial (dropped the camera). The prosecutor deliberately withheld evidence until just before the scheduled start of the trial. The prosecutor suborned perjury in the testimony of Dr. Kevin Horn.
  1. Possible evidence favorable to the defense which was not provided to the defense or allowed into trial (exculpatory)
  1. Possible evidence favorable to the prosecution which should not have been allowed into trial (more prejudicial than probative)
  1. The judge failed to control the courtroom, allowing such things as the victim’s family’s purposeful, non-verbal communication with the jury throughout the trial. This can be seen in process on many trial videos.
  1. Witness intimidation perpetrated by the family and friends of the victim. One witness was called before the trial began and threatened if he testified for the defense. The witness was called shortly after the prosecutor released a list of potential defense witnesses to the victim’s family.
There is anecdotal evidence that other witness on the list were successfully intimidated into refusing to testify. An Alexander family member was involved in threats and intimidation of Alyce LaViolette during and after her testimony. Dave Hall slandered defense mitigation witness Patty Womack on National television after she and her family were threatened and intimidated in the social media.
If the higher courts find even a single one of these factors to be true, Jodi Arias may get a new trial. We contend that all these factors are true. Even Hannibal Lecter or Charles Manson has the right to a fair trial. Whether or not she got the result you desire or whether she deserves the verdicts makes no difference.
If these verdicts are allowed to stand, we are all at risk of having our constitutional rights violated in the future. No one who watched this trial should be able to say it was a fair trial. Did you see the emotion shown by Judge Sherry Stephens at the end of the first penalty phase? This is reason for a new trial right there. The judge is clearly prejudiced towards the prosecution and a death sentence. The jury did not reach a unanimous decision, so what? What was that display of emotion for? Maybe it should be mandatory in a capital case that the defense must provide an independent autopsy and Medical Examination.

All rights eserved

Unlike many blogs, all comments are accepted and will be posted