Today was a complete mess in the George Huguely trial.
You will remember that the defense began presenting evidence Wednesday afternoon, and finished Wednesday evening with Dr. Jan Leestma, a neuropathologist from Chicago, who was trying to dispute the Commonwealth’s theory of how Yeardley Love died. Dr. Leestma’s testimony seems to have come down to this — “You think that the beta-APP stain shows bleeding in the brain stem as the cause of death; I am telling you that although everyone else in the forensic sciences thinks that beta-APP is wonderful, I think they are all wrong.” Rhonda Quagliana was handling that evidence, and courtroom observers saw that she was not feeling well; she seemed to be feverish, taking her jacket off because she was hot, when no one else seemed to be hot.
Thursday morning, everyone was prepared to continue with the scientific testimony, but Rhonda was sick and was unable to present the witnesses that she had prepared. There was no court.
Friday morning, Rhonda was still sick — we learned that she had projectile vomiting — but Judge Hogshire told Fran Lawrence to go ahead with the non-scientific witnesses that he had prepared. Court recessed at lunch time, and that afternoon Judge Hogshire basically told Fran that the case was going forward Saturday morning, no matter what Rhonda’s health was like.
So this morning, court reconvened, and Rhonda began to present the testimony of Dr. Ronald Uscinski, a neurosurgeon practicing in the DC area. But right at the beginning, there was a problem — she had sent to Dr. Uscinski at least two e-mails in which she detailed the testimony of the prosecution witnesses on the points of neurology that she wanted him to rebut. One topic was reperfusion from CPR — the notion that administering CPR can actually cause brain injury by reintroducing blood flow to already oxygen-deprived tissue. The defense wanted to argue that the brain stem bleeding testified to by prosecution witnesses was due to reperfusion, and that the prosecution theory of cause of death was wrong. There were other issues as well, but reperfusion got most of the discussion.
Here is the problem — when the judge orders what is sometimes called the “rule” on witnesses, the witnesses must remain outside the courtroom and they are not permitted to have access to the testimony given. That means that they should not read the newspapers and they should not talk to anyone, including the other witnesses, about the testimony in the case. The judge always instructs the witnesses that they may still talk with the lawyers, because the lawyers know the rules and they know what they can and cannot do in talking with the witnesses.
What this means, for the lawyers, is that we can talk to our witnesses, but we can’t tell them what other witnesses have said. In this case, Rhonda would be perfectly entitled to call up Dr. Uscinski and say, “So, what about reperfusion? Could that have caused the signs that we see here?” What she cannot do is what she did here — to say to Dr. Uscinski, “Dr. Virmani said the following things… what do you have to say about that?” A trial lawyer knows how to do indirectly what you are not allowed to do directly, but here Rhonda did it directly, which violates the court order.
The sanction for violating this court order is that the witness is not permitted to testify about the matter that was discussed with counsel. And that is what happened today — Judge Hogshire ruled that Dr. Uscinski could not testify about reperfusion or the other topics on which he received information that he should not have received. That left only a few things to talk about — cause of death, mainly. We had thought that there would be two scientific witnesses, but the other scientific witness — whose name I did not catch — had also received information in violation of the rule on witnesses, and his testimony would have been entirely about things discussed in the e-mail, so he was not allowed to testify at all.
The court took a couple of hours to hash through all of this, and they didn’t get to actual evidence until about 12 noon. The defense rested, without Huguely testifying. (If anyone had any doubt that Rhonda was sick, she looked like death warmed over, and had to excuse herself to go be sick.) The prosecution then chose to present no rebuttal witnesses, the judge instructed the jury, and closing arguments started at about 3:00 PM. Dave Chapman argued for about 1:30, then Fran Lawrence argued for about 1:45, then the Commonwealth gave a 15 minute rebuttal. The jury retired at 6:45, and at 7:00 PM came out and said that they did not want to start deliberating at 7 PM on a Saturday. The problem is that tomorrow, of course, is a Sunday, and Monday is a holiday. Tuesday is docket call, with the grand jury meeting, and there was no place for the jury to deliberate and no place to hold court. So they will come back Wednesday morning at 9 AM.
I have already been asked a lot of questions about this mess:
- Is what Rhonda did unethical, stupid, or what? It was stupid. As I noted above, every trial lawyer learns that you can go up to, but not across, the line. Rhonda went way over it. “Unethical”, in lawyer talk, means a violation of the Rules of Professional Conduct. The statute and the court order are not part of the Rules of Professional Conduct. She could have been guilty of an ethical violation if she had lied about it, but there is no indication that she did that. There is a provision in the Rules of Professional Conduct that says that a lawyer “shall provide competent representation for a client”, but the level of competence necessary to violate that Rule is way below the level of Rhonda and Fran.
- Can she get disbarred over this? No. As a practical matter, disbarment only occurs if you lie to a court or if you steal your client’s money.
- Can this be the basis of an appeal if Huguely gets hammered? No, and yes. No, it cannot be a part of a direct appeal. The Virginia Supreme Court has made it quite clear that it doesn’t want to have issues of ineffective assistance of counsel raised during a direct appeal. However, if the Huguely family wants to file a Petition for Writ of Habeas Corpus alleging ineffective assistance of counsel, this would surely be a ground of complaint.
- Will it really matter to the jury? The jury didn’t hear all of the fussing about the e-mails, so to a certain extent they don’t know what they have missed. I think that most of what the defense wanted to argue was already in the record from other witnesses, though obviously the defense wanted Dr. Uscinski to wrap up everything in a nice bow for the jury.
- How will this three-day delay before the jury can come back to deliberate affect things? In my experience, delays at this stage are really unpredictable in their effects. The jurors here were taking notes, which will help them recall things. But if they left tonight with a feeling for the prosecution, for example, that feeling may turn hard by Wednesday. Likewise, if they left tonight leaning toward the defense, that feeling may kind of solidify by Wednesday. So, at the risk of dodging the issue, the best answer I can give is “Hell if I know.”
I said early on that this trial would be a good example of how a criminal trial can be — a thorough prosecution team, thorough police work, good defense lawyers, plenty of resources on both sides to get the issues fairly presented to the jury. It is really unfortunate that this snafu will have kept the jury from hearing a complete debate of the medical issues.
Go to WVIR’s website for a detailed blow-by-blow description of the events of the day.
