Zimmerman: Medical Examiner Changes Opinions

During the Zimmerman trial today, Medical Examiner Shipping Bao, who conducted the autopsy of Trayvon Martin, took the stand. He surprised both the prosecutor and defense when he changed his opinion on two matters.

Bao testified Trayvon Martin could have live up to 10 minutes after being shot. Up until three weeks ago, his opinion was that Martin could have lived 1 to 3 minutes.

Bao also changed his opinion about whether the level of marijuana in Martin's system could have affected his physical or mental condition. Previously he said it would not. Now he says the level of marijuana could have impaired Martin, but he can't say for sure. He changed his opinion on this within the last 60 days.[More...]

The court broke for a "Richardson Hearing" outside the presence of the jury, to determine if there was a discovery violation since the state did not turn over Bao's changed opinions to the defense. The state said it had no idea Bao would testify differently. Prosecutor Bernie de la Rionda showed the court the notes he prepared for Bao's cross-examination. He had written "1 to 3 minutes" after the question about how long he lived.

The court ruled there was no discovery violation. She also ruled Trayvon Martin's marijuana use is inadmissible.

With that, the jury was brought back in. Defense attorney Don West is cross-examining Bao.

There is an issue with the scraping of Martin's fingernails. Apparently, the scraped nails were put in the same envelope rather using a separate envelope for each one. That is improper protocol.
Bao agrees that would be improper but says it's not his job, it was a technician who did that. He testified no bags were placed on Martin's hands.

No fingernail clippings (as opposed to scrapings) were kept. Bao says that is a policy decision of the Chief Medical Examiner of his office, and he's only the associate associate examiner.

Bao also agreed that Martins clothing should have been put in paper bags rather than plastic and should remain dry.

Bao says when drawing blood for toxicology purposes, it should be drawn from a peripheral source rather than the chest. In Martin's case, they drew the blood from the chest. He wasn't the one who drew the blood.

No photographs were taken of Trayvon's palms or fingernails. They only took a half-dozen photos. He said they do not take pictures of the entire body.

In an interview last week, he said he only spent one and a half hours on the autopsy.

"It was just another case," he said. "I finished the autopsy in one-and-a-half hours. I typed it up in one hour."

It was clear today he has no personal recollection of the autopsy and is reliant on his notes. He also says several times, "It's not my job."

On cross-examination, he explains his 1 to 10 minutes change. It's based on another case he recently witnessed (not performed) an autopsy where the person lived 10 minutes.

He also maintained on direct that Martin would not be able to move or talk after the shot. Now he says he could move "a little bit." He says he does not know whether he could sit up or put his hands under himself. He doesn't know how long or how much he might have been able to move or talk.

On the gunshot, Bao says it was a contact wound to the clothes but not to the skin. There was some distance between the muzzle of the gun and the skin. His methods are different than firearm technicians. Had the gun been pushed against the fabric against the skin, he would have seen fibers and stipling. He doesn't use the term close range, he uses contact and intermediate range. Intermediate range could be from .4 inches to four feet.

Bao says he consulted books, including the book of Dr. Vincent di Maio. Di Maio will testify for the defense.

On redirect by the state, Bao says he remembered nothing about the autopsy until he sat down to review his notes. He could have lived as short as 1 minute or as long as 10 minutes.

Also today, as expected, Sybrina Fulton and Jaharvis Fulton (Trayvon's brother) testified that the voice screaming on the 911 call was that of Trayvon Martin. The defense is anticipated to call witnesses familiar with Zimmerman's voice who will say it was Zimmerman.

When Bao finished his testimony, the judge told the state to call its next witness. The prosecutor asked for a 10 minute recess, so it is not certain yet the state has finished its case.

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    Dr. Bao is a hero (5.00 / 1) (#20)
    by SuzieTampa on Fri Jul 05, 2013 at 08:54:42 PM EST
    on "Black Twitter," according to a writer on The Root, the Washington Post's site aimed at African-American readers. The same happened with Rachel Jeantel, in which she was praised as courageous for "standing up" to Don West.

    On geek twitter maybe... (none / 0) (#25)
    by unitron on Sat Jul 06, 2013 at 08:35:16 AM EST
    Dr. Bao very much approached things from his own particular flavor of scientific detachment and with a firm determination to make sure the proper explanatory groundwork was laid for any information he was going to pass along, especially if it's something the evidence has led him to currently believe in his scientific capacity, and not just stuff he observed.

    In his efforts not to deceive or mislead, he'll drive you nuts.

    That said, I'm not sure how what he had to say is particularly favorable to either prosecution or defense, unless there was a previous doubt as to whether or not Martin died of a gunshot wound.


    Bizarre (none / 0) (#28)
    by Jack203 on Sat Jul 06, 2013 at 12:33:12 PM EST
    I'm not sure there is a better way to describe it.

    I am offended the guy only did a shoddy job at the autopsy, barely took pictures, and apparently has ZERO memory of performing the autopsy.

    I can understand not remembering every detail.  But I think there is something wrong with the good Dr. if he has ZERO memory of the autopsy.  It wasn't long after the autopsy the case exploded on the national media. It was within days/weeks not years. There is something very fishy about saying that under oath.

    I guess TM was just another dead gangbanger to Dr. Bao. not worthy of a proper autopsy.
    It is bizarre the black community would embrace him.  Even more strange is that his testimony favored the defense, including both things he "changed his opinion" on, as they were both pro-defense.


    Trees vs. forest. (none / 0) (#29)
    by Towanda on Sat Jul 06, 2013 at 01:11:27 PM EST
    and how foolish, such judgments are.  

    Neither witness did a good job for the prosecution or, for that matter, for justice.


    Looks like... (none / 0) (#1)
    by bmaz on Fri Jul 05, 2013 at 02:44:23 PM EST
    ...O'Mara is arguing the DV mot now. (Not positive because just got into a stream feed and it is a bit sketchy).

    That argument was SCOTUS worthy (none / 0) (#6)
    by cboldt on Fri Jul 05, 2013 at 04:22:43 PM EST
    Not that the law factors into court decisions, but the argument was well done.

    Trayvon's brother's testimony (none / 0) (#2)
    by Luke Lea on Fri Jul 05, 2013 at 02:54:54 PM EST
    You didn't mention Trayvon's brother had previously said he wasn't sure if it was Trayvon's voice on the recording.  He said he would have preferred it not have been Trayvon's voice.   That way makes no sense to me but in any case under the circumstances of this trial and given his membership in the family  it is clear that any bias would be the other way.  He claimed to have been biased in his first statement, which is either true or false; if true how can he deny bias now?  And if untrue, that is if he gave his honest opinion before, then why should his changed opinion carry more weight a year and a half later.  You can imagine the family pressure he is under.

    And community pressure (1.00 / 1) (#3)
    by Jack203 on Fri Jul 05, 2013 at 03:41:56 PM EST
    I've never seen a single community so united in one cause in a long time.

    And they are all wrong.


    Jeralyn (none / 0) (#4)
    by Darby on Fri Jul 05, 2013 at 03:46:46 PM EST
    How isitpeemissible for the judge to keep from the jurors that trayvons was under the influence of marijuana ?

    the judge gets to decide (none / 0) (#10)
    by Jeralyn on Fri Jul 05, 2013 at 04:40:53 PM EST
    if the probative value of the evidence is outweighed by its potential for unfair prejudice. It's a balancing test under which relevant evidence can be excluded.

    I didn't hear her reasons for ruling it was inadmissible today, but since prior to trial she reserved ruling on the admissibility of his marijuana use the day of the shooting, I assume she concluded today that since the ME didn't have an opinion that the level of marijuana indicated Martin was impaired, only that it could mean that, she decided it was too speculative and/or prejudicial.

    Florida evidence rule 90.403:

    90.403 Exclusion on grounds of prejudice or confusion.--Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.....

    Prior to trial she ruled:

    The State's Motion for Protective Order/Motion in Limine Regarding Toxicology is:

    a. Granted as to allegations of Trayvon Martin's use of marijuana prior to February 26, 2012;

    b. Reserved as to allegations that Trayvon Martin was under the influence of marijuana on February 26, 2012.

    Back in the day, no expert would testify as to whe (none / 0) (#11)
    by oculus on Fri Jul 05, 2013 at 04:59:49 PM EST
    person whose tox. Screen tested + for mj had invested it or the amount ingested.  Is such expert opinion offered and admitted now?

    Pandora's Box (none / 0) (#27)
    by JP95inGA on Sat Jul 06, 2013 at 11:20:59 AM EST
    The judge decides.  She previously said no, presumably based on the ME's original opinion the THC would have no effect on TM's behavior.  Any change to her ruling based on this new "evidence" would have opened a can of worms, especially for the State.

    The judge seems quite schedule-driven.  Full speeed ahead!  If GZ is acquitted, then no harm done.  If convicted, it seems to be clearly reversible error, which means conviction tossed and State re-tries or drops it.

    Honestly, Judge Nelson probably believes/realizes the State has not come close to proving its case (i.e. that beyond and to the exclusion of all reasonable doubt GZ was NOT acting in SD) and so GZ will be acquitted anyway.  Her ruling keeps the trial on schedule and doesn't hurt anything.


    Medical examiner's notes (none / 0) (#5)
    by citizenjeff on Fri Jul 05, 2013 at 04:11:34 PM EST
    The medical examiner clearly didn't want anyone to see his notes. What if he had simply refused to turn them over? What, if anything, authorized the judge to order him to turn over the notes to the lawyers? Was it an order, or a request?

    If he didn't... (none / 0) (#23)
    by unitron on Sat Jul 06, 2013 at 08:17:49 AM EST
    ...want to turn them over or let anyone else see them, he should never have looked at them while he was testifying.  That's a no-no if they haven't already been part of discovery.

    Once he does that, both sides get to see them.


    Thanks, unitron (none / 0) (#26)
    by citizenjeff on Sat Jul 06, 2013 at 10:24:49 AM EST
    What you say seems to be the widespread assumption, but nobody has so far cited any law to support the contention that a witness is required to show his notes to anyone. In California, if a witness refuses to produce notes used during testimony, "the testimony...shall be stricken." I suspect the law is the same in Florida, and the medical examiner would have been perfectly happy for his testimony to be stricken if he understood it meant he wouldn't have to show anyone his notes. The problem is that when the judge told him the lawyers were "entitled" to see the notes, he was made to feel he was required to hand them over. Whether or not the judge intended it as such, the medical examiner interpreted it as an order, and I think the public did, too.

    Prosecution Theory? (none / 0) (#7)
    by Bertoli on Fri Jul 05, 2013 at 04:32:52 PM EST
    One question I have is did the state ever lay out it's theory on where George and Travyon were positioned when the shot was fired? I gather from the ME's testimony he made no evaluation as to angle of bullet entry or exit, all I remember him saying is that it was something like a straight through shot.

    I guess where I'm going with this is it the State's theory that George was on top of Travyon and Travyon was yelling for help when the shot occurred or is it that Travyon was on top of George and yelling for help when the shot was fired. And if in theory George was on top when he fired the shot I would think there would have been a pretty good chance the bullet should have been able to be recovered.  I'm just trying to reconcile a version of events that make equal sense to what GZ said took place.        

    Nobel prize (none / 0) (#8)
    by cboldt on Fri Jul 05, 2013 at 04:37:49 PM EST
    To whoever produces the state's detailed proposition for the events.

    Hint: You can't win.


    I don't know how (none / 0) (#9)
    by jbindc on Fri Jul 05, 2013 at 04:40:44 PM EST
    it would be a "straight through shot" (even though that's what the prosecutor said in rebuttal to the JOA motion), because the ME testified that the bullet did not exit.  

    If it had exited, he would have been better able to determine who was on top and who was on the bottom when the shot was fired.


    I would still like to know (none / 0) (#15)
    by oculus on Fri Jul 05, 2013 at 07:51:20 PM EST
    if the medical examiner or any other witness has testified as to angle of the bullet.  

    Help, my mind has blanked out (none / 0) (#12)
    by Teresa on Fri Jul 05, 2013 at 05:42:26 PM EST
    Was anyone watching the feed from Channel 9 where the local legal analyst is Bill Shaeffer(sp)?

    He has bent over backwards to be complimentary of Judge Nelson because he practices before her. He said today that he thinks she made a reversible error.

    I can't remember what it was. It was something about the ME. I don't think it was the discovery issue because he (and I) agreed it wasn't. At least on the 1-3 vs 1-10 minute thing because BDLR's own notes still said 1-3 minutes prior to death.

    Was it the toxicology stuff? I know he said the it was deemed not relevant by the judge because the ME said it would have no affect on TM. Now the ME has changed his mind (probably) on that, too.

    But, I didn't turn my sound off after the recess and all of a sudden I heard MOM's voice and it was a PC. He was asked about the toxicology change and he said they expect another ruling this week on that so I assume, if I heard right, the judge will revisit that based on new evidence she had. So that doesn't seem like "error" to me.

    So what was it? It was something important and I can't remember to save my life. I think I'm Zimmermaned out.

    If I recall (5.00 / 1) (#13)
    by jbindc on Fri Jul 05, 2013 at 05:55:25 PM EST
    What defense attorneys around the blogosphere have been saying, is that I think it has to do with the fact that the ME said in the Richardson hearing (outside the presence of the jury) that the amoount of THC in Martin's system might affected his behavior.  The judge did not let this evidence in.

    Someone please feel free to correct me.


    That is what I heard also (none / 0) (#14)
    by lousy1 on Fri Jul 05, 2013 at 06:43:25 PM EST
    As far as I recall...

    Within the ME's crib notes the defense discovered two contemporary alterations to the opinions that the ME had expressed in his deposition three months earlier.

    The first was the alteration of details of death after the gunshot. This evidently had been discussed with BDLR the day before.

    The ME also noted that he had revised his estimate of the effects of the thc detected in TM blood. He now considered it to be enough to effect Martin's behaviour.

    He claimed not to have discussed this revelation with BDLR during their 20 minute trial prep.

    The ME offered that this change was based on his own research and some consultation with a professional associate residing in (Oregon?)



    Did the medical examiner have any contact (none / 0) (#16)
    by oculus on Fri Jul 05, 2013 at 07:56:07 PM EST
    with anyone associated w/defendant (attorneys, investigators etc.) post depo?

    Asked in the Richardson hearing (5.00 / 1) (#17)
    by Towanda on Fri Jul 05, 2013 at 08:11:55 PM EST
    today and answered: Not really.  Contact with a secretary or scheduler or something.  

    The state showed that its notes (not sure with lawyer) were based on the deposition of the ME, his estimates of time to death and etc. then.  The state was surprised by its clincher witness, who was so odd that the state ought to have had its own witness declared a hostile witness.

    And then, he really did get hostile with the defense.  I was flashing back to Jeantel and waiting for the ME to say, "yes, sir . . . yes, sir . . . yes, sir. . . ," while rolling his eyes -- and at both sides.  The judge did have to caution him, repeatedly, about his interruptions.  So, he also interrupted the judge.  

    The ME is the sort who is convinced that he knows what someone will ask before they ask it so completes their sentences for them.  He also gives the answer he intends to give, no matter the question.  It was truly surreal testimony at some points.

    The ME also lectured all lawyers, repeatedly -- perhaps the judge, too -- as to the difference between fact and opinion.  And I do mean "lecture."


    Great summary! (none / 0) (#19)
    by Teresa on Fri Jul 05, 2013 at 08:42:39 PM EST
    You described it perfectly. The prosecutor was the main one whose name I can't spell - initials BDLR. I did believe him on the time Trayon might have lived change being news to him, because like you said, his notes still said 1-3 minutes.

    I don't think the judge allowed him to answer much about the toxicology discussion with BDLR, just with his expert biologist friend.


    He just said he did 100s of hours (none / 0) (#18)
    by Teresa on Fri Jul 05, 2013 at 08:38:37 PM EST
    of research and on the toxicology, he talked to a former coworker who is in Washington state now and is one of the most expert biologists in the country. He hadn't spoken with anyone defense related since his deposition last year.

    On the prosecution side, he talked to the secretary (he remembered her name, but not what he talked about to the prosecutor in a 40 minute meeting yesterday).

    Truly odd. His opinion can change by the hour he said, so no telling what he'd believe by tomorrow!

    It was like he was paranoid about being charged with perjury. He kept going on and on about his opinion is not fact. Once he said to O'Mara "you thought you got me". It was frustrating but kind of funny in a jaw dropping way.


    yes (none / 0) (#33)
    by ding7777 on Sun Jul 07, 2013 at 11:42:33 AM EST
    It was like he was paranoid about being charged with perjury

    And it was BLDR who was the last to speak to him about his testimony... just saying


    I'm not sure why he changed his opinion (none / 0) (#21)
    by ZucchiTadre on Sat Jul 06, 2013 at 01:22:10 AM EST
    Regarding how the THC could have effected Trayvon's behavior.  There was so little of it in his blood that it was inconsequential.  From the medical report,

    THC - 1.5 ng/mL
    THC-COOH (Carboxy) - 7.3 ng/mL

    (both results from chest blood)

    Here's a time graphing of THC/THC-COOH concentrates in the blood.


    Likely Trayvon had not smoked in a day or more judging by those graph..

    I tried but could not make heads or tails (none / 0) (#22)
    by Jeralyn on Sat Jul 06, 2013 at 03:44:42 AM EST
    out of the medical studies I read on the topic.

    Dr. Bao agreed with the defense that the blood drawn for testing preferably should not be chest blood but come from a peripheral area (like the leg). He seemed to say there might not have been blood left in any area but the chest when it was drawn. He didn't draw the blood, a technician did, so it's not clear if that's really why they drew chest blood. According to O'Mara's post court interview, the defense is confident its expert will show the amounts do indicate impairment. The judge in denying the request to admit the evidence today seemed to make her ruling based on Bao's uncertainty -- he said there might be and might not be. Since she previously denied the state's motion in limine and said she'd decide at trial based on the evidence, her ruling today may not be her final one on the topic.

    Here is the defense response outlining the authorities for its position. I am not suggesting they are correct (the marijuana impairment argument seems like a poor one to me) but we may not have heard the last of it.


    Apparently... (none / 0) (#24)
    by unitron on Sat Jul 06, 2013 at 08:25:15 AM EST
    ...the heart kept pumping blood, but due to various damage all that did was fill the lungs and that area with blood until there was no more blood on the heart's "intake" side, so it all wound up as chest blood.

    I think what you're trying to say (none / 0) (#30)
    by ZucchiTadre on Sat Jul 06, 2013 at 02:56:55 PM EST
    is that it's a very weak argument that can be completely destroyed, mutilated and regurgitated back up so that it will make Bernie look like a genius.

    Not a good idea to explore this any further in the trial.


    Why does the (1.00 / 1) (#38)
    by lousy1 on Sun Jul 07, 2013 at 07:19:04 PM EST
    defense need to prove that TM was impaired. That he was possibly impaired based on irrefutable evidence and scientific ambiguity would seem to be important evidence.

    Remember who has the burden of proof. Based on his social media entries its clear that TM has a serious  infatuation with drugs. ( and probably missuses cough medicine also)

    The effects of drugs or of withdrawal from drugs seems to be relevant.


    relevance (none / 0) (#39)
    by zaitztheunconvicted on Mon Jul 08, 2013 at 01:11:47 AM EST
    It seems to me that whether TM had used MJ recently or was under the influence is relevant to evaluating the statements of GZ on the NEN call. . .  and whether GZ was reporting truthfully on the NEN is helpful in deciding the case.

    No Memory (none / 0) (#31)
    by Mr Mark Martinson on Sun Jul 07, 2013 at 09:19:03 AM EST
    I'm sure Dr. Bao performs a lot of autopsies and doesn't remember them all, but this case became national news within a couple weeks.

    And he seemed to "doth protest too much," constantly reminding everyone that he has no memory.

    What he could have said (none / 0) (#32)
    by MKS on Sun Jul 07, 2013 at 09:26:39 AM EST
    was that all he could remember or thought was significant, he put into the report and has no contrary memory; since he prepared the report at the time of the events, it is the best source of his opinion, and his actual recollection apart from the report has faded.

    He must have really given the Prosecution fits....


    He did, MKS (none / 0) (#34)
    by Teresa on Sun Jul 07, 2013 at 12:41:52 PM EST
    He also gave the defense and even the judge fits. Very odd testimony or presentation, for sure.

    I remember his saying (5.00 / 1) (#35)
    by MKS on Sun Jul 07, 2013 at 12:45:22 PM EST
    it more emphatically than that, intejecting at inappropriate times that he had zero memory....

    He had his own agenda, off on his own, and was ceratinly beyond the Prosecution's control.


    Agreed (none / 0) (#36)
    by Darby on Sun Jul 07, 2013 at 01:18:29 PM EST
    That your response would have been appropriate.  I believe he was even rambling on as to his own puzzlement with his lack of memory and that he had been researching that too... Even when the defense asked if he had met with the prosecution just day before for 30 to 40 minutes he answered he could not remember how long they met.

    This one was bizarre too! On changing his opinion (none / 0) (#37)
    by Darby on Sun Jul 07, 2013 at 02:00:31 PM EST
    I think he just got Very nervous and did not  know how to handle himself

    BAO: I have a right to change. Everybody change. I can change every hour. I don't see any problem.