Was it the bullet from Robert Bates’ .357 revolver that killed Eric Harris or a lethal combination of methamphetamine and adrenaline after he ran from the law?
Expert witnesses for the defense and prosecution lined up on opposite sides of that issue Tuesday, the fifth day of Bates’ trial on second-degree manslaughter charges.
Bates was serving as a reserve Tulsa County sheriff’s deputy when he shot Harris, 44, during an undercover gun sting on April 2, 2015. Bates was using a gun that was not allowed by policy and that he had not qualified on at the gun range.
Prosecutors have not raised those issues during the trial, nor has any testimony focused on the fact that Bates, a wealthy friend of the former sheriff, did not have the required training to serve as a reserve deputy.
After testimony from two defense witnesses Tuesday, defense attorney Clark Brewster rested his case. District Judge Bill Musseman, who is overseeing the trial, then questioned Bates about his decision on whether to testify on his own behalf.
Bates assured the judge that he had discussed the matter with Brewster and had decided not to testify. He added that he was “absolutely tickled to death” with Brewster’s representation as his attorney.
Prosecutors then called two additional witnesses in an attempt to rebut the testimony of defense experts.
Before closing arguments begin Wednesday, attorneys will argue over a last-minute jury instruction that Brewster is seeking to have included. The instruction details the circumstances in which jurors may decide that Harris’ death was a justifiable homicide.
Referring to parts of the Oklahoma State Medical Examiner’s report as a “huge blunder” and a “huge mistake,” a defense witness testified Tuesday morning that Harris was killed last year by a heart attack unrelated to the bullet that had just punctured his right lung.
Dr. Mark Brandenburg testified Tuesday for the defense that the ME report filed after Harris’ autopsy by Dr. Cheryl Niblo had “very concerning” errors that led him to believe that her testimony from last week — that Harris was bleeding to death from the gunshot wound — was incorrect.
“Absolutely not true,” Brandenburg told Brewster of Niblo’s assessment. Records show Niblo is a board certified forensic pathologist, while Brandenberg is a board certified physician specializing in emergency medicine.
Brandenburg’s testimony focused on what has been the perhaps the most contentious part of the trial — disagreement between prosecutors and the defense about what killed Harris. When Niblo testified last week, Brewster attacked her relative lack of experience, and on Tuesday he made a point of telling the jury that Brandenburg had more than two decades worth of “trauma experience.”
Defense called 2 doctors. Both said #EricHarris had heart issues that killed him. Prosecutor: "unfortunate timing" for a heart attack.
— Ziva Branstetter (@ZivaBranstetter) April 26, 2016
A number of reports document Harris’ death and list a variety of information about the hour between when he was shot and when he was pronounced dead. Harris was shot once under the right arm, and suffered “bilateral lung collapse,” according to Niblo’s report.
However, Brandenburg said that the documents he read, provided by emergency technicians who attempted to save Harris’ life, don’t show proof that he bled profusely enough to cause death, nor do they show that both lungs collapsed.
Instead, Brandenburg testified, it was likely that one lung could have suffered a partial collapse (due to the bullet), and that the other only collapsed after Harris’ chest was cracked as a final life-saving measure. The extreme blood loss the jury has seen in pictures during testimony was due to incisions made by doctors putting in a chest tube, and not the bullet, he said, noting he believed that Niblo’s report confused an incision with damage caused by the gunshot.
Def expert testifying that gunshot did not kill Eric Harris, that underlying medical condition caused him to have unrelated heart attack
— Dylan Goforth (@DGoforth918) April 26, 2016
So what caused Harris to die? Brandenburg testified Tuesday that he believed Harris suffered a fatal heart attack that was unrelated to being shot by Bates. Harris’ autopsy showed he had methamphetamine in his system, which Brandenburg said could have elevated his adrenaline levels. The time of day (about 10 a.m.) when Harris was shot, oddly enough, could have also contributed, Brandenburg said, because adrenaline levels are briefly elevated in the morning.
Running from the police? More adrenaline. Selling a gun to an undercover deputy? More adrenaline.
That, combined with an enlarged heart and blockages in his arteries caused Harris’ heart to stop, something Brandenburg said happened independently of the gunshot.
“The gunshot wound did not cause cardiac arrest,” he told Brewster. Brandenburg testified that not only did Niblo make a number of errors in her report, but so did EMSA technicians who responded to the shooting, as did emergency medical personnel at the hospital.
That led assistant district attorney Kevin Gray to ask Brandenburg — who only looked at reports provided by Brewster and never treated Harris — how he chose which parts of the reports were factual enough to base his findings on. After all, Gray said, if some parts of the EMSA documents were faulty, didn’t it call into question the entire report? Did everyone who treated Harris make errors in their reports?
“This seems to be pervasive through this whole case,” Brandenburg said of the perceived factual mistakes. “A heart attack killed this man, the bullet did not.”
The second defense witness, cardiologist James Higgins, gave somewhat rambling testimony that at times appeared to frustrate District Judge Bill Musseman, who is overseeing the case. Like Brandenburg, Higgins is being paid for his work on Harris’ case.
Higgins said in reviewing the medical records, he concluded that Harris’ heart problems were the cause of death. He said the bullet “did not contribute to his death.”
However Higgins then noted that Harris “got shot in the lung. That could certainly cause a contributing factor.”
On cross examination by Assistant District Attorney Kevin Gray, Higgins said he once had admitting privileges at Saint Francis Hospital but “gave them up voluntarily.” He said he now works some weekends at a Tahlequah hospital.
Gray asked Higgins if Harris’ low heart rate at one point after he was shot could have occurred because he was “sitting on the pavement for eight or nine minutes” before he was loaded into an ambulance, according to EMSA records.
Higgins said he had reviewed EMSA’s records, but “not very carefully.” However he stuck to his conclusion that Harris died from a heart attack.
“It’s really unfortunate timing” for a heart attack, Gray said.
“Believe me, when I first started doing this, I didn’t think I would come to this conclusion,” Higgins responded.
However two doctors called by prosecutors disagreed with Higgins and Brandenburg on Harris’ cause of death.
Dr. Gajal Kumar, a trauma surgeon at St. John Medical Center, treated Harris after he was shot. She said he had been without vital signs for 15 minutes by the time she and other doctors began working to save his life.
Kumar said a tube was inserted into his chest and a large amount of blood came out, which she attributed to internal bleeding caused by the gunshot. She said Harris was given additional blood and cardiac massage but “at that point he had lost too much blood to do anything about it.”
She said Harris, who was shot at 10:12 a.m., was pronounced dead at 11:06 a.m.
Dr. R. Douglas Ensley, a cardiologist at Saint Francis Hospital, did not treat Harris but reviewed his medical records at the request of prosecutors. He dismissed defense experts’ contention that Harris died from a heart attack, formally called a “myocardial infarction.”
He said Harris’ underlying heart issues “may have made him less able to tolerate” the gunshot wound.
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