High-Tech Prosecution : Trial: Firm known for its sophisticated disaster analyses will reconstruct Menendez slayings in an attempt to show premeditation. But defense attorneys say Failure Analysis is not qualified to make that case.
For more than two decades, Failure Analysis Associates has made a name for itself by staking out the intersection where the laws of physics collide with Murphy’s Law, studying what makes cars crash, buildings burn, ships sink and machinery go on the blink.
The company’s engineers have pored over the remnants of disasters large and small, using computer know-how to re-create everything from Ann-Margret’s tumble from a Las Vegas stage to the Kennedy assassination to the slayings of Nicole Brown Simpson and Ronald Lyle Goldman.
This week at the retrial of the Menendez brothers, an executive from the Silicon Valley firm will offer a courtroom reconstruction of the crime scene at the family’s Beverly Hills mansion six years ago. Using police photographs and state-of-the-art computer imaging techniques, CEO Roger Lee McCarthy will bring the jury into the mansion’s den, laying out a chilling scenario for the final moments of the lives of Jose and Kitty Menendez.
Prosecutors, who have bypassed the Los Angeles County coroner’s office to make Failure Analysis the cornerstone of their case, are seeking to graphically demonstrate that the couple were murdered with premeditation.
It is a point that Deputy Dist. Attys. David P. Conn and Carol J. Najera believe was lost during the first Menendez trial, which ended early last year with juries split between murder and manslaughter convictions for Erik and Lyle Menendez.
The brothers contend that they killed their parents in self-defense after years of abuse and a mounting fear that the parents planned to kill them.
By contrast, Failure Analysis’ digitized study of more than 800 crime scene and autopsy photos concludes that the sons killed their parents execution-style, then shot them in the legs to give the killings organized crime overtones.
Defense attorneys say Failure Analysis is not qualified to make that case because its engineers have no expertise in criminalistics and forensic medicine.
“It’s the mechanical engineer against the entire medical profession,” attorney Leslie Abramson recently said. She has called McCarthy “the Mark Fuhrman” of the Menendez case, the prosecution witness who “will bring [prosecutors] down.”
The rhetoric and daily legal skirmishing over Failure Analysis shows, perhaps more than anything else, how important lawyers on both sides consider the reconstruction testimony.
“They have the abuse excuse and we have Failure Analysis,” Conn said in an interview. “I think we’re on very solid ground.”
The Menendez case marks CEO McCarthy’s debut as an expert witness in a criminal trial. Although he reportedly can command up to $450 an hour, he is working for free as a favor to the prosecution’s jury consultant.
McCarthy could take the witness stand as early as Tuesday as the final witness before the prosecution rests its case. Conn hopes the impressive computer diagrams and slide show of gory photos will give his case a dramatic flourish, keeping jurors focused on the parents as victims while the defense launches its case, which is replete with allegations of cruelty, child abuse and incest.
The district attorney’s office has taken the unusual step of bypassing the coroner’s office because it does not support Failure Analysis’ more conclusive version of the sequence in which the shots were fired. Conn says he won’t be calling a single coroner’s witness.
“I don’t think that happens a lot,” he acknowledged.
Politely and politically skirting controversy, Conn, who heads the district attorney’s major crimes unit, said his decision was not based on any quarrel with the coroner. The problem, he said, was that Deputy Coroner Irwin L. Golden, who performed the Menendez autopsies, made two unsolicited revisions of his findings. (The first revision came in 1992; the second as the jury was being chosen for the retrial, Conn said.)
Those changes would have made Golden vulnerable to scathing cross-examination, Conn said, adding: “We had no choice but to go outside.”
Golden became a controversial figure last year during his disjointed testimony in the O.J. Simpson preliminary hearing; prosecutors in that case did not call him as a witness during the trial.
Among the exhibits prosecutors hope to introduce are two wooden models pierced by metal rods to show Failure Analysis’ conclusions about the direction and angle of the dozen shots fired into the bodies of Jose and Kitty Menendez. This, prosecutors say, will underscore the methodical nature of the killing.
The defense, meanwhile, has embraced Golden because his testimony would contradict the prosecution’s murder scenario. Abramson said in court Friday that Golden will be the first defense witness for Erik Menendez.
The coroner and Failure Analysis’ McCarthy disagree not only about the sequence of the shots, but about the number of them, the position of the bodies and which wounds were inflicted before and after death.
The defense camp’s bevy of noted forensic pathologists--including Cyril Wecht and Michael Baden--back Golden, Abramson has said in court.
“I don’t know how much clearer we can make it,” Abramson stated during a recent hearing, “that we think Mr. McCarthy is a fraud and is incompetent to testify.” Abramson vowed her witnesses will “demolish him.”
Responded Conn sardonically: “I’m sure she calls all our witnesses frauds.”
Flush against U.S. 101 in Menlo Park is the house that disaster built--the home office of Failure Analysis Associates. The company, founded in 1967 by five engineers with doctorates from Stanford University, now employs more than 400 experts--90 of them with doctorates--in 13 offices in the United States and abroad.
Known by the initials FaAA, the company specializes in disaster and accident reconstruction. It offers litigation support, and its computer databases--including one that contains every death certificate issued in the United States since 1975--are the envy of the industry.
Many lawyers and corporate executives consider it the biggest and best in the business, although Failure Analysis does have its critics.
The firm’s resume reads like an insurance adjuster’s worst nightmare.
FaAA engineers have flown to the sites of the Oklahoma City bombing and the conflagration at the Branch Davidian compound in Waco, Tex. They have created a three-dimensional computer map of the grounded Exxon Valdez, determined that a construction flaw caused the 1981 collapse of a walkway at the Hyatt Regency in Kansas City and exposed “Dateline NBC’s” rigged crash tests of GM pickup trucks. They have re-created the car crash that killed James Dean 40 years ago, finding Dean wasn’t at fault.
They agreed to work on the Menendez case because they found it interesting, said engineer Devinder Grewal, who spent hundreds of hours studying the crime scene and autopsy photos and scanning them into a state-of-the-art computer.
Most of Failure Analysis’ court time has been spent in the civil court arena, where its expertise is used to defend products for deep-pocket clients such as General Motors, Suzuki and the National Rifle Assn. Occasionally, Failure Analysis has been drawn into controversy.
In 1992, the Center for Highway Safety, an advocacy group in Washington, sent a letter to the National Highway Transportation Safety Administration, accusing General Motors and Failure Analysis of being “extremely disingenuous” in portraying safety statistics for GM pickup trucks. The group had been pushing for a recall of GM pickup trucks with fuel tanks mounted outside the vehicle’s main frame, charging that more than 300 people had died when the pickups burned after being hit from the side.
Failure Analysis had debunked the group’s findings that GM pickups were twice as likely to burn as competitors when hit from the side. However, the insurance group found that the Failure Analysis study was flawed because it compared full-sized GM pickups with competitors’ compact models, which are more likely to burn on impact.
McCarthy denied at the time that Failure Analysis had misrepresented the data.
More recent, Failure Analysis found itself in the middle of a political spat, and was precluded from testifying before the House committee investigating the raid at the Branch Davidian compound. Although Failure Analysis had completed an animated reconstruction of how the fires started, Democratic leaders blocked the testimony after learning Failure Analysis had been hired by the NRA.
Some lawyers who have encountered Failure Analysis in court consider its engineers “hired guns” who produce “results-oriented” studies for the clients who pay them.
“They’re just professional witnesses,” said Georgia plaintiff’s attorney Jim Butler. “We’ve had FaAA and McCarthy in a number of cases, and when the defense brings them in, we’ve presumed there was no defense.”
“I cannot imagine a prosecutor with a good case would use McCarthy,” he added. “If you need McCarthy you must have some kind of problem. McCarthy, in our experience, is brought in to defend products that are indefensible.”
In a case in which McCarthy testified in St. Louis, Butler said he primed the jury to view McCarthy as pricey by referring to him as “the $8-million man,” the company’s reported fee in that case. Butler said jurors laughed while McCarthy testified, then awarded Butler’s clients $90 million in damages in a Suzuki rollover case.
But veteran Los Angeles defense attorney Harland W. Braun, who successfully used a video re-enactment for the defense in the “Twilight Zone” helicopter crash case, said Failure Analysis will give the prosecution an advantage “if they’re honest and can show why” the killings were premeditated.
Even if a stream of defense pathologists disagree with McCarthy’s conclusions, “it just keeps the case focused on what happened that night,” Braun said. “As long as they’re going over which round was fired first and hit where, the prosecution’s going to win. The defense is being forced to defend on issues that inherently favor the prosecution.”
