Science on Trial in Menendez Case : Crime Scene Reconstruction Is Debated

The irony was inescapable: A veteran firearms examiner with the Los Angeles County Sheriff’s Department was on the witness stand Wednesday, testifying for Erik and Lyle Menendez.

And the prosecutor was grilling him mercilessly.

Normally, Deputy Dist. Atty. David Conn and Sheriff’s Deputy Dwight Van Horn would be on the same side, but Conn made clear in his questioning that he doubted Van Horn’s loyalty, suggesting that professional jealousy had prompted him to testify for the brothers’ defense.

“Whose side are you on?” Conn demanded to know.

“The side of truth,” Van Horn retorted.

Later, questioned by defense attorney Leslie Abramson, Van Horn said he had tried unsuccessfully to warn Conn against using what he considered a “bogus” computer-assisted crime scene reconstruction that is a key element of the prosecution’s case.

Forget for a moment about psychobabble, the battered person syndrome and the abuse excuse. The latest buzzword to emerge from the retrial of the Menendez brothers is what Abramson calls “junk science.”

Pitching slick, computer-age technology against more traditional evidence-gathering practices, the battle of the experts at the retrial has generated controversy in an unexpected quarter.

“This really is a slap at the entire profession of criminalists,” said Charles A. Gessler, lead attorney for Lyle Menendez, speaking about the use of the reconstruction.

Defense attorneys are capitalizing on the controversy as they try to debunk the prosecution’s scenario of how Erik and Lyle Menendez shotgunned their parents to death Aug. 20, 1989. Prosecutors say the sons ambushed their parents. The defense claims that the brothers fired their shotguns randomly out of a misguided fear for their lives.

During the past two weeks, Abramson has led the vigorous attack by the defense on the reconstruction and on its creator, Roger McCarthy. She sneers at his computer-assisted illustrations, calling them cartoons.

And a parade of defense witnesses have said McCarthy’s conclusions and illustrations are rife with errors and false assumptions. McCarthy acknowledged on the stand that it was his first time as an expert witness in a criminal case.

Some of the most willing weapons in the defense attack have been the criminalists.

Martin Fackler, a surgeon and wound ballistics expert at Army-Letterman Hospital in San Francisco, volunteered much of his time. And he was plain about his motive for debunking McCarthy’s reconstruction.

“If this is allowed to establish itself as precedent, I feel that great harm will be done to the forensic science community,” he said.

“I don’t have a vendetta against Dr. McCarthy,” he added. “I would like to have the court records here indicate that Dr. McCarthy, when he tried to testify on gunshot wounds, made many errors. Maybe he will not be encouraged to do this in the future.”

Prosecutor Conn says the defense attack is much ado about nothing. He staunchly defends McCarthy’s work, even if he acknowledges that his witness might be a little off here and there.

Overall, he said, focusing the jurors on the crime scene and the bodies of Jose and Kitty Menendez plays into the prosecution’s case, even if the criminalists don’t like it.

“We are presenting unusual testimony,” Conn said. “Reconstruction testimony is unusual. But all we’re doing is fine-tuning an ambush. What difference does it make if they were standing or sitting, or if this was an exit wound and that was an entrance wound? The defense is dwelling on minutiae and so what?”

On Friday, prosecutors won a small victory when Superior Court Judge Stanley Weisberg ruled that jurors may take McCarthy’s two dozen larger-than-life illustrations into their deliberations.

McCarthy, CEO of a Menlo Park accident reconstruction company called Failure Analysis Associates, testified that the parents were slain by a dozen shots from two Mossberg shotguns. But the defense experts say they found physical evidence to back up only eight shots.

A scientifically valid reconstruction, the defense witnesses said, is impossible. There is too much evidence missing, they agree, and too many variables at a scene involving four people--two shooters and two victims--who can assume an infinite number of positions.

Besides law enforcement officers, big names in the crime scene business appear on the defense witness list--Fackler, Charles V. Morton, who heads an Oakland crime lab, and nationally known forensic pathologist Cyril E. Wecht, who is scheduled to testify Monday.

“If Fackler and Morton are saying it’s a crock, they’re probably right,” said Victor Reeve, lab director at the California Criminalists Institute in Sacramento, where many law enforcement criminalists are trained. “If Cyril Wecht agrees, that’s heavy duty.”

Reeve said the deep division between McCarthy and the other experts indicates a major problem. “If the experts keep to the science, they’re probably going to have a fair amount of agreement, even when there’s a lot of posturing going on,” Reeve said.

According to testimony, prosecutors didn’t hire a forensic pathologist until three weeks before the trial--well after McCarthy had done most of the work on his scenario.

Reeve was critical of that method of reconstruction.

“I think it’s unethical,” he said. “Usually you look at the evidence and then develop the scenario.”

It is a point that defense attorney Abramson has repeatedly underscored during her questioning of the witnesses.

Much time and testimony also have been focused on whether Jose and Kitty Menendez were standing or sitting when the shooting began.

McCarthy testified that the parents were seated--giving weight to prosecutors’ allegations that the victims were ambushed by their sons and supporting a special allegation--lying in wait--that carries the death penalty.

Recalling testimony that both brothers suggested Mafia involvement after their parents’ slayings, Conn has advanced the theory that the brothers executed their parents with shots to their heads, then shot their legs to give the slayings gangland overtones.

In contrast, defense experts found evidence that blood had trickled down the parents’ legs, indicating that they were standing. And bloodstains was found on the soles of Kitty Menendez’s tennis shoes, which would show she stepped in blood after the shooting started.

Erik and Lyle Menendez testified during their first trials that their parents were rising or standing when the brothers opened fire in a blind panic, afraid that their parents were going to kill them after years of sexual and psychological abuse.

Those trials ended in deadlock when jurors could not decide between murder or manslaughter convictions.

Last week, Abramson played up to the wounded egos of the law enforcement witnesses who last time testified for the prosecution and this time are testifying for the defense.

She asked Van Horn, the firearms examiner: “In all the years you’ve been on the job, have you ever been as rudely attacked by a prosecutor as you were in this courtroom this afternoon?”

“No,” replied Van Horn, stiffly.

“Well, welcome to the courtroom. Things sometimes get rude in the courtroom,” Conn later told reporters with a smile. “I don’t come to court to make friends.”