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Magbanua Retrial transcript transcript Anthony Clark — Direct/Cross - Day 1 - Magbanua Retrial Medical examiner Anthony Clark testified about Dan Markel's autopsy, describing two gunshot wounds — a survivable cheek wound inflicted first through the car window, and a fatal shot between the eyes at intermediate range — before cross-examination probed the limits of Clark's trajectory and arm-position conclusions. Georgia CapplemanChristopher DeCosteTara KawassRobert R. WheelerAnthony ClarkJudge WheelerMs. CapplemanMr. DeCosteAnthony ClarkCourt ClerkMs. Kawassdirectcrossprocedural
Magbanua Retrial / Day 1 / May 18, 2022
9 pages · 6 witnesses · 2,755 lines
Medical examiner Anthony Clark testified about Dan Markel's autopsy, describing two gunshot wounds — a survivable cheek wound inflicted first through the car window, and a fatal shot between the eyes at intermediate range — before cross-examination probed the limits of Clark's trajectory and arm-position conclusions.
Proceedings
Direct Anthony Clark - Direct Line 1
Cross Anthony Clark - Cross Line 172
Procedural Lunch Break Line 240
1 3:34:56

JUDGE WHEELER: The state may call one more witness for this morning.

2 3:34:59

MS. CAPPLEMAN: Yes, sir. The state calls Dr. Clark.

3 3:34:59

MR. DECOSTE: To let Your Honor know, it's very unlikely we have any cross on Dr. Clark, so we'll be done with the witness.

4 3:34:59

JUDGE WHEELER: All right. Thank you. I appreciate that.

5 3:35:36

JUDGE WHEELER: Good morning, sir.

6 3:35:36

ANTHONY CLARK: Good morning.

7 3:35:37

JUDGE WHEELER: Before you have a seat, we're going to swear you in. Please raise your right hand.

8 3:35:40

COURT CLERK: Do you solemnly swear or affirm that the testimony you shall give shall be the truth, the whole truth, and nothing but the truth?

9 3:35:45

ANTHONY CLARK: Yes, I do.

10 3:35:46

JUDGE WHEELER: Thank you. Please have a seat.

11 3:36:12

MS. CAPPLEMAN: All right, sir. Please introduce yourself and spell your name.

12 3:36:16

ANTHONY CLARK: Dr. Anthony J. Clark.

13 3:36:17

ANTHONY CLARK: Anthony, A-N-T-H-O-N-Y, J. Clark, C-L-A-R-K.

14 3:36:23

MS. CAPPLEMAN: And how are you employed, sir?

15 3:36:24

ANTHONY CLARK: I'm employed by KWB Pathology Associates as an associate medical examiner for District 2 here in Tallahassee.

16 3:36:33

MS. CAPPLEMAN: What are your duties as an associate medical examiner?

17 3:36:37

ANTHONY CLARK: As a medical examiner, I'm a board-certified forensic pathologist that performs death investigation by examining a dead person, determining the cause and manner of death.

18 3:36:47

MS. CAPPLEMAN: All right, and how long have you been doing that type of work?

19 3:36:50

ANTHONY CLARK: Well, I've been doing that kind of work since 1992.

20 3:36:53

MS. CAPPLEMAN: All right, and what is the training and education that you have that qualifies you to do that type of work?

21 3:36:58

ANTHONY CLARK: I obtained my Bachelor of Science degree from the Massachusetts Institute of Technology.

22 3:37:02

ANTHONY CLARK: I did two years of animal research at MIT.

23 3:37:05

ANTHONY CLARK: I was accepted to the Jefferson Medical College in Philadelphia and received my M.D. I then traveled to New Britain, Connecticut and did two years of general surgical internship, and then went to the Hartford Hospital in Hartford, Connecticut and did four years of anatomic and clinical pathology and graduated from that program. I then traveled down to Atlanta, and I was with the Fulton County Medical Examiner's Office in association with Emory University and did two years of forensic pathology fellowship.

24 3:37:32

ANTHONY CLARK: I then got my first job at the Georgia Bureau of Investigation, Division of Forensic Science, at the Southwest Regional Medical Examiner located in the Moultrie Crime Lab in Moultrie, Georgia. And in 2007, I transferred down to Tallahassee to work for KWB.

25 3:37:48

ANTHONY CLARK: I am board certified in anatomic and forensic pathology. I have medical licensures in Georgia and Florida.

26 3:37:55

MS. CAPPLEMAN: Do you know how many autopsies you've performed in your career?

27 3:37:59

ANTHONY CLARK: It's over 7,500 by now.

28 3:38:02

MS. CAPPLEMAN: And have you had occasion to testify as an expert witness before?

29 3:38:06

ANTHONY CLARK: Yes, I have.

30 3:38:06

MS. CAPPLEMAN: How many times?

31 3:38:08

ANTHONY CLARK: Several hundred times.

32 3:38:09

MS. CAPPLEMAN: And is that in courts of law, including here in Leon County?

33 3:38:13

ANTHONY CLARK: Yes, ma'am.

34 3:38:13

MS. CAPPLEMAN: All right. And are you an expert in pathology?

35 3:38:17

ANTHONY CLARK: Forensic pathology, yes, ma'am.

36 3:38:19

MS. CAPPLEMAN: All right. And what's forensic pathology?

37 3:38:21

ANTHONY CLARK: Forensic pathology is applying the medical findings to the judicial system, essentially, by examining the dead person, rendering an opinion as to the cause of death and manner of death.

38 3:38:32

MS. CAPPLEMAN: All right. And, Judge, at this time, I'll tender the witness as an expert in the area of forensic pathology.

39 3:38:37

JUDGE WHEELER: Any questions?

40 3:38:38

MR. DECOSTE: No objection with that resume, Your Honor.

41 3:38:41

JUDGE WHEELER: All right. Thank you. You may proceed.

42 3:38:42

MS. CAPPLEMAN: Dr. Clark, did you conduct an autopsy of Daniel Markel?

43 3:38:46

ANTHONY CLARK: Yes, I did.

44 3:38:47

MS. CAPPLEMAN: When and where was that autopsy conducted?

45 3:38:50

ANTHONY CLARK: The date was July 19, 2014. We started at 1155 hours, and at that time we were at the Tallahassee Morale Care Morgue.

46 3:38:58

MS. CAPPLEMAN: All right. And do you take photos as part of your autopsy?

47 3:39:02

ANTHONY CLARK: Yes, ma'am.

48 3:39:03

MS. CAPPLEMAN: And would a review of those photos assist you in your testimony to the jury?

49 3:39:07

ANTHONY CLARK: Yes, ma'am.

50 3:39:08

MS. CAPPLEMAN: Have you previously selected some photos for use in this testimony?

51 3:39:12

ANTHONY CLARK: Yes, I have.

52 3:39:12

MS. CAPPLEMAN: All right. Judge, at this time, I would ask to introduce State's Exhibits 25 through 34, autopsy photos in this case.

53 3:39:20

JUDGE WHEELER: Any objection?

54 3:39:22

MR. DECOSTE: We can go sidebar, Your Honor.

55 3:39:24

JUDGE WHEELER: All right.

56 3:40:46

JUDGE WHEELER: All right. We're back on the record, and so State's Exhibits 25 through 34 will be admitted.

57 3:40:54

MS. CAPPLEMAN: Permission to publish.

58 3:40:56

JUDGE WHEELER: You may.

59 3:40:58

MS. CAPPLEMAN: And, Judge, for ease of the matter, I've loaded these into a PowerPoint. Is that acceptable to Your Honor? By publishing in that fashion, they're just the same pictures, just in a different format.

60 3:41:07

JUDGE WHEELER: Yes, sir. Okay. There's no other words or anything written on it, correct?

61 3:41:10

MS. CAPPLEMAN: The only words written on it are the exhibit numbers to correspond with the exhibits.

62 3:41:15

JUDGE WHEELER: All right. And just for everyone's information, both with the jury and in the courtroom, these are autopsy photographs. Okay.

63 3:41:59

MS. CAPPLEMAN: Let's start with State's Exhibit.

64 3:42:03

MS. CAPPLEMAN: Please.

65 3:42:04

ANTHONY CLARK: This is what we call the identification photo.

66 3:42:08

ANTHONY CLARK: When we do an autopsy on anybody, we will clean up their faces if they have anything covering them and take an ID shot and show you the case number below the chin, the date, and my name or initials in it with that. Already in this picture, you can see that there's been quite a bit of damage to the face.

67 3:42:26

ANTHONY CLARK: You have black eyes, bruises around both eyes.

68 3:42:29

ANTHONY CLARK: There's two obvious gunshot wounds — one between the eyes, what we call on the glabella, and the other one, the left cheek area.

69 3:42:36

ANTHONY CLARK: So you can basically see there's quite a bit of damage here.

70 3:42:39

MS. CAPPLEMAN: All right. In correction for the record, that was State's Exhibit 27 that was being published. If we could move on to 28, please.

71 3:42:46

ANTHONY CLARK: Okay. State's Exhibit 28 is showing what I determined as gunshot wound number one in the autopsy report.

72 3:42:52

ANTHONY CLARK: Now, that is number one, but it's not the first shot, okay, in this instance. But this is a gunshot wound entry here. It's slightly atypical — a large abrasion associated with it, and scattered around you see a large number of large coarse abrasions. This is called — I call it sluice stippling in the Optos report.

73 3:43:12

ANTHONY CLARK: I believe this is actually from glass breaking and fragments of glass hitting the face as the bullet went through the glass.

74 3:43:18

ANTHONY CLARK: And you can see that that coarse glass stippling is on the left cheek, left side of the face, goes on to the left ear, actually on to the left upper part of —

75 3:43:28

MS. CAPPLEMAN: And what you're referencing as a stippling is that these road marks that you see on the ear and teeth?

76 3:43:34

ANTHONY CLARK: Yes, that's correct.

77 3:43:42

ANTHONY CLARK: Is it alright if I stand up?

78 3:43:43
79 3:43:43

MS. CAPPLEMAN: All right, so if you'll use the pointer and show us which is what you're calling gunshot wound 1.

80 3:43:54

ANTHONY CLARK: The gunshot wound 1 is right here. You can see the hard abrasion there, and then around the gunshot wound are these coarse areas called glass stippling, and it goes on to the left ear and on to the upper part of the neck here. The blue discoloration is basically a bruise. This zygomatic bone here is the cheekbone that's been fractured, so there's some bleeding underneath here.

81 3:44:20

MS. CAPPLEMAN: All right, and then you kind of went over quickly that you were calling it gunshot wound one, but we don't necessarily think it's the first gunshot wound to be inflicted. Can you explain why it's labeled as gunshot wound one?

82 3:44:32

ANTHONY CLARK: Actually, gunshot wound number one is the one between the eyes; this is gunshot wound number two.

83 3:44:37

MS. CAPPLEMAN: All right. And when you say that, does that mean that's your theory as to when they were inflicted, or that's how you labeled them for purposes of your report?

84 3:45:01

ANTHONY CLARK: That is the way I labeled them for purposes of my report. I started off with the one between the eyes as one and the other one as two. Actually, with the circumstances and the scene investigation, I felt that this probably was the first one on the cheek, because of the glass stippling around the wound itself.

85 3:45:10

MS. CAPPLEMAN: We'll get to that a little bit more later. But I just want them to understand first, like how you label them — you start from the top of the head and go to the tip of the toes, right?

86 3:45:18

ANTHONY CLARK: That's correct.

87 3:45:18

MS. CAPPLEMAN: So since when we go slice by slice through the human body from the top of the head, the first one we get to is that between-the-eyes one, that got labeled one.

88 3:45:27

ANTHONY CLARK: That's correct.

89 3:45:28

MS. CAPPLEMAN: Okay. All right. So we're looking at two different gunshot wounds in this image?

90 3:45:32

ANTHONY CLARK: That's correct.

91 3:45:32
92 3:45:33

ANTHONY CLARK: Gunshot wound that was labeled number one is right here between the eyes.

93 3:45:37

ANTHONY CLARK: The reason it is so big and ragged was that there was an intermediate target, probably a pair of glasses that were sitting on his nose.

94 3:45:45

ANTHONY CLARK: The bullet actually hit those glasses, broke the glasses into multiple fragments, which caused this injury wound to be what we call atypical. It just isn't a round little hole.

95 3:45:55

ANTHONY CLARK: There's been some extensive laceration associated with that gunshot wound injury from the intermediate target of eyeglasses.

96 3:46:04

MS. CAPPLEMAN: And which one, or are both of these shots fatal?

97 3:46:09

ANTHONY CLARK: The gunshot wound number two here to the cheek actually just goes through the soft tissues of the face right here, and really it doesn't even enter the mouth, it just hits the zygoma and it hits the mandible and fractures both.

98 3:46:23

ANTHONY CLARK: But this would have been a painful but survivable injury if it was by itself.

99 3:46:28

MS. CAPPLEMAN: All right, if we can go on to the next slide please, will be State's Exhibit 29.

100 3:46:33

MS. CAPPLEMAN: What do we see here?

101 3:46:34

ANTHONY CLARK: This is showing the left side of the neck, and you can see the coarse stippling here, the glass stippling, and you can see it on the ear here also.

102 3:46:43

MS. CAPPLEMAN: All right, next slide of State's Exhibit 30.

103 3:46:47

ANTHONY CLARK: Okay. State's Exhibit 30 is showing the forehead, and what I'm trying to show here is that there's a different kind of stippling here on the central portion of the forehead.

104 3:46:56

ANTHONY CLARK: This is the gunshot wound injury right here. Right here is where the actual bullet went through. This gaping laceration associated with the gunshot wound is due to the eyeglasses and intermediate target. And in the forehead here, you see some very fine stippling. This is what I call true stippling, or gunpowder stippling.

105 3:47:14

ANTHONY CLARK: You have burnt and unburnt particles of gunpowder coming out at the end of a gun, and they're all fairly homogeneous in size, and they cause very small abrasions when they strike the skin. They don't burn the skin, they abrade it. So what we're seeing here is that you have some true gunpowder stippling on the forehead, and this is associated — we usually see this with handguns within a range of 18 to 24 inches of the muzzle from the skin surface.

106 3:47:40

MS. CAPPLEMAN: All right, so this was a close contact wound.

107 3:47:43

ANTHONY CLARK: It would be called an intermediate range wound.

108 3:47:46

MS. CAPPLEMAN: And when you say homogeneous, referring to the stippling from the gunpowder, does that mean it appears to be all the same pattern?

109 3:47:54

ANTHONY CLARK: The same size.

110 3:47:55

MS. CAPPLEMAN: Same size. Okay. As opposed to the stippling from the broken glass, which is going to be various sizes?

111 3:48:01

ANTHONY CLARK: That's correct. And if you look at the nose here, you can see that there's our larger stipple marks. You can actually see larger stipple marks here, here, and above the left eyebrow, and on the cheek. And these are coarse. Again, it's some kind of intermediate target, most likely in this case the glasses — the glasses and the glass window glass.

112 3:48:18

MS. CAPPLEMAN: All right. Next slide.

113 3:48:23

ANTHONY CLARK: This is another angle at gunshot wound number one, as labeled in the autopsy report. You can see how irregular and extensive it is. You can see the coarse stippling on the nose, on the cheek, just above the left eyebrow. You really can't see the fine stippling on the central forehead in this picture. And then you see the large bruising around the left eye.

114 3:48:41

ANTHONY CLARK: This kind of bruising is usually associated with what we call basal skull fracture, or basilar skull fracture.

115 3:48:46

MS. CAPPLEMAN: All right. So the bruising we're observing is related to the gunshot injuries?

116 3:48:50

ANTHONY CLARK: That's correct.

117 3:48:51

MS. CAPPLEMAN: All right. Next slide, please.

118 3:48:53

MS. CAPPLEMAN: State's 32?

119 3:48:55

ANTHONY CLARK: State's 32 is showing the left forearm on the outside, the elbows over here, the hands going over here. And what we're seeing here, again, is stippling. If you look at the stippling, again, it's fairly large, irregular.

120 3:49:07

ANTHONY CLARK: Again, I believe this is from an intermediate target, most likely the glass window.

121 3:49:12

ANTHONY CLARK: And then if you look over here, you see this reverse-shaped black material? That's actually soot. And that soot pattern is suggested that the muzzle of the gun, or most likely a cylinder gap in a revolver, were close to this area at the time that that soot was deposited.

122 3:49:29

MS. CAPPLEMAN: And based on the evidence that you observed, can you explain to the jury how you think these two gunshot wounds occurred and in what order?

123 3:49:39

ANTHONY CLARK: So gunshot wound number one is actually to the left cheek area because of the corset of glass that I saw there.

124 3:49:47

ANTHONY CLARK: From the scene investigation, the glass window was up; the bullet did go through glass, causing it to shatter and spray large glass particles at the decedent.

125 3:49:57

ANTHONY CLARK: So I felt that gunshot wound number one was most likely the first gunshot wound, and then number two — the window is gone now, the only other intermediate target would be these glasses, but now we've got the fine stippling from gunpowder striking the forehead, so this could be an intermediate target — I mean the intermediate range that I described before.

126 3:50:18

MS. CAPPLEMAN: Can you describe what you think the position of the victim was to get the soot on the arm?

127 3:50:24

ANTHONY CLARK: At some point in time, the left arm was up in this position this way to get the glass on the outside and then the soot on here also. So reflexively, if somebody's coming at you with a gun or knife is to put your forearm to protect yourself. So I believe at some point in time, his arm was up.

128 3:50:41

ANTHONY CLARK: The soot deposition most likely came from the gunshot wound number two — what would be in sequence number two — to the glabella area, or central forehead.

129 3:50:50

MS. CAPPLEMAN: All right, so could this be consistent with the first shot being inflicted to the cheek sort of from the side, and then the victim turning to look and simultaneously raising his arm, being shot then through the void and the glass caused by the first shot?

130 3:51:08

ANTHONY CLARK: That is correct.

131 3:51:09

ANTHONY CLARK: Correct, but you're going to the left.

132 3:51:11

MS. CAPPLEMAN: I know, sorry. I was going toward the jury.

133 3:51:14

ANTHONY CLARK: But yes, gotcha.

134 3:51:16

MS. CAPPLEMAN: All right, I'm going to approach and show you some additional exhibits.

135 3:51:19

MS. CAPPLEMAN: Let's go back to that.

136 3:51:47

MS. CAPPLEMAN: Blueprint and evidence to show you 125 and 126. Do you recognize these two?

137 3:51:59

ANTHONY CLARK: Yes, ma'am.

138 3:52:01

MS. CAPPLEMAN: How do you recognize those exhibits?

139 3:52:03

ANTHONY CLARK: Okay, this is Exhibit 125.

140 3:52:06

ANTHONY CLARK: This contains a brown envelope that was sealed by me and contains the bullet I recovered from gunshot wound number two from the left side of the head.

141 3:52:18

ANTHONY CLARK: And 126 has that same brown — similar brown — envelope with the evidence tape sealed to my label, and this is the bullet from the gunshot wound number one to the right brain.

142 3:52:18

MS. CAPPLEMAN: Are these exhibits in substantially the same condition as when you collected the items from the body of Mr. Markel?

143 3:52:18

ANTHONY CLARK: Yes, ma'am, except for being out of the envelopes themselves.

144 3:52:28

MS. CAPPLEMAN: Any objection?

145 3:52:28

JUDGE WHEELER: Be admitted as 125 and 126. You may.

146 3:53:11

ANTHONY CLARK: This is an x-ray of the head. Now, the decedent didn't make it to the hospital, but he did receive some care and he did have a CT scan of the head. As part of the CT scan, they actually do plain x-rays to get the image, correct? And if you look at this scan here, this is actually a top of the head here, this is his right side, this is his left side. And what you see here inside the skull is a mushroomed white bullet that's inside the skull. Okay, anything metal, it's going to come out white on the x-ray, and you can see the bone is also somewhat white. And over here we have a barrel-shaped bullet in the left soft tissues of the left side of the mandible.

147 3:54:02

ANTHONY CLARK: Now, the first one was called an AP — front to back, anterior-posterior, front to back. This is a lateral, showing the side, and this gives us an idea of the two dimensions here. I'm missing this somehow.

148 3:54:14

MS. CAPPLEMAN: Where are we? I think it's a dime.

149 3:54:19

MS. CAPPLEMAN: Anyway — oh, here you go.

150 3:54:20

ANTHONY CLARK: Here is that mushroom bullet here. You can see that it's inside the skull towards the back, and then we have that barrel-shaped one here on the left side of the jaw.

151 3:54:34

ANTHONY CLARK: State's Exhibit 33 is — I'm documenting the envelope that I'm putting the bullet into that I recovered from the left jaw.

152 3:54:41

ANTHONY CLARK: And I'd like to document what the bullet looked like in case for some reason it got lost or something like that. At least we have a picture of it.

153 3:54:52

ANTHONY CLARK: And this is the gunshot wound number one bullet from the right side of the brain.

154 3:54:56

ANTHONY CLARK: And this is — if you flipped it up, you could tell it was a mushroom that was similar to the one from the x-ray.

155 3:55:02
156 3:55:09

ANTHONY CLARK: So this is that barrel-shaped bullet that I recovered, and this is from the left side of the jaw.

157 3:55:28

ANTHONY CLARK: Okay, this is that mushroom-shaped bullet that I recovered from the right brain.

158 3:55:34

ANTHONY CLARK: And there's also down a small lead fragment associated with it.

159 3:56:05

MS. CAPPLEMAN: All right, can you tell us anything about how far away the muzzle of the gun was from Mr. Markel's head when the shots were fired?

160 3:56:12

ANTHONY CLARK: Again, with the stippling to gunshot wound number one as designated in the autopsy report, I felt this was an intermediate — that would put it out to 18 to 24 inches. The only way you can really tell is if you have the same gun, same ammunition, and did some test fire to see how far out you had to be to get the same stipple pattern.

161 3:56:38

MS. CAPPLEMAN: Is toxicology routinely done on the autopsies — folks that you conduct autopsies on?

162 3:56:45

ANTHONY CLARK: Yes, ma'am.

163 3:56:45

MS. CAPPLEMAN: And did Mr. Markel have toxicology done on him?

164 3:56:49

ANTHONY CLARK: Yes, ma'am.

165 3:56:49

MS. CAPPLEMAN: What was the result of his toxicology?

166 3:56:51

ANTHONY CLARK: It was negative.

167 3:56:53

MS. CAPPLEMAN: What was Mr. Markel's cause of death?

168 3:56:55

ANTHONY CLARK: Cause of death as written on the autopsy report and death certificate are gunshot wounds of the face and head.

169 3:57:01

MS. CAPPLEMAN: And what about the manner of death?

170 3:57:03

ANTHONY CLARK: In this case, it would be a homicide.

171 3:57:05

MS. CAPPLEMAN: Thank you. Nothing further.

172 3:57:06

JUDGE WHEELER: Cross-examination?

173 3:57:08

MR. DECOSTE: Your Honor, I am going to have a little bit of a cross. I don't know if you're going to want to do it after lunch?

174 3:57:12

JUDGE WHEELER: No, you can do it now. We'll go for it.

175 3:57:43

MR. DECOSTE: One minute, Judge.

176 3:57:45
177 3:58:03

MR. DECOSTE: Doctor, I'm showing you State's 7.

178 3:58:15

MR. DECOSTE: Is it your understanding, or are you aware, that this is Mr. Markel's vehicle inside the garage where he was shot?

179 3:58:20

ANTHONY CLARK: Yes, sir.

180 3:58:23

MR. DECOSTE: Is it also your understanding that this is the vehicle that he was shot in — who's inside, on the driver's side on the left right here?

181 3:58:30

ANTHONY CLARK: That's correct.

182 3:58:30

MR. DECOSTE: All right. On a topic that I want to go over real quickly today, I'm going to go fast because we're so close to lunch.

183 3:58:37

MR. DECOSTE: Exhibit number 24 — we'll talk about stippling.

184 3:58:39

MR. DECOSTE: Now, again, stippling is that there's particles that are coming out of a gun when it's fired. Your Honor, if I may use a chair to act it out a little bit.

185 3:58:48

MR. DECOSTE: That these bruises and these marks are from particles that are coming out of the gun or things that the projectile hits that then hit the skin, right?

186 3:58:59

ANTHONY CLARK: Right. You have an intermediate target, you have your glass stippling, and then you have your gunpowder stippling.

187 3:59:04

MR. DECOSTE: So the thought is — and feel free to move me around — your thought is, based on this, that Professor Markel, when he was shot, and again the door is right here on the left side, that he raised his arm.

188 3:59:17

ANTHONY CLARK: Yes, sir.

189 3:59:18

ANTHONY CLARK: Now, I don't know if his arm was raised to get the glass stippling. That's what we see in here on the forearm, okay?

190 3:59:24

ANTHONY CLARK: And the soot came with the second shot.

191 3:59:28

ANTHONY CLARK: Because the glass is going to block any kind of soot or heat from going through. The only thing that's going to go through is the bullet and broken glass. So you're not going to see gunpowder stippling from that — at that time of shot.

192 3:59:39

MR. DECOSTE: So that glass stippling is more likely from the first shot, and the soot is probably from the second — most likely from the second shot.

193 3:59:54

ANTHONY CLARK: Yes, sir.

194 4:00:01

ANTHONY CLARK: If it's down on the armrest, no, he would not get those injuries. So it's consistent with the fact that...

195 4:00:07

MR. DECOSTE: He had it raised in some fashion. Now, is he talking on the phone?

196 4:00:11

ANTHONY CLARK: I don't know.

197 4:00:13

MR. DECOSTE: Was he holding something?

198 4:00:14

ANTHONY CLARK: I don't know.

199 4:00:15

MR. DECOSTE: Did he raise his arm in defense?

200 4:00:17

ANTHONY CLARK: I'm not sure.

201 4:00:22

MR. DECOSTE: Trajectory with respect to the intermediate part of the...

202 4:00:28

MR. DECOSTE: Professor Markel, he was shot between the eyes and in the cheek.

203 4:00:32

ANTHONY CLARK: That's correct.

204 4:00:34

MR. DECOSTE: There was a trajectory of the...

205 4:00:39

MR. DECOSTE: It entered in and it went up or down in a certain fashion, right?

206 4:00:42

ANTHONY CLARK: That's correct, but remember, all my trajectories are based on the decedent placed in what we call an anatomic position.

207 4:00:48

ANTHONY CLARK: He's lying flat on his back with his palms facing forward and his head in a neutral position.

208 4:00:53

MR. DECOSTE: So all those trajectories you're talking about are with him in that position.

209 4:01:03

MR. DECOSTE: Professor Markel is sitting there — his braces, his arms, his head.

210 4:01:07

MR. DECOSTE: Would that affect the trajectory of the wound going inside his head?

211 4:01:12
212 4:01:14

ANTHONY CLARK: That would depend on where the muzzle of the gun is in relationship to it.

213 4:01:17

ANTHONY CLARK: The bullet is going from front to back, very slightly left to right, and very slightly up.

214 4:01:28

MR. DECOSTE: Correct me if I'm wrong, but the...

215 4:01:31

MR. DECOSTE: In your report, the entry was down.

216 4:01:35

ANTHONY CLARK: Which one?

217 4:01:39

MR. DECOSTE: Okay.

218 4:01:41

ANTHONY CLARK: Gunshot wound number one, as I described, here in the forehead, is going from front to back, slightly left to right — from his left to his right.

219 4:01:49

MR. DECOSTE: Okay. Front to back, slightly left to right, and slightly up.

220 4:01:52

MR. DECOSTE: So that the bullet's entering about here and is winding up in the back right side of the brain.

221 4:01:59

MR. DECOSTE: Is that what we hear, or what we see?

222 4:02:02

ANTHONY CLARK: Right. You can see the skull and where the bullet is. You can't really see the brain in these x-rays.

223 4:02:09

MR. DECOSTE: The bullet went from approximately here.

224 4:02:13

MR. DECOSTE: Slightly up.

225 4:02:14

ANTHONY CLARK: Yes, sir.

226 4:02:16

MR. DECOSTE: The reason why it went up — it could have been for a reason, correct?

227 4:02:20

ANTHONY CLARK: Correct. And I'm saying that this is an anatomic, standard anatomic position. His head is in a neutral position.

228 4:02:26

MR. DECOSTE: It's not tilted like it could have been.

229 4:02:29

ANTHONY CLARK: Correct. I don't know whether his head was tilted back a little bit, or even tilted down a little bit, depending on where the muzzle of the gun is.

230 4:02:45

ANTHONY CLARK: That's correct. Well, the second one would be the intermediate target, the eyeglasses, and also striking bone can deviate the course a little bit.

231 4:02:53

MR. DECOSTE: I'd like to have one brief moment.

232 4:02:54
233 4:02:57

MR. DECOSTE: I'm done. Thank you, Your Honor.

234 4:02:59

JUDGE WHEELER: Redirect?

235 4:02:59

MS. CAPPLEMAN: No, Your Honor.

236 4:03:00

JUDGE WHEELER: We can release the doctor?

237 4:03:01

MS. CAPPLEMAN: Yes, sir.

238 4:03:02

JUDGE WHEELER: Okay. Thank you, doctor.

239 4:03:03

ANTHONY CLARK: Thank you. Have a good day.

Procedural Lunch Break
240 4:03:08

JUDGE WHEELER: All right. Now is a good time for us to take our lunch break.

241 4:03:12

JUDGE WHEELER: It's almost 12:30, so I'll give you to 1:30.

242 4:03:15

JUDGE WHEELER: And so you're going to be outside the building.

243 4:03:19

JUDGE WHEELER: You also have a place here inside where you can get something to eat in the courthouse. Or if you brought something, that's perfectly fine.

244 4:03:29

JUDGE WHEELER: I forgot to mention yesterday — if you run into anyone here in the courtroom, the attorneys, myself, because we all might use the same elevator and that type of thing, we're going to completely ignore you, and I don't want you to be offended by that. It's the appropriate thing to do, okay? And we don't want even the appearance of any impropriety, so please don't be offended by that if we do run into you at any time during our movements around the courtroom — okay? — or the courthouse. So again, no discussions with any friends or family members, no looking up on social media or any news reports. And if you could please report back at 1:30, and then we'll start back with the testimony at that time. Okay, the deputy will escort you out.

245 4:04:17

JUDGE WHEELER: You can just leave your pads and pens right on your chairs, because the courtroom will be secure.

246 4:04:46

JUDGE WHEELER: All right. Jury's out of the courtroom, the door is closed. Please be seated.

247 4:04:50

JUDGE WHEELER: And so for planning purposes — I see at this point, Ms. Cappleman, you have two witnesses for this afternoon. Is that correct?

248 4:04:58

MS. CAPPLEMAN: Yes, Your Honor.

249 4:04:59

JUDGE WHEELER: Okay. And we discussed a transport order yesterday, and I haven't seen that at this point, so I just wanted to make sure I didn't miss it.

250 4:05:09

MS. CAPPLEMAN: No, I'm going to be sending it to you.

251 4:05:10

JUDGE WHEELER: All right.

252 4:05:11

MS. KAWASS: Your Honor. I also wanted to ask you — to let Your Honor know — the other part of the legal team is actually here. So I didn't want you to wonder who was sitting at counsel desk. But the other — our legal — my legal department from my law firm, my partner Ms. Kawass, also is going to be joining us.

253 4:05:12

JUDGE WHEELER: All right. All right, I appreciate that. Okay. And so, anything else before we break? We'll be back at 1:30, and we'll continue with the testimony at that time. Okay, we'll be in recess until 1:30.

254 5:14:00

JUDGE WHEELER: All right. Anything that we need to address before we bring the jury in? Ms. Cappleman?

255 5:14:05

MS. CAPPLEMAN: No, Your Honor.

256 5:14:06

JUDGE WHEELER: Okay. And Mr. DeCoste?

257 5:14:09

MR. DECOSTE: No, Your Honor.

258 5:14:10
259 5:14:10

MR. DECOSTE: Just to introduce you to the other Ms. Kawass.

260 5:14:13

JUDGE WHEELER: All right.

261 5:14:13

MS. KAWASS: Hello.

262 5:14:15

JUDGE WHEELER: I'm glad you told me, because it looks like I'm seeing double of you.

263 5:14:17

MS. KAWASS: Yes, we get that a lot, Judge.

264 5:14:20

JUDGE WHEELER: All right. Let's bring the jury in, please.

265 5:16:01

JUDGE WHEELER: All right.

266 5:16:19

JUDGE WHEELER: Please be seated.