Note: this is an account of the Paul Miller trial’s morning session on Wednesday. For the account of the afternoon session, go here.
The 9 mm bullets appeared in little baggies, in full or in fragments, with their cartridges, lined up in two rows of nine baggies taped against a white board. Assistant State Attorney Jacquelyn Roys placed the board on an easel, to the right of the witness stand, to the left of the six-member jury. Fourteen months ago, the bullets had traveled through and into Dana Mulhall, killing him.
Paul Miller, the 66-year-old man accused of murdering Mulhall on March 14, 2012, as the two Flagler Beach neighbors argued loudly and obscenely across Miller’s fence about his barking dogs, sat as he has for the past three days, in the same navy blue jacket and navy blue tie, looking on with an expression rarely changing from placid and unsmiling.
Wednesday morning, in the third day of trial (counting the first as jury selection), the prosecution’s case turned from the personal and emotional to the technical. The sort of technicalities that explain, in terms tinny and clinical, the mechanics of a homicide. And the victim’s state of being at the time of death. In Mulhall’s case: the degree of his drunkenness.
In the surprise of the morning, it was the prosecution, not the defense, that brought up Mulhall’s blood-alcohol level at the time of the shooting—a relatively high 0.188—pre-empting what would have been an effective way for the defense to sow doubt about how much Mulhall was in control of his capacities. Miller had described him to police as red-faced and drunk. The prosecution strained this morning to diminish the relevance of Mulhall’s drinking that day on the circumstances that led to his killing.
The prosecution began the morning with a cross-examination of Jean Jahnke, a crime lab analyst at the Florida Department of Law Enforcement’s Jacksonville lab. State crime analysts are usually called in to any homicide crime scene (other than auto wrecks). They speak in their own lingo: blood is “reddish brown stains,” bullets are “projectiles,” a home—a yard, a garage, a living room, a bedroom where a victim (or a defendant) might have lived parts of a lifetime–becomes a “secure crime scene,” or more simply, “the scene.”
Jahnke, answering Roys’s questions, essentially drew a line of bullets and blood spatters—or “reddish brown stains”–from the area immediately adjacent to the fence that separated Miller from Mulhall, away from Miller and toward Mulhall’s front door, near which Mulhall died. There’d been some blood spatters on a tree trunk, some in the grass, some on the concrete of the walkway leading to Mulhall’s door. There were no surprises, no revelations in Jahnke’s testimony, other than an inadvertently intimate detail: inside Mulhall’s home, in his living rom, next to the couch, his keys and lottery tickets were left on an end table, where Mulhal had presumably left them moments before his confrontation with Miller.
It would be the morning’s only hint of warmth—the only glimpse into a life still being lived—as the prosecution moved on to the more routinely gruesome analysis inevitable in such trial: the examination, shot by shot, of each bullet’s history from gun muzzle through the victim’s body. There were five shots fired in all. All five struck Mulhall.
Chief Medical Examiner Predag Bulic, on the stand most of the morning, provided the clinical history of each bullet’s path through Mulhall’s body as Roys illustrated the history with close-up images of the wounds, one after the other.
For the first time in the trial, Miller did not look in the direction of the witness stand, let alone the easel bearing the images of his victim. He looked away to his right, he looked ahead, he rested his head in his hands, or against his left fist, blocking the view of the pathologist and his images. And when a large image of Mulhall’s face, in profile, his eyes closed and on the autopsy table, was placed on the easel, Miller closed his eyes and rested his face on his two hands. His family, sitting on a bench behind him, was less squeamish. But at 11:12, the judge ordered a five-minute recess as one of the jurors was “having a little distress.”
Roys’s questions relentlessly sought details about the path of each bullet, down to the organs they tore through and the damage they inflicted, but also, and most pertinently, about the direction they traveled, and what that direction could say about how Mulhall was standing in relation to Miller, and how proximate the two men were to each other. What she was trying to establish is that Mulhall was at some distance from Miller to start with—that is, at a non-threatening distance—and that at least some of the bullets were fired as Mulhall was moving away from Miller. The medical examiner’s testimony supported some of those contentions while also revealing the limits of pathological exams.
Bulic explained the importance of the job: “It’s important in cases that when the case goes to trial, then it’s important to demonstrate where the wounds are, what type of severity of the wounds, as well as the trajectory of the bullets, they’re important in order to recreate the possible scenario of what really happened on that scene.”
“Can you tell us a particular order of gunshots?” Roys asked.
“No, generally speaking you can never determine the order of gunshots,” Bulic said, absent a scenario provided by the investigation. But at times the pathologist is “able to make an educated guess which gunshot would have occurred first and which one would be the last.”
Three shots entered Mulhall from the front: one grazed the right leg. Another went through the area right above the left knee, perpendicular to the body, in a slightly downward direction. In an image placed on the easel, a metal rod inserted through the knee showed the path of the bullet, in and out. A third bullet entered the right side of the chest.
Roys asked about the first two bullets.
“Were either of those wounds, in your opinion, made by a person being face to face, or head on by the shooter?”
“There are many different possibilities,” Bulic said, “however I can only say that the bullet was coming from front and was exiting on the back, therefore the very likely scenario, the best scenario I will say, is that the shooter was standing in front of the victim.”
“Can you tell if they were nose to nose?”
No, Bulic said, the shots were not close-range or contact range. He called them “distant range” or “indeterminate range,” lacking the “cardinal sign” of close-range or intermediate shots such as searing of the flesh, or powder marks, “which we don’t have in this case, actually in none of the wounds, these signs are present.”
“So your opinion in all of the wounds, they fall in what category?”
“They fall in the distant range category, and the definition of distant range is more than three feet. Three feet and above.”
Roys then put up another set of images. Another bullet entry: on the right side of the chest, on the inside of the nipple, and in another photograph, Mulhall on his back, showing the exit wound from the same bullet. “The bullet entrance on the right side of the chest,” he said.
At that point, one of the jurors’ cell phones rang with a long, chiming ring, a jarring interruption, until the juror realized it was his. The ring had interrupted what was described as essentially the fatal shot.
The bullet passed through the chest wall, then the pericardium, a sack-like organ around the heart, passed through the heart, exited the pericardium on the back, grazed the diaphragm, which divides the chest and the abdomen, and in the process grazed the stomach below the diaphragm, then struck through the lower portion of the left lung, exiting on the back. “The trajectory I’ve just described is slightly downward, not significantly downward,” Bulic said.
The description had relevance to the prosecution’s reconstruction of Mulhall’s death. It was also as graphic a description of a bullet’s destructiveness as members of the jury—or anyone in the audience—was likely to have heard, absent experience resembling that of forensic specialists. The images, in comparisons, were relatively tame illustrations of the medical examiner’s deceptively monotone narrative of each bullet’s violence. All along, Mulhall’s name was never mentioned. It was always “the victim.”
“My opinion is that the first three shots came first, and that two shots in the back came second, or last,” Bulic said of the sequence of shots.
There were more details, more images, more violent paths until Roys’s questions moved away from bullets to Mulhall’s body. Only then did she use his name, describing him as “Mr. Mulhall,” on the medical examiner’s autopsy table, and asking Bulic of the remainder of his examination: stomach content and liver especially.
Roys was setting up the discussion of Mulhall’s alcohol consumption, and what he had eaten that day. Bulic described it all. The blood-alcohol level. The stomach containing recently eaten food. Mulhall’s 6-foot, 230-pound frame (his height was actually elicited by the defense later).
As Roys began that line of questions, with Mulhall’s profile still on the easel, Judge J. David Walsh, who is presiding over the trial, asked the assistant state attorney if she was through with the images. She was, and removed them. Only then Miller relaxed, unclasped his hands, opened his eyes, sat back, and looked at the witness stand again.
Mulhall was essentially an alcoholic: he had not developed cirrhosis of the liver yet, the medical examiner said, but his liver was diseased, and would have, over time, led to cirrhosis, the end stage of alcoholism. “It would take many years of alcohol consumption for that to happen,” Bulic said.
“Can people build a tolerance to alcohol?” Roys asked.
“People do build a tolerance to alcohol,” Bulic said. “In my opinion it was likely that he had built a tolerance, just judging by the look of the liver.”
“Does that mean by tolerance that he could still function?”
“Most likely his blood alcohol level was on a daily basis what would have been drunk in a normal person.”
Roys was attempting to establish that even though Mulhall had had seven or eight beers that day (as had been established in testimonies the day before) he was still functioning normally, without impairment., She went as far as asking the medical examiner whether Mulhall’s act of backing in his Bronco on his driveway would have required a certain level of concentration. That question drew an objection from Doug Williams, one of Miller’s two attorneys, which Walsh overruled.
“It does require certain consciousness to operate the vehicle,” Bulic said.
The defense’s cross-examination of Bulic was brief, asking only to clarify matters of bullet direction and Mulhall’s positioning.
The morning session ended with just one witness left for the prosecution: an expert in bullet forensics.
The defense’s case will begin this afternoon.