Mark Jensen Murder Trial Day 28

Day 28 – 2/15/08

Guest entry by ritanita and Intrepid!

Rebuttal Witness: Paul Griffin returns to the stand, this time in front of the jury.

Julie was 4 years older than him. Growing up in the Griffin household. They were family-oriented. Julie was a caregiver to him and younger brother Patrick. His parents were active in family, camping, Boy Scouts, Dad was Scout Leader about 10 years.

Today, he has a beautiful wife, 3 children 14, 15, 7. Wife is an elementary teacher in Kenosha. He is a mechanical designer. He designs battery-operated tools for mechanics.

Music was a big part of his family. Julie and Michael played the accordion. His dream was to become a drummer for the accordion band. He plays drums and percussion part time and teaches drums part time. He teaches in his basement studio. He does free-lance work and St. Joe's orchestra.

Mother: Suffered from alcoholism. He became aware of that after Julie's wedding when she passed out. He found out a week later it was due to alcohol withdrawal.

No history of depression in the family. No signs Julie was depressed. After Julie married Mark, they became very close. They talked on the phone almost weekly. They became closer due to Mom's alcoholism. Julie went to Al-Anon to help her cope with it.

Julie advised him on how to cope with the addiction. He and Julie resolved to help their mother by confronting her. They did this. At the time only Julie and Paul lived in Kenosha.

It was difficult because the other brothers lived out of town and couldn't help as much.

After the wedding, the mother spent a month in rehab in Milwaukee. She died in 1991. She had regressed and started drinking again.

Mark Jensen: Jan.1999 Phone conversation with Mark. He was leaving to get meds From Dr. Borman. She was sleeping when he left and when he got back. Mark said she was vomiting and couldn’t keep anything down on Wed. On Thursday, she couldn’t even sit up in bed, couldn’t speak, was “grunting.” She continued to vomit, was very thirsty, but couldn’t drink anything.

Wife and he received letter from Perry Tarica. Later on that day, they talked with Julie... Julie said she wasn’t going to continue the relationship, she was embarrassed. They were going to see a marriage counselor.

Christmas, 1998. He saw Mark and the boys. Mark gave him some presents that Julie had bought before she died. The presents were for his children (2). They received personalized Christmas ornaments. They received a picture of sunflowers for their kitchen.

In terms of your mother's unfortunate situation - you said that's something you weren't aware of until Julie's wedding, correct? Yes.

Shortly after that you learned of the cause of her passing out? Correct.

Did you visit her? I went by myself, not with wedding party.

You found out that alcohol had caused her to pass out? Yes.

You found out your mother had a problem with drinking for quite sometime, correct? She never told him how long it had been.

Didn't her drinking cause problems at your home? Not really, she and my dad had arguments, but not anything out of the ordinary. Looking back, I was just seeing marriage problems. I was a kid and I didn't know.

Looking back, you can see that her drinking caused many disruptions at your home? Yes.

Some times these disruptions caused many problems for the Griffin children? Not really. We were kids.

Craig Albee! You POS for asking this!

You were unaware Julie had been treated for depression in 90/91? Right. Didn't know she was under medication.

You are aware that sometimes family members can hide a problem even from close family members? Yes

When you found out about your mother's alcoholism you were 21? 22. Old enough to recognize the signs of it? Yes. Yet you had no idea that was at such a level she could pass out from withdrawal? Yes. She was concerned about being a good mom and being in the best condition for Julie's wedding? Unfortunately that led to her condition.

Your mother died in 1991 - how old was she? 61.

What were the circumstances of her death? She was found in the swimming pool in the retirement village where they lived. His father drug her out of the pool and resuscitated her. She had passed out and fallen into the pool, was in the hospital and recovering. She actually died - I don't know how many days later - from fluid building up in her lungs and pneumonia. There was a thought that her accident was due to her alcoholism? Yes.

Mom was a stay at home mom? Yes. She had a difficult time when her kids left? Yes. Very attached to them.

You were here when your brother Pat testified? Yes. You would agree with his characterizations that your mom had high and low moods? Yes - she would get upset with me for not picking up my dirty clothes.

You never saw her alcoholism in her relating to you? No she was a good mother.

Julie chose only to drink rarely? Correct.
That was because of the experience of seeing your mother? Yes.

What were the problems Julie saw that made her worry about following that same path? Just alcoholism - Julie was aware that it was something that could run in a family, so she was aware of it and didn't want to have the same thing.

That was Julie's position before your mom passed out at the rehearsal? Not aware of that.

Don’t know when Julie found out about Mom's alcohol issues.

From Mr. DeFazio's statements, you know about your father's alcohol problems? Don't know that.

Did Julie ever discuss with you why she felt her grandfather was an alcoholic? No.

You had an older brother who passed away at a young age? Yes. You understand that was due to kids piling on him? Yes

Albee: Did she ever care for your children? Not really.
Last saw her at his son’s birthday party in August. Spoke to her a few weeks before her death. Saw her about 10-12 times a year. They were both busy with their children’s lives. Might see each other twice a week, then not for a few weeks. He can’t assess, except by phone, how she was doing between August and December. She wanted to have another child, she was concerned about youngest child going to school... she enjoyed being a stay at home mom. Wasn’t aware she had her tubes tied.

Was Julie capable of tough love - she could put her foot down with your mother? Yeah.

Were you aware your sister had counseling when she was in college? No.

You saw that Mr. DeFazio, based on his conversation with Julie, felt that your mother fit a dual diagnosis? Not that I recall

Albee desperately wants to get in stuff about Julie's mother being depressed!

In conversation with Mark in 2000 - OBJECTION! JUST A MOMENT! LAWYERS.

Jury sent out.

Judge says HE DOES IT TOO... Jambois didn't want the question to come out of Albee's mouth...

Albee complains about Jambois' speaking objection! Judge says I keep saying "just a moment" and you keep talking.

ALBEE CALLS FOR MISTRIAL! Due to Jambois' "speaking objections".

Jambois said he objected because he didn't want the question to come out - self-serving statements about Mark Jensen. He didn't ask anything about what Albee was asking about......

Albee says that's not where he was going. The problem with the objection is "hearsay" and not "self-serving"...

Judge says he agrees to a certain degree....Albee keeps up his rant.

Jambois is reading part of the statement about the phone conversation between Mark and Paul Griffin. What he read doesn't come in under doctrine of completeness.

Judge agrees with Jambois - not covered under completeness. Albee fighting like a mad man to get this in!

And arguing like mad with the judge! Judge isn't going to have this. He just cannot understand why this is coming in. Mark is telling a story of what his wife's condition was on the Wednesday; he's relating what he knew.

Judge says, no - not swayed by what Albee is saying. Judge says it's talking about a different time period. Albee says that's the time we're talking about. Jambois was talking about the time of going to see Dr Borman onward. Albee is talking about the time period from before she went to see Borman.

Two different things he said - one is what he said and one is what he heard. Judge says this is self-serving statement.

Albee now says he needs a moment.
Albee is asking for a transcript. In the interview with Det Ratzburg, Mark said Julie was sitting up in bed on Thursday morning, said goodbye to the kids, breathing is shallow. But Paul said Mark told him Julie was unable to speak, only grunt. Albee can question Paul about this.

Jambois brings up that there were other conversations where Mark had said Julie was unable to move and he had to prop her up in bed.

Discussions back and forth about conversations had, on this day or that day.

Albee asks about the letter sent to Paul's home - how'd Perry know to send it to you? Apparently Julie had told Perry about his wife and him.

Did you know Julie had filed for divorce? Yes. Did she tell you it was because of this individual? No.

So that affair was secret from you until this letter showed up at your home? Yes.

Re-direct

Did Julie tell you the reason she filed for divorce? Yes - she was unhappy because Mark didn't want children, and she wanted nothing more than to be a mother.

Did she tell you why she withdrew the petition? Yes - she told me Mark said to her.....OBJECTION!

Jambois asks for a short recess - jury getting more opportunities for exercise!

HOLY CRAP! Jambois is asking Paul the question outside Jury's presence:

What did Julie tell you was the reason she withdrew the divorce petition? She said Mark told her SHE'D NEVER SEE DAVID AGAIN!!

Now Albee says he never received this in discovery. This has never come in. But Jambois said this is coming up because defense counsel brought up issue of divorce petition. So we should be able to bring it up.

Jambois doesn't remember this statement very clearly, but now that defense brought up the divorce, he thinks he should be able to bring it in!

Judge had said that the defendant has already said he didn't wish to testify, and this might have had a bearing on his decision if he knew it would be brought in.

Judge says his inclination - the statue is that every statement, written or recorded, by the defendant that the DA will use in the trial must be reported to the Defense.

But the statute says "those statements ABOUT THE CRIME". Not necessarily every statement ever made. This is not a statement about the crime, for sure.

But the Judge said he would allow the defense to re-open his case and have the defendant testify, if that's what he wishes.

Albee says he's never heard of this statute only limited to the "crime". Judge asks, "Are you telling me that nothing the defendant uses in his or her whole life has to be told to the defense?"

Albee says he thinks the DA was planning to use this all along.

Judge says that what, they were waiting for is for you to ask a specific question, only to ask this one?

Looks like Albee opened the door to this bit coming in by asking about the divorce petition.

Judge reminds them that the statute reads that the DA has to give notice to the defense of statements they plan to use - written or recorded - about the crime. Albee argues.

Jambois says he wasn't finished! He didn't plan to use it, because it's coming in under re-direct after a question was asked under cross-examination of a rebuttal witness.

Albee is arguing.

Judge says that he understands that Mr. Albee wouldn't have asked certain questions if he'd known this was coming.

If you're in the desert, you don't know when you take a step if there will be a snake about to bite you!

Judge gives Albee the option to re-open his case at this point.

But Albee says he didn't have this notice! It wasn't fair! ! Judge doesn't agree. Jambois is required to give notice of statements about the crime (that's the a part of the statute), or oral statements they planned to use in the course of the trial (that's the b part). They didn't plan to use this; it just came up as a matter of course in the asking of questions.

Ms Gabrielle says she was told this week.

Now Judge is concerned!

But his ruling stands - this statement can come in!

Albee is given the opportunity to RE-OPEN THE DEFENSE CASE IN CHIEF!

Jury brought back in.

The divorce issue is coming in. if the defense wants to counter it, they'll have to reopen their case and put Mark Jensen on the stand. Wow! This trial even has fireworks in the rebuttal!

Jambois: Asks the question -

Julie told me, Mark told her, "You'll never see David again."

David born Jan. 21, 1990. Julie filed for divorce in 1991, just after her affair.

License plate, "My 3 Ds" entered into evidence.

No more questions.

Albee

You said that Julie wanted to divorce Mark cause she wanted children? Yes.
But she already had a child? Yes.

You learned of the affair when you received that letter? Yes.

You received that letter in Jan 1992, so the affair was in 1991? Yes.

Which was the year the divorce petition was filed? Yes.

Finished.

Jambois calls Dr Mary Mainland again.

Since last time you testified, did you have opportunity to see testimony of Dr Barry Rumack and Dr Scott Denton? Yes.

Did you see what Rumack said about the gastromatic test results? Yes. Do you routinely review gastromatigraph test results from Tox labs? Yes In your own lab? Yes.

Is it or is it not common for gastromatic test results to include unknowns?

OBJECTION - Judge says needs embellishment. Every lawyer can make embellishments! Laughter.

Not unusual to include unknowns, no.

Dr Mainland can tell that there were smaller doses instead of one big dose. If she had taken one big dose, she would have been dead earlier than December 3rd.

Now on to the pepper and potatoes in her stomach - small pieces. She didn't see them. Barry Rumack testified she must have had something to eat 5-10 hours prior to her death - you agree? No.

Food leaves the GI tract slower. She could have had that days earlier. Objection - Sustained

Delayed gastric emptying, and vomiting is what could have caused those food particles to still be in her system.

Is it uncommon for tox lab reports to include gastromatigraph slides which in include unknowns? They can send reports that didn't include things they didn't check for.

What was the St Louis lab report on? Ethylene Glycol. The fact that there are unknowns - does it prove anything? No.

What do you think about Dr Rumack's testimony in the regard to this? He used vitreous fluid in a dead person and compared them to the blood levels in a living person's blood.

Now asking about fatty liver. Did Julie Jensen have one? No. She did not.

What's the half-life of EG in the bloodstream? 3-5 hours. Do I take your word, or do you have literature? Objection - 90803.sub18.

Jambois asking the same question, but in a different way.

Albee objects again. Dr Rumack referred to something - a text called "The Salts”? - In order to come up with his statement on half-life of EG. So, Objection is overruled.

Did you consult the "salts" (?) - Yes - half-life is 3-5 hours.

Did you consult other texts? Yes, Ellenhorn. In the same range, around 4 hours.

In the medical field, what is the widely accepted proposition of half-life of EG? 3-5 hours.

Jambois done. Albee up.

IN half-life of EG - you did the research and that's where you found 3-5 hours? Not every textbook said 3-5 hours. Most said in that range. I think I saw one that was an exception to that.

You know that others have said 8.5 hours? Yes, but that study said 2-8 hours.

What was that source? Can't remember, but I have it with me and I can dig it out over lunch.

Why didn't you mention the 8-hour half-life in that source? I am volunteering that now. In the majority of the textbooks, say differently.

You named one textbook? No I named 3.

Albee snarking! Mainland snarking back! Snarkfest!

Albee told to move on.

Jambois objects to document being produced - hearsay and irrelevant. Judge wants to see it. Don't ask a question until I've looked at the paper!

Do you recognize the handwriting? Yes - this says 3-5 hours of half-life. But in your research you said it could be as long as 8 hours? Yes.

One of the things you looked at was a government source.......yes.

A text like Basalt offers limited info about each compound, right? That’s fair.

There are many resources that analyze EG much more specifically than in the general treatises, right? Yes. Basalt does include references for every compound.

Just like an encyclopedia - it hits the high points.

But these articles take on these issues more in depth, right? Yes, I'd imagine so.

In Health and Human Services study, you recall they say the half-life is between 3-8.4 hours? I read that, but don't recall particular treatise.

Now Albee shows Dr Mainland a paper - does this show that the serum half-life is between 3-8.4 hours? Yes it does. It sites in support two other articles, right? Yes.

Several sources place the half-life in the 8-hour or more range? I guess there are two, now that I know of.

So there are now 3 references? Well, I see two. I don't know what these articles say.

You took a note at the time you were doing your research - that said 8 hours? Yes. It said "as long as".

Another exhibit - Jacobsen article. Journal of Medical Toxicology. He says half-life of up to 8.4 hours of EG? Yes based on 3 samples on one patient.

Gold Frame........ - Indication of half-life of EG is? Aprox 8.5 hours. Never saw that book.

Another document - "Ethylene Glycol exposure. Published in clinical toxicology. By Poison control centers.

Are you familiar with American Poison Control Centers? Heard of them, yes.

Objection - Sustained, now overruled Hearsay. She's never seen it!

She's heard of them - she imagines they're toxicologists. She knows they are a recognized group.

Mainland reading document to herself.
OBJECTION! Hearsay document and hearsay conclusion. They're a recognized authority. Sustained. Judge wants to see.

AAPCC says half-life is 8.5 hours as well? It does.

We have a number of sources that say the half-life is up to 8.5 hours, right? Yes. Key words are "up to".

Now Albee is telling her she didn't consider all the sources of half-life of EG!

She did consider it. She was aware of it.

You relied on DR Long's reports and testimony, to some extent? I relied on his number in his tox report.

Did you rely on anything else Dr Long had to say? Can't remember.

Would you agree with Dr Long's assessment that a half-life of 3-5 hours means it would still be in the blood 21-35 hours? 35 hours is quite a stretch.

Dr Mainland - you've never treated patients who've had EG poisoning? No - I've had 4 of these.

You've never seen anyone who was suffering from EG poisoning? Not that I'm aware of.

You've never seen how they've progressed through stages? Obviously not.

You've never worked with a poison center that has treated EG poisoning? I have.

Have you offered advice to poisons centers about how to treat EG poisoning? No.

What you do is look in books to see what they say? Among other things.

You've never done research on this? I have done it, not for publication, but I have studied cases on my own.

You haven't published anything on this? No.

In your cases, 3 of the 4 were suicides? Yes. One was an accidental ingestion.

You are not a toxicologist? No.

There are people involved in medicine who have devoted their lives to the specialty of toxicology? Certainly.

Those people will have greater knowledge and more study than you do? You'd need to be more specific.

In Clinical Toxicology - they have greater education and experience in that field than you do? Yes.

Not a forensic Toxicologist? - No.

You've relied on a literature view in the field in regards to metabolism of EG? Yes

There's much we don't know about EG, right? Yes.

In terms of how long EG would be in the blood in any one case it's difficult to say with certainty? I disagree. We don't have absolute parameters but we have some pretty reproducible results.

Albee is stuck on trying to get in the 8.5 hour half life, cause it's imperative for him to prove Dr Mainland was wrong in her assessments of the dosage Julie ingested, and when she ingested it!

He is like a dog with a bone here! Will not let it go.

And she's sticking to her guns here.

Albee pulling' his hair out because he cannot shake Dr Mainland!

She assumed Julie was average in how her half-life of metabolism of ethylene glycol.

Now onto Basalt Text source. It says .3 g per liter to 4.3 g per liter in blood concentration of EG in fatal cases. Julie was below this?

Often requires more judgment than just relying on ranges in textbooks? Not only judgment but also scientific knowledge.

Dr. Mainland is back on the stand after lunch.

Albee is still talking about Basalt and fatal EG concentration.
Mainland: in 9 fatal cases
Albee: Textbook ranges aren’t 100%, they speak in generalities?
Mainland: Sometimes
Albee presses on about this issue. We’re going around in circles. Now he’s mentioning 1 of the cases in Basalt. One person had EG in system up to 48 hours with higher level than this case.

Mr. Albee: One case isn’t enough to prove your case!

We don’t know if Julie ingested alcohol (ethanol) at the time she ingested ethylene glycol.

Mainland: One of the toxicology labs looked for it and didn’t find it.

Albee: Had one dose about midnight and a drink with it/mixed with it. Would prolong the half-life of EG?

Mainland: Variable according to the amount of alcohol.

Albee: Alcohol would be out of the system in 48 hours?

Mainland: If taken around midnight, then yes.

Albee: 30 mil. dosage fatal... one case?

Mainland: more than one

We’re back to Basalt....

Albee: She hasn’t seen lower than 30? No

Mainland: Half-life... she doesn’t want to use longer half-life! - Not really

There are questions about whether or not she relies on lab results without reviewing the results. She usually doesn’t (she usually believes the lab results as sent to her).

She doesn't ask for unknowns in all cases. She said they were never asked to identify the unknowns.

Albee refers back to the Stallings case. Haven’t we been here before?

Mainland says it’s important to double-check results. She would want to know what the unknowns are. She says she has results from other labs.

Half-life of glycolic acid is 7 hours (not 19 hours Albee asks). She doesn’t know what by-product of it has a half-life of 19 hours.

Albee is driving me nuts with the straws of half-life upon which he is pulling.

Ex. 337: Another learned treatise on Glycolic Acid. Dr. Mainland’s read a number of papers, spoken with a toxicologist. She doesn’t know upper range of half-life of glycolic acid. It’s possible there is disagreement. Its half-life is longer than for ethylene glycol in one of the two cases.

Albee: Isn’t it different the taste of antifreeze and drinking a lot of it? Never drank it! Made tongue dry. No bitter after-taste. She just felt a little thirsty, but her tongue was not a little numb.

Albee... drink a glass and see for yourself!

She is given a New England Journal of Medicine article.

Up to 2/3 of patients who commit suicide see a doctor within a month of death.

Mainland has no contradictory information at her hands.

She says she didn't testify that this is true of the elderly!

Albee: Is she aware that of 80% of people who consume EG are of suicidal intent? Yes

Rest are accidental? Yes

Depression is a factor in most suicides?

Jambois: In general, what is the 1/2 life of EG...? 3-5 hours
Is she familiar with bell curves? Yes but hated bio-statistical math. (So do I!)

Albee objects to bell curve - leading overruled

Jambois asks her to mark where 3-5 appear on the bell curve.

Albee objects (overruled)

Can't draw a bell curve here! She marks a large portion of the curve, leaving the smaller sections out.

The small numbers at either end are called "outriders."

Jambois mentions the Jacob's article.

Mainland explains that the subjects were receiving medical attention. The medical attention prolongs the half-life. 20% are directly excreted, 80% is metabolized through the liver. The medical attention keeps EG from being metabolized. The "antidote" keeps the liver enzymes "busy" so they leave the EG alone. These patients will be on the right-hand side of the bell curve.

AHA! Jambois scores a major point here. Albee was trying to get Dr Mainland to give on the half-life of EG, because if Julie could be on the larger half-life end of EG was in her system, it would point to a larger, one time dose. But shorter half-life points to smaller doses meted out over a longer period of time.

Now Jambois pointed out that those who receive medical intervention for EG poisoning have longer half life of EG in their systems, because the meds given to them cause the enzymes in the liver to bind with the medicine and ignore the EG, which makes it stay around longer, but become less toxic.

Julie received no medical intervention, and since there were no meds in her system to allow her liver enzymes to bond with, the EG had a shorter half-life.

The quantity of EG ingested affects the 1/2 life.

Back to Mr. Albee: The longest 1/2 life w/med. intervention... is 8 1/2 hours?

Mainland - She didn't say that...

Albee: refers to her note of 3-8 hours....
Mainland: thinks it's only from 1 source. She wants to see her notes. It IS from one source... Orange Journal.

Albee asks her to find it. It says "peak" is usually 1-4 hours. She sings a bit. Oh my goodness... it says 3-5 hours! She could be wrong, could be more than one source. She'd have to read the article.

She starts to read and Albee moves on....

Jambois objects!

Albee decides he doesn't want to waste time...

Albee: Do you want me to show you them (the articles) again? No! I don't... She'd have to check references and footnotes.

Would it be in the upper teens w/medical intervention? I didn't say that. It could be if antidote and dialysis used.

Albee shows her another article. 3.0-8.4 hours in UNTREATED adults in this reference.

He's getting snarky again!

Back to Jacobson article.... Mr. Jambois mentioned it was about ...... even Dr. Mainland is getting so confused as to what she read where, I don't blame her!

I have figured out Albee's grand master plan! Confuse EVERYONE TO DEATH!

Mainland's seen more articles saying 3-5 vs. 3-8 hours.

Albee charges she is using figures favorable to the pros. NO!

Albee asks if she's ever read in these articles that 8.5 is an outrider?

Albee asks her about % of people who fall in average range on a bell curve. Answer.... there are no statistics.

Albee questions the validity of the bell curve vs. another sort of distribution (my words, his idea)

Albee: What statistics do you have that allow you to have a curve like this? Majority of references that say 3-5 hours.

Of 100 people: how many fit 3-5 hours? This question starts a flurry of statistical merry-go-rounding... remember, this is first and foremost a legal circus!

Mainland - if you follow the bell curve?

Albee - no

Mainland - can only go by my references and the number of cases I've seen.

Mainland: Well, throw out the curve, I never wrote it!
Albee: It might be funny if a man weren't on trial here for homicide!

Albee: I'm done!

Jambois rests his rebuttal case!

Judge: Sur-rebuttal?

Albee: I need a break!
LOL! That can be taken a few ways!

Judge: Court on break for undetermined duration.....

Oooh... no sound, but angry looking Albee slamming stuff around!

Ooh, No sur-rebuttal by Albee

EVIDENCE IS CLOSED!

Well, we're in the home stretch. All they need to do is enter the evidence into the record. And, any last-minute legal wrangling over various things.

1) Having the alternates hanging around instead of discharging them?
Jambois: I have no objection with that, but I don't know if that's permissible
Judge: If there are medical issues, the only choices would be to have a replacement juror, or have a new trial
Jambois: The only verdict that can be received without stipulation is a unanimous verdict by a jury of 12. We could agree to a verdict by a jury of 11, or agree to allow one of the surplus jurors to join in deliberations. But the only way that would happen is if there is agreement to it.
Albee: I don't know. At this stage I'd never agree to stipulating to 11, and in advance. Not prepared to decide on this right now, but would it have been better to agree on this before trial instead of at the time. It certainly as to the 11 jurors, is something that can be determined at the time so we don't need to figure it out now.
Judge: I can't cram it down anybody's throat at this point. We'll talk about it at the appropriate time.

2) Selecting the jurors - put all 19 names in the computer, and the names come up in random order. The first 7 are dismissed.
Jambois: Aren't the first 12 seated?
Judge: Don't know right now, we'd need to decide ahead of time!
Albee: Instructions say that first 7 who come up on the list are dismissed.

Jury Instructions:

The judge goes through standard instructions. Several are being removed by agreement by Jambois and Albee.

The jury will not be sequestered during deliberations!

See you for the closing arguments on Monday. Have a great weekend!donchais
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