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Michigan v. Budzyn
EMS Technician Recalled; Budzyn Expected to Testify Tomorrow
(DETROIT, MICHIGAN - March 4) In the defense's second full day of presenting witnesses, blood spatter expert Toby Wolson returned to the stand for cross-examination by prosecutors. Wolson believes that the pattern of the blood spatters found in Malice Green's car indicates that one person, most likely defendant Walter Budzyn's former partner Larry Nevers, inflicted Green's fatal head injuries while standing outside the car. This contention directly contradicts state expert Rod Englert's previous testimony that Green's injuries were caused by two people.
However, in what may have been a major concession to the state, Wolson admitted that a person could have inflicted the injuries on Green without getting blood on himself. (Some previous witnesses have testified that they did not see Budzyn covered in Green's blood.)
Prosecutor Robert Donaldson also asked Wolson if ridges on the flashlight would produce the "random" patterns Wolson had described on direct. Wolson responded that he could not answer without performing tests, but he would not expect random patterns. He did say that he had found that there was not enough room to swing a flashlight in the front seat of Malice Green's car.
Wolson then testified about the blood spatters on the windshield. While he admitted that he could not completely rule out that the patterns were caused by cast-off, he insisted that they were more likely to be projected blood spatters. Wolson went on to explain that blood droplets caused by cast-off are characterized by long, narrow drops - and the droplets on the windshield were not long and narrow (although Englert had previously indicated that they were on his sketch). Donaldson then asked Wolson about some cast-off spatter experiments he had done which resulted in patterns similar to the droplets on Green's windshield. Wolson answered that some of the patterns had shared characteristics of the windshield spatters, but only toward the end of the pattern, not the beginning or the middle.
On redirect, Wolson stated that he worked with fellow defense expert David Balash in preparing for trial. He said that, in his opinion, Balash was adequately trained and had a good understanding of the blood spatter field (the prosecution had challenged Balash's credentials). In contrast, he also testified that although Englert has a good reputation in the field, he has heard other experts say that Englert "overextends" his testimony at trial.
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James Dukes, Budzyn's former partner,
characterizes the defendant's reputation as somewhere between peaceful and violent.
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During recross, Wolson again stated that, although the blood patterns on the windshield have characteristics of cast-off spatters, he does not believe that they are cast-off spatters. When asked why he did not take better notes of his experiments, Wolson explained that most of his experiments relating to this case have been conducted over the last four years in classes he has taught. He did not think that anyone would have taken meticulous notes under the circumstances and did not think he would ever be confronted with this case again.
Other major testimony came from previous witness Scott Walsh, an EMS technician who was at the scene of the altercation after Green had been taken away to the hospital. Walsh's partner, Lee Hardy, previously had testified that he saw blood on Budzyn's hands at the crime scsne. But Walsh had testified that he saw no blood on Budzyn and that he had given him peroxide with which to clean up blood at the scene. This witness was called back to the stand because no one had asked him who actually used the peroxide.
Walsh repeated his prior testimony, saying that he did not see any blood on Budzyn and that the defendant wanted the peroxide to clean Green's blood off his partner Nevers. Walsh also said that he did not see blood on Budzyn's flashlight and clothing. However, during cross-examination by the prosecution, Walsh admitted that he was not 100 percent sure that there was absolutely no blood on Budzyn because he was not closely examining him at the time. Walsh was specifically looking to find blood on Budzyn.
The defense also called two of Budzyn's fellow police officers in an attempt to prove that Budzyn had a history of handling potential suspects in a peaceful manner. Prior to calling these witnesses, both the prosecution and the defense argued over the questions that would be asked. Defense attorney James Howarth argued that prosecutors should not be allowed to ask the police officers about various civilian complaints of excessive use of force and assault over the years - many of which were never substantiated, and at any rate, were a common part of police life.
But prosecutor Doug Baker vigorously disagreed, insisting that any witness called to discuss the defendant's reputation was also fair game for questions about alleged abuses. The spirited argument continued for more than one hour. In the end, Judge Thomas Jackson decided that the character witnesses could only testify as to the defendant's reputation for peacefulness or their opinion of him, but that the prosecution was entitled to inquire about specific incidents of alleged impropriety.
James Dukes, a 21-year veteran of the Detroit Police Department, was called to the stand to give a portrait of Budzyn. Dukes was one of Budzyn's frequent partners during the years 1983 to 1992. He testified that he had served on "hundreds" of shifts with the defendant, and told jurors that, in his opinion, Budzyn was a peaceable person in his capacity as a police officer.
On cross examination, prosecutor Baker asked Dukes about a series of civilian complaints against Budzyn over the years. He claimed he could not remember anything about any such complaints and testified on redirect that such complaints were not unusual.
But Dukes's testimony ultimately did not help Budzyn. When Howarth asked Dukes a second time for his opinion of the defendant, he got an answer he probably did not expect. Howarth: "Is your opinion of Walter Budzyn that he is a violent man, a peaceful man, or something in between?" Dukes: "I'd say basically in between." A stunned Howarth quickly sat down.
The last witness of the day was Karl Gunther, a police officer who responded to the scene on the night of the incident. At the time, Gunther was partnered with Officer Robert Lessnau (who in 1993 was acquitted of assault charges related to the alleged beating of Malice Green).
Gunther told jurors that he heard a radio call from Budzyn at approximately 10:15 or 10:20 pm and arrived at the scene a few minutes later. The witness said that Budzyn's request concerned him, because of the tone of the defendant's voice, and the fact that he had never heard him ask for assistance before.
When Gunther arrived at the scene, he saw other officers and some EMS technicians. Gunther said Lessnau got out of their car and ran up to Malice Green's car, grabbing Green (who was being held up by Nevers) and pulling him from the vehicle. Gunther stood on Green's thigh as the suspect was handcuffed, but denied that he ever personally struck Green.
Gunther testified that he never saw Budzyn involved in any of the activity accompanying the suspect's handcuffing. The next time he noticed the defendant, Budzyn was standing over by Green's car. Nevers and Gunther pushed Green's car forward in order to search for cocaine that Nevers suspected was under the vehicle, but Gunther testified that he never found any. However, in a conversation with Budzyn later on, the defendant said that cocaine was in Green's car.
"He more or less indicated that he had found some rocks of crack cocaine," Gunther said. "It looked like three, four, maybe five rocks, loose."
Although Gunther said he saw both Officers Nevers and Lessnau using hydrogen peroxide on their hands that night, he testified that he never saw Budzyn washing either his hands or his flashlight. Some time later, he saw Budzyn in passing back at the police station, and does not recall the defendant's having had any blood on his clothing - clothing that appeared to be the same thing Budzyn had been wearing at the crime scene.
Prosecutor Doug Baker began his questioning of this witness by asking Gunther about the radio distress call Budzyn made from the scene. On direct, Gunther had testified that Budzyn had radioed that he needed a back-up car "right away." But on cross, Gunther conceded that he may have also heard a second Budzyn transmission, in which the officer said that he and Nevers weren't in trouble, but just needed a second car. Gunther insisted the issue was merely one of semantics - but admitted that it is "possible" that the second radio call meant that Budzyn and Nevers weren't in an emergency situation.
Gunther denied a prosecution inquiry about whether or not he had seen his partner, Robert Lessnau, kick Malice Green in the jaw or about the head at the time the suspect was lying handcuffed on the ground. Gunther insisted that Lessnau participated in no such action; the prosecution may have thrown suspicion on that denial by getting Gunther to admit that he has a "certain loyalty" to his partner.
But the witness conceded that he had seen Nevers kick Green during this time -- although he claimed he was not actually sure if it was a "kick" or merely a "slip" of the foot. At any rate, said Gunther, "it was insignificant in the overall picture of what was happening that night." Baker's retort: "So to you it was no big deal. Are you saying it was no big deal to Malice Green?" Gunther's response: "Yes."
Gunther admitted that he did not see Green attempt to attack, strike at, punch, kick, or bite any of the arresting officers. "He was kicking around, but he wasn't punching anyone . . . I don't think he was in a position where he could aim very well," Gunther said. "I heard him say something later, but not at the point of his kicking around, after he was handcuffed . . . I heard him say something to the effect of 'Can I get up now?'"
When asked by the prosecutor, "You would agree that in this particular situation you couldn't use deadly force to bring this person under control, that would be inappropriate?" the witness responded, "Based on what I saw, yes."
"Nothing that you saw would justify the use of fatal force?"
"That's correct."
Finally, Doug Baker asked Gunther about his personal involvement in Walter Budzyn's defense.
Baker: "Have you made any financial contribution to the defendant in this case?"
Gunther: "That depends on whether you consider going to a fundraiser and paying to get in."
"Have you done that?"
"Yes . . . I've gone to fundraisers and paid to get in."
"You wanted to help the defense, right?"
"Yes."
"You're here to help the defense, aren't you?"
"Yes."
Walter Budzyn is expected to take the stand when testimony resumes tomorrow morning. Budzyn testified in his first trial in 1993 and was convicted. It will be interesting to see Budzyn's testimony fares with jurors during his second trial.
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