Please forgive any grammatical error and typos, I had no time to edit this!
Yesterday, I sat in on the Daniel Rak murder trial for what turned out to be 2.5 fascinating hours. Let’s just say it was a very good day for the defense. Let’s do this in a list format so it will be a bit easier to follow:
A. July 24, 2017
1. On Sunday, I mistakenly said they were headed into the rebuttal phase, but, due to scheduling issues, they were forced to let the expert medical witnesses testify out of order on Thursday and Friday. So technically, the prosecution rested yesterday (7/24) and the defense is currently putting on their case.
2. Jeffrey Rak’s ex-wife Beth Marmon was a powerful witness and, despite being very soft-spoken, had the jury’s full and undivided attention. She basically portrayed her ex-husband as a high functioning, occasionally blackout drunk, who regularly prescribed himself drugs. But because Ms. Childress refuses to look at the jury, she almost lost them when it appeared as if she was accusing the ex-wife on being in on the veterinary prescription drug thing. I know she didn’t mean to make that connection, but by their body language, that’s exactly how the jury interpreted it, and they weren’t happy.
3. But then Alex Bederka saved the defense’s behind by verbally assaulting that very sympathetic witness under cross examination. And the jury didn’t like that one bleeping bit. Bederka may well be the most tone deaf person I’ve ever encountered, and the fact that he and I don’t get along has nothing to do with that assessment.
4. Then, between Kane County Deputy Coroner Steve Laker and Coroner Rob Russell, at 11:50 a.m., the defense officially instilled reasonable doubt. Though it’s certainly not their job to direct the investigation, Childress hammered home the notions that, not only did the Coroner’s office fail to test heart, lung and other tissue, but they failed to preserve the body so no further tests could be done. And Childress put the icing on the testimonial cake by repeating the fact that the Coroner’s office didn’t pay attention to the 100+ veterinary medicine bottles lying around the Rak house.
5. Coroner Rob Russell was a good witness, but Childress kept reinforcing the point that the coroner’s office simply went along with the prejudicial police theory of events at the Rak household that day – and then they released the body to be cremated. When she closed that deal, 70 percent of the jury was engaged in “pacifying” body language which is an unconscious limbic system response to hearing something they really didn’t like.
6. Alex Bederka finally won an objection! That’s the first one I’ve seen him win in 7 hours of observing the trial.
7. Then, inexplicably, after the defense clearly sowed those massive seeds of reasonable doubt, Bederka offered an accurate, but mere two-minute Rob Russell cross that would’ve been effective on a level playing field, but the field was far from level at that point. Childress’ direct was just too good.
We’re I counsel, I would’ve manufactured some sort of five minute break before cross, because the jury was clearly still digesting the defense’s testimony. Then I would’ve countered with the truth that the coroner’s office is NOT responsible for directing a murder investigation in a specific point by point narration to undo the damage that already had been done. Sometimes you can be too brief.
B. July 25, 2017
With closing statements suddenly imminent, I headed back to courtroom 311 this morning at 9 a.m. and witnessed the whole proceeding. The entire rebuttal phase consisted of the prosecution bringing back forensic pathologist Dr. James Filkins to dispute defense medical expert witness extraordinaire Dr. Douglass Miller.
And it was an unmitigated disaster. So much so that the prosecution came back with a lesser possible charge (involuntary manslaughter) during the jury instruction determination phase.
Both in a June email, and last week in court, Filkins insisted he’d never taken lung, heart, or liver tissue samples from Jeffrey Rak. But today, he suddenly testified that he had taken those samples, but had no clue what happened to them.
So, Childress absolutely tore him to pieces to the point where the jury completely focused on Childress and wouldn’t even look at Filkins. You don’t need a body language expert like me to tell you what that means.
Filkins tried to explain it away with a bizarre circular logic, but by the time he was done testifying, to quote a TV judge, the jury wouldn’t believe a word he said if his tongue came notarized.
Knowing his testimony reversal was imminent, I cannot fathom why Bederka would possibly put this man back on the stand for any reason whatsoever. God knows I’ve been wrong before, but if the prosecution had any chance of a First Degree murder conviction, it ended with their own rebuttal witness.
Closing statements will likely begin at 1:30 p.m. and I will be there! More tomorrow!