A toxicologist who testified Tuesday that Thomas Murphy’s blood alcohol content was likely two times over the legal limit at the time he crashed into a pack of Boy Scouts last September, was asked to return to the witness stand for a second day of testimony after it was revealed that he failed to turn over to prosecutors notes he took in relation to the case.
Michael Lehrer, chief toxicologist at the Suffolk Medical Examiner’s Office, was called by prosecutors as an expert witness on the process of retrograde extrapolation, a scientific technique used to determine what someone’s blood alcohol content was at the time of an incident when their blood was drawn for testing at a later time. In the case of Mr. Murphy, he testified to what the Holbrook man’s blood alcohol content would have been at 1:54 p.m. on Sept. 30, 2018, when he crashed into the boys as they walked along David Terry Road in Manorville, causing the death of 12-year-old Andrew McMorris of Wading River.
On Monday, a forensic scientist testified that a sample of Mr. Murphy’s blood drawn at 5:05 p.m. on the day of the crash showed a blood alcohol level of 0.13%. Mr. Lehrer told jurors Tuesday that using the test results and other factors, including his weight, how recently he had eaten and the time of his most recent drink, Mr. Murphy would have had a BAC of about 0.19% at the time of the crash, more than twice the legal limit.
Mr. Lehrer, who ended up being the only witness to take the stand Tuesday as his testimony stretched for several hours throughout the late morning and afternoon, said that using the information he was told about the crash, the alcohol in Mr. Murphy’s system would have been fully absorbed into the bloodstream by the time police drew his blood.
Prior to the toxicologist’s testimony, and before the jury entered the courtroom, defense attorney Steven Politi reiterated a prior request for a hearing to determine if retrograde extrapolation, which he called “junk science at best,” should be allowed in the trial, citing experts in the field of toxicology who have referred to the practice as “dubious.”
“It’s really guess work,” Mr. Politi said.
“My view on retrograde extrapolation is this, it is based on sound scientific principles,” explained Judge Fernando Camacho in denying the defense’s request for a hearing that would have delayed or prohibited the toxicologist’s testimony. “That being said there are numerous variables in terms of absorption and elimination and this is going to be part of the [jury’s] job in this case. To listen to the facts as presented by the witnesses … and determine what variables are at play in this case and what variables are not at play in this case.”
MORE TRIAL COVERAGE
Day 1: Prosecutors say Murphy turned down ride from sober friend moments before fatal crash
Day 2: Text messages, friend’s testimony tell a story of day of Scout crash
Day 3: Defense calls into question the character of key witness in Murphy trial
Day 4: Friends testify that despite drinking, Murphy did not appear drunk on day of crash
Day 5: Parents of surviving victims take stand
Day 6: Shoreham parent recounts moment of crash during testimony
Day 7: Jury sent home early as defense raises legal issue in Murphy trial
Day 8: Arresting officer testifies that Murphy showed signs of intoxication following crash
Day 9: Two more officers testify that Murphy was intoxicated on day of crash
Day 10: Two detectives take witness stand at Murphy trial
Day 11: Scientist who tested Murphy’s blood testifies it was over legal limit
Mr. Lehrer testified that based on Mr. Murphy’s 350-pound frame and testimony that he did not eat on the day of the crash, when he drank vodka with friends at Swan Lake Golf Club in Manorville, he likely would have consumed between 12 and 14 drinks to achieve a BAC of about 0.19%. When asked to calculate the number of drinks Mr. Murphy might have had based on an equal split of the total amount of alcohol his friends testified to having at the course that day, the toxicologist said it added up to about four or five drinks, but he added that he finds a blood alcohol test to be a more reliable indicator of how much someone drank than anecdotal testimony.
Mr. Politi and Mr. Lehrer’s exchanges throughout cross examination often grew tense with the attorney and witness frequently challenging each other’s knowledge. Mr. Politi at one point asked the toxicologist to compare his credentials with those of the experts the defense noted had found the retrograde extrapolation process to be untrustworthy. Mr. Lehrer said those experts’ opinions on the process varied over the years and that they would later use it in their own testimony at trials. He repeatedly referred back to those experts in his responses to Mr. Politi’s questions, when raising points he suggested they would agree with.
It was one particular response Mr. Lehrer gave, however, that abruptly ended Tuesday’s proceedings. Pressed by Mr. Politi over his process and whether or not it ever includes taking notes and preparing reports, the toxicologist testified to taking notes on Mr. Murphy’s case during meetings with the District Attorney’s office in preparation for his testimony. He said those notes included calculations he made as to how much alcohol Mr. Murphy might have consumed prior to the crash.
“Did you ever tell the DA you made notes?” Mr. Politi asked, saying no such notes were ever turned over to the defense.
“You can have those notes as long as you need,” Mr. Lehrer shot back.
After a long sidebar with the attorneys on both sides, Judge Camacho ordered Mr. Lehrer to turn over his notes to prosecutors first thing Wednesday morning before returning to the witness stand for further cross examination.
After the jury and witness were sent home for the day, Judge Camacho and Mr. Politi engaged in another heated exchange, with the attorney calling some of the events in the case “completely outrageous,” pointing to the previously undisclosed witness notes and hypothetical testimony from Mr. Lehrer that might have suggested Mr. Murphy was speeding, a violation he has not been accused of. The latter caused Mr. Politi to request a mistrial, which he had done on two prior occasions during the trial, but the judge again denied the request and reminded the jury that Mr. Murphy was not said to be speeding at the time of the crash.
Mr. Politi told Judge Camacho he believes prosecutors are not following the judge’s directive to tell their witnesses what they can and cannot say on the stand.
“Mr. Murphy is being prejudiced by each of these violations,” he said.
Judge Camacho said since prosecutors were unaware of any notes taken by Mr. Lehrer they could not have turned them over prior to Tuesday’s testimony.
“At this point, now that they do know about it, you’re going to get it,” he said of the toxicologist’s notes.
Mr. Murphy, 60, has pleaded not guilty to a 16-count indictment with a top charge of aggravated vehicular homicide, which carries a sentence of up to 25 years in prison.
Judge Camacho informed the jury Tuesday that the prosecution will likely finish calling witnesses this week. The defense has not said if it will call witnesses.
Caption: Michael Lehrer, chief toxicologist at the Suffolk Medical Examiner’s Office, leaves the courtroom Tuesday. (Credit: Grant Parpan)