A toxicologist’s notes that had not been turned over in the case against Thomas Murphy include projections that show the defendant’s blood alcohol level could have been less than what the expert testified to in court Tuesday and, more importantly, below the legal threshold for several charges in the indictment.
At the start of court Wednesday, Judge Fernando Camacho said “uncertainty measurements” contained in the notes could lead to the withdrawal of four charges against Mr. Murphy that are based on his having had a blood alcohol content of .18 or more, but not the top charge of aggravated vehicular homicide. Michael Lehrer, chief toxicologist at the Suffolk Medical Examiner’s Office, was ordered to turn over the notes Wednesday after he testified to their existence during cross examination in the trial of the Holbrook man, who is accused of driving drunk in a Sept. 2018 crash that caused the death of a 12-year-old Wading River boy and left another seriously injured.
Mr. Lehrer testified Tuesday 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. He told jurors Tuesday that using the BAC of 0.13% taking through a blood draw four hours after the crash and considering other factors, including Mr. Murphy’s weight, how recently he had eaten and the time of his most recent drink, he would have had a BAC of about 0.19% at the time of the crash, more than twice the legal limit.
But the notes turned over Wednesday suggest that uncertainty calculations made by Mr. Lehrer showed Mr. Murphy’s BAC might have been closer to 0.17%.
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
Day 12: Toxicologist: Murphy’s BAC was twice legal limit; ordered to turn over notes
The judge indicated he could withdraw felony counts of aggravated vehicular homicide, vehicular manslaughter and vehicular assault that relate specifically to a BAC of 0.18% or more, as well as a misdemeanor charge of aggravated DWI. He also instructed the jury to disregard Mr. Lehrer’s testimony specific to the 0.19% BAC. The rest of the toxicologist’s testimony will not be struck from the record as he said he believed the “scientific principles are important for the jury to hear.”
“I am not happy,” Judge Camacho told Assistant District Attorney Brendan Ahern, who stated Tuesday that he was unaware Mr. Lehrer took notes during their prior meetings to prepare for the case. “How are these counts even legally sustainable?”
Judge Camacho, who took some time Wednesday morning to deliberate on a legal remedy Wednesday morning, as prosecutors, including Suffolk County District Attorney Timothy Sini scrambled around outside the courtroom, said a mistrial with prejudice would be “too drastic” of a conclusion.
He said the new notes, however, are the “definition of reasonable doubt.”
Outside of the courtroom defense attorney Steven Politi called the latest developments in the trial, which began on Nov. 12, “nefarious.”
But Judge Camacho said he wouldn’t define it as such.
“You wouldn’t have gotten this piece of paper,” he told Mr. Politi. “It would have been shredded a long time ago if there were such nefarious motives.”
Prosecutors, as they’ve done throughout the trial, declined to comment to the media, which on Wednesday included a pair of television stations.
Andrew’s mother, Alisa McMorris, held an album containing photos of her son as she spoke to reporters. She said the back and forth over Mr. Murphy’s BAC is meaningless to her.
“At the end of it I still don’t get my child back,” she said. “[Mr. Murphy] knows what he did. He knows that he’s guilty and dragging us through this … nothing changes that for me.”
Prosecutors opted not to call an accident reconstructionist following the events of Wednesday morning. Mr. Ahern had told the court the witness would testify to the locations of each of the boys struck by Mr. Murphy’s vehicle. Mr. Politi trashed the report, saying it amounted to three pages of handwritten notes.
On Monday, the jury heard from Jennifer Walsh, a forensic scientist in the toxicology department of the Suffolk County Medical Examiner’s office, who testified that two samples taken from a vial of Mr. Murphy’s blood were tested independently and showed a blood alcohol level of 0.13%.
Mr. Lehrer’s testimony concluded Wednesday morning. The medical examiner who performed Andrew’s autopsy then briefly took the stand.
An application to withdraw the charges would need to be done after the prosecution rests, likely Thursday, when they are expected to call their final witness. The defense has not said if it will call on anyone to testify.
Even if the four charges are withdrawn, Mr. Murphy, 60, is still facing 12 other counts in the indictment, including a top charge of aggravated vehicular homicide, which carries a sentence of up to 25 years in prison.
Caption: Defense attorney Steven Politi speaks with reporters outside the courtroom Wednesday morning. (Credit: Tara Smith)