DenverChannel.com's Kim Nguyen is blogging live from the first-degree murder trial of Jon Phillips. Phillips was the legal guardian of Chandler Grafner, 7, who died in May 2007 of a heart attack, as the result of dehydration and starvation. Prosecutors said Grafner's death was the result of Phillips locking the boy in a linen closet and depriving Grafner of food and water for weeks. The defense claims that Chandler died from undiagnosed diabetes.
The jury is excused for the weekend but will not be sequestered. The jury is advised not to talk about the case, think about the case, look at terms in the dictionary or go on the Internet to investigate the case. The judge said it is likely that they will receive the case on Monday, which is when they can begin deliberations. Closing arguments are expected on Monday.
Under redirect examinations, Factor said he would never lie or bend the truth of his findings for money.
"Nobody led me to my opinions, they are the result of my findings," Factor said.
Factor said he has spent "several hours," perhaps 11 hours, over the past week or two speaking to attorneys and reviewing medical records, and slides.
When pressed for a "ballpark" number of hours he's spent on the case, he said he's spent 10-12 hours in July on this case, and about 24 hours total. He said he charges $4,000 for a day of testimony in court and charges $400 for one hour of work. So he will be paid $8,400 total for this case, Carpenter asks. He said yes.
Carpenter asked him to confirm that he's been a witness in a number of cases over the years. In 2004, he was a key witness in 13 cases. In 2005, he gave testimony or was deposed 16 times, according to a list he compiled at the prosecutor's request.
In 2006, it was eight times. Last year, he was a witness 11 times. So far this year, not including this case, he was a witness nine times, Carpenter said. In 85 percent of those case, he has testified for the defense.
"I only testify to the truthfulness and accuracy of my findings," Factor said.
He has testified mostly in medical malpractice cases and consults on 50-100 cases a year, he said.
Factor said 25 to 45 percent of his income is generated from consulting.
Court is back in session.
Dextrose 50 (D50 or glucose) would not have changed the glucose level in Chandler's vitreous (eye) fluid, Factor said.
Hemoglobin A1c test was a test Factor used to confirm his diagnosis of Chandler's diabetes.
He admitted this is a test that is routinely used on living people with fresh blood, not routinely on postmortem blood, he admits under cross examination.
He said he could not confirm if the lab where the hemoglobin A1C test was performed was certified by the College of American Pathology. He said how the blood is stored is irrelevant to his conclusion and analysis of hemoglobin A1C.
Unless the blood had degraded or had mold, the elevated hemoglobin A1C level is highly significant, and valid for showing that Chandler had diabetes, Factor said.
As long as the blood was testable, it doesn't matter how it was stored if it was frozen, he said.
He said he's never read the Journal of Diabetic Medicine or the Journal of Forensic Pathology, but doesn't necessarily think every article published in those journals are accurate and reliable. He said he doesn't need an expert on child diabetes to explain his own conclusion of Chandler's diabetes.
Under cross-examination, Factor agreed that Chandler was severely dehydrated and that dehydration was enough alone to kill him. He also admitted that he can't tell what caused Chandler's dehydration -- whether it was because he was denied water.
The jury recesses until 3:55 p.m.
Prosecutors show Factor the autopsy photo of Chandler Grafner, which he's never seen before.
He agreed that Chandler's appearance on the autopsy table is "not normal." He also agreed that Chandler wouldn't get that appearance overnight, or in 24 hours.
The bruise on Chandler's face wouldn't be associated with diabetes and a "dirty" appearance would not be associated with diabetes, Factor admitted.
Factor is cross-examined by prosecutor Verna Carpenter.
Chandler did not die of being a premature baby and didn't die of incorrect CPR or ingesting household chemicals, Factor said.
Factor admits he's not an endocrinologist or especially trained in forensic pathology and he is not formally trained as a pediatric pathologist. He's never done research specifically on pediatric disease, he said.
"I am familiar and knowledgeable of clinical diabetes," Factor said.
"The bottom line is ... clinical diabetes is not my expertise," he had said in a tape recorded conversation which was brought up by Carpenter.
Factor said he's knowledgeable about clinical diabetes and how it manifests in pathological changes. He said the clues in his findings were found postmortem. He did admit that children are different than adults, and have hormones that affect their growth and their cells.
"You don't know that the evidence shows that he died of starvation and dehydration?" Carpenter asked.
Factor said he had not reviewed the emergency room records for Chandler, which showed that Chandler was given D50, a glucose injection, at the time of resuscitation. But Factor said that the D50 had no bearing on his findings. None of the changes in Chandler's body were related to being given D50, he said.
Chandler was given 45 minutes of CPR. That CPR and the glucose injection would not have made a difference in his final conclusion, Factor said. That would not have affected Chandler's liver, pancreas or blood, which he had analyzed, he said.
Testimony from Dr. Factor continues via video conference.
He said he has looked at slides of Chandler's pancreas. The pancreas functions to secrete enzymes to help with the the digestion of food and to release into the bloodstream a series of hormones, such as insulin, that regulate functions of body.
Looking at the pancreas tissue, he said the boy had elevated glucose levels associated with diabetes.
He looked at slides from Chandler's lung. The autopsy report indicated that there was slight bronchial pneumonia, but Factor said he didn't see that. He said from the lung tissue, he saw evidence that the boy had vomited, most likely just before his death.
He examined slides of Chandler's kidney, which he said had "evidence of CASPS," which means that it was consistent with severe dehydration. He said one of the symptoms of diabetes was persistent urination.
He said when someone is starved, you would see fatty changes in the liver, but he did not see fatty changes in the boy's liver.
"It was not consistent with starvation with the act of food," Factor said.
"If he was starved, if he was deprived of food, would there be changes in heart tissue?" Defense Attorney Darren Cantor asked.
Factor said there would be damage to the heart tissue with severe starvation because the heart is composed of protein-dependent cells. And without food, the heart tissue would change.
"'The heart slides were completely normal," Factor said.
He said he had asked for a special blood test -- hemoglobin a A1C -- which indicated the boy had high glucose levels for an extended period of time.
The elevated hemoglobin A1C level confirms "that he had diabetes," Factor said. It showed that he had hyperglycemia for a long period of time, possible weeks, he said.
"Can diabetes be diagnosed post-mortem or after death?" the defense attorney asked.
Factor said yes. He said all of Chandler's tissues are consistent with diabetes. Diabetes can be a fatal condition and Factor said he knows of cases where the diagnosis of diabetes wasn't made until the patient died.
He said "wasting" of a person is consistent with diabetes. Because of inadequate glucose levels, the body has to use up fat and protein source -- which can be found in muscle.
"Did Chander Grafner die of starvation or deprivation from being denied food?" the defense attorney asked.
"I cannot entirely rule out that is an associated cause, however, everything that I've seen in this case, is consistent with diabetes," Factor said. "They were consistent with untreated or uncontrolled diabetes."
"I'm absolutely certain he had diabetes," Factor said.
The court takes a break for lunch. Testimony will resume at 2 p.m.
The jury is back in the courtroom after an extended delay, where defense attorneys and prosecutors discussed other matters in sidebar.
Dr. Stephen Factor is testifying from Portland, Me., where he's vacationing with family. He's a pathologist and professor at a medical school in the Bronx, in New York, and chairman of the pathology department. He lectures on the pathology of diabetes. He has testified in New York, and other places across the country and has written several hundred papers on pathology and is an expert on clinical pathology, the analysis and description of disease.
He's reviewed and performed numerous autopsies on children. He's reviewed Chandler's medical records and autopsy.
He did not look at any pictures of Chandler. He said Chandler's description was already written in the coroner's report.
The courtroom takes a recess until 11 a.m. The next witness will appear via Internet connection in Courtroom 6.
The next witness, Joseph Crossley, takes the stand. He worked with Jon Phillips at Old Chicago.
He said he saw Chandler a week or two before he died. Chandler and Dominick were sitting in the back seat as Sarah Berry gave him a ride. He said Chandler looked healthy.
Under cross examination, he said Jon Phillips and Sarah Berry never told him that Chandler had been sick or had the flu.
Defense calls its third witness, Donna Marie Crossley. She says she's a "disabled mother of five." She knows Jon Phillips through her son, Joey, who works with Jon. She said one night she went to pick up her son at Old Chicago at 1:30 a.m. and her son walked out to the parking lot to tell her it would be another 30 minutes.
She was mad, but she waited.
"Then I heard a knock on my window and Jon came with a glass of ice tea for me," she said.
She and Jon had talked about how he has two kids, she said. She said that she saw Jon Phillips with the boys at Old Chicago, or when Jon came to pick up her son for work.
"I thought he treated them very, very good," she said.
She said she knew Jon for one year and the boys for three months.
Under cross examination, the defense asked if the boys ever went to her home or if she ever went to their home. She said no. She admitted that most of the time she saw them, they were sitting in the back of the car.
She said she never knew that Chandler was pulled out of school.
Prosecutors cross examine psychologist Edward S. Wilson. The questioning is belligerent, as prosecutor David Lamb asks him questions, which he doesn't answer in a "yes" or "no" format. Wilson tries to explain his answer, but Lamb cuts him off. Lamb asks if he's there to discredit the brother's testimony to the police officer.
"It is not my job to tell you if (the boy) is telling the truth, it is the jury's job," Wilson said.
"If a child says there's a green and white striped mattress in the trash, and police find a green and white striped mattress in the trash, wouldn't you say the child's testimony is reliable?" Lamb asks.
Yes, Wilson said.
Lamb asks if it's true that he's being paid $8,000 to be a witness for the defense. He explained that he bills $250 an hour or $2,000 a day.
"And I hope I get paid," he said. The jury laughs.
He said his primary practice is doing individual and family therapy. He said he's a paid witness for a number of trials but that's not the bulk of his income.
Defense witness, Edward S. Wilson III, continues under defense questioning. He is a licensed psychologist who works predominantly with children and adolescents.
He talks about how young children have "centration of thought." He goes through a transcript of an interview that Chandler's brother had with a police detective, as that detective is asking about the boys' cold showers and timeouts.
"When you push a child to a certain place, a child will say what you want the child to say, a child will move in the direction you push the child," Wilson said.
"If you continue to ask a question ... the child will continue to confabulate and make it bigger and bigger and bigger," Wilson said.
The major criticism Wilson had with the detective's style of questioning was that instead of letting the boy talk, the detective asked pointed, perhaps leading questions, he said.
"The words, 'Tell me what happened' will make the child think that something happened," Wilson said.
"This is not an interview. This is an interrogation. You are pushing the child to come up with an answer ... The repeated questioning and leading questions will lead the child to come up with an answer," Wilson said.
He said the concept of time is something that the boy doesn't understand so he would have no idea how long timeouts really were.
- August 7, 2008: Trial Blog: Brother Draws Boy's 'Screams' For Food, Water
- August 6, 2008: Phillips Trial Blog: Photos Show Skeletal Boy With No 'Fat Padding'
- August 5, 2008: Doctors Say Chandler Grafner Didn't Have Diabetes
- August 4, 2008: Philips Trial Blog: Food Used As Punishment
- August 1, 2008: Boy: Starving Brother Had Timeouts In Closet
- July 31, 2008: Doctor Says Abused Child Was 'Skin And Bones'
- July 30, 2008: Police: Guardian Starved Boy To Death, Locked Him In Linen Closet
- March 10, 2008: Head Of Denver Human Services Resigns
- March 10, 2008: Denver Human Services To Undergo Review
- March 8, 2008: Report: Welfare Workers' Morale Low After Children's Deaths
- March 7, 2008: Review Details Problems With Denver Human Services
- February 22, 2008: Human Services Supervisor Placed On Leave After Report
- January 16, 2008: State Human Services To Review 12 Child Deaths
- January 10, 2008: Mother of Dead Baby Says Human Services Failed Her
- January 8, 2008: Questions Surround Human Services After Child's Death
- November 5, 2007: Pair Accused Of Starving Boy Won't Get Separate Trials
- September 6, 2007: Questions Linger About Response To Starving Boy
- August 28, 2007: State Releases Report On Boy's Starvation Death
- August 16, 2007: Police: Boy Looked Like 'Concentration Camp Prisoner'
- July 12, 2007: Brother Says Boy Starved In Closet
- July 10, 2007: Coroner: 34-Pound Boy Died Of Starvation
- June 29, 2007: Investigators: Warning Signs Before Boy's Death
- May 16, 2007: 7-Year-Old Boy's Family Holds Private Funeral Service
- May 11, 2007: Aunt Says Family Will Fight For Custody Of Chandler's Brother
- May 10, 2007: Couple Charged With Murder For Allegedly Letting Boy Starve
- May 9, 2007: Couple Face Murder Charges In Malnourished Boy's Death
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