Judge Bars Video, Autopsy|Report From Murder Trial

WASHINGTON (CN) - A federal judge barred the government from entering into evidence a History Channel reenactment and an autopsy report conducted by a now-retired forensic pathologist at the murder trial of a former Air Force senior airman.

Rico Rodrigus Williams was charged in 2005 with second-degree murder in the death of Army Sgt. Juwan Johnson in Hohenecken, Germany.

Williams and others allegedly beat and kicked Johnson to death, according to the indictment. Williams was also charged with three counts of witness tampering.

U.S. District Judge Paul Friedman granted a motion to exclude from evidence the videotaped reenactment of Johnson's death, which the History Channel's produced for its "Gangland" series. Friedman also parsed a motion concerning forensic testimony, throwing out the autopsy report from a medical examiner who can't appear at trial but allowing another pathologist to testify on the evidence.

The "Gangland" episode that the government wanted to introduce into evidence used professional actors to recreate Johnson's death, and Williams argued that the tape was "unfairly prejudicial and confusing," according to the ruling.

"There is no evidence that the videotape contains an accurate depiction of the events and because it was created by actors for a television audience, rather than for purposes of trial, any benefit that it might provide to the jury is greatly outweighed by its likely prejudicial impact," Friedman wrote.

While reenactments have been ruled admissible in other cases, the judge said the Johnson tape "is not an actual depiction of the alleged crime but rather a re-creation of the events as they supposedly occurred."

"An unknown producer created the reenactment for a television audience and hired actors to play the roles of victim and assailants," Friedman wrote. "As the defendant notes, '[t]he producer [of the videotape] would have had every incentive to make the 'reenactment' as dramatic and sensationalistic as possible' in order to appeal to the emotions of the television audience" (brackets in original).

The government argued that the videotape would allow the jury to understand exactly how the alleged murder occurred, and that the reenactment is "substantially similar" to the actual events, according to the ruling.

But Friedman said there is no evidence that "Gangland" producers used sufficient care and factual precision in reenacting the alleged murder.

"Here, the defendant and several other individuals allegedly struck and kicked Sergeant Johnson, and he died several hours later," Friedman wrote. "The government has not provided any persuasive argument as to why the jurors would need a visual depiction of this event in order to understand how it occurred."

The government also claimed that the tape could show the difference in height between Johnson and Williams, and "the exact movements of each of the alleged attackers," according to the ruling.

Friedman disagreed, finding no evidence that the producers used actors whose heights matched those of the men they portrayed, nor that the producers had knowledge of the alleged attackers' "movements."

"In this case, even if the videotape might inform jurors, the risk of inaccuracy both limits the videotape's probative value and increases the possibility of unfair prejudice," the judge wrote.

In a separate ruling, Friedman excluded the autopsy report and death certificate signed by Kathleen M. Ingwersen, who has since retired from the military and moved overseas. The ruling allows another pathologist, Terril Tops, to testify about "any independent opinions he has formed based on the report and other evidence," but he cannot summarize or simply "parrot" Ingwersen's report.

Friedman said Ingwersen's reports could not be admitted because they contain "testimonial statements," which would trigger Williams' Sixth Amendment right to "be confronted with the witnesses against him."

Friedman allowed Tops to "testify as to his own independent opinion concerning the cause or manner of Sgt. Johnson's death, even if that opinion is based in part on the inadmissible autopsy report."

"So long as Dr. Tops does not disclose any of the testimonial hearsay underlying his opinion on direct examination and has a sound basis for his opinion and conclusions, his testimony would not offend the Confrontation Clause," Friedman concluded.

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