Jensen lawyers: Judge in error
Mesa County District Judge Valerie Robison “abused discretion” when she restricted the testimony of Mesa County forensic pathologist Dr. Robert Kurtzman in the trial of Heather Jensen, lawyers said in a petition to the Colorado Supreme Court on Thursday.
Public defenders for Jensen argue Kurtzman is “statutorily required” to determine manner of death — information that’s routinely considered by Colorado juries in homicide-related cases.
“Dr. Kurtzman’s testimony regarding the manner of death is material to this case,” the filing says.
“To uphold a ruling excluding manner of death from a homicide trial would, in fact, invite the jury to speculate on the manner of death,” the filing continues. “The jury will hear that Dr. Kurtzman’s duties as a medical examiner working with the coroner are to determine cause and manner of death after an autopsy and coroner’s investigation. If the jury then hears no testimony on the determination of manner of death, speculation as to such would be inevitable given the charges in the case.”
Jensen, 25, has pleaded not guilty to criminally negligent homicide, child abuse resulting in death, and false reporting, in the deaths of her sons William, 2, and Tyler, 4, who died after overheating in their mother’s SUV on Grand Mesa.
Kurtzman’s autopsy report concluded the deaths were an accident, not homicide.
The judge, however, prohibited that testimony from being heard because of possible “confusion” it may cause.
“It is foreseeable that the defendant will argue the death of the children was an unfortunate accident,” Robison said in an order issued Oct. 8. “The opinion of Dr. Kurtzman as to whether the death of the children was an accident or a homicide based on medical standards is ... irrelevant. Ultimately, the jury will have to determine whether the defendant was criminally negligent.”
Any confusion caused by Kurtzman’s autopsy report could be remedied by cures available to the judge, Jensen’s defense argues.
What’s next? A waiting game as the high court decides whether it will take up the matter for review, or reject it. Rob McCallum, spokesman for the Colorado Judicial Branch, said four of seven justices must give the OK in order to take up a review.
“In matters like this, considering they know a trial court case is pending, the court tends to make a decision in short order,” McCallum said.
Approximately 8 percent of cases filed before the Colorado Supreme Court, which sees up 1,600 petitions annually, are granted, he said.
Jensen’s trial is scheduled over two weeks starting Jan. 21.