Judge limits key Jensen testimony
Former coroner's views on boys' deaths won't be allowed
In an unusual but potentially key ruling, a longtime Mesa County forensic pathologist will be restricted in his medical testimony during the upcoming trial of Palisade mother Heather Jensen, a Mesa County judge said Tuesday.
The ruling by District Judge Valerie Robison says former Mesa County Coroner Dr. Robert Kurtzman won’t be allowed to testify about several aspects of his autopsy reports in the deaths of Jensen’s sons, William, 2, and Tyler, 4.
Specifically, the judge said Kurtzman will be prohibited from making any statements about whether or not Jensen’s actions on the night of Nov. 27, 2012, on Grand Mesa, constituted “neglect.”
Just as important, the judge ruled Kurtzman won’t be allowed to make any reference to whether the deaths were “medically an accident.”
Routinely endorsed in high-profile Mesa County criminal trials as an expert witness, Kurtzman raised eyebrows in January with the release of an autopsy report concluding the Jensen boys died as a result of hyperthermia, or overheating, in their mother’s SUV after being left unattended. Kurtzman ruled the deaths were accidental, not homicide. His autopsy report also said the action of Jensen leaving her children unattended in her heating vehicle was “reckless” and constituted “neglect.”
Jensen’s defense sought to block Kurtzman’s conclusions from being heard at trial, arguing they were prejudicial.
Robison concluded the jury “could easily be confused” by use of the word “accident,” in Kurtzman’s formal report.
“It is foreseeable that the defendant will argue the death of the children was an unfortunate accident,” Robison noted. “Under these circumstances, even if Dr. Kurtzman’s opinion were relevant, the medical determination that the children’s death was an accident could lead to a confusion of the issues.”
Robison, however, said Kurtzman will be allowed to tell the jury about his conclusions on the cause of death for Jensen boys, as well as and “causes of death that were ruled out.”
In her order, Robison noted that Jensen is charged with criminally negligent homicide, among other counts.
To convict on negligence, prosecutors must prove Jensen failed to perceive “a substantial and unjustifiable risk that a certain result will occur,” which constituted a “gross deviation from a reasonable person’s standard of care,” according to state statute.
“The opinion of Dr. Kurtzman does not make the issue of criminal negligence more or less probable,” Robison said in her ruling. “The opinion of Dr. Kurtzman as to whether the death of the children was an accident or a homicide based on medical standards is likewise irrelevant. This case will be governed by the legal standards that must be applied and determined by the jury.”
“Ultimately,” the ruling said, “the jury will have to determine whether the defendant was criminally negligent.”
Jensen, 25, has pleaded not guilty to two counts of criminally negligent homicide, two counts of child abuse resulting in death and false reporting in the deaths of her sons.
She’s scheduled for trial over two weeks starting Oct. 28.
An arrest warrant affidavit alleges William and Tyler were left in their mother’s Toyota 4Runner, with the heater left running, on the evening of Nov. 27, 2012, near Powderhorn, as their mother was having sex with a man in a nearby vehicle.
Jensen told authorities early on in the investigation her sons were alone for approximately 90 minutes.
The circumstances surrounding the Jensen boys’ deaths — hyperthermia in the wintertime inside a vehicle — are rare with just six reported similar cases in the United States, Kurtzman told The Daily Sentinel in January.