Pathologist still restricted in testimony

Heather Jensen

One week after being asked to review the matter, the Colorado Supreme Court on Thursday unanimously rejected an appeal by Heather Jensen’s defense.

Offering no comment, the state’s high court said in a three-sentence order that it won’t hear argument on defense claims that Mesa County District Judge Valerie Robison “abused discretion” when she restricted what jurors in Jensen’s trial will be able to hear in testimony from Mesa County forensic pathologist Dr. Robert Kurtzman.

All seven Supreme Court justices reviewed the issue and reached the same conclusion.

The rejection came one week after Jensen’s petition for review was filed.

Public defenders Thea Reiff and Elsa Archambault successfully argued to Robison on Oct. 22 — six days before the original scheduled start of Jensen’s trial — that proceedings should be delayed to allow the Supreme Court to review the judge’s order on Kurtzman’s testimony.

The trial is scheduled Jan. 21.

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 on Nov. 27, 2012.

Kurtzman’s autopsy report said the deaths were an accident, not homicide.

Robison, however, ruled last month that Kurtzman won’t be allowed to testify about manner of death because of confusion it may cause the jury.

“It is foreseeable that the defendant will argue the death of the children was an unfortunate accident,” Robison said in her order. “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.”

The defense argued Kurtzman’s testimony is relevant and Colorado juries routinely hear testimony about manner of death. The restrictions also could prejudice Jensen, they argued.

“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,” the defense argued to the Supreme Court.

“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.”


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