False positive: the Salce-McKee incident.
LESSON: It takes more than a "who got hurt worse" assessment to distinguish perpetrator from victim in some use-of-force cases.
On an August night in 2011 in Saratoga County, N.Y., 911 dispatch received a call from a woman requesting an ambulance. Her husband, she explained, tried to kill her: they had both been stabbed, were both bleeding and both needed emergency medical assistance. Police and EMS arrived swiftly.
The officers first saw the woman, still holding a bloody KA-BAR knife. They ordered her at gunpoint to drop it. She did.
Entering the house, they found a tall man on the floor, covered with blood, one hand hidden. Over drawn guns, they ordered him to show his hands. He didn't. They pulled his hands out and secured them, also securing a big sheath knife on his right hip, and a folding knife from one pocket. Near where he lay, they noticed the sheath from the KA-BAR, and a leather biker vest with distinctive patches.
Both were rushed to the hospital. The man would stay there for roughly a week, as the staff tended to some dozen knife wounds. The woman would leave the hospital under her own power. She would soon be arrested for attempted murder.
The woman, Lydia Salce, was 50 years old, 5' tall, and weighed 116 pounds. Her younger husband of about six months, Michael McKee, stood 6' 1". She cooperated willingly with police investigators. She explained Michael had been drinking heavily for some time and staying out late with his friends from the Prisoners of Fate motorcycle club, loosely affiliated with Hell's Angels. The marriage had gone downhill lately. A few weeks before, she called police to have him removed when she kicked him out of her house after he threatened to kill her. Arriving officers had done more than that: they arrested him on an outstanding warrant.
And now, he had come home after another night of drinking with the bikers. A club "prospect" or wanna-be member, Michael had been driven home by club road captain Victor Ortiz. An angry Lydia had met them in the driveway and delivered a verbal outburst. The marriage was over, she yelled, and she was going to divorce him. She mocked the club's insignia, as "Boy Scout patches" and commented Michael must have kissed a lot of butt to get his patches.
Later, when they're alone, Michael becomes angry and throws a Mason jar, which shatters; Lydia gets some minor nicks on her hand cleaning up the pieces from the kitchen floor. And then, suddenly, Michael grabs her hair and pulls her head back with his left hand and begins to punch her in the face and head with his right fist, from the bottom of which now protrudes the blade of the KA-BAR knife. He holds its edge to her throat and snarls, "I'll kill you, you f* *kin' c* *t!"
Lydia pushes the knife down and away from her and pulls away. Suddenly she's falling.
Michael is bending over her from her right side and slightly behind. His blows have knocked her glasses off, leaving her all but blind, a condition exacerbated by the fact her hair hap fallen into her eyes. He kicks her and stomps on her foot with his engineer boots. On the floor, she sees the knife and grabs it, point forward. She tries to swing it but can't reach, and it's slipping in her bloody hand. She re-grips, now holding it as he had, icepick style, and flails wildly in his direction. It feels to her as if she is hitting only air, but three times there's a sort of a hump which tells her she may have hit Michael with the knife.
And suddenly, it's over--he's on the floor. She manages to get to her feet. She goes looking blindly for her cell phone, at last finds it, and it occurs to her there's so much blood on her hands it might short out the phone. She washes her hands, then makes the 911 call.
She realizes there's more blood on her hands and wonders how much she is losing; she hurts almost everywhere.
And then, the police are there.
Within hours, in the emergency room, Michael McKee gave this account to an investigating officer: "... my wife Lydia Ann McKee stabbed (me) with a big kitchen knife at our residence. We were in the kitchen face-to-face, the next thing I knew she had a knife in her hand and stabbed me directly in my chest, I saw her hand raised and she thrusted (sic) the knife into my chest in a downward motion. I tried to grab her but she kept stabbing me in my chest, arms, stomach, shoulder, head. We fell to the ground, I remember her saying 'I'm going to kill you' ... I just tried to push Lydia away from me, I didn't hit her or anything...."
As the case made its way through the criminal justice system, however, Michael's account would change. The big kitchen knife morphed into the KA-BAR, of course. Well, maybe he did hit her, but only one punch. Lydia was no longer screaming "I'm going to kill you," but instead chanting repeatedly, "It's over, it's over!" And, still later, Michael would increasingly resort to the mantra, "I don't remember."
According to the undisputed testimony of the treating physician, the dozen knife injuries inflicted on Michael McKee were mostly shallow lacerations, with a few shallow stab wounds. None were more than 2" deep; most were much less, and were closed with staples instead of stitches. The two most serious were chest punctures which had gone through the chest wall, creating pneumothorax but not deep enough to damage either lung.
Lydia had two black eyes, cuts on her hands, and bruises on torso, buttocks, and legs along with a foot injury from where a stomping boot had come down on her sandaled foot.
The pattern and distribution of Michael's wounds could have been in keeping with his account, but were also absolutely consistent with Lydia's description of the fight. The one stab wound in the upper thigh (which the prosecutor kept calling a "groin" wound) was consistent with him behind her and to her right side as the movements flowed, as were the wounds to his back if he turned away from the blade once he realized she was fighting back.
Where the nature of the wounds was starkly more consistent with her account than his, was in their depth: As noted before, both defense expert Dr. Herb Reich and the doctor who spoke for the prosecution found the stab wounds quite shallow. Though the prosecutor constantly described Lydia "plunging" the knife into Michael, even a petite woman would have probably driven the KA-BAR to the hilt if it had been true. The point was sharp, so was the edge, and the KA-BAR has for almost three-quarters of a century been described as a "fighting/utility knife" or "combat/utility knife," with "fighting" and "combat" being the operative terms.
If, however, Michael was in the position remembered by Lydia, her limited reach would have put her at the very end of her right arm's range of movement when the blade took flesh, with the power of her swing almost completely dissipated by then. This would be exactly consistent with the minimum penetration noted.
Lydia had told the police she only felt the knife make contact three times. One wound was a minor scalp laceration, in which the blade would have contacted the hard bone of the skull. The two penetrations of the chest wall, which caused the pneumothoraces, could be expected to have provided enough resistance to the knife for the wielder to feel it. The other, lesser wounds would have offered less felt resistance to the blade. Greatly reduced dexterity and loss of sense of touch is part and parcel of "fight or flight response." Taken together, those bits of evidence fit hand in glove to support Lydia's account.
The Saratoga County Public Defender's Office handled the defense, which was led by the very capable Andrew Blumenberg. He tried to offer expert witness testimony as to the knife and other dynamics related to this incident, but the judge in the first trial granted the prosecution's request to keep the testimony out. A less-than-fully-informed jury found her guilty in the summer of 2012, and she was sentenced to 16 years in prison.
An appeal was filed, and in January 2015, the State of New York Supreme Court Appellate Division, Third Judicial Department found reversible error, ruling she hadn't received a fair trial because the expert testimony Blumenberg tried to get in should have been allowed. The Court of Appeals also took issue with an instruction it felt the trial judge should have issued. The second trial began on April 29, 2015. This time Blumenberg was able to put me on the stand as the weapon expert, and Dr. Reich again as the defense's medical expert. Blumenberg then tied in our testimony perfectly in his closing argument, to show the jury the wounds and other evidence were more consistent with Lydia's account than Michael's.
On May 11, 2015, the jury found Lydia Salce not guilty on all counts. She walked out of the courthouse a free woman. She had been behind bars without interruption for 45 months.
False positive effect. Why would the police arrest the victim instead of the original assailant? I was able to explain the "false positive" factor to the jury. Let's say you have come down with Disease A and have gone to the Emergency Room. Once there, you present all the symptoms of Disease B. No one should be surprised if the ER folks recognize the symptoms of Disease B, and therefore diagnose a case of Disease B, and naturally prescribe treatment for Disease B. If the treatment for the wrong disease aggravates the condition of the patient who actually has Disease A, we will have what medical professionals sometimes euphemistically call a negative outcome.
The same can happen in cases like this, with the same results. The typical paradigm in cases of aggravated assault, attempted murder and homicide tends to be the person found lying in the puddle of blood is the victim, and the person holding the smoking gun or the blood-dripping knife turns out to be the perpetrator. However, when there is a successful act of self-defense, the perpetrator ends up lying in the puddle of blood doing a very convincing imitation of a victim.
If the victim is standing there with the bloody knife--as she literally was in this case--she in turn is doing a remarkably convincing imitation of a perpetrator. The "test" has resulted in a "false positive," as it were, and the manner in which the matter is treated flows from there, accordingly. This is what I believe lay at the core of the Salce prosecution.
The quantity of injury element: Most readers will recall the 2013 trial of George Zimmerman. The prosecution in this case made a huge deal out of Zimmerman only having "minor" injuries to the back of his head, when his taller assailant was pounding his skull against the sidewalk before Zimmerman fired the single shot which saved his life. Something similar happened here.
A veteran police investigator testified, when she told Lydia she was under arrest, Lydia asked why. The investigator related, "And I said to her, well, Lydia, let me put it to you in layman's terms. You have a small discoloration over your eye. Mike's got 14 stab wounds. You have a small discoloration over your eye; he's got two punctured lungs. You have a small discoloration over your eye; he's in critical condition. So, now do you understand?"
This sort of misunderstanding is so prevalent anyone who carries a gun or is prepared to carry out self-defense in any way, needs to be able to put things back in perspective. The very purpose of self-defense is to prevent, or at least minimize, injury to oneself or other innocent parties! Presuming a determined attacker, the attacker must be rendered physically disabled so any successful act of justified self-defense is likely to result in the attacker being hurt more seriously than the defender. To suggest otherwise simply twists the truth. In this instance, Drew Blumenberg's carefully-crafted defense was able to untangle this truth and allow the jury to "get it straight."
Misunderstanding facts: Lydia said at the scene she had been stabbed and her head and neck hurt, and requested to go to the hospital. When the blood was washed off, there were only minor lacerations present on her hands, and a black eye. This led the police to believe she was exaggerating her injuries, and deliberately lying. Blumenberg wisely had his investigator Mike Alvaro photograph her in jail a few days after the incident. By then, a second ecchymosis had become visible on her other eye, along with other bruises all over her body. He also photographed her foot injury, which had gone unnoticed.
Some of the cuts on her hand came from picking up pieces of the broken Mason jar, but one horizontal finger laceration would have been consistent with her description of evading Michael's knife. Her hands had bled; she had washed them before using the phone; there was still blood there afterward, so she washed them again, leading her to believe she had been cut in the fight. This was simply misunderstood.
Motive excluded: Both juries must have wondered why either of the spouses would attack the other with a deadly weapon. When Lydia told Michael in the driveway "It's over," even his biker friend witness said she uttered the words when she said she was going to divorce him. Divorce is way easier than murder, and it wasn't as if she was going to collect a big insurance payoff if he died. They must also have asked why Michael, who had previously neglected Lydia but never before physically abused her, would suddenly put a knife to her throat and voice an intent to kill. In neither trial were the jurors allowed to learn his motive.
Michael was desperately trying to win membership in Prisoners of Fate, a local group which celebrated the "one-percenter" biker lifestyle and is said to be loosely associated with Hell's Angels, the world's most notorious outlaw motorcycle gang. His vest, found at the scene, bore the signature red and white patch of a Hell's Angels Supporter. In one-percenter culture, any disrespect shown to the club and its patch must be severely punished. Lydia had just dissed the club and the patches in front of a high-ranking member. To a prospect, this would be the perfect storm of motive. But, the jury never heard a word of it. Some days before the knife incident, another biker had texted Lydia to report Michael had severely "f****d up" a man who had been "disrespectful" to the club; this too was kept out, on the grounds of hearsay.
The "you couldn't have beaten those odds in self-defense" argument: The prosecution pooh-poohed Lydia's assertion she had pushed the knife away from her throat, arguing if she had done so she'd have had to push against the sharp edge and would have severely lacerated her palms. I was able to explain on the stand she had demonstrated the movement with a downward push, which would have put her palms against the flat of the blade, where it couldn't cut her, and pointed out she did have one horizontal laceration on one finger of her left hand.
Lydia On The Stand
The defendant on the stand: I generally recommend the defendant in a self-defense case take the stand, even though it goes against conventional defense lawyer wisdom. The reason is it will be stipulated who shot (or stabbed) who, and the issue will come down to why did she do it? Who but the defendant can answer this core question?
Drew didn't put Lydia on the stand in the first trial, for two reasons. One: her account was already in evidence, in the statement she had given police. Two: she was a gentle, emotionally fragile woman who had been horribly traumatized, and putting her in front of a skilled prosecutor known for ferocious cross-examination would be like throwing meat to a lioness. In the second trial, however, the same prosecutor --amazingly--kept out Lydia's voluntary statement to the police, and the judge wouldn't allow the defense to introduce it. To get the defense theory in front of the jury, putting Lydia on the stand was the only avenue left.
Lydia Salce was the last person to take the witness stand. Drew Blumenberg and his colleague Joe Hammer spent hours preparing her to withstand a withering cross. On the stand, Lydia calmly explained exactly what she had explained four years before, and went through her cross with poise and resolve. The jury "got it" this second time around, and 1 think they did justice. When it literally came down to "he said/she said," Ms. Salce proved to be unshakably credible.
On the other hand, Blumenberg tore McKee apart in his cross-examination. The jury learned of the "F**k the Rules" prison tattoo on his back, and saw the "F**k Florida Department of Corrections" tats on his hands (a souvenir of nine years in prison for arson there), and the "Trust No One" prison tattoo on McKee's forehead. In his closing argument, Blumenberg pointed out "Trust No One" had to include the wearer of the tattoo, and observed dryly McKee had literally come with a warning label. A jury's strong suit is its collective life experience and ability to judge witness credibility.
My compliments to Drew Blumenberg and the Saratoga County Public Defender's Office--fighting with one hand more or less handcuffed behind him, Blumenberg still got the truth across to the second and final jury. There are lessons all of us--arresting officers and potential defendants alike --can learn from Lydia