But in 2011, Maryland’s highest court threw out the conviction, saying that crucial information had been wrongly withheld from jurors. Smith’s retrial began Aug. 30.
Trial Day 6
Sept. 7, 2012
William Vosburgh, lab director of the District’s Metropolitan Police Department, was called by prosecutors. He said his former job was at Dover Air Force Base “identifying our fallen heroes by dental records” during the height of the Iraq war. He cited qualifications as a specialist in blood stain pattern analysis, among other disciplines, and defined the field as the physics of how blood arrives on surfaces in a crime scene.
Barry Helfand, one of Gary Smith’s lawyers, objected to Vosburgh being admitted as an expert. Under questioning, Vosburgh said he had taken 80 hours of training in New York and attended meetings on the topic but does not have a certification offered by an international group in the field. Judge Eric M. Johnson allowed him as an expert.
Vosburgh warned the jury and court observers that “we are going to be seeing some disturbing images” and noted that he was going to be discussing them in a “scientific and factual manner.”
Assistant State’s Attorney Robert Hill put up a succession of photos showing the blood on and around Michael McQueen, and Vosburgh said they showed that blood had spurted out of McQueen’s head after a gunshot wound, then sprayed, dripped and was projected around him. McQueen was shown in a chair in front of a television, his head tilted back.
Vosburgh also described photos of blood on Smith’s jeans, black T-shirt and shoes.
Vosburgh said there would be blowback from the gasses that entered McQueen’s head, because the gun was in contact with his skin and the bullet did not exit his skull. He indicated that blowback would have sent blood out toward the hand holding the firing gun, but said he did not see evidence of that on McQueen’s hand.
“I don’t see any blood stains on the back of his hand,” Vosburgh said.
There were a few blood droplets on McQueen’s palm, which Vosburgh said would have come not from blowback out of the head wound, but from drips bouncing up from the pool of blood on the carpet.
He also said there were voids in the blood stains on the carpet.
“Something was in the way. The question is: What was in the way?” he said.
He noted that as blood is projected out from its source, for instance as it pulses out of a wound, and if an object is in the way, a void will remain. But that void won’t necessarily be the same shape as the object itself, he said.
Think of the shadow of a square building at 3 p.m., he said.
“The shape of the shadow on the ground is not the shape of the building,” he said. Instead, it’s elongated.
Vosburgh said the void on the carpet in this case “roughly fit” the shape of Smith’s shoe.
He also said there was a pattern on the carpet that looked like it was created by the presence of a hand.
Vosburgh said a shoe print seen after a blood enhancer was sprayed on the carpet had blood along the edges, creating an outline, but nothing that looked like the tread of a shoe, which is what usually happens.
“It’s the reverse of normal” when a crime scene has blood tracked through it, he said.
The way the blood looked on Smith’s shoe and pants indicates that the blood had been projected out from its source, he said.
“The only projected blood in this case is coming out of the wound tract,” Vosburgh said.
Vosburgh said McQueen’s body did not look like it had been moved after the gunshot that killed him.
Hill asked if Smith’s pants and shoe created the void on the carpet at the moment McQueen was shot.
“Yes,” Vosburgh said. “That’s the only way the evidence fits together.”
Sgt. 1st Class Seamus Ryan, who works in intelligence with the 75th Ranger Regiment, was called as a defense witness. He met Smith in 2002 when they were going through the Ranger indoctrination program, and they are friends. Ryan served with Smith and McQueen in Afghanistan, and for a couple years at Fort Benning, Georgia, where Ryan is still based.
Smith and McQueen sat next to or near each other in a secure facility at Fort Benning that Ryan would enter four or five times a day, Ryan said. Smith became McQueen’s sergeant. “You’re responsible for his health, morale and welfare,” Ryan said, describing the role of sergeant in that situation.
Lawyer Andrew Jezic asked if Ryan had ever seen “any tension” between the two, in Afghanistan, Georgia or elsewhere.
“I did not,” Ryan said. “Gary and Mike’s friendship was good.”
Deputy State’s Attorney John Maloney noted that Ryan is Smith’s friend, and said Ryan and McQueen were not that good of friends. “Not really,” Ryan acknowledged, saying he did not go out with McQueen like he did with Smith.
Ryan said he had no direct knowledge of Smith or McQueen coming under direct fire while in Afghanistan, but said he was not with them all the time.
Prosecutors called Michael Piper, an imagery and audio specialist with the U.S. Secret Service. Maloney played a video of Smith sitting alone in a police interview, his head on resting on his arms and hands.
Piper had been brought in to make the faint audio of Smith’s voice from the recording audible. Piper said he filtered out the buzz and white noise, but did not alter any of the content.
Maloney had the enhanced audio played for the jury, but it was nearly inaudible on the court speakers. Maloney put his hands to his ears as if wearing headphones, and said he wanted the jury to be able to hear the recording. The lawyers discussed the matter with Judge Johnson, their voices masked from jurors and the public by a “husher” that creates the sound of static.
Any resolution was not revealed.
Helfand started his cross-examination of Vosburgh, saying: “Doctor…” before Judge Johnson noted that Vosburgh had not entered the witness stand.
“Talking to chairs is popular these days,” Johnson said, a nod to Clint Eastwood’s conversation at the Republican National Convention with an imaginary President Obama.
Once Vosburgh sat down, Helfand, asked: “Have you authored any scripts or screenplays?”
Prosecutors objected, and Johnson sustained the objection.
Helfand pushed Vosburgh to explain his statement that a hand had created a carpet pattern.
“This is an imprint of a hand?” Helfand asked.
No, Vosburgh said, adding: “It’s the outline, the void, the image of a hand.”
“Show me where the blood crossed that hand,” Helfand said.
Vosburgh said the blood came from the direction of the wound.
Helfand asked: “Is it a mist or a gush?”
Vosburgh answered that “the ballistic backspatter misted the entire area” around McQueen. Vosburgh characterized what happened as a “combination event,” which is part of the complexity of understanding what occurred in such cases, and said the shooting created a mist, gushes, and splashes.
Smith’s bloody shoe sat on the table in front of the jury.
Helfand went through what he indicated would be the physically very difficult-to-achieve stance a person would have had to be in if Vosburgh’s voids were accurate. Their right foot would have to be turned to the left, while the left hand would have had to be against the floor but turned to the right, he said. Finally, the right hand would have to reach up to head level to pull a trigger.
Helfand also challenged Vosburgh’s conclusion about seeing the bloody outline of a shoe.
“Whose shoe?” Helfand asked.
“It’s a shoe imprint,” Vosburgh said.
Helfand said Vosburgh was not saying whose it was.
“That’s correct,” Vosburgh said.
Helfand asked if McQueen’s arm was down when he was shot. “I can’t tell the exact position of the arm,” Vosburgh said.
The men engaged in a protracted back-and-forth, with Helfand pressing Vosburgh on experiments he had done in the case. In one, Vosburgh said, he had used a flashlight to simulate blood headed toward Smith’s shoe.
Vosburgh said he was trying to see “the shape of the shadow” that would be created, which in this case meant the shape of the void on the blood-stained carpet. Helfand tried to demonstrate that the void was not created by Smith’s shoe.
Helfand also asked Vosburgh if he had considered a study of self-inflicted shooting cases which found that less than 40 percent of the people had blood on their hand after the shooting. Vosburgh said he hadn’t.
Helfand apologized to the court for what he was about to say concerning the question of the void and shoe but said, “personality wise, I just cannot resist.”
“If the shoe does not fit. . .” he said, then stopped himself before finishing the famous, or infamous, glove line from the O.J. Simpson trial.
Prosecutors played the recording of Smith’s early morning 911 call.
A crying and frantic-sounding Smith was barely understandable at times, clear at others. Among his statements:
“Oh my God, help me. My roommate’s shot. . .He’s dead and he’s got a hole in his head.”
“His brains are hanging out. Oh God, look.”
“No, there’s no gun.”
“My best friend’s dead.”
“I went to war with him. We went to war with him.”