Marvin Booker Case: City's Hired Gun Misfires in Record Verdict
A courthouse rally in remembrance of Marvin Booker in March.
Update below: Doubtless there were many reasons behind a federal jury's decision on Tuesday to stick it to the City of Denver over the 2010 death of Marvin Booker in the downtown jail, handing out a staggering $4.65 million in punitive and compensatory damages to the victim's family. The video record of sheriff's deputies piling on to restrain the homeless preacher -- and administering a carotid "sleeper" hold, shocking him with a taser and kneeing him in the back -- must have shocked a few jurors, too. Other videos that have surfaced in recent months of jail employees punching and abusing inmates and prompting excessive-force investigations probably didn't help the city's case, either.
But there's a lesser-known video that may have played a role as well -- the video deposition played for the jury featuring the city's esteemed expert witness, Dr. Steven B. Karch, whose job was to explain away any kind of physiological link between the deputies' actions and Booker's death. It was a bizarre performance, a case of a hired gun inflicting a grievous wound on his own employers.
Karch was one of several experts retained by the defense in an effort to negate the findings of Denver's own Office of the Medical Examiner, which conducted the autopsy on Booker and ruled that his death was a homicide -- a medical finding meaning not that deputies had any intention to kill him, but that the "manner" of death indicates some degree of causality between the actions of the deputies and Booker's ensuing heart failure. That the city's attorneys had to go far afield to find an expert willing to challenge the findings of the city's own forensic pathologist is weird enough. But the selection of Karch, a 72-year-old retired emergency room doctor, is even more telling.
If you read the Denver Post's coverage of Karch's testimony, you may have gathered that he's one brainy guy, well worth the $750-an-hour fee the city was paying him. He specializes in cardiac pathology, particularly the effects of drug abuse on the heart, and he's published a dozen books and more than a hundred papers. He's testified in dozens of cases about drug-related heart disease, usually in the context of a death in custody or a fatal confrontation with law enforcement.
In the case of Booker, Karch was confident about the circumstances that caused Booker's cardiac arrest. The man was a "ticking time bomb." He had an enlarged heart, emphysema and a long history of cocaine abuse. He could have dropped dead at any time. The fact that he did so while being placed in a choke hold and getting tased was just a big fat coincidence.
What was missing from the press coverage -- but not from what the jury saw, when the video deposition was played in court -- was the jaw-dropping cross-examination of Karch by Booker family attorney Darold Killmer. Karch, he suggested, isn't just a learned opinion for hire; his tends to be a very specific sort of opinion, offered in case after case involving suspects resisting police or corrections officers: Cops don't kill people. The victims' bad hearts and bad habits do.
"Just so we're clear," Killmer asked, "you've never testified that police restraints contributed to someone's death, correct?"
"Let me think about that for a minute," Karch said. "I don't think so."
In 2010, a federal judge in Kansas threatened to throw Karch in jail over his testimony in a case. He said the jury was free to regard Karch as a charlatan and "an expert in his own mind," a witness who "charged much but prepared little for his testimony," a prime example of the type of professional witness who "knows how to 'dance with the one who brung ya.'"
That scathing portion of Killmer's cross-exam was withheld from the version played for the jury, but Killmer also established that Karch isn't board-certified in forensic pathology, nor is he currently eligible to take such boards; the only time he took board exams for any medical specialty, he failed. Then, under relentless questioning, Karch grudgingly conceded that the "circumstances of exertion" Booker had experienced while deputies were wrestling him into submission and tasing him (and while Booker was complaining of not being able to breathe) could very well have increased the risk to his heart.
"Don't you believe that his inability to breathe as well as he would have preferred to breathe was related to the heart attack which occurred a few minutes later?" Killmer asked.
"Probably," Karch said.
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Bang. The city's defense team struggled to present Karch as a straight shooter, but the contention that those officers piled on top of Booker played no role in his demise couldn't -- and didn't -- pass scrutiny. Rational human beings were free to regard the well-paid sage as an expert in his own mind.
Shame on the defense for insulting the jury's intelligence. Such hubris comes with a price, and the city will be paying it.
Update: In a phone conversation this morning, plaintiff's attorney Killmer pointed out that the city hired seven experts "to testify to some astonishingly non-common-sense things" in an effort to discredit the Booker autopsy findings. But each ultimately had to concede on the stand that "Marvin's pre-existing health issues combined with the force being used against him is what caused his heart attack," Killmer says.
At $750 an hour, Karch was the most expensive of the city's hired guns. Until the inevitable open-records request is filed, one can only guesstimate the the total bill to taxpayers for this brain trust, a sum that falls short of the seven-figure verdict but probably extends comfortably into six.
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