By NATE RAWLINGS
In the first three days of grueling and at times gut-wrenching testimony, prosecutors presented witnesses, transcripts, tapes, and documents that prove Jose Sucuzhanay died after an altercation with Keith Phoenix and Hakim Scott. The biggest question they sought to answer on day four was what killed him-the bottle or the bat?
Dr. Michael Greenberg took the stand in the morning. Only after examining his education (Cornell undergrad, Tel Aviv University Medical School), credentials (board certified as a forensic pathologist), and experience (over 4,000 autopsies performed and assisted) did both sides agree that Dr. Greenberg is an expert in the field of determining how people die.
Greenberg walked the jury through what happened after the fight. When Sucuzhanay arrived at Elmhurst Hospital, his brain was swelling from the blows of the baseball bat. In a procedure called a decompressive craniectomy, doctors sawed off a piece of Sucuzhanay’s skull to allow the brain room to swell. They cut open his stomach and placed the section of skull in his abdominal cavity. This kept the bone alive, so had he lived, they could have put the skull section back in his head.
The procedure didn’t help. According to the Glasgow Coma Scale, which Greenberg explained, measures brain activity on a scale of 3 to 15, Sucuzhanay was a 3. On December 8, 2008, less than 24 hours after the fight, doctors said Sucuzhanay was brain dead. When medical examiners performed the autopsy, the piece of skull was still in his abdominal cavity.
Greenberg used drawings of the head, skull, and brain to illustrate what happened when Phoenix smashed the baseball bat into Sucuzhanay’s head. His scalp split in two places; his skull fractured in four; the membrane underneath the skull that protects the brain ruptured and began bleeding; the blows also ruptured part of brain itself, which began to bleed and swell. Greenberg explained that while the parts of the skull near the ears are paper thin, Sucuzhanay’s skull fractures were the in hardest, thickest sections of bone around the brain.
Absent from Sucuzhanay’s body were defensive wounds, cuts, bruises, and broken bones on the hands and upper arms prevalent when a victim protects his face. When questioned by Philip J. Smallman, Keith Phoenix’s defense lawyer, Greenberg said he didn’t know why Sucuzhanay didn’t fight back or defend himself, only that there were no such wounds on the body.
After Smallman, Craig Newman’s lawyer rounded out the questioning. He was brief. Newman asked if it was possible to kill someone by smashing a bottle over his head.
“Under the right circumstances,” Greenberg said, “a bottle could be the cause of death.”
Newman then asked his expert opinion on what caused Jose Sucuzhanay to die.
Greenberg did not hesitate in his answer. “In this case, a bottle wasn’t the cause of death.”
After Greenberg’s testimony, Judge Patricia Dimango sent half of the jurors from the courtroom. The green jury, charged with deciding Scott’s case, left the room, while the red jury, charged with determining Phoenix’s fate, remained.
Prosecutors played a video of Phoenix’s interview with police in February 2009, shortly after his arrest. Phoenix said that after he left a party on the night of December 7, he was driving slowly through the snow. Two men stepped in front of his car and were illuminated by his headlights.
Phoenix said he blew the horn to alert the men when one of them kicked the side of his car. When Phoenix stopped, Scott, who he referred to by the nickname “Fams,” was out of the car, fighting with the alleged kicker, Jose Sucuzhanay.
By the time Phoenix got out of the car, he said that Fams had run down the street, chasing the second man. Sucuzhanay, Phoenix said, was on the ground, but was getting up. “He reached in his waistband, like he was going for a gun,” Phoenix said on the video. “So I went for my weapon.”
Phoenix said he grabbed the aluminum Louisville Slugger be kept in the back of his car and swung at Sucuzhanay to prevent him from reaching his gun. When police later examined Sucuzhanay’s body, he was unarmed.
Phoenix told police that he swung the bat three times, hitting Sucuzhanay in the torso. He said that Sucuzhanay still tried to get up, and he hit him again “around the head.” After the fifth blow, Sucuzhanay didn’t rise from the pavement.
Members of the red jury sat stoically, absorbing Phoenix’s admission that he struck Sucuzhanay five times with a Louisville Slugger. An hour earlier, they were told by an expert that the bat blows killed Sucuzhanay. Now they will have to decide whether Phoenix really believed Sucuzhanay had a gun.
After lunch, it was the green jury’s turn to watch a confession. When the lights dimmed, it was Hakim Scott on the screen in a separate video from February 2009. Scott recounted how he barely knew Keith Phoenix. In fact, until police told him Phoenix’s real name, he only knew him as “K.D.”
After the party, Scott said they were driving through Brooklyn. He was smoking a cigarette and the windows were down, even though it was freezing cold.
Scott said that Phoenix stopped the car and was arguing with a man on the street when the man kicked the car and expectorated into the open window. The spit landed on Scott’s jacket. Scott rushed out of the car, waving a bottle in the man’s face.
“We had a little tussle,” Scott said in the video. He explained that the alleged spitter, Jose Sucuzhanay, tried to grab the bottle. “I figured if I let him get this bottle, he might hit me with it,” Scott explained.
In the midst of the fracas, Scott said he swung the bottle just as a second man punched him in the face. He ran after the other man and did not see Sucuzhanay go down. When Assistant District Attorney Josh Hanshaft asked Scott if the bottle broke when he swung it at Sucuzhanay, Scott hesitated. “I was off running,” he began, before shaking his head. “Yeah. It broke.”
Scott said that when he turned around, Phoenix was standing over Sucuzhanay, holding a baseball bat high above his shoulder. He said he saw Phoenix bring the bat crashing down on Sucuzhanay’s head, then lift the bat and swing again.
“I said, ‘Chill!’” Scott said on the video. “I don’t want to be a part of that. Injuring a man to that level.”
Members of the green jury also displayed little emotion, even when Scott expressed remorse on the screen. “That is bullshit,” he said, “you don’t have to do it to that level. I’m not going to sit here and tell myself I’m innocent. I played a part.”
When the second video was complete, Judge Dimango gave her pre-weekend speech to the jury. They were not to discuss the case with anyone, seek additional information, or form an opinion until they had heard all of the evidence.
Her warning complete, Dimango told the jury that there would be no court session on Monday. They would have a long weekend, and resume at 10 a.m. on Tuesday.
A few members of the green jury smiled and nodded, the first display of emotion all day, as they exited the courtroom.
Leave a Reply