09/11/2018 - State: No expert witness errors in murder prosecution

Prosecuting attorneys in the case against a Gillette man serving life in prison for first-degree murder made no errors in their questioning of a a defense expert witness, or their own expert witnesses the state Attorney General's Office has argued.

Joseph Nielsen, 22, was convicted of abusing and killing his girlfriend's 3-year-old son, Caiden Fedora. In January, District Judge Michael N. "Nick" Deegan sentenced him to life in prison.

The doctors at Children's Hospital Colorado were concerned that Caiden's injuries - including a subdural hematoma, retinal bleeding and fractures in his skull and ribs - were from child abuse. The autopsy report didn't find any retinal bleeding, skull fractures or rib fractures, but the investigators did not go back to the doctors to present the findings.

Nielsen has appealed the ruling based on what his attorneys believe to be improper testimony by the prosecution's expert witnesses. They claim the prosecution used expert witnesses to get around proving Nielsen abused the boy. Instead of using them to "establish facts necessary to support the legal finding of child abuse, the state chose" to use the experts to tell the jury that child abuse was present, his attorneys wrote.

The testimony in question included a doctor stating she believed the boy's injuries were consistent with child abuse, and another doctor saying "there's no way" the boy received his injuries the way Nielsen accounted for. Nielsen said the boy jumped off a coffee table into a plastic dollhouse, which then tipped over onto him.

The prosecution is represented by state Attorney General Peter Michael's office.

The prosecution's expert witnesses properly testified that the trauma they witnessed in and on the boy was inconsistent with the mechanism of injury proposed by Nielsen, wrote for the Attorney General's Office, adding that a diagnosis is "not a comment on a defendant's guilt or veracity."

Not one of the expert witnesses directly spoke about Nielsen's guilt in the case.

"They only posited their medical diagnosis of what" killed the boy, the prosecution's attorneys wrote.

They argued that the witnesses "made ultimate factual conclusions of medical causation from personal knowledge and firsthand observations having cared for or examined (Caiden).They employ medical analysis and do not explore legal criteria."

What Nielsen is asking the court to do, the state's attorneys wrote, is "to hold that a medical expert may not give his opinion on the cause of death."

The witnesses left the ultimate decision up to the jury, they wrote. "Each of their testimonies was a medical diagnosis properly informing the jury about the meaning and significance of physical evidence."

None of the experts "gave a direct opinion that Nielsen himself inflicted the injuries" on the boy nor did any of them directly comment on his veracity. The prosecution was “tasked with proving a negative," because Nielsen was the only person with a theory on how the boy died, so the expert witnesses had nothing else to compare their diagnoses with..

Because Nielsen was the only surviving witness to the boy's death, "this is the type of case in which there is no evidence except expert medical testimony for the State to present," the Attorney General's Office argued. "If the State is unable to present expert medical testimony in homicide cases where the defendant is the only eyewitness, then the State would rarely, if ever, be able to prosecute these cases."

Nielsen's attorneys also claim the prosecution improperly questioned the defense's expert witness, Dr. Thomas Young, in cross-examination by asking him about two previous trials where his credibility was questioned.