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Scales of justice

GILLETTE — Prosecuting attorneys in the case against a Gillette man serving life in prison for first-degree murder made no errors in their questioning of their own expert witnesses as well as a defense expert witness, the state Attorney General’s Office is arguing.

In September, 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.

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 saying 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 said he did. Nielsen claimed 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 truthfulness. 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 to.

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.

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In one case, the court wrote that it “did not find him worthy of belief” and another stated that Young “used junk science.” The jury was not given context for these quotes, which Nielsen’s attorney claims led jurors to question Young’s credibility.

The state’s attorneys wrote that the questions were asked to demonstrate Young’s “credibility, bias and character for truthfulness.” Young said he was not biased “despite being a retained expert,” but then he testified there was “no other way this accident could have occurred except how Nielsen said it happened.”

The state Supreme Court has approved application of investigation into collateral matters when cross-examining an expert witness if it relates to their truthfulness.

In past trials, Young had been criticized for “being so adamant about his position that he was determined to deny that there was any possible way something could have happened in a different manner.”

So when he followed this same line of testimony in Nielsen’s case and asserted there was no way the boy’s injuries could have happened except how Nielsen said they did, “it was fair fodder in cross-examination for the State to bring up the previous time that Dr. Young had followed this same path.”

Prosecutors did not offer extrinsic evidence to contradict Young’s answers, the state’s attorneys wrote. Instead, they questioned him to reveal his “motivation for testifying and any bias which may have tinged his testimony.”

Even if the prosecution had violated a rule in its questioning of Young, Nielsen can’t show that the outcome of his trial would have been more favorable without the “allegedly offending testimony,” the state wrote.

“The jury would have had copious additional fodder to analyze Dr. Young’s bias and credibility and to determine how much weight to afford his testimony. With all that in front of them, the jurors could draw on their common sense to determine what they believed caused the boy’s death.”

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