Professional Witnesses in the Vincent Brothers Trial – Part 6
April 18, 2007

      In the trial of Vincent Brothers, who is accused of murdering his three children and wife and mother-in-law, it is now the defense’s turn to attack, and for this crucial task attorney Michael Gardina has hired at least two distinguished professional witnesses. He will not be paying for their expert testimony, of course. And neither will Vincent Brothers, the once-affluent elementary and middle school vice principal who has been without a job since his arrest three years ago. The people of Kern County are funding both the defense and the prosecution, so no matter what the verdict some taxpayers will be gratified.
      The most urgent defense witness has been Dr. Janice Ophoven, a forensic pathologist who in the last four years has rendered opinions in about 100 cases, 90 for the defense. Her fee in this case is $400 an hour for a $12,000 total. She said she usually does not charge when giving lectures to defense attorneys. That’s logical. Why charge when presenting your credentials to potential clients?
      Last week Ophoven attempted to shatter the prosecution’s timeline, which states the victims were shot after they returned from church and a restaurant Sunday afternoon July 6, 2003. Unreliable witnesses have placed Vincent Brothers in either Bakersfield or Ohio that weekend. If he was in Bakersfield that Sunday afternoon, he could not have stayed much longer and still driven his rental car back to Ohio by the morning of Tuesday July 8, when he has a solid alibi: he and his brother, Melvin, drove that day to North Carolina to visit their mother. The time of death is therefore critical. The pathologist who conducted the autopsies declared the victims died 36-40 hours before their discovery at 7 a.m. Tuesday July 8, or between 3 p.m. and 7 p.m. Sunday. The original pathologist is now dead.
      Dr. Janice Ophoven testified that her late colleague’s findings do not accord with the principals of forensic pathology. Though Ophoven studied the data early in 2006 and concluded the deaths took place 24-36 hours before discovery, she now believes that 24 hours or less is far more likely. In other words, the victims did not die on Sunday. Ophoven said she does not take into account what clothes the victims are wearing. That consideration is for the jury. In forming her opinion, Ophoven thus ignores that two-year old Lyndsey was wearing the same clothes when she died that a video shows she wore at church. It is also irrelevant to Ophoven that four-year old Marques had his Sunday clothes folded on a chair by the bed where he and Lyndsey and their mother, Joanie Harper, and six-week old Marshall were discovered. At the other end of the house, Joanie’s mother, Earnestine Harper, also lay dead in the same Sunday dress she’d worn to church.
      Science is what concerns Dr. Janice Ophoven. Marques and Lyndsey still showed signs of rigor mortis Tuesday morning, and rigor mortis works faster in children than adults, and hot weather – the cooling system in the home was turned off – also speeds rigor mortis. So how could the children have died Sunday, Dr. Ophoven wants to know? She also believes, despite some contrary observations, that Joanie Harper still had rigor mortis.
      Incidentally, in two murder cases Dr. Janice Ophoven was compelled to change her testimony when people she had exonerated confessed to the crimes. The purpose here is not to impugn either Dr. Ophoven’s competence or integrity but to emphasize she was hired because her assessments fit the requirements of the defense.
      This scientific and legal tug of war would not be necessary, of course, if someone could determine where Vincent Brothers was on July 6, 2003. His brother, Melvin, originally stated that Vincent was with him in Ohio most of the time from July 4 to July 7. Police, however, discovered Melvin had lied about another key issue when he stated he hadn’t used Vincent’s credit card on Sunday July 6. A video proved that he had. Okay, Melvin said, I didn’t actually see Vincent during that period, but I knew he was around because his clothes were laid out in the guest bedroom and the shower in his bathroom was wet.
      That leads to the next expert witness for the defense, Richard Leo, a delicate and soft-spoken man who teaches law at the University of San Francisco and was previously a professor of criminology and psychology at UC Irvine. He has been consulted in about 800 cases and testified in 84 trials in 14 states. He specializes in “police interrogation, psychological coercion, and false statements and confessions,” and sometimes lectures police officers and judicial organizations. His consultation fee is $275 an hour; he’s earning $12,000 for this case.
      Richard Leo testified that the police in effect gave Melvin Brothers the “rubber hose” treatment when they told him he could either be a witness or an accessory in a quintuple-murder case. Leo said the police “interrogated” Melvin Brothers and that is “inappropriate” since interrogation should only be used when there is a presumption of guilt. In this case, Leo implied, that would mean presumed guilty of murder, rather than simply lying about the whereabouts of the suspected murderer. Leo explained it is “easier to break down a witness and get a false statement...because witnesses have a lot less to lose. They are not incriminating themselves.” It is “reasonable” to confront a witness with evidence that he lied, but this must be done with “mild pressure.”
      The defense did not have to pay for one of its key witnesses last week. Kempton Coman, the principal of Emerson Middle School where Vincent Brothers had been a vice principal before moving to an elementary school, testified that three or four times a week in the spring of 2003 he saw Brothers playing with Marques and Lyndsey in the front yard of their home, which is across the street from the athletic fields of Emerson. As he supervised after-school activities, Coman noted that Brothers would chase his children and they’d chase him and he’d fall on the ground and they’d jump on him.
      Either Vincent Brothers was a loving father who’s been wrongly accused of a grotesque crime or he’s an uncommonly cold and shrewd killer who wanted to be seen by lots of people on busy P Street, which runs by the side of the house at the corner of 3rd Street.
      While his fate is being determined by a judge, a jury, district attorneys, defense attorneys, investigators, police, firemen, physicians, academicians, former wives and girlfriends, witnesses friendly and hostile, sober and drunk in 2003, while this storm builds around him, Vincent Brothers sits at the defense table. He usually looks composed. When he can’t help it – or perhaps when he wants to – he covers his eyes and cries or plugs his ears so he can’t hear the horror.
      Reasonable people must ask: Vincent Brothers, why don’t you stand up in court and say you didn’t do it? How can you sit there trying to look calm while people call you a killer? Why don’t you take the witness stand? Why don’t you explain why your credit card was in Ohio when you, evidently, were not? Why don’t you explain why your cell phone was in Ohio when you, evidently, were not? And in that regard: a call was made from the telephone at the Harpers’ home on Sunday July 6, 2003 about 4 p.m. The call went to your cell phone in Ohio. That’s quite a coincidence. So, Vincent Brothers, the question is: did you pick up a telephone in a house full of corpses in Bakersfield and call your cell phone in Ohio?
      An innocent man would demand to be heard, wouldn’t he?

To read “Vincent Brothers Takes the Witness Stand – Part 7” from May 3, 2007, please click here.