Steven Nakano was the first lawyer in Santa Clara County to use a Computer Generated Forensic Reconstruction of a shooting based upon the bullet paths from the autopsy report to successfully defend a client charged with MURDER. He proved that his client acted in Self Defense.
I was hired by the family of Shanandoha Garcia, who was charged with a first degree murder. The District Attorney tried the case as a “drive by” shooting in the death of Brian Fatuofafe on Superbowl Sunday 1997. My client had not prior criminal history. In fact, most of his claim to fame at that time was that the played soccer on the U.S. International Soccer Team. He would have played in the 1980 Moscow Olympics, had we not boycotted those Olympics.
Shanandoha had come home and was working in Silicon Valley and “moonlighting” at a bar in downtown San Jose. Shanandoha was invited to a friend’s home on Superbowl Sunday, when the house received a phone call from a person unknown to Shanandoha, who was friends with the persons hosting the Superbowl party. The caller informed the people at the party that he had been jumped by several Samoan Gang Members at the Golden Nugget Pizza Restaurant. He was asking that his friends pick him up. Shanandoha drove his friends to the Golden Nugget to meet the caller. The caller was excited when they arrived and ran around the block to the home of a known Samoan Gang member. He yelled outside the home of the known gang member and challenged to fight “one on one.” Gang Members flooded out of the home and while my client and his friends were yelling to let them fight “one on one,” surrounded my client’s lowered 1980 Ford Thunderbird.
Brian Fatoafafe brandished a roofing hammer and struck Shanandoha on the left side of the cheek, while he sat in the driver’s seat. At the same time, the passenger of his T-Bird was struck in the face with a 40 oz beer bottle. The only person not injured was the person seated in the back seat. The passenger dropped a loaded weapon onto the console when he was struck in the face with the beer bottle. Brian Fatoafafe was 6 foot 3 inches and 305 pounds. He tried to pull Shanandoha out of the driver side window. Fortunately, he was strapped in by his seat belt. The engine was still running. Fataofafe tried to grab the keys from the ignition. Shanandoha grabbed the loaded fire arm from the console and fired the weapon 3 times in rapid succession. Each bullet struck Fatoafafe, who recoiled from the force of the bullet. My client told me the sequence of events.
Fortunately, the autopsy report was consistent with my client’s story as to the sequence of the bullet shots. First, I hired an Expert in Forensic Science to analyze the bullet paths and whether the bullet paths were consistent with my client’s version of the facts. My client said that Fatoafafe had bent over at the waist and reached into the lowered Ford Thunderbird. There was a bullet that struck him just below the armpit of his left side. The bullet path traveled in a 45 degree angle from his left to his right and 10 degrees forward to back. I suspected that this was the first shot. This show would have had caused him to recoil around and begin to drop. The second bullet entered just below his jaw at a downward angle and coming to rest across his neck. The third bullet struck him in his collar bone and deflected up slightly. Dr. Thornton ran several simulations and agreed to this bullet sequence as consistent with the transfer of power of the bullets as each struck the decedent.
Next, I asked Dr. Thornton about presenting a model for the jury to visualize the attack and the subsequent shooting. He showed me several styrofoam models and dowels that he had previously used. They were entirely inadequate. I wanted the model to represent a 6 foot 3 inch, 305 pound assailant looking in through a driver side window. I told him that I wanted a body of an 1980 lowered Ford Thunderbird if we had to bring it into the court. I asked him if he had computer assisted design programs and if he could create a computerized image. Dr. Thornton said he did and said he could create a model within 3 weeks. I agreed. Three weeks later I returned to see what Dr. Thornton had done. What he had done was a limited wire cage image on within a computer simulation. I said that my friend across the hall could have done that in 10 minutes!
So, I scheduled an appointment with QB White, my friend from across the hall. [email protected] (Light Assisted Design). I showed QB a photo of the deceased Brian Fatoafafe lying on the coroner’s table. He measured 6 foot 3 inches in height and 305 lbs. He had a large Polynesian Body with a large extended torso and relatively short sturdy legs and a goatee beard. I asked QB if he could build a wire-cage frame over the body, and then lift the image up and to the left of the photograph. Then, I asked if he could create a lifelike image with skin and clothing and then fade out the image of Fataoafafe on the right. He listened and said, “That will be easy.” Then, I asked him if he could measure the point of entrance of each bullet and trace the bullet path with a brightly colored line along the bullet path exactly as described in the autopsy report. He nodded yes. Then, I asked if he could make the image walk up to a person sitting in an 1980 Ford Thunderbird, make a slashing motion across the face of the driver and then lean in and reach across the driver with his left hand and be shot three times in rapid succession and recoil with each shot as described in the autopsy report.
QB White did all that I asked and more. He obtained a exact image of the 1980 Ford Thunderbird. He went out to the police salvage yard to measure every height and inch of the car, because it had been “lowered” from factory standards. I asked him to make sure that the persons and the vehicle were in exacting proportions to one another. Once he finished the model, I asked him to give me top views, side views and front and back views of our Computerized image of Fatoafafe with the exact language describing the bullet paths from the autopsy report. I asked him to print the images onto large posters mounted onto large foam core. These still images were used in the jury trial to question the coroner and to establish a foundation for the admissibility of each still poster and eventually to lay a foundation for the admission of the video as “Demonstrative Evidence.”
This type of technology had never been attempted before in Santa Clara County. QB White was called as a Computer Expert, working under the direction of Dr. Thornton and on behalf of the defense. The District Attorney cross examined Dr. Thornton and had to cross examine QB White. First, he questioned Mr. White about the scientific accuracy of the computer model. The cross examination and the “re-direct” testimony was done while QB was working from a lap top computer that was attached to a large screen TV, acting as a computer screen. QB was able to de-construct the image from skin and clothed back to wire frame. He was able to mark a point on the top of the model’s head and drop a line down exactly 11 inches down and 2 inches to the right and mark a spot. When asked how accurate that measurement was, QB said that it could be accurate to 1/1000th of an inch. Beyond that, he said, we could not detect the difference unless we magnified the image. When asked about the accuracy of the angles of the bullet paths, he also answered that he could determine this to 1/1000th of a degree. He then demonstrated that once the bullet paths were marked by brightly colored lines, that he could manipulate the image of Fataofafe in 3 dimensional space and the bullet paths remained in exacting relative position.
Once the poster images and the video was marked and admitted into evidence, the jury was allowed to take the evidence into the jury room during jury deliberations. In all fairness, the first jury hung 6 to 6. It was an evenly split jury. I believe that the jury was split because the DA argued that the expert witness, Dr. Thornsen, only did my bidding. He read a letter between myself and Dr. Thornsen to the jury exposing my theory of the shooting early in the process. I believe that the judge should NOT have allowed this as Attorney Work Product and NOT relevant to Dr. Thornsen’s testimony.
A public defender was appointed for the second case. He was urged to settle the case for an 11 year offer from the Court and the District Attorney. In fact, the trial judge for the second trial called me to try to convince the Public Defender and Shanandoha Garcia to plead rather than to risk a life sentence. Instead, I encouraged the public defender to take the case to trial. I asked him, when would you ever be able to use this kind of technical evidence again. Thankfully, he took the case to jury trial a second time. He did NOT call Shanandoha to testify in the second trial. Instead, he asked the court reporter to read his prior testimony into the record, which kept the DA from cross examining Shanandoha a second time. Dr. Thornton testified as did QB White. I was called when the jury had a verdict and ran down to the jury room and heard the jury foreperson read, “We the jury in the aforementioned action find the Defendant, Shanandoha NOT GUILTY of the charge of Murder in the First Degree.”
Below is the link to the video used in the jury trials. Interestingly, in 2004, I attended the Capitol Case Convention in Monterey. I was interested and so attended the Technology and the Law session. In it, the presenter from the Alameda County Public Defenders’ office was asked a question about the possible creation of a digital forensic re-creation of a shooting or stabbing “like we see on forensic crime shows.” The speaker said, “Oh, you will never get anything like that admitted into evidence. I approached the organizers of the Seminar and gave the presentation on “The Creation and Use of Forensic Animation as Demonstrative Evidence in Jury Trial” in the following year.