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Another motion filed in Cruz case

Vanesa Cruz

Public defenders and representatives for the Commonwealth's Attorney's Office met yet again Sept. 24 to hear what attorneys hope is the final motion before the second trial for a woman accused of killing her child.

Vanesa Patricio Cruz, 31, is charged with killing her 20-month old daughter, Jocelin Gutierrez, in 2005 by hitting her over the head with a remote control. The case ran cold until 2012, when it was reopened by detectives, who gathered a sobbing confession from Cruz during questioning. An entire trial was heard by a jury in the case in May, but a bailiff error during deliberation forced Judge Burke McCahill to declare a mistrial.

The motion heard Sept. 24 was filed by public defenders Kelly King and Daniel Griffith and involved the use of expert witnesses at trial.

The defense sought funds of $9,000 to be allocated to their expert witnesses. In addition to pathologist Jack Daniel, who was an expert witness in the first trial, the defense hoped to find a neuropathologist to add as an expert witness.

“The Commonwealth proved during cross examination that an expert in neuropathology would be necessary,” King stated.

But the commonwealth's prosecutors, who used forensic pathologist and neuropathologist Bennett Omalu as their expert witness and also brought as a witness Assistant Chief Medical Examiner Constance DiAngelo, argued the defense was simply trying to match the number of witnesses.

“It's an attempt that, 'they have two experts, so we need two experts,'” Chief Deputy Commonwealth's Attorney Nicole Wittmann said. “I'm not even sure how it's just now coming to their attention that a neuropathologist would be better equipped as an expert.”

The defense fired back, stating they needed to keep Daniel as an expert because he offered other testimony that was useful.

“He talked about issues beyond the brain, like hyponatremia, other issues in the body,” King said. “We do believe he is a foundational witness.”

McCahill disagreed.

The judge was willing to allocate part of the money requested, giving the defense $4,000 to bring in their own neuropathologist expert. But McCahill said the defense did not need to bring in two expert witnesses.

“We have a bit of a different posture in this case because we have heard a full trial. We are, in essence, reacting to it,” McCahill said. “There ultimately is a need for a neuropathologist.”

But Daniel, who is just a pathologist, would not be funded to attend the trial.

“I don't see, at this point, a need for Dr. Daniel,” McCahill continued. “Not that he is prevented from coming here if he wants to.”

McCahill reasoned that if a witness was an expert in neuropathology, he or she would have a substantial enough background in pathology to offer the same testimony provided by Daniel.

The $4,000 budget for the defense is comparable to what is allocated the commonwealth for consultation with the $750 an hour Omalu; because of her role at the medical examiner's office, DiAngelo is not compensated for her testimony.

Cruz's second trial is scheduled to begin Dec. 16 at the Loudoun County Courthouse.


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