The state’s chief medical examiner will give a deposition under oath about an autopsy report that derailed a murder trial earlier this year.

Dr. Mark Flomenbaum was a key witness in the February trial of Noah Gaston, who is charged with murder in the shooting death of his wife in Windham three years ago. But on the morning of his scheduled testimony, Flomenbaum changed the wording of his opinion about the angle of the fatal wound, a critical detail that could determine the distance between the shooter and the victim.

The unusual series of events baffled legal experts and prolonged a case that had already gone on for more than three years. Superior Court Justice Michaela Murphy paused the trial on the second day of testimony and ultimately declared a mistrial. She also granted the defense request for a deposition during a Tuesday hearing at the Cumberland County Courthouse.

“I’m not convinced there was any trickery or any dishonesty or any hiding the ball on anybody’s part, but I’m not going to let this happen again,” Murphy said. “It is fair to both sides, I think, to know exactly what the opinion is now (about the angle of the wound) and whether it is in fact a change.”

Noah Gaston

Alicia Gaston, 34, died from a single shot from a shotgun in the stairwell of the family’s Windham home on Jan. 14, 2016. Her husband has said he thought she was an intruder when he fired the gun, but prosecutors have argued that he intended to kill her. Gaston, 37, is charged with murder and manslaughter. He has been held without bail at the Cumberland County Jail since he was arrested soon after the shooting, and he will remain in custody.

Flomenbaum conducted the original autopsy on Alicia Gaston. In his first report, he described the general direction of the shotgun wound as “very slightly downward.” But when he arrived at the courthouse for the trial, Assistant Attorney General Meg Elam showed him a photograph of the wound that would be used during his testimony, and he told her the direction of the wound might be as much as 45 degrees. Elam immediately told the defense team and the judge, who stopped the trial.

Alicia Gaston Press Herald file photo

The judge ordered Flomenbaum to file an amended autopsy report, but that document is not part of the public court file. The defense filed a motion for the deposition in May, and the state opposed it. In those motions, the defense said that supplemental report failed to explain what happened, while the state said it clarified the issue.

“Dr. Flomenbaum has clarified that 45 degrees is within the wording of his report, but that the description of ‘very slightly downward’ should not contain the word ‘very,'” the state’s motion says.

The specific angle is not mentioned in the text of the original autopsy report, which has been entered into the public court record, but the description of the shotgun wound does contain other measurements.

Assistant Attorney General Paul Rucha told the judge Tuesday that the defense attorneys are welcome to speak with Flomenbaum about his opinion. But he also said the chief medical examiner will be available to testify at trial, which means a deposition would be unnecessary and not required by law. He wrote in his own motion that a deposition would set “a dangerous and inappropriate precedent.”

“We just envision that’s not a place the court should go,” Rucha wrote in his motion.

Defense attorney Rob Andrews said he wants to question Flomenbaum under oath.

“Dr. Flomenbaum has demonstrated that his position can be somewhat fickle,” Andrews said. “Although he has minimized it in his updated report, he clearly made a change. And he did it at the last possible moment at a time that was inopportune for almost everyone involved.”

Justice Murphy said she is not sure if the chief medical examiner’s opinion truly changed, or if the attorneys misunderstood his report. But she said that question needs to be answered before the court sits another jury.

“I’m not pointing fingers at anyone, but to describe what happened as inopportune is sort of the understatement of my last few years of work as a judge,” Murphy said. “It should not have happened this way. It did happen this way. It is not going to happen this way again.”

Murphy said the deposition does not need to take place in open court, and it is unclear whether a transcript would ever become public.

A new trial is scheduled for November.

Comments are disabled on some stories about sensitive topics.

filed under: