THE PROSECUTION RESTS; HARD TO BELIEVE A JURY WILL CONVICT A KENTUCKY HIGH SCHOOL FOOTBALL COACH OF RECKLESS HOMICIDE

                                Kallas Remarks by Steve Kallas

Many of you know the history of the prosecution of Kentucky high school football coach Jason Stinson, indicted for reckless homicide and wanton endangerment in the death of one of his players, Max Gilpin (see Kallas Remarks, 2/1/09).  On Monday evening, the prosecution rested its case against Mr. Stinson and the defense, after its motion to dismiss the case was (not surprisingly) denied, will present its case in the next few days.  Some believe that the jury will get the case by Friday.

 Given the prosecution’s case, and some evidence derived from the defense lawyers’ cross-examination of the prosecution’s witnesses, it’s hard to believe that a Louisville, Kentucky jury will find this well-liked, former University of Louisville football star guilty of either reckless homicide or wanton endangerment.  The evidence discussed below comes from this writer watching the actual trial and/or from articles in the Louisville Courier-Journal, which has covered this case extensively from the beginning.

While, obviously, not all of the evidence is discussed below, there seems to be enough conflicting evidence to raise serious questions as to whether the prosecution can prove its case “beyond a reasonable doubt.”

THE PROSECUTION’S EXPERT WITNESS

The prosecution called Doug Casa, the director of athletic-training education at the University of Connecticut, who is a nationally-recognized expert on heat-related illnesses.  Casa, not a medical doctor, testified very aggressively on behalf of the prosecution.  He said that saving Max Gilpin’s life, after he collapsed on the practice field on August 20, 2008, was “guaranteed” if Gilpin had been immediately taken to the school’s locker room and put in an iced whirlpool.  Casa said that “[n]o kid should ever die from heat stroke” and, if immersed in the whirlpool with ice, “[o]bviously, this would have been life-saving.”

But this kind of testimony might cut both ways with the jury.  Defense attorneys elicited some interesting information on cross-examination of Casa.  For example, it was brought out through this witness that the defendant was not one of the people who was treating Max Gilpin on the field (indeed, later in the trial, when the prosecution played an audio tape of Coach Stinson’s police interview, Coach Stinson said that, the last time he saw Max Gilpin after running “gassers” (and before he collapsed), Gilpin was walking off the field under his own power.  Stinson stated he never saw Gilpin either in distress or when he collapsed).

The prosecution’s expert also admitted on cross that Kentucky high school coaches are not taught that athletes suffering from possible heat stroke should be immersed in ice water.  To make matters worse for the prosecution, Casa admitted that coaches in Kentucky receive approximately 10 minutes (yes, minutes) of training on heat illnesses every two (yes, two) years.  Finally, the prosecution’s expert admitted that the jury could not expect a coach to know as much as an athletic trainer, which Pleasure Ridge Park High School did not have at the time of the player’s collapse on the field.

If anything, this seems to be more of an indictment of the reaction to what happened after Max Gilpin’s collapse and to the fact that the high school did not have a trained, athletic trainer on the grounds.  The defendant had nothing to do with any of this.

OTHER CONFLICTING TESTIMONY

On the issue of whether or not Max Gilpin was dehydrated (part of the main allegations against Coach Stinson was that he denied the players water), there is much conflicting testimony.  For example, two doctors, who were at the emergency room when Max was taken to the hospital, testified to, among other things, whether Max was dehydrated when he came to the emergency room.  Dr. Leslie Greenwell, a pediatric emergency physician who was the first doctor to treat Max, testified that he was probably hydrated while Dr. Katherine Potter, a pediatric intensive care doctor who treated Max later that night, testified that he was a victim of heat stroke and dehydration.

Max Gilpin’s father also testified as part of the prosecution’s case.  Unfortunately for the prosecution, Jeff Gilpin told the media in Louisville, shortly after the incident, that the coaches who were at the practice when his son collapsed had not done anything wrong and tried as best they could to help his son.  Over time, his beliefs changed and he would wind up joining a civil suit that his ex-wife, Max’s mother, had filed against, among others, the coaches, including Coach Stinson (that suit is pending).

Various players have testified that the practice was a brutal one, where kids were running “gassers” and were deprived of water.  However, there is other testimony that the practice was a hard one, not brutal, that kids were given water breaks and that kids could walk or jog at their own pace during the “gassers” (or, in at least one case, stop if they weren’t feeling well).  Indeed, the prosecution’s expert, Mr. Casa, said that, while 8-10 of the players showed signs of heat illness (including one prior collapse), such as nausea or vomiting, he did not recall Max Gilpin being one of them before his collapse.

Jefferson County Deputy Coroner Sam Weakley also testified during the prosecution’s case.  But his initial testimony was that, after reviewing medical records and talking to the Gilpin family, he deemed Max Gilpin’s death a “horrible accident.”  He interestingly testified that he will now wait for the outcome of the trial to see if he will change his opinion on the reason for Max’s death in his coroner’s report.

WHAT’S THE POINT OF ALL OF THIS TESTIMONY?

Well, the point, in theory, is to prove Coach Stinson’s guilt “beyond a reasonable doubt.”  But, in this writer’s opinion, there seems to be a lot of reasonable doubt to go around.  While this coach seems to be more “old school,” you know, the hard-driving former college star who works his team hard, it’s a far cry (in this writer’s opinion), given the evidence, to prove him guilty beyond a reasonable doubt of reckless homicide, especially since, if a trainer or a better-trained coach (that is, better-trained by school or state standards) had been there, Max Gilpin’s life would have been saved, according to the prosecution’s expert.

WHAT ABOUT THE WANTON ENDANGERMENT CHARGE?

A felony in its own right, it would seem to be almost impossible to convict this coach of this charge.  The Courier-Journal interviewed a number of legal experts prior to the start of the actual trial.  One was Robert Lawson, a professor at the University of Kentucky College of Law.  Professor Lawson told the Courier-Journal that the wanton endangerment charge requires proof that the defendant knew of the risks to Max Gilpin’s health and that he consciously disregarded them.  He told the Courier-Journal that “[t]hey [the prosecution] must prove he saw the risk and said, ‘to hell with it, I’m going to do it anyway.’”

This is important on two levels.  First, this coach, in his audio tape, testified to police that one of his players, who had asthma, slowed down during the “gassers” and told the coach he couldn’t run anymore.  The coach asked him if he had his inhaler.  After the player said no, he told the player to stop running.  The point being that, along with testimony that kids ran the “gassers” at their own speed, some even walking, this does not seem to be the kind of coach who saw a risk and ignored it.  If anything, this is the exact opposite.

Additionally, there is at least some evidence that Max Gilpin was taking creatine, at least in the spring of 2008 (something Coach Stinson said he never knew about until after the fact).  Of course, it’s a disputed issue as to when he stopped taking the creatine and what, if anything, it did to Max Gilpin’s health.

Second, according to the Courier-Journal, Professor Lawson is the main author on Kentucky’s laws on crime and punishment and, presumably (although not dispositively) would have the best understanding of the law as written.

THE DEFENSE STILL HAS TO PRESENT THEIR CASE

According to defense counsel, they had not decided (as of early Monday), whether or not Coach Stinson will take the stand.  Of course, he’s already “testified” as the prosecution played an audio tape of his police interview.  During this interview, Coach Stinson comes across as calm but upset that he had, in his words, lost “one of my boys.”  He went over, in great detail, what had happened that day (8/20/08), but while he was in charge of the “gassers,’ he simply didn’t see Max collapse, saw Max walking at the conclusion of the gassers with no signs of distress and was not involved in his post-collapse care.

The defense will apparently introduce as evidence a deposition of Dr. William Smock, a doctor who has worked closely in the past with the local police on various matters.  A professor of emergency medicine at the University of Louisville, Dr. Smock reportedly will testify via deposition (if admitted) that he believes that Max Gilpin’s death was a tragic accident and not a homicide.

One would think that this testimony will give jurors further reason to find reasonable doubt in the case against Coach Stinson.

WHERE DO WE GO FROM HERE?

For the defendant, he will have to wait for the jury’s verdict, probably some time next week.  If he is convicted, there will certainly be an appeal.  He’ll lose his civil suit, if convicted, because of the different standards of proof (beyond a reasonable doubt in the criminal trial v. preponderance of the evidence in the civil one).

It says here that a conviction is unlikely, although one never really knows what a jury will do with any given case.

But there’s a much bigger picture here.  After speaking with a number of coaches in the New York area, many, while already taking great precautions with respect to hydration and water breaks, etc. (both this trial and the death of former Minnesota Viking player Korey Stringer were cited by some coaches), are watching the outcome of this trial.  Most believe that this was a hard-driving but well-meaning coach who in no way wanted to hurt (let alone kill) a sophomore in high school. 

It says here that this is really the clash of the old versus the new, with the defendant somewhere in-between.  As recently as the 1970s, kids were routinely not allowed to drink water during practices (think about that).  In fact, it was a major sign of weakness if you even wanted water during practice.  Obviously, cooler and more intelligent heads have prevailed over the last 25 years or so and most coaches go out of their way to make sure that their players are well-hydrated. 

In addition, the bigger picture here may have to do with training and trainers.  It’s stunning to find out that a number of states, including Kentucky, do not require to have at the school a trained, certified athletic trainer.  Before anyone discusses the economics of this, remember that at least one expert firmly states that knowledge of how to treat this would easily have saved Max Gilpin’s life.  Here’s hoping that all states will require a trainer to be on hand at the school to protect these kids.  If the economics are too brutal, at a minimum, all coaches should be required to be better-trained in recognizing, and implementing procedures to deal with, dehydration and heat stroke. 

After all, the life you save may be that of “one of your boys.”          

© Copyright 2009 by Steve Kallas.  All rights reserved.

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