Westchester County prosecutors rested their case Wednesday in Douglas Kennedy's trial in Mount Kisco, with one of the involved Northern Westchester Hospital nurses and a security guard giving testimony.
The defense, meanwhile, is expected Thursday to call in hospital ER head Dr. Timothy Haydock, who was present with Kennedy at the time of alleged altercations with two nurses, at its witness.
Kennedy is charged with child endangerment in connection with his moving of newborn son, Bo, outside the maternity ward to get him fresh air and against medical advice, along with harassment for alleged physical contact with the nurses after a verbal dispute about moving the baby.
On Wednesday, the trial's third day, nurse Cari Luciano continued her testimony, which began Tuesday. She was questioned repeatedly by Kennedy's defense attorney about her credibility.
Luciano has accused Kennedy of kicking her with his foot when she reached out for his newborn son Bo at a stairwell entrance. Kennedy's defense acknowledges that a physical incident took place but argues that Kennedy quickly reacted on instinct to protect his child rather than doing so on purpose. Defense lawyer Robert Gottlieb visited that argument Wednesday when he questioned Luciano about it, bringing up the elapsed time of the incident and getting Luciano to acknowledge that she did not verbally tell Kennedy of her intent to get the baby.
Gottlieb, who has made credibility a central issue in the trial, spent Wednesday questioning Luciano about what he perceived to be inconsistencies between her testimony and comments she was recorded as having made to police and during a Jan. 11 check up with internist Dr. Jenny So.
Gottlieb got Luciano to recap why she attempted to get the baby; the nurse testified that she saw the infant's head shaking when the stairwell door was opened during Kennedy's attempt to leave the third-floor maternity ward.
“[It was] to protect the child,” Luciano, who sobbed during testimony, replied.
"The baby's head looked to be shaking," she said. Luciano has also described Bo's head as "violently shaking."
Gottlieb responded by noting that Luciano did not have consistent descriptions in a statement she made to Mount Kisco police hours after the Jan. 7 incident. Nor was it included in a record of a Jan. 11 appointment that Luciano had with So.
“I don't recall what I said to the doctor,” Luciano replied when Gottlieb brought up the point.
Gottlieb used the same omissions scrutiny tactic with regards to comments made about Kennedy's speed to the stairwell after Luciano and fellow involved nurse Anna Lane blocked him from using the elevator, and about Luciano's memory of Kennedy's alleged arm twisting of Lane to stop her from keeping the door closed.
For Luciano, recalling what she said exactly before was difficult. When asked to explaining why she described Kennedy as running in her visit with So, versus walk in a recent comment, she replied: “I don't [remember my words], I was emotional with my doctor.”
Amy Puerto, an assistant district attorney, questioned the reliability of the record for Luciano's talk with So. She got Luciano to admit that she did not request the doctor writing or typing what was described.
The prosecution also objected to the omissions focus, while Gottlieb argued that it's relevant when looking at a witness's narrative. Mount Kisco Village Justice John Donohue allowed Gottlieb to continue.
Gottlieb also got Luciano to admit that she was reprimanded by NWH, in the form of a letter placed into her personnel file, for unauthorized access of Bo's contact record in the hospital's system, which is deemed to be private information.
“Yes, I violated HIPPA,” Luciano said, referencing an acronym for the Health Insurance Portability and Accountability Act, a federal law that governs privacy of patients.
Luciano explained that she wanted to look up the information because she was told, when asked about police taking action against Kennedy, about his not living in the jurisdiction.
“I wanted clarification,” she said.
Luciano denied that she shared the hospital's in-house record with others, noting that the address information of Kennedy, who lives in Chappaqua, is already a public record. The prosecution countered that what Luciano did does not constitute a criminal offense under HIPPA, but rather a minor infringement on privacy. Assistant District Attorney Amy Puerto asked Luciano about whether she was charged with a federal crime as a result, to which she replied no.
There was a brief clash between Gottlieb and Puerto over his questioning of Luciano over whether she was aware of a state child protective services investigation into his conduct with Bo. Puerto argued that, given the report on the investigation, which cleared Kennedy, is sealed, that it cannot be selectively disclosed.
"They don't get to pick and choose," Puerto said to Donohue.
Gottlieb, who raised future voluntary disclosure of the report as a possibility, explained that all he wanted to ask was whether Luciano was interviewed by the state agency. Donohue went with Gottlieb's argument, and the attorney quickly questioned Luciano about her knowledge. She replied that she knew of the investigation but that she did not speak to the agence.
Kevin Galvin, an NWH security guard who went up the stairwell to respond to the incident, was called after Luciano left.
Galvin, a former corrections worker on Riker's Island in New York City's, testified that he went up the stairwell after be learning about a Code Purple alert, which deals with agitated people on the premises. After slowing down when he got towards the third floor – Galvin said he “didn't want to spook anybody” - the security guard said he saw Kennedy holding the baby in his left arm, with Haydock to his right. Galvin testified that Kennedy said “I want to take my baby out for fresh air.”
Galvin added that Haydock then advised Kennedy to go back to the maternity ward, which brought an end to the commotion.
The security guard also gave testimony that, while not necessarily part of the legal case, may be a public relations plus for Kennedy. He described Kennedy's question of “do you know who I am?” which the prosecution noted in his opening statement, as being asked politely. When defense attorney Celia Gordon cross examined Galvin, he recalled Kennedy having a calm demeanor, an attribute that the defense has sought to emphasize in its case.
The third day of the trial lasted just under two hours on Wednesday, including breaks, a contrast to the nearly 8-hour durations for Monday and Tuesday.
Talking to reporters afterward, Gottlieb confirmed that Haydock will be called by the defense, and that, as a procedural move, they will ask to dismiss the case. Gottlieb declined to comment when asked whether Kennedy or his wife, Molly, would be called as witnesses.