Constable Paul Koester must have been standing behind Ian Bush when he shot him, despite what the officer has said, based on the physical evidence, a blood-spatter analyst testified yesterday at the coroner's inquest into the B.C. mill worker's death.
"I say that it did not occur consistent with Constable Koester's version of him having Mr. Bush on his [the officer's]back, choking him [Constable Koester] and being able to reach up and discharge his firearm," Joe Slemko told the five-person jury.
Mr. Slemko is an Edmonton police officer, but he was not testifying in that capacity, rather as a specialist in blood-stain analysis.
In May, Constable Koester testified that after arresting Mr. Bush on Oct. 29, 2005, outside a hockey arena, the two men had a fight in the interrogation room that led to Mr. Bush choking him from behind. Constable Koester said that, fearing for his life, he reached behind him with his right hand and shot Mr. Bush in the back of the head.
Mr. Slemko said that could not have happened based on the blood found in the room.
Next to Mr. Slemko at the front of the courtroom was an enlarged photograph of Mr. Bush dead, face down on an orange couch with blood pooling under him. The cushions on the backrest had been thrown off, leaving bare three wooden slats.
Mr. Slemko had placed a yellow bubble just below the top couch slat to show approximately where Mr. Bush's head would have been to be consistent with Constable Koester's testimony. There are blood stains on the wall behind the couch, as well as on the lowest rung of the exposed back rest.
"It is physically impossible to create these blood stains had Constable Koester been underneath him," Mr. Slemko said.
Furthermore, he said, there was no blood transfer stain evidence to indicate Mr. Bush's body had been moved laterally, which would have been necessary for Constable Koester to escape from under him.
"From the school of common sense, as well, his body positioning is a very natural position. If Constable Koester had had to move from under him, there would have been some force necessary," Mr. Slemko said.
Constable Koester testified in May that he does not remember how he got out from underneath Mr. Bush.
Under crossexamination from RCMP lawyer David Butcher, who earlier in the day unsuccessfully tried to have Mr. Slemko disqualified as an expert, Mr. Slemko did caution the jury that the diagram he created to show approximately where Mr. Bush's head would have been according to Constable Koester's testimony was not necessarily scientific or accurate.
However, even as he remained in the witness box late into the afternoon, Mr. Slemko did not waver from his assessment that Mr. Bush could not have been behind and on top of Constable Koester.
Mr. Butcher pointed out several issues with the blood evidence from the scene, such as the rough-hewn nature of the wallpaper the blood spatter was on, which would cause the stains to be imperfect. Mr. Slemko said he had taken that factor into account when reviewing the photos of the crime scene, which lawyer Howard Rubin, acting for the Bush family, had provided to him.
Mr. Butcher also suggested that Constable Koester could have been underneath and to the left of Mr. Bush, which could have possibly allowed for Mr. Bush's head to be at the height Mr. Slemko indicated as most likely, yet still be on top.
"He can't be to the right of him, because then Constable Koester would not have been able to get his firearm out," Mr. Slemko replied, adding that he had gone through all the possible positions in which Mr. Bush's head could have been located in terms of height.
Mr. Butcher's crossexamination was lengthy and Mr. Slemko occasionally appeared irritated at the combative nature of the exchange. However, the blood-spatter analyst repeatedly attributed the indeterminate nature of his conclusions to the lack of evidence available to him because of the way the scene was investigated.
"It should have been properly analyzed and documented so we wouldn't have to be doing this right now," Mr. Slemko told the RCMP lawyer. He suggested possible methods would have been drawing strings from the splatter marks to determine the point of impact from the gun, or possibly running the data through a computer program.
After eight hours in the witness box, Mr. Slemko said outside the courtroom that giving evidence contradicting another police officer is the hardest thing he has ever done.
"It's about the truth and it's about doing the right thing. I've lost a lot of sleep, this has caused a lot of stress for me, but ultimately you have to do the right thing, and that is what this is all about." "I think that he expressed his opinion very well," said Linda Bush, Mr. Bush's mother. "I'm hopeful that the jury will have good recommendations." Mr. Slemko was the last witness scheduled to testify. The jury is expected to come out with its recommendations today.