Defense’s medical examiner says Phelan suicide possible

By Patrick Markey

A Texas medical examiner testifying for the defense in the murder trial of police officer Richard Molloy claimed this week that Hessy Phelan could have killed himself using Molloy’s handgun if he had held the weapon with two hands and he pulled the trigger with his thumb.

Dr. Vincent Di Maio’s testimony Monday came as Molloy’s trial on second degree murder charges entered into its fourth week. Molloy, a veteran New York police officer, is accused of fatally shooting Phelan inside a Bronx apartment three years ago. Phelan, a 39-year-old Derry native, immigrated to the U.S. 10 years before his death after having spent a decade in the Maze prison for terrorist-related offenses.

Molloy has previously testified that the Irishman snatched his service revolver from the holster Molloy was wearing and shot himself in the head in an apparent suicide. But the prosecution team charges that Molloy, who allegedly has a history of drunken gunplay, rammed his gun into Phelan’s face before pulling the trigger.

Courtroom tensions rose last week as Justice Steven Barrett interceded several times between Molloy’s defense attorney, George Vallario, and prosecutor Brian Sullivan, who have continually sniped at each other over legal objections.

In presenting Di Maio’s testimony, Vallario laid out a counter argument to the evidence given by New York City medical examiner Dr. Heda Jindrak, who had performed the autopsy on Phelan’s body in January 1996 and declared the incident a homicide six months later.

But in reexamination, the prosecution team took Dr. Maio to task, assessing each document he had used to conclude the shooting was a suicide, and questioned whether the defense witness had sufficient evidence to draw such a conclusion. That reexamination continued as the Irish Echo went to press on Tuesday.

Taking the stand on Monday morning, Di Maio testified that although Phelan was drunk the night he died, he could have maintained sufficient control to undo Molloy’s holster and shot himself in the left eye socket.

"This is a suicide, this is a self-inflicted gunshot wound," the doctor testified.

A medical examiner from Bexer County, Di Maio demonstrated with Molloy’s handgun how he said it would have been possible for a right-handed person to fire the weapon into the left side of their head.

Holding the barrel with his left hand and the handle with his right, the doctor was able to pull the trigger using his right thumb. Di Maio, who was paid a flat rate fee of $2,000 for his court appearance, also demonstrated the reverse grip on the .38-caliber revolver.

"The contact nature of the wound and the trajectory are consistent with suicide if the gun is held like I demonstrated," he said.

Di Maio also contested Dr. Jindrak’s assertion that the incident was unusual enough to warrant inclusion in a forensic journal. Di Maio called the shooting uncommon and only slightly unusual. Asked if it would have been worth an article, the doctor replied: "It’s worth about three words — in the eye."

If Phelan was a heavy drinker, even with a high level of alcohol in his blood stream, he would have been functional enough to remove the gun from Molloy’s holster, Di Maio stated.

For the prosecution, Dr. Di Maio proved an elusive witness, asking ADA Sullivan to redefine his questions and clarifying his points before answering.

Listing the documents that the defense had provided to Di Maio, the prosecution tried to illustrate that the Texas doctor had not been given a complete picture of the events leading up to Phelan’s death.

Di Maio said in reaching his decision he had reviewed documents ranging from the 911 calls and the autopsy report to police interviews with witnesses. Some had been included in his decision, others had not. Asked whether he had seen the grand jury testimony of Cormac Lee, the only other person in the apartment when Phelan died, Di Maio said he had not.

Nor had he seen the statements of Norma Jean Hynes, who testified that Molloy had approached her a week after the shooting incident in the bar where she worked. She said Molloy had asked her not to say anything about his visit to her bar the night of the shooting.

"I would not have put any weight on that," Di Maio said, adding that he placed greater importance on immediate statements to the police.

Asked whether as a doctor he considered strange Molloy’s statement about Phelan’s hands remaining up like he was drinking a "carton of milk" until EMS workers arrived, Di Maio said he had interpreted the situation differently. Phelan’s hands could have been up on his chest after the shooting, Di Maio said, and there was nothing significant in that.

"I didn’t read anything into it," he said.

Questioned on whether he kept notes while reviewing the case, Di Maio said he had not: "In a simple case like this you don’t really need any notes," he said.

But prosecutors asked whether it was possible, as Molloy had testified, that after the gun went off, the officer slapped the gun from the air, watched the blood ooze from Phelan’s wound, put the gun down and then picked it up again.

"Are you saying he could have done all that in 3 to 5 seconds?" Sullivan asked.

Di Maio replied no.

"Do you know in whose hand the gun was in?" the prosecution asked.

"I have no personal knowledge," Di Maio replied.

Cop’s testimony

Earlier in the week, the defense called to the stand Deputy Inspector Kenneth McGrath, who had been a captain and duty officer the night of the shooting. McGrath testified that he believed Molloy was fit for duty when he arrived at the apartment.

After talking to Molloy for a few minutes outside the apartment, McGrath said he had not noticed alcohol on Molloy’s breath. But, he testified, he believed Cormac Lee was intoxicated that night.

McGrath had also recommended that departmental charges be preferred against Molloy for failing to safeguard his service weapon properly, he said.

But the deputy inspector came under a grueling two-day reexamination by the prosecution, who questioned McGrath on police procedure for securing the crime scene and on his command of the incident as the duty captain that night.

Prosecutors asked McGrath about a handwritten note that they said he had made at 3 a.m. — approximately two hours after the shooting — which remarks on an observation by two Crime Scene Unit investigators about whether Phelan’s wound was self-inflicted.

McGrath said he believed that the incident had been a suicide based on powder burn evidence. But the prosecution contested how the inspector would have knowledge of that evidence.

ADA Sullivan also questioned whether McGrath, who was in command of the investigation until around 10 a.m., had kept a record of his conversation with Molloy and another officer outside the apartment shortly after the incident. McGrath said he could not find such a record in his notes.

The trial continues with defense witnesses through this week and McGrath will continue to testify on Friday.