Panama City, Florida

Case not shut for Shorstein

APPOINTMENT EXTENDED: Special prosecutor in Sybers murder trial turning his attention to investigating two medical examiners' testimony.

Friday, June 22, 2001

MIKE CAZALAS
The News Herald

Harry Shorstein has sought and received a one-year extension of his special-prosecutor appointment on the Dr. William Sybers murder case to investigate two defense witnesses' testimony plus other matters.

He is doing so despite the fact that Sybers was convicted and is serving a life sentence.

Shorstein is targeting two medical examiners who testified for the defense, both of whom said Sybers' wife, Kay, died a natural death.

Drs. Thomas Beaver and Leroy Riddick, who said they stand by their testimony, added that they are incensed over Shorstein's decision to investigate them. They also said Shorstein's tactic may chill medical experts from testifying in other cases.

"At some point it becomes so untruthful (the two doctors' testimony) that it becomes more than a difference in scientific or medical opinion, and that's the point that I am looking at," Shorstein said.

Defense attorney John Daniel, whose firm represented Sybers during the trial, has written the governor to protest the extension of Shorstein's appointment.

Sybers is now represented by an appellate team, which is fighting Shorstein's request that Sybers pay the hundreds of thousands of dollars the state spent investigating and prosecuting him.

"We had a trial. The jury made its decision, and Shorstein got his guilty verdict," Daniel said. "Then he goes after the family's money. Now he's going after defense witnesses. He needs to let it go." 

SURPRISE TESTIMONY

Shorstein was surprised at the two medical examiners concluding at the end of the trial that Kay Sybers' 1991 death was brought on by cardiac arrhythmia triggered by an acute asthma attack and not a lethal injection.

After the March trial, Shorstein scoffed at their testimony.

Daniel, who hired the expert witnesses, said Shorstein is headed down a dangerous path.

"Shorstein is simply sending a message to any expert witness who should ever oppose him in a trial: You either testify the way he wants or you're going to be investigated and you're going to be dead meat," Daniel said. "If Shorstein has his way, no medical examiner in his right mind will ever risk testifying for the defense in any future murder case.

"There will be other cases after this, and no defense witness should ever be intimidated by such actions as Mr. Shorstein proposes."

Both Daniel and Shorstein said they have never in their careers seen a prosecutor pursue expert witnesses after a trial about testimony related to their expertise. 

WITNESSES RESPOND

Beaver, reached at his Daytona Beach office, said he is intimidated by Shorstein's move, but is not changing his opinion that Kay Sybers could have died a natural death. The state has argued that she died of an injection of succinylcholine, a powerful sedative often used in surgeries.

"It is intimidating to have someone with the authority and power of Shorstein to go after you," Beaver said. "This is like the Nazis in Poland.

"I'm not easily intimidated and I have the courage to overcome this, but since the trial with Sybers, I haven't taken any defense cases and I probably won't because I don't need the aggravation."

Riddick, who works as a coroner in Mobile, Ala., said his opinion on the cause of Kay Sybers' death remains firm. He also said he's never been in a situation in which a prosecutor investigated his expert testimony.

"I don't see anything to change it," he said. "In my opinion she was having an asthma attack while taking two drugs that have since been taken off the market for causing cardiac arrhythmia.

"At best, this is just distasteful. I know I will not accept another case in Florida. Why the aggravation?"

Shorstein also was unhappy with other witnesses, some of whom said he threatened them about their testimony. Both former medical examiner's office investigator Bill Johnson and paramedic Dan Harris, although they were state witnesses, testified at the trial that they felt Shorstein threatened them about their testimony.

But Shorstein said he is not looking into their testimony. He said it was compromised at the trial when he introduced earlier statements those witnesses made that he believed conflicted with their testimony.

Daniel said that the fact Shorstein is going after only two witnesses instead of everyone is just another sign that Shorstein is trying to intimidate key witnesses should there be a retrial.

"Look at his attitude toward the defense witnesses," Daniel said. "He's stated he's not going after witnesses that didn't hurt his case, only witnesses that did.

"That shows his intention. He's about as subtle as a chainsaw."

Shorstein was originally appointed to investigate the Sybers case in 1995. Kay Sybers was found dead in her bed in 1991 and was embalmed before an autopsy was performed. It was 10 years before the case went to trial in Pensacola, where it was moved because of pretrial publicity.

The three-week trial was "acrimonious to say the least," according to Daniel's letter to the governor protesting Shorstein's extension.

The state argued that Sybers killed his wife with a lethal injection so he could be with his lover, Judy Ray, to whom he is now married. The defense argued that Kay Sybers died a natural death.

A jury took about four hours to find Sybers guilty. 

"OBLIGATION" TO INVESTIGATE

Daniel also takes exception to Shorstein personally conducting an investigation into witnesses who feel that the prosecutor has threatened or intimidated them. He said there are two sides at every trial and it's the jury's job to decide who to believe.

Theoretically, if someone were acquitted of a charge, that could mean the jurors didn't believe the law-enforcement officers and others who testified.

"Reflecting back on the homicides that I've won where the jury chose not to believe the prosecution witnesses, if I were of Shorstein's ilk I could have made half of the homicide investigators in the 14th Circuit felons," Daniel said.

While Shorstein said that he has never before pursued defense experts in a case, others in the medical field have told him that Beaver's and Riddick's diagnoses were far-fetched. And he said what he is doing is not a personal vendetta or an attempt to intimidate witnesses.

"We have an obligation, if we believe there's a possibility that an obstruction of justice or perjury occurred, to investigate it," Shorstein said. "I wouldn't have any idea, but people told me that it would almost be theoretically impossible to reach a definitive diagnosis of acute, chronic asthma based on a last-minute review of a few slides.

"It is unbelievably critical to the legal profession and to the credibility of the system that we not allow allegations of perjury and obstruction of justice to go uninvestigated. It goes back to very, very simply: If either of those two (witnesses), if believed to any extent, would have had to cause a miscarriage of justice. It would have caused a not guilty verdict."

Beaver also said it's a simple issue: Shorstein was blindsided by testimony he didn't anticipate.

"Basically what happened rarely occurs. We ambushed him," Beaver said. "Occasionally it does occur when the prosecutors are not doing their jobs and when they make mistakes. And (Shorstein) made a big mistake."

The "mistake" was an issue at the trial.

Beaver gave a deposition, which is basically a sworn statement given in the presence of defense attorneys and prosecutors, in which he said he was unable to pinpoint a cause of death for Kay Sybers.

But he pointed out in that deposition that he couldn't make a determination without seeing slides from her heart and lungs. The state had not yet delivered them at the time he was making the deposition.

When Beaver received the slides less than a month before trial, he was stunned.

"Those findings (that he testified to) are there," he said. "There was way too much fat in the (heart). She has a clinical history of allergies and I stand by my testimony.

"If you accuse someone of perjury, you better back it up. He made an oversight and he came in and thought he had a pat case."

As much as Shorstein said he must pursue the allegations to assure that justice is served, Daniel said it's just as important that the matter be dropped.

"In 32 years of criminal defense work, I have never seen a prosecutor do what Mr. Shorstein is doing," he said. "The very independence of the defense bar and defense witnesses and the constitutional rights to a defense is at stake." 

The writer can be contacted at mcazalas@pcnh.com




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