District Attorney John Mann successfully attempted to solicit purely speculative incriminating testimony at trial from Dr. Elizabeth Peacock (State’s pathologist). In doing so, Mann was attempting to introduce witness “evidence” based on assumption, not proven fact. Presiding judge, Judge Sims overruled a defense objection to this prosecution tactic. Steven C. Losch, Attorney at Law introduces the story in his First Application Writ of Habeas Corpus:

“Reed did not see any injuries on his [Hank’s] body, but he had a profusely bleeding cut in the palm of his right hand. [Andrea Reed is the neighbor to whose house Hank stumbled in an attempt to escape the attackers after partially regaining consciousness]. Reed agreed to suture the wound. The State’s pathologist, Dr. Elizabeth Peacock, believed that the cut could have been a defensive wound or an injury that Mr. Skinner accidentally inflicted when he stabbed someone else.”

The actual testimony at trial follows:

John Mann (prosecution): Do you have an opinion, Doctor, based on reasonable medical probability as to whether or not a person using an instrument such as State’s [exhibit] 53-A [a knife] inflicting a stab wound such as the one over the shoulder blade might be consistent with that person receiving a cut wound to the palmar portion of the hand when that blade hit the shoulder, the knife blade hit the shoulder blade?
Harold Comer (defense): Objection, your honor, conjecture and speculation.
Judge Sims: Overruled.
Dr. Peacock (state’s witness): Certainly could have.
John Mann: I’m sorry?
Dr. Peacock (state’s witness): It could have.

In the above testimony, Dr. Peacock’s response is clearly based on medical incertitude and assumption. Mann made no attempt to explain to the jury that such assumption should not be viewed as actual fact. Clearly, there are many ways that Hank could have picked up that new wound to his palm as he stumbled to escape a building in which a horrific, violent attack had only just recently occurred. In the barely conscious state he was in, he could have put his hands anywhere, on any amount of sharp debris. However, to the jury members listening to Dr. Peacock’s testimony, there must have appeared only one highly incriminatory explanation. Of the above testimony, Dr. Glenn Larkin, forensic pathologist states:

“‘Could have’ is not reasonable medical certainty, as used to be required by Texas in criminal cases. If this has not changed, prosecutor was derelict in using those magic words, and defense ineffective in not picking it up (the errors add up).”