Patrick Kelly

While it is impossible to know exactly what transpired in those early morning hours, the physical and circumstantial evidence presented to the Police Board render it more likely than not that Respondent fired the shot that struck LaPorta. Although LaPorta has undeniably suffered an extremely severe brain injury, the Police Board found credible the amount of detail LaPorta was able to recall during his testimony. And while Respondent’s expert, Dr. Robert Heilbronner, testified that LaPorta’s recollection of the night at issue has resulted from memory confabulation, there is simply no evidence in the record to support that theory. Indeed, there is no evidence before the Police Board indicating that a member of LaPorta’s family—or any other individual in close contact with him—discussed what transpired on the morning of January 12, 2010, with him, or otherwise told him that he was shot by Respondent. As an initial matter, Respondent’s description of the shooting defies common sense. Officer Kelly testified that, in the middle of an otherwise normal conversation, LaPorta entered his bedroom and retrieved his service weapon, which was kept in a nightstand when he was off-duty. It is not credible that LaPorta—who would have no way of knowing where Respondent kept his weapon when he was off-duty (and there was no evidence offered to the contrary)—would abruptly end an otherwise normal conversation in order to retrieve the gun and attempt suicide. Those who responded to the scene after the shooting, including Sergeant Stephen Coyne, testified that Respondent appeared to be highly intoxicated. The Police Board was particularly persuaded by the testimony of the Superintendent’s expert, Dr. Albert Larsen. Using data from the Breathalyzer test that was administered at 12:37 p.m. on January 12, 2010, Dr. Larsen performed a back extrapolation. Given Respondent’s alcohol reading of .093 approximately eight hours after the shooting, Dr. Larsen explained that Respondent’s claim that he drank no more than five light beers over the course of approximately five hours (two at McNally’s, two at Brewbakers, and part of a beer upon returning to his home with LaPorta) could not be accurate. Based on Dr. Larsen’s calculation, Officer Kelly’s blood alcohol concentration at the time of the shooting was between .169 and .246 grams of alcohol per deciliter, a range consistent with consumption of between ten and fourteen beers. All available evidence suggests that LaPorta would not—and could not—shoot himself at an angle consistent with the entry wound on the back, left side of his head (approximately three inches above LaPorta’s left ear). Respondent testified that LaPorta shot himself using his left hand, rather than wrapping his right arm around his head to fire the shot. If, indeed, LaPorta did shoot himself, it would be physically more plausible that he would have used his left hand. However, apart from Respondent’s uncorroborated testimony that LaPorta was ambidextrous, there is no indication in the record that LaPorta would have handled the gun with his left hand. LaPorta’s uncle, David Battistoni, is an experienced gun owner who testified that he has gone hunting with LaPorta hundreds of times since he was a young child. Mr. Battistoni taught LaPorta how to shoot a loaded gun when he was ten or eleven years old; only knowing how to shoot with his right hand himself, Mr. Battistoni taught LaPorta to shoot with his right hand. Mr. Battistoni further testified that, during their many hunting trips, he never saw LaPorta shoot with his left hand. The location and direction of LaPorta’s injury is also inconsistent with a self-inflicted injury—regardless of whether the gun was held in LaPorta’s left or right hand. David Balash, a forensic science consultant and independent firearms examiner, demonstrated how the location and direction of LaPorta’s injury was inconsistent with someone holding the gun in the righthand, contorting their arm around their head, and pulling the trigger with their index finger. Mr. Balash also credibly testified that a left handed shot would not line up with the wound location; even if it had, such a shot would have resulted in a through and through wound with more catastrophic injuries. Finally, Mr. Balash testified that the failure of the cartridge casing to eject from Respondent’s weapon was inconsistent with someone holding the gun in their left hand against their left temple and firing. Dr. Zieweski further testified that the location of scalp and hair fragments on a south window sill and the couch (located against the south wall) were consistent with the conclusion he had reached based on the blood spatter pattern. The testimony of Respondent’s expert, Rick Wyant, that the location of these displaced scalp and hair fragments was consistent with a contact or near contact shot does not cut against Dr. Zieweski’s testimony (which assumes LaPorta was shot from behind at a close range). Therefore, the Police Board concludes that Respondent’s version of events is wholly inconsistent with the physical evidence in his living room.