Injury to Erik’s throat

In 1977, seven-year-old Erik Menendez was taken to the Princeton Medical Center emergency room regarding an injury to his throat. Read or watch the testimony and form your own opinion about what caused this injury.

FIRST TRIAL

Direct examination of Dr. Ann Burgess
Trial video 74
1:05:59 – 1:08:12:
Q: You said there was — one thing you look at is “unexplained injuries”?
A: Yes.
Q: Are you familiar with Erik’s medical records going back to 1977?
A: Yes, I am.
Q: Is there a particular entry on those medical records that is an unexplained injury?
A: Yes, there is.
Q: And is it something that you noted in your assessment?
A: Yes, I did.
Q: And what was that particular injury?
A: That was the injury that was reported on an emergency room visit of injury to the throat.
Q: And when we’re talking about the throat, are you talking about the outside?
A: No, I’m talking about the inside of the throat. The pharynx.
Q: And do you recall what type of injury that was? Was it a cut or was it a bruise?
A: It didn’t have precisely what it was. It had the statement that it was hurt, and I believe there was some observation — obviously there was some observation there that was recorded. It did not say what had done it. I could find no history as to what had caused the injury.
Q: In other words, the adults who brought the child to the doctor did not say how he got this injury to the back of his throat?
Bozanich: Objection. Calls for speculation on the part of the witness.
The Court. Sustained. Rephrase the question.
Q: You didn’t see that anybody had told the doctor how this injury to the back of his throat had been inflicted?
A: That’s correct.
Bozanich: Lack of foundation.
The Court: Are you referring to any entries in the notes?
Abramson: The entry in the medical record.
The Court: Why don’t you rephrase it that way then.
Q: Okay, based on the medical record — obviously you weren’t there. Correct?
A: Right.
Q: Based on the medical record there’s no indication of anyone, either Erik Menendez himself or who whichever grown-up we assume took him there, indicating how this injury occurred?
A: That is correct.
Q: Are you able, with such sketchy information, to formulate a fixed opinion as to how that injury occurred?
A: No.
Q: Is such an injury, though, to the back of the throat consistent with penile insertion in a child’s mouth?
A: That could be one possibility.

2:01:13 – 2:02:00:
Abramson: At this time I’d like to mark three pages of a typed medical record and ask they’d be marked 299.
The Court: It’ll be marked 299.
Q: Dr. Burgess, you testified earlier about an injury that was in Erik Menendez’ medical record. Is that the medical record that you were referring to?
A: Yes, it is.
Q: And is the injury that you were describing the first entry on that medical record?
A: Yes.
Q: And what is the date of that entry?
A: That is 12/13/77.
Q: So Erik would have been just seven years old at the time of that examination?
A: That is correct.
Q: And that shows injuries to what part of the throat?
A: To three parts of the throat. It’s the posterior pharynx, the uvula, and the soft palate.

Cross-examination of Dr. Ann Burgess
Trial video 76
1:26:33 – 1:27:57:
Q: Dr. Burgess, one of the things an expert such as yourself considers in evaluating claims of child sexual abuse is the medical history of that child. Is that correct?
A: It may be one factor, yes.
Q: And in fact in this case did you examine the medical history of Erik Menendez to see if you could corroborate what he told you?
A: I did not examine him medically.
Q: Did you examine his medical records?
A: Yes, through childhood and on up, yes.
Q: And you’ve indicated that there’s an entry dealing with injury to the soft palate, uvula, and pharynx. Correct?
A: That’s correct, yes.
Q: Did you find any other injuries or any other physical injuries in his childhood medical records which would corroborate his claim of sexual abuse?
A: That was the one that was an unexplained injury. That’s the only one, and the other history in those three pages had a series of sore throats. Those were the only other aspects of that record, office visit records. No, I did not find anything other than what you’ve just identified plus a lot of sore throats.
Q: Sore throats do not mean the child has been sexually abused, do they?
A: No, sore throats don’t, but if you have that unexplained injury and then you have a series of sore throats it certainly is information that can be considered.

….

1:29:21 – 1:31:58:
Q: Were you provided with the information contained in the document I’m showing you, which is a written transcription of office notes from the Pediatric Group in Princeton?
A: Yes.
Q: And you’re familiar with the first entry on this page. Correct?
A: Yes, I am.
Q: And that is the incident that you referred to dealing with the damage to the pharynx among other things?
A: That is correct.
Q: And the note indicates that the patient, which was Erik Menendez, was seen in the emergency room the day prior to this notation. Is that correct?
A: Yes.
Q: Did you ever ask to see the emergency room notes of that particular visit?
A: My understanding is they were not available, that they did try to get them. I mean, I would have looked at them if they are available. I have not seen them.
Q: So you have not seen the emergency room notes from that visit. Correct?
The Court: From the previous day, you’re talking about?
Bozanich: Yes, from the previous day. From the emergency room visit.
A: Yes, but I have a reason for why I don’t — I do not believe they’re available.
Q: But you haven’t seen them. Correct?
A: No.
Q: I believe you indicated one of the things that could have caused that injury would have been a penis. Is that correct?
A: It could have been.
Q: Were there other things that could have caused that injury?
A: It would have been something inserted into the mouth. It could have been a stick.
Q: You don’t know whether the injury was a burn or not, do you?
A: A burn?
Q: Yes, a burn.
A: No, I don’t know if it was a burn.
Q: And if it was a burn then that would be inconsistent with a penis, wouldn’t it?
A: If it was a burn and they had identified it and there was a description of it, that would be inconsistent with a sexual entry.
Q: And you have no description aside from what is contained in this particular report. Is that correct?
A: That’s correct.
Q: And the only description of injury is “hurt.” H-u-r-t. Correct?
A: Yes, but “hurt” generally means injury.
Q: But that’s the only indication you have is that there’s a “hurt”?
A: Yes.
Q: And there’s no identification whether it’s a burn, or a laceration, or a bruise?
A: That would have been described in that report there. There would have been more description if they had that amount of detail, I believe. And it was three areas of the throat.
Q: What are you saying about what it would have said?
A: It should have said — if any of those factors that you just identified, by “hurt” it would have been described what type of hurt, by burn, by et cetera. It’s not identified there.
Q: So you can’t extrapolate at all from that what was the source of the injury. Correct?
A: That’s correct.
Q: And you found nothing else aside from sore throats in his childhood medical history to corroborate a claim of sexual abuse. Is that correct?
A: That’s what I’ve just said.

Dr. Kerry English worked at Martin Luther King Hospital in Los Angeles, where he was the medical director of the suspected child abuse team. His testimony in the first trial lasted 45 minutes and can be found in trial video 83 (00:00 – 45:22)

I’ll here focus only on his testimony concerning the injury to Erik’s throat.

Direct examination of Dr. Kerry English
Trial video 83
15:05 – 16:45:
Q: Did you see any indication in Erik Menendez’ medical records of an injury to his throat area?
A: Yes.
Q: May I approach, your Honor, with Exhibit 299?
The Court: Yes.
Q: Thank you. Dr. English, I’m showing to you now a document that’s been marked Exhibit 299, appears to be some typewritten medical records about Erik Menendez. Does that document indicate that there was an injury to the throat of Erik Menendez sometime in 1977?
A: Yes.
Q: And what specifically does the medical record indicate was injured?
A: The direct quote is: “Hurt posterior pharynx, uvula and soft palate. Senior emergency room, Princeton Medical Center. Healing well. Symptomatic treatment.” Actually, he was seen the day before and this is the follow-up note.
Q: Is there — is the report of injury in that medical record that’s before you, it’s 299, is that consistent with — could that have been caused by child sexual abuse, in your opinion?
A: Yes, could be.
Q: Do you have an opinion as to what type of child sexual abuse could have resulted in that particular complaint?
A: Oral copulation.

Cross-examination of Dr. Kerry English
34:26 – 36:22:
Q: You indicated that you saw in the medical records of Erik Menendez a throat injury that you’ve described for the jury in your direct examination?
A: That’s correct.
Q: Have you ever worked in an emergency room?
A: Yes.
Q: Aside from the fact that this could have been caused by oral copulation, are there other things that cause injuries to children’s mouths and throats?
A: Certainly.
Q: What such as?
A: Falls on objects.
Q: Falls?
A: Falls. Bicycle falls. There are other things that cause such injuries.
Q: Do children have a habit of putting things in their mouths that don’t belong there?
A: Yes.
Q: Toys and things like that?
A: Yes.
Q: And from the medical records you have, are you able to determine whether this is a burn, or a bruise, or a laceration? The injury that’s described in the medical record, Exhibit 299?
A: No. It’s a non-specific description.
Q: Without a more specific description would that lessen the certainty of your diagnosis of what it could be?
A: I didn’t mean to express any certainty that I thought it was from oral copulation, only that that’s one of the things that could have caused it.
Q: And if in fact the injury was a burn, that would be contraindicative of oral copulation, but rather maybe swallowing hot liquid. Correct?
A: A burn would — I think that of the choices you made a burn would be the least likely to give the findings involved, because there was no indication of any burn to the rest of the mouth. It seems unlikely a child would swallow liquid and would only burn the posterior pharynx and wouldn’t bother the tongue or the lips or anything else. But there are certainly plenty of other childhood accidents that could cause an injury to the posterior pharynx and spare the tongue or lips.
Q: Do children sometimes swallow things that cause injury to those portions of their throat?
A: They sometimes swallow lye, young children do, that cause injuries there, yes. But, swallowing something I think would be unlikely to cause an injury there. Be more likely a fall.

Redirect examination of Dr. Kerry English
43:11 – 43:56
Q: Ms. Bozanich asked you about the throat injury that’s in Exhibit, I believe 299, in front of you —
A: Yes.
Q: — You said that could have been caused by oral copulation. Is that correct?
A: Correct.
Q: You can’t say what caused that particular injury?
A: No.
Q: Would it have been helpful — would it be helpful to you to have the emergency room records referred to in that Exhibit? Because there apparently was an initial visit at the emergency room the day before.
A: It might be helpful.
Q: And have you been told that we — meaning the defense — has tried to obtain those emergency room records and have been unable to do so?
Bozanich: Excuse me, that is hearsay.
The Court: Sustained.

SECOND TRIAL

In the second trial, Erik Menendez was asked about the injury both on direct examination (December 8, 1995) and cross-examination (December 18, 1995), as well as redirect examination (January 9, 1996).

Direct examination of Erik Menendez
Q: WAS THERE A TIME, MR. MENENDEZ, WHERE YOUR FATHER HAD INSERTED HIS PENIS IN YOUR MOUTH TO WHERE HE HURT THE BACK OF YOUR THROAT?

A: WHEN I WAS YOUNG HE DID THAT A LOT.

Q: WAS THERE A TIME WHEN YOU SAW A DOCTOR BECAUSE OF THAT?

A: NO. IT’S THERE IN THE RECORDS. MY SPECIFIC MEMORY OF IT IS NOT THERE.

Cross-examination of Erik Menendez
Q: NOW, DID YOU SAY THAT YOUR MOTHER AND FATHER ONCE TOOK YOU FOR MEDICAL TREATMENT AFTER HE SEXUALLY MISTREATED YOU?

A: I DON’T THINK THAT I SAID THAT, NO.

Q: HE NEVER TOOK YOU FOR MEDICAL TREATMENT AFTER SEXUALLY MISTREATING YOU?

A: YOU’RE REFERRING TO THE MEDICAL RECORD THAT TALKS ABOUT A BRUISE IN MY MOUTH, OR —

Q: I AM REFERRING TO YOUR TESTIMONY CONCERNING MEDICAL TREATMENT THAT YOU RECEIVED AT SOME POINT IN TIME.

THE COURT: ARE YOU ASKING ABOUT TESTIMONY IN THIS TRIAL?

MR. CONN: YES, YOUR HONOR.

THE WITNESS: I DON’T REMEMBER MY FATHER EVER TAKING ME TO SEE A DOCTOR BECAUSE I WAS HURT SEXUALLY BY HIM. HE WOULD NOT HAVE DONE THAT.

Q: DO YOU REMEMBER YOUR MOTHER TAKING YOU TO RECEIVE MEDICAL TREATMENT FOR ANY INJURY THAT YOU RECEIVED FROM YOUR FATHER?

A: I CAN’T SAY PRECISELY THAT IT WAS RELATED TO AN INCIDENT WITH MY FATHER.

Q: WHAT ARE YOU REFERRING TO?

A: THE INJURY IN MY MOUTH.

Q: ARE YOU SAYING THAT YOU ONCE RECEIVED AN INJURY TO YOUR MOUTH AND YOU WERE TAKEN IN FOR TREATMENT; IS THAT CORRECT?

A: YES.

Q: WHO TOOK YOU IN FOR TREATMENT?

A: MY MOTHER.

Q: AND WAS YOUR MOTHER THE ONE WHO ALWAYS TOOK YOU IN FOR MEDICAL TREATMENT?

A: ALMOST ALWAYS.

Q: AND YOU CANNOT ATTRIBUTE THAT TREATMENT TO AN INJURY THAT YOU RECEIVED FROM YOUR FATHER, CAN YOU?

A: I CAN’T HONESTLY SAY THAT IT IS OR ISN’T. I DON’T HAVE A MEMORY OF IT.

Q: IT WAS AN INJURY TO THE BACK OF YOUR THROAT; IS THAT CORRECT?

A: RIGHT.

Q: AND THAT COULD HAVE BEEN CAUSED BY FALLING AND A POPSICLE STICK HITTING THE BACK OF YOUR THROAT, CORRECT?

MR. LEVIN: OBJECTION. CALLS FOR SPECULATION.

THE COURT: SUSTAINED.

Q: BY MR. CONN: YOU HAVE NO IDEA HOW YOU RECEIVED THAT INJURY TO THE BACK OF YOUR THROAT; IS THAT CORRECT?

A: I DON’T.

Redirect examination of Erik Menendez
Q: YOU TESTIFIED ON DIRECT EXAMINATION TO HAVING BEEN TREATED BY A DOCTOR FOR A THROAT INJURY. DO YOU REMEMBER THAT?

A: YES.

Q: AND WHAT WAS THE — STRIKE THAT. DO YOU REMEMBER A MEDICAL DOCTOR TESTIFYING IN THE FIRST TRIAL THAT THAT THROAT INJURY THAT YOU WERE TREATED FOR —

MR. CONN: OBJECTION. CALLS FOR HEARSAY.

THE COURT: SUSTAINED.

Q: BY MR. LEVIN ARE THERE WITNESSES THAT YOU ARE AWARE OF THAT COULD COME INTO THIS COURT AND TESTIFY THAT THERE WAS EVIDENCE AND IT EXISTS IN YOUR MEDICAL RECORDS THAT YOU WERE SEXUALLY MOLESTED?

MR. CONN: OBJECTION. CALLS FOR HEARSAY. NO FOUNDATION.

THE COURT: SUSTAINED. THE NATURE OF THE PEOPLE’S INQUIRY WAS WHETHER ANYBODY SAW THESE EVENTS.

Q: BY MR. LEVIN: DID YOUR FATHER EVER INJURE YOU DURING ACTS OF RAPE OR SODOMY OR FORCED ORAL COPULATION?

A: YES.

Q: WHEN HE FORCED ORAL COPULATION ON YOU, DID THAT RESULT IN HIM THRUSTING HIS PENIS FORCIBLY DOWN YOUR THROAT?

A: YES.

Q: DID THAT CAUSE AN INJURY OR HURT YOU?

A:IT HURT ME.

Q: DID IT BRUISE THE THROAT?

A: SOMETIMES.

Q: WERE YOU TREATED FOR SUCH AN INJURY BY A DOCTOR?

A: ONCE.

Q: MR. CONN ASKED YOU ABOUT — QUESTIONS ABOUT THAT INJURY, SUGGESTING THAT IT MIGHT HAVE BEEN A POPSICLE STICK?

MR. CONN OBJECTION. ARGUMENTATIVE AS PHRASED.

THE COURT: RATHER THAN REFER TO WHAT WAS ASKED IN THE CROSS-EXAMINATION, WHY DON’T YOU JUST GET TO YOUR QUESTION.

Q: BY MR. LEVIN: YOU WERE TREATED BY A DOCTOR, WERE YOU NOT?

A: YES.

Q: YOU KNOW THAT THAT INJURY WAS NOT CAUSED BY A POPSICLE STICK GOING DOWN YOUR THROAT, CORRECT?

A: I DON’T REMEMBER ANY POPSICLE STICK GOING DOWN MY THROAT.

Q: YOU HEARD A DOCTOR TESTIFY THAT THERE WERE NO SCRAPES?

MR. CONN: OBJECTION. CALLS FOR HEARSAY.

THE COURT SUSTAINED.

Q: BY MR. LEVIN: YOU KNOW THAT THAT INJURY WAS NOT CAUSED BY A BURN, DO YOU NOT?

A: YES.

Q: YOU KNOW THE PROSECUTION’S IN POSSESSION OF MEDICAL RECORDS RELATED TO THAT INJURY, DON’T YOU?

MR. CONN: OBJECTION. IRRELEVANT. ASSUMES FACTS NOT IN EVIDENCE.

THE COURT: SUSTAINED.

Dr. Kerry English also testified in the second trial. Unfortunately, Volume 278 of the “Reporters’ Daily Transcript of Proceedings” from the old Court TV website is incomplete. Dr. English’s testimony from January 18, 1996 begins on page 46798. The pages up to page 46819 are included, but then pages 46820 through 46908 are missing. From the Index we’re able to tell that pages 46820 through 46851 is a sealed hearing. Dr. English then retakes the stand on page 46852. Cross-examination begins on 46865, redirect examination begins on 46871, and recross-examination begins on 46872. Another witness is called to testify on page 46875.

From what little I therefore know about Dr. English second trial testimony, is that on cross-examination Dr. English agreed that the throat injury is also consistent with a child with a popsicle in his mouth and falling on the popsicle. It is consistent with a child holding a toy in his mouth, and another child comes over and pushes the toy in his mouth. It is consistent with a child with a toy in his mouth and falling on the toy.

Dr. Ann Burgess did not testify in the second trial. The Erik Menendez defense called instead Dr. John Wilson as their expert witness. On his last day on the witness stand (January 25, 1996), Dr. Wilson testified about the throat injury.

Redirect examination of Dr. John Wilson
Q: BY MS. ABRAMSON: IN THE MEDICAL RECORDS OF ERIK MENENDEZ, WAS THERE ANYTHING THAT YOU NOTED THAT WAS OF SIGNIFICANCE?

A: YES.

Q: AND WHAT WAS THAT?

A: THERE’S A REPORT BY DR. KATZ IN 1977 REGARDING — I BELIEVE IT’S A BRUISED OR — I THINK IT’S CHARACTERIZED AS A BRUISED UVULA AND POSTERIOR LARYNX (SIC) OF ERIK MENENDEZ.

Q: AND THE EXISTENCE OF THAT HURT OR BRUISE DOESN’T PROVE SEXUAL MOLESTATION, DOES IT?

A: NO, IT DOES NOT.

Q: DOESN’T DISPROVE IT EITHER?

A: CORRECT.

Q: WHY DID YOU FIND IT SIGNIFICANT?

A: IT’S SIGNIFICANT BECAUSE IT’S ONE MORE PIECE OF INFORMATION THAT CERTAINLY WOULD BE CONSISTENT WITH A PATTERN OF CHILDHOOD SEXUAL MOLESTATION.

Q: IN YOUR OPINION, IS THAT BRUISE CONSISTENT WITH FORCIBLE ORAL COPULATION OF AN ADULT PENIS INTO THE THROAT OF A SMALL CHILD?

A: YES.

Q: YOU CAN’T SAY FOR SURE THAT’S WHAT CAUSED IT, CAN YOU?

A: NO, I CANNOT.

Q: BUT IT COULD HAVE BEEN?

A: COULD HAVE BEEN.

Recross-examination of Dr. John Wilson
Q: BY MR. CONN: NOW, DOCTOR, YOU SAID THAT ONE OF THE THINGS THAT YOU RELIED UPON IN CONCLUDING IN YOUR FINDING OF POST-TRAUMATIC STRESS DISORDER WAS THE FACT THAT THE MEDICAL RECORDS REFLECT THAT THE DEFENDANT RECEIVED A BRUISE TO THE BACK OF HIS THROAT.

A: I LOOKED AT THAT RECORD OF DR. KATZ FROM 1977, YES.

Q: AND YOU SAID BECAUSE HE RECEIVED A BRUISE TO THE BACK OF HIS THROAT. WAS THAT YOUR TESTIMONY THIS MORNING?

A: IT WAS.

Q: OKAY. HAVE YOU LOOKED AT THAT MEDICAL RECORD LATELY?

A: YES.

Q: OKAY. LET ME SHOW YOU 396. CAN YOU SHOW ME ON THAT MEDICAL RECORD WHERE IT SAYS HE RECEIVED A BRUISE?

A: THIS IS HARD TO READ. I DON’T SEE ANY REFERENCE TO BRUISE. THERE IS REFERENCE HERE TO HIS UVULA AND SOFT PALATE AND POSTERIOR PHARYNX.

Q: OKAY, SO CAN YOU TELL US, THEN, WHAT YOU RELIED UPON IN CONCLUDING THAT HE RECEIVED A BRUISE TO THE BACK OF HIS THROAT?

A: I WAS REFERRING TO THIS ENTRY RIGHT HERE.

Q: OKAY. WELL, IT DOESN’T SAY BRUISE, DOES IT?

A: NO, IT DOESN’T.

Q: SO YOU DON’T KNOW IF IT WAS A BRUISE OR ANY OTHER TYPE OF INJURY; IS THAT CORRECT?

A: THAT’S CORRECT.

Q: SO CAN YOU TELL US WHY IT WAS THIS MORNING THAT YOU TESTIFIED IN FRONT OF THIS JURY THAT THE DEFENDANT RECEIVED A BRUISE TO THE BACK OF HIS THROAT?

A: BECAUSE THERE WAS OTHER MEDICAL TESTIMONY THAT SUGGESTED THAT THAT MIGHT BE A BRUISE TO THE BACK OF THE THROAT CONNECTED WITH SEXUAL MOLESTATION.

Q: WHAT MEDICAL TESTIMONY WAS THAT?

A: I’D HAVE TO CHECK MY RECORDS.

Q: ARE YOU TALKING ABOUT THIS TRIAL?

A: MM-HMM.

Q: ARE YOU TALKING ABOUT DR. ENGLISH?

A: KERRY ENGLISH.

Q: DIDN’T DR. ENGLISH SAY HE CAN’T TELL FROM THAT RECORD WHETHER IT WAS A BRUISE OR ANY OTHER TYPE OF INJURY?

A: HE DID.

MS. ABRAMSON: WELL, I AM GOING TO OBJECT. THAT MISSTATES DR. ENGLISH’S TESTIMONY.

THE COURT: WELL, THIS WITNESS SAYS IT DOESN’T. SO OVERRULED.

Q: BY MR. CONN: OKAY. SO IF DR. ENGLISH SAID HE CAN’T TELL WHETHER OR NOT IT WAS A BRUISE, THEN ON WHAT BASIS ARE YOU CONCLUDING THAT IT WAS A BRUISE?

A: BASED ON THE — IT POSSIBLY COULD BE A BRUISE, IS THE WAY I UNDERSTOOD DR. KERRY ENGLISH’S TESTIMONY. THERE WERE A NUMBER OF THINGS THAT COULD HAVE CAUSED THAT KIND OF PROBLEM IN THE BACK OF HIS THROAT.

Q: BUT WHAT I’M SAYING IS, IF DOCTOR — DR. ENGLISH COULDN’T TELL IT WAS A BRUISE?

A: MM-HMM.

Q: HOW CAN YOU TELL IT WAS A BRUISE?

MS. ABRAMSON: OBJECTION, YOUR HONOR. IT’S ARGUMENTATIVE.

THE COURT: OVERRULED.

THE WITNESS: I DON’T THINK I CAN TELL.

Q: BY MR. CONN: THEN WHY DID YOU TESTIFY THIS MORNING THAT IT WAS A BRUISE?

A: BECAUSE I WAS ASKED IF THERE WAS A MEDICAL RECORD, AND THAT WAS MY RECOLLECTION WHEN I ANSWERED THE QUESTION.