Dust contention in Davis trial

Dust on the surface of the coffee table from which 17-month old Maliki Wilburn supposedly fell has become a point of contention in the Coeur d’Alene murder trial of Joseph J. Davis.

Prosecutors over the past several days have flashed images for the jury of the coffee table in the room where Maliki was found lying on the floor with the massive head injury that led to his death.

The child was alone with Davis when the incident occurred, and Davis has pleaded not guilty to first-degree murder in the case stemming from the Aug. 26 incident at the apartment on the 800 block of Fifth Street in Coeur d’Alene.

Davis told Coeur d’Alene police his wife and Maliki’s mother, Dacia Cheyney, had left the basement apartment to shop at a nearby vape store and Davis was in the bathroom when he heard the boy cry out. When Davis checked on the child, Maliki appeared to be sleeping on his back on the floor, his feet pointed at the coffee table and a purple chair tipped over nearby.

The boy likely climbed on the coffee table, Davis told detectives. He likely fell off, sustaining a skull fracture, a large bruise behind his left ear and brain swelling that resulted in his death.

Davis said he was speculating, and that he did not know what happened to the boy.

Prosecutor Art Verharen asked Davis, when the defendant was called as a witness, how the dust remained untouched on the table if the boy had climbed on it.

“You told a detective that Maliki got on the purple chair to get on the coffee table,” Verharen said.

That is the only thing that could have happened, Davis replied.

“His chair was knocked over because he climbed on (it) to the table, because he climbs all the time,” Davis said.

Verharen asked about the dust on the table — wouldn’t the child climbing on the table wipe the dust off?

There were a lot of people in the room and they probably caused the table to get dusty, Davis said.

“You think people put dust on the table?” Verharen countered.

“People walking around could have kicked up dust, I don’t know,” Davis said.

The photograph in evidence of the dusty coffee table was taken by police less than an hour after the incident, Verharen said.

“I don’t know,” Davis said. “I don’t understand how dust works.”

“You don’t know how dust works?”

“I dust things all the time, and the next day there’s dust on them.”

During Thursday’s testimony, on the seventh day of the trial, Verharen again asked a forensic pathologist, called as an expert witness by the defense, if he thought the dust on the table would be without blemish if a toddler climbed on it.

Dr. Jan Leestma, in his testimony Thursday, intimated the cause of Maliki’s death was likely accidental. Using the statements Davis gave to police, Leestma said the child probably fell off the 18-inch coffee table in the apartment.

“The problem is (Davis) wasn’t there,” Leestma said. “He doesn’t know what happened.”

Verharen countered.

“Wouldn’t a baby leave marks in the dust?” Verharen asked the doctor.

“I don’t know,” Leestma said.

Verharen pointed again to the close-up image of the table and its fine coating of dust.

“Can you see the dust?”

"I see it, but I don’t know how to interpret it,” Leestma said.

“Can’t you interpret it on a common-sense level, doctor?” Verharen asked. “If a baby had been there, some of the dust would have been wiped off.”

“I don’t know,” Leestma said.

Leestma, considered a pioneer of forensic neuropathology, has appeared more than 200 times as an expert witness in court cases including the murder trial of music legend Phil Spector.

At Thursday’s hearing, Leestma agreed with Maliki’s autopsy report — that massive brain injury caused by blunt force trauma caused the death — but he wasn’t sure if it happened over the 20-minute span when Davis was alone with the boy. He also attributed the injuries to an accident and said a fall from a couple of feet could not be ruled out as the mechanism in the child’s injuries.

He said a fall from 3 feet, 2 feet, and even a child falling while standing up could cause the injuries that Maliki sustained.

“It would be quite uncommon,” he said. “That doesn’t mean it can’t happen.”