REPORT: 'Medicolegal death investigation and convicting the innocent', by Simon A. Cole, Maurice Possley, Ken Otterbourg, Jessica Weinstock Parades, Barbara O'Brien, Meghan Cousins and Samuel R. Gross; Published by The Newkirk Center for Science and Society, University of California, Irvine, and the College of Law, Michigan State University Law School published in August, 2024.
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CORONERS:
In 12 of the 151 cases, the expert was described as a “coroner.” As noted above, “coroners” may not necessarily be forensic pathologists, board certified or not. They may not necessarily be pathologists or even physicians, raising the question of whether experts described as “coroners” were poorly qualified. However, that was not generally the case. In eleven of the twelve cases, the “coroner” was board certified in forensic pathology (these cases are included in the 92 cases discussed in section V.G.1).
In the one remaining case, the conviction of Darrell Clark for murder in Georgia in 1998, the coroner was a funeral director without a medical degree.
At Clark’s trial: Floyd County Coroner, Craig Burnes, who was a funeral director and embalmer, but not a physician, testified that he did not see any evidence of powder burns or stippling.
Asked by prosecutor Steven Cox what that meant, Burnes testified, “It tells me that it is…somewhat of a distance shot.” Burnes estimated the gun was at least 12 to 18 inches from Bowling’s head when the shot was fired.
Burnes said no autopsy was performed because the family approved donation of the boy’s organs.
Asked about blackened skin around the bullet hole, Burnes said it was the result of bruising and also from black powder that he put into the wound as part of the pre- embalming process.
He said the powder absorbed blood and acted to prevent further fluid
loss from the wound.
Burnes’s testimony was rebutted at trial by a physician:
The defense also called Dr. Harvey Howell, the Bartow County, Georgia, medical
examiner, who said he had examined the photographs of Bowling’s body at the funeral home as well as the CAT scan done at the hospital and the medical records of Bowling’s treatment.
Dr. Howell said the angle of the bullet was closer to 30 degrees, instead of the 45 degrees cited by the treating physician.
He said that angle was “very characteristic of a self-inflicted wound. Dr. Howell said he saw a few little red speckles around the edges of this wound.
That’s powder stippling…When you fire a gun, most of that powder burns up, but there's a little bit of the powder that doesn't burn, and those—those little tiny fragments of powder come out as little tiny fragments, and then they hit the skin.”
Dr. Howell said the gun was in contact with Bowling’s skin when fired.
He said the entrance wound was larger than the exit wound because the gun had been fired so close to the head that gasses that followed the bullet blew out the skin.
“And the other thing…that lets me know this is a contact wound is the black coloration…a combination of charred flesh and powder…This is clearly a contact wound.”
Clark was exonerated in 2022.
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NON-PATHOLOGIST PHYSICIANS:
In six of the seven child abuse cases, a pathologist provided rebuttal evidence. In the remaining case (Abigail Tiscareno) a previously undisclosed pathology report, which contradicted the non- pathologist physician’s opinion, was discovered. Thus, the phenomenon of non-pathologist physicians invading the domain of death investigation (or forensic pathology) and driving the investigation appears to have occurred exclusively in cases in which the SBS diagnosis was deployed. The pattern was even more prevalent in child abuse cases. Because there was no death, pediatricians and neurosurgeons were freer to give evidence about the cause of injuries without scrutiny or confirmation by death investigators.
For example, in the conviction of Terry Ceasor for the child abuse of his girlfriend’s 16-month-old son, Brenden, in Michigan in 2005, Holly Gilmer-Hill, a neurosurgeon,
testified that it took a good deal of force to cause retinal bleeding.
She told the jury that the combination of subdural blood with retinal hemorrhage was diagnostic for child abuse.
Dr. Gilmer-Hill said that retinal hemorrhage was caused by "being shaken or slammed onto a surface, either hard or soft.
Usually repeatedly."
Based on her training and experience and her treatment of Brenden, Gilmer-Hill did not believe his injuries were the result of an accident.
Dr. Gilmer-Hill further testified that a fall from a couch onto a carpeted floor
could not have caused injuries as severe as Brenden’s.
Although Ceasor’s attorney, Kenneth Lord, cross-examined Gilmer-Hill about research by forensic pathologists casting doubt on her assertions, he
did not present any expert testimony at Ceasor’s trial because Ceasor’s family could not come up with any more money to pay for the expert.
Lord also never asked the court to approve court funding for the expert.
In the absence of a defense expert, given Gilmer-Hill’s impressive credentials, the jury probably accepted her explanation for the injuries.
The jury convicted Ceasor, and he was sentenced to two to 15 years in prison.
Post-conviction, Ceasor filed affidavits from four experts—two board-certified forensic pathologists, a clinical neurosurgeon, and a biomedical engineer—that
said that Brenden's injuries were consistent with a short fall from the couch onto the coffee table or the floor and inconsistent with abusive shaking.
Non-pathologist physicians seemed especially able to drive the investigation in non-homicide child abuse cases. In the two murder cases, in contrast, death investigators at least questioned the non-pathologist physicians’ explanations of the cause of death at the time of conviction.
At the trial of Warren Hales in Utah in 2004, board-certified forensic pathologist John Plunkett rebutted a pediatric neurosurgeon’s diagnosis of SBS, but Hales was convicted anyway.
Krystal Voss was convicted of the murder of her 17-month-old son, Kyran, in 2004 in Colorado based in part on the testimony of Kathryn Wells, a pediatrician, that the cause of death was SBS.
At a hearing after the conviction, board-certified forensic pathologist Robert Bux
said he disagreed with Wells’s conclusion that Kyran was a victim of SBS.
He said he believed it was impossible to shake a 26-pound toddler hard enough to generate the force necessary to cause the brain damage that the boy had.
He also testified that a month prior to Voss’s trial, the prosecution sent him a copy of Dr. Wells’s testimony at the preliminary hearing in the case.
He said that he read the testimony and informed the prosecution that he did not agree with Wells.
Bux could not remember with whom he discussed his disagreement.
The prosecution did not call him to testify—the
first and only time he was not called to testify among hundreds of first-degree murder cases in which he performed the autopsy.-----
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NOT PHYSICIANS AT ALL:
In two of the 151 cases, the expert was not a physician at all, but gave evidence that fell within the domain of death investigation. One was the Darrell Clark case, described in section V.G.5 above, which involved a coroner who was a funeral director without a medical degree.
The other was the conviction of Michael Pardue for murder of Ronald Rider in Baldwin County, Alabama in which
Nelson E. Grubb, a state toxicologist, testified that he had performed an autopsy on Rider.
Although he first listed the cause of death as a blow from a crowbar, he testified the cause of death was a gunshot wound in the brain.
Grubb had revised his opinion on the cause of death after Pardue confessed that he was holding a sawed-off double-barreled .410-gauge shotgun, when Rider turned and raised a crowbar.
Pardue’s defense attorney “did not cross-examine Grubb about the fact that Grubb did not have a medical license.”
As noted above, most coroners are elected, and in some jurisdictions there is no requirement that they be pathologists or even physicians.
As a result, one pathologist complained, “physicians with years of specialized training perform the same task as a high school graduate.”
In the 1990s, some counties began electing nurses as coroners, as the new specialty of forensic nursing began spread across the US.
But the role of nonphysicians was not confined to coroner’s offices.
Large medical examiner’s offices began allowing “pathologist assistants” to perform autopsies “sometimes with minimal supervision.”
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SHAKEN BABY SYNDROME CASES: (Diagnosis was usually initiated by someone else, such as a non-pathologist physician, a nurse, a social worker, or the police.)
It is true that in most of the 16 SBS cases in which board-certified forensic pathologists gave evidence, the board-certified forensic pathologist did not initiate the SBS diagnosis. The diagnosis was usually initiated by someone else, such as a non-pathologist physician, a nurse, a social worker, or the police. But the board-certified forensic pathologists corroborated the opinions of the physicians and lent their authority as experts on cause of death to the evidence in support of the
diagnosis.
For example, in the conviction of Christopher Lyman for murder of his nephew in Kansas in 2015, the diagnosis of SBS originated with two physicians, one pediatrician and one whose specialty was not specified, who treated Lyman’s nephew at the hospital.
However, at Lyman’s trial, board-certified forensic pathologist Dr. Erik Mitchell [who] performed the autopsy on Johnathan . . . said the boy died of head
trauma.
He testified that he found bruises on the boy’s body, and that there was nothing
“that would be inconsistent with multiple applications of the force of a hand.”
. . .
Mitchell was asked if it was possible to cause a brain injury by squeezing.
He said yes.
He was then asked if shaking could cause such an injury.
Again, he said yes. (At a preliminary hearing, Mitchell had testified that he did not have an opinion about whether Johnathan was shaken.)
Post-conviction, numerous experts and a review commissioned by the county attorney rebutted Mitchell’s diagnosis.
Lyman was exonerated in 2023.
However, there were also cases in which the board-certified forensic pathologist alone provided the evidence in support of the SBS diagnosis.
For example, in the 1989 conviction of Sean Ralston for manslaughter in Massachusetts, the police suggested SBS to the emergency room physician, but
the physician said he had never heard of SBS.
At trial, board-certified forensic pathologist Dr. Edward B. Sussman, chief of pathology at Worcester City Hospital, testified that he had conducted an autopsy and determined that the baby had died from blunt trauma due to severe shaking.
Sussman said the baby was a victim of Shaken Baby Syndrome (SBS).
Post-conviction, four experts rebutted Sussman’s determination of cause of death.
Ralston was exonerated in 1992.
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FATAL FIRE:
Forensic and social scientists have expressed concern about the role of pathology in investigating fatal fires given “the fact that the fire deaths are among the most difficult pathological cases” and “effective pathology is recognized as being essential to the overall forensic strategy” in investigating fire deaths. Three of the 87 arson cases in the Registry included death investigation evidence
(Sonia Cacy, Louis DiNicola, and Anthony Graves).
In Cacy’s conviction for the murder of her stepfather, Bill Richardson, in Texas in 1993, for example, board-certified forensic pathologist Robert Bux testified that Richardson died of burns: “there is no question that [Bill Richardson] died of thermal burns and that that’s the cause of death. There is a low level of carbon monoxide and soot in his mouth and nose indicate that he was alive at the time of the fire. The finding of homicide is based on the presence of the accelerant to some degree, but more importantly, on the subsequent fire investigation.” These 87 cases were “tagged” as arson cases, which include not only cases in which “the exoneree was convicted of arson,” but also those in which “the exoneration
depended at least in part on evidence that the exoneree did not commit arson.”Crockett County Fire Marshal Steve Kenley testified that when he received word from the medical examiner that Bill Richardson died of thermal burns, he knew this was not an ordinary fire because most people die of carbon monoxide poisoning when trapped in a fire. Post-conviction, another medical expert reported that Richardson died of a heart attack, not burns.
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CHANGED EVIDENCE TO FIT PROSECUTIONS THEORY OF CRIME:
In their normal practice, it is common for death investigators to change their evaluations of the evidence as new information becomes available. This is consistent with their training in medicine, but it also introduces potential hazards in terms of being biased by the prosecution’s theory of the
crime. We found 9 cases in which a death investigator changed their evaluation in a way that made it more consistent with the prosecution’s theory.
For example, in the conviction of Herman Williams for the murder of his ex-wife, Penny, in Illinois in 1994, Williams’s only opportunity to commit the crime came between 7:45 and 9:03 p.m. on Wednesday, September 22.
At the coroner’s inquest, Deputy Chief Corner James Whipper was asked if he knew when Penny was killed.
Whipper referred to the findings of Dr. Nancy Jones, the [board-certified forensic]
pathologist [for the NAME-accredited Cook County Medical Examiner] who had
conducted the autopsy.
“The only thing that Dr. Jones could expand on is that with the investigation that [Penny] was last seen sometime Wednesday, the condition of the body
was found on that Sunday with the weather conditions, things of that nature, it is possible that [Penny] could have been dead a number of days, possibly Wednesday, Thursday. The condition of her body is consistent with her possibly being dead Wednesday or Thursday,” Whipper said.
However, at trial,
Dr. Jones changed her estimate of the time of Penny’s death.
Dr. Jones testified that Penny had been killed on Wednesday, September 22, and no later than 1 a.m. on Thursday, September 23.
That testimony narrowed the time frame considerably from the original
estimate given at the coroner’s inquest.
After conviction, a memo written around 2 months before trial was disclosed that said: “According to Dr. Jones, Penny Williams could have died anytime between Wed 22, evening until late Thursday, 23rd. (Friday unlikely unless very early 1-3 am).”
In addition, -- Dr. James Filkins, a pathologist, reviewed Dr. Jones’s autopsy findings and trial testimony.
He concluded that: “Dr. Jones’s determination of the time of Ms. Williams’s
death is incorrect and unsupported by the evidence.”
Dr. Filkins reported that he believed Penny’s death occurred “about 24 to 36 hours prior to her recovery from the pond, that is, sometime on Saturday, September 25, 1993.”
-- The Lake County State’s Attorney’s Office consulted with forensic pathologist Dr. Eimad Zakariya, who agreed that the testimony given by Dr. Jones at the time of trial— that the time of death was no later than Wednesday night or before 1:00 a.m. on Thursday— was unsupported.
Williams was exonerated in 2022, 28 years after his conviction.
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The entire report can be read at:
https://www.law.umich.edu/special/exoneration/Documents/DeathInvestigation.pdf
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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