BACKGROUND (FROM EXECUTIVE SUMMARY):
• Not surprisingly, 140 (93%) of the 151 cases in which death investigation
contributed to the false conviction were homicides. However, death investigators did contribute to eleven non-homicide cases, all involving abuse of vulnerable people: children or dependent adults. Eight of these eleven were cases involving the Shaken Baby Syndrome (SBS) diagnosis, in which the top charge was child abuse.
• In more than one-third of the cases, the death investigation evidence consisted
of a claim that the medical evidence was consistent with the prosecution’s theory of the crime, e.g., that the victim’s wounds were consistent with a weapon linked to the defendant.
• In another third of the cases the death investigation evidence concerned cause of death .
• Manner of death and time of death evidence contributed to fewer cases.
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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. (The National Registry of Exonerations is an online archive of all known wrongful conviction cases in the United States.)
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MANNER OF DEATH: SUICIDE:"The most common alternative cause was suicide." For example, in the conviction of Richard Dzubiak in Minnesota for manslaughter of his mother, May Speiser, in 1987,
A Ramsey County medical examiner performed an autopsy and concluded that the death was a homicide caused by a blow to the head with a blunt object. The examiner found that the woman’s injuries were consistent with a fall down a flight of stairs.
Dziubak was charged with the woman’s murder after the medical examiner found a note tucked in the woman’s underwear that said, “Dick killed me—threw me down the basement.”
The autopsy also showed an elevated level of anti-depressants in the woman’s blood, but after a defense expert concluded that the levels were not sufficiently high enough to have contributed to the woman’s death, Dziubak accepted an offer from the prosecution to plead guilty.
Dzubiak was sentenced to 6 years in prison.
Post-conviction: Another expert, Dakota County coroner Dr. John Plunkett, re-examined the autopsy and toxicology reports and saw that Speiser had approximately 100 times the recommended dosage of Amitriptyline, an anti-depressant, in her blood.
Speiser died, Plunkett concluded, of a massive drug overdose.
At Dzubiak’s second trial in 1989,
A defense expert . . . testified that the massive amount of Amitriptyline was the result of an intentional overdose.
Dzubiak’s attorney argued that based on the medical testimony, a woman who had suffered a fatal head injury would not have been able to write the note that was found.
Dzubiak was acquitted."
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MANNER OF DEATH: ACCIDENT: Other alternate manners, such as accident, could be invoked as well, such as in the conviction of Rosa Jimenez for murder in Texas in 2005.
"Twenty-one-month-old Bryan Gutierrez had been in Jimenez’s care when he suffocated on a wad of paper towels. He suffered brain damage and later
died.
Jimenez claimed Bryan had swallowed the wad of paper towels, but the prosecution contended she had stuffed it down his throat.
In addition to testimony from other doctors, board-certified forensic pathologist Dr. Elizabeth Peacock, Travis County deputy medical examiner, testified that the cause of death was damage to the brain due to lack of oxygen.
Peacock did not perform the autopsy, but after reviewing the autopsy report, she agreed the death was a homicide.
It was “not a close call,” she said. Asked to explain if a 21-month-old child could put such a large object into his airway, she said that “the physics of it are impossible.”
Dr. Peacock said that the back of a child’s mouth narrows to an opening less than an inch in diameter.
She said it would be possible for an adult to force a large object down a child’s throat.
Jimenez was sentenced to life in prison.
After conviction, Dr. Karen Zur, a pediatric otolaryngologist, and Dr. John McCloskey, a pediatric anesthesiologist and critical care specialist, both testified, and Dr. Janice Ophoven, a pediatric forensic pathologist submitted an affidavit.
All three questioned the reliability of the conclusions offered by the State's experts at trial and testified that Bryan’s injury was likely due to an accidental choking.
A “Consensus Statement” presented by the defense . . . from four leading pediatric
otolaryngologists, concluded that Bryan’s death was an accident.
Among the conclusions by this team of experts: the gag reflex, which the prosecution’s trial experts claimed would have prevented Bryan from ingesting the wad of papers, in fact would pull the wad further into the child’s throat. . . .
An affidavit from Dr. Peacock [said] that she now believed “it is possible that [Bryan’s] death was accidental.”
Dr. Peacock said she recognized the “specialization and expertise”
of the authors of the Consensus Statement “in blocked airways of children and the
biological mechanisms at play in pediatric airway blockage situations.”
Jimenez was exonerated in 2023. She had served 15 years in prison."
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CAUSE OF DEATH: "Cause of death determinations contributed to 56 false convictions that later resulted in exoneration, far more than manner of death. This may be because there is a greater variety of possible cause of death determinations and they are more likely to be contradicted (see section V.K.1). Cause of death determinations are more precise predictions: one out of countless possible causes versus one of only a handful of manners of death.
"For example, in the conviction of Rodricus Crawford for the murder of his son, Roderius, in Louisiana in 2013,'
Dr. James Traylor, Jr., a [board-certified forensic] pathologist from the University Health Center at Louisiana State University, performed an autopsy and discovered hemorrhaging on the boy’s buttocks, which he said resulted from blunt force trauma.
He also observed 12 separate contusions to the child's body, including seven on his forehead.
Traylor said the child’s death was a homicide due to smothering.
After examining slides of the child’s lung tissue, Traylor discovered that Roderius was suffering from bilateral early bronchopneumonia, which was present in all five lobes of his lungs.
The bronchopneumonia, in Dr. Traylor's opinion, was insufficient to have caused the boy’s death.
The defense called Dr. Daniel Joseph Spitz, a forensic pathologist and chief medical examiner for two counties in Michigan, as well as an assistant professor of pathology at Wayne State University, a clinical educator at Michigan State University, and a private consultant.
Spitz testified that Roderius was “not a healthy child," and was coughing,
wheezing, and had a runny nose.
Spitz told the jury Roderius "died as a result of ... bilateral bronchopneumonia" that caused the child to become septic and die "of those infectious complications."
Spitz also noted that a streptococcal infection was present in the blood, which indicated that Roderius “was, in fact, septic as a result of this infection."
That condition "can cause significant cardiovascular consequences." Spitz said it was "implausible" to conclude that Roderius "just happened to be smothered in some untoward fashion."
After Crawford was convicted and sentenced to death, other medical experts agreed “that Roderius was the victim of bronchopneumonia.”
Crawford was exonerated in 2017.
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TIME OF DEATH: "Time of death can be a crucial issue in investigating murders, but death investigators acknowledge it is an inexact science.
Seventeen false convictions that later resulted in exoneration hinged on
time of death estimates.
For example, Kirstin Lobato was convicted and sentenced to 40 to 100 years in prison in 2002 of the murder of a man, Duran Bailey, who was found in a dumpster in Las Vegas.
At the preliminary hearing, Dr. Larry Simms, a board-certified forensic pathologist,
testified that he estimated Bailey was killed about 12 hours prior to the discovery of the body at 10p.m., on July 8, 2001.
At trial, however, Simms testified that Bailey’s death could have occurred as much as 18 hours prior to discovery.
Time of death was crucial because Lobato had an alibi beginning 12 hours before 10 p.m. on July 8—she was in Panaca, Nevada, 170 miles from Las Vegas.
Lobato was convicted, but the conviction was reversed. In 2006, Lobato was tried a second time, and this time Dr. Simms testified and told the jury that death could have occurred 12 to 18 hours before 3:50 a.m. on July 9, 2001, when Bailey was officially pronounced dead.
Lobato was convicted of involuntary manslaughter and sentenced to 13 to 45 years in prison.
Although time of death is most commonly estimated by death investigators, forensic entomologists have long contended that entomology can offer more accurate time of death estimates in some cases.
Lobato’s conviction was a rare one in which entomological expertise was introduced post-conviction to rebut a pathological estimate of time of death in affidavits by forensic entomologist Gail Anderson and two other forensic entomologists—Dr. Jeffrey Tomberlin and Dr. Robert Kimsey.
The experts all testified that they had independently concluded that based on the weather conditions in Las Vegas on July 8, 2001, and based on the outdoor location where Bailey’s body was found, they would have expected to see his body covered with blowfly eggs shortly after his death.
The experts testified that blowflies arrive very shortly after death and lay hundreds of easily observable eggs in a freshly dead body’s orifices and wounds.
Given that Bailey’s body had no blowfly eggs on it, the experts concluded that he died close in time to when his body was discovered around 10 p.m. on July 8—a time when Lobato was three hours away with her family in Panaca.
Dr. Andrew Baker, a forensic pathologist, also testified that based on the recorded rigor mortis changes in Bailey’s body between when his body was discovered and when his autopsy was conducted, he likely died during the early evening hours of July 8, 2001.
Lobato was exonerated in 2017.
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In another case, time of death was estimated with a pinpoint accuracy that another expert considered unwarranted considering how decomposed the body was. Alan Gell was convicted of murder in North Carolina in 1998.
The victim, Allen Ray Jenkins, had been found on April 14, 1995.
At trial, board-certified forensic pathologist M.E.F. Gilliland testified that, in light of the decomposition of Jenkins’s body, it was likely that he died around April 3.
The date of death was very important because Gell had been either traveling or in jail for petty crimes for much of the first two weeks of April, and could only have committed the murder on that one day.
A jury found him guilty, and he was sentenced to death on March
3, 1998.
Gell’s conviction was reversed, and he was tried a second time in 2004.
At that trial, A (sic) doctor . . . testified that, due to the high temperature in the house when Jenkins was found, his body would have decomposed quickly, and he could easily have died on a later date.
Gell was acquitted;
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EVIDENCE CONSISTENT WITH PROSECUTION THEORY
The most common form of death investigation evidence involved in false convictions, however, was not the “classic” pathological tasks of determining manner, cause, or time of death. Instead, most commonly, death investigators simply made statements that were vague enough that they could be interpreted as consistent with the prosecution theory of the crime. In many cases, they could also be interpreted as consistent with the defense theory of the crime. In other words, the evidence was weak, or, in technical terms, relatively undiscriminating.
However, since death investigators were usually state witnesses, the evidence was often elicited in a manner that emphasized its consistency with the prosecution theory while eliding its consistency with the defense theory. This could cause the factfinder to interpret the evidence as probative of guilt. This type of evidence appeared in 58 cases, more than a third of the 151 cases. These statements could range from relatively innocuous statements that probably only modestly bolstered the prosecution theory of the crime to extremely powerful statements.
For example, the death investigation evidence in the conviction of Paul Browning for murder in Las Vegas in 1986 supported the prosecution’s theory, but probably did not prop up that theory on its own:
Dr. Giles Green, a [board-certified] forensic pathologist, had conducted the autopsy. . . .
Green was asked if the knife recovered under the stairs, which did not have any blood on it, could have made the wound.
“The wound that we have in the body of Mr. Elsen [the victim] could have been made by this or any other knife with that size and shape,” Green said. “There is nothing about that knife that tells me that that knife made those wounds. The wound could have been made by that knife or one that I happen to own that is very
much like it.”
Browning was exonerated, based on exculpatory evidence that had been concealed by prosecutors and ineffective assistance of counsel, in 2020.
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At the other end of the spectrum, consider the evidence in the conviction of Santiago Ventura Morales for murder of Ramiro Lopez Fidel in 1986 in Oregon:
Despite considerable blood that spurted from the wounds, a laboratory examination found no traces of blood on Morales’ knife.
State deputy medical examiner Dr. Karen Gunson testified that as Morales pulled out the knife, Fidel’s fat tissue wiped it clean.
Eventually, an expert hired by a lawyer who took Morales post-conviction case pro bono said that the idea of a knife coming out clean from a wound because of fat tissue was “contradictory, misleading, incomplete and incorrect.”
Morales was exonerated in 1991.
At the time of Morales’s trial, Gunson was board certified in anatomic and clinical pathology, but not forensic pathology.
However, she received her board certification in forensic pathology in 1988, two years after Morales’s conviction and three years before his exoneration.
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5. BITEMARKS"
In four cases, death investigators contributed to false convictions by claiming to detect bitemarks on cadavers. In no case did a death investigator claim to identify the source of the bitemark. But in two cases a forensic odontologist subsequently did claim to identify the source of the bitemark. Those two cases involved the same pathologist, Steven Hayne, and the same forensic odontologist, Michael West.
One of those case was the conviction of Kennedy Brewer for murder in
Mississippi in 1995.
The medical examiner who conducted the autopsy, Steven Hayne, testified that he had found several marks on the child's body that he believed to be bitemarks.
Hayne called in Dr. Michael West, a forensic odontologist, to analyze the marks. West concluded that 19 marks found on the victim’s body were "indeed and without a doubt" inflicted by Brewer.
He further asserted that all 19 marks were made only by Brewer's top two teeth and that somehow the bottom teeth had made no impression.
In response, the defense introduced Dr. Richard Souviron, a licensed dentist and founding member of the American Board of Forensic Odontology, who testified that the marks were not human bitemarks at all but were insect bites that the body sustained from being left in the water for days.
Souviron argued that it would be all but impossible to leave repeated bitemark impressions with only the top two teeth.
Brewer was exonerated by post-conviction DNA testing, which then also unraveled the other false conviction in which Hayne identified a bitemark and West claimed to identify its source, that of Levon Brooks.
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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;