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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CONTRADICTION:
---The most conceptually simple—and also by far the most common— “problem” is contradiction, which means that a qualified authority disagreed with the death investigator’s original conclusion at some point during the proceedings.
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For example, in the convictions of Teresa Engberg-Lehmer and Joel Lehmer for manslaughter of their 3-month-old son, Jonathan, in 1997, board-certified forensic pathologist Dr. Thomas Bennett, the Iowa State Medical Examiner, performed an autopsy and declared the child’s death a homicide.
The cause, Bennett said, was Shaken Baby Syndrome.
Jonathan, he concluded, had been violently shaken to death by one or both of
his parents.
However, post-conviction, the Lehmers’ lawyer sent the case file to Dr. Peter Stephens, an Iowa City [board-certified forensic] pathologist, who studied the records and concluded there was no evidence of shaken baby syndrome.
The child had died of Sudden Infant Death Syndrome, Stephens concluded.
Stephens’s report was given to Pottawattamie County Attorney Rick Crowl, who then sent the file to Dr. Jerry Jones, an Omaha forensic pathologist.
Jones agreed with Stephens— there was no evidence the baby had been shaken.
The Lehmers were exonerated in 1998.
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The conviction of Carrody Buchhorn for murder in Kansas in 2018 took “contradiction” to a new level in that the coroner posited a theory that other experts found literally absurd.
The charge was based on the conclusion of the Douglas County Coroner, [board-certified forensic pathologist] Dr. Erik Mitchell, that Oliver had died from a blow to the head.
At a preliminary hearing, Dr. Mitchell testified that Oliver had a skull fracture.
However, there was no brain swelling, which would typically accompany such an injury.
Dr. Mitchell testified that Oliver had died instantly following a blow to the head, which he claimed released mechanical energy into the base of the brain causing “temporary cessation of function at the base of the brain” or “depolarization of neurons.”
Dr. Mitchell suspected that the baby had been stepped on.
He said he believed, “going on statistics,” that Oliver died instantaneously due to “a direct effect on depolarization of neurons at the area of the base of the brain, upper spinal cord manila, [which] interferes with the ability to breathe, and that leads to death.”
He concluded Oliver had no “anatomic deformity or no anatomic reason to be dead other than the physical injury, and that this physical injury will release energy into the area that is critical for survival at the base of the brain.”
In July 2018, Buchhorn went to trial in Douglas County District Court.
Dr. Mitchell testified that there was not much time between the trauma which caused the skull fracture and Oliver’s death
. Since Buchhorn was the last person to care for Oliver, she had to have
been responsible, Dr. Mitchell testified.
However, post-conviction, among several witnesses who criticized Mitchell’s testimony, Dr. Sudha Kessler, a licensed physician and board-certified pediatric neurologist at the University of Pennsylvania Children’s Hospital in Philadelphia, testified that Dr. Mitchell's depolarization theory was unreliable.
She testified that some energy, such as electrical or electromagnetic, can impact the signals of the brain cells, but not kinetic or mechanical energy, such as a force from a blow to the head.
Dr. Kessler was “not aware of any circumstances in which mechanical energy directly translates into electrical change in the brain.”
Dr. Kessler said she had never heard or read about a brain death with no evidence of brain injury.
Dr. Kessler said she had reviewed texts, published studies, and other sources of
medical research, but she found no support for the proposition that mechanical energy can depolarize, interfere with, or disrupt the brain cells or nerves and cause instant death, without causing injury to the brain.
Dr. Kessler also reviewed literature Dr. Mitchell had produced after the trial.
She said she did not believe it supported Dr. Mitchell's theory.
Dr. Kessler called Dr. Mitchell’s theory “just fantastical, because it's not something I have ever been taught, not something I teach, not something—just not consistent. It's not consistent with the medical literature because there is no literature on magical disruption of the brain that causes death and that doesn't exist. In addition to looking through my own textbooks, looking through the two database searches I did, I was so taken aback by all this that I ... [asked] my colleagues if they have heard of this idea; and honestly, most of the time, the response that I got was laughter.”
Buchhorn was exonerated in 2022.
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RECANTATION:
In seven cases, no other death investigator contradicted the original death investigator, but the original death investigator themselves recanted their original evidence.
For example, in the conviction of Emerson Stevens for the murder of Mary Harding in Virginia in 1986, Harding’s “lower back had four parallel slices and there were several lacerations across her buttock.”
Board-certified forensic pathologist Dr. Marcella Fierro with the state’s Office of the Chief Medical Examiner had signed off on the autopsy in early September.
But on September 30, she amended [the autopsy] report and added that the slices along Harding’s back were made by a “cutting instrument.”
She wrote that the cuts weren’t made post-mortem but were – along with strangulation – a cause of death.
At trial, Fierro testified about the autopsy and the cause of death.
She said the wounds on Harding’s body were “due to a cutting instrument” and that a Wildcat Skinner could have caused those injuries.
During cross-examination, [defense attorney James] Parker showed Fierro a propeller and asked her whether it could have caused the wounds.
She said that the propeller he showed her could not have caused the cuts.
Postconviction, Fierro . . . recanted her testimony on May 13, 2016.
In her affidavit, Fierro said she reviewed the case file at the request of Stevens’s attorneys and consulted with a listserv of medical examiners. “I now believe that my initial opinion and trial testimony in reference o the cutting injuries was in error. The periodicity, location, depth, and extent of the wounds on Ms. Harding’s body are more consistent with a propeller and inconsistent with a knife.”
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In 12 additional cases, both another death investigator and the original death investigator hemselves contradicted the original evidence. Thus, other death investigators contradicted the original death investigator in a total of 104 cases, and the original death investigator contradicted their own initial evidence in a total of 19 cases
An example of one of the 12 cases in which both another death investigator and the original death investigator contradicted the original evidence is the conviction of Randy Liebich for the murder of his girlfriend’s son, Steven, in Illinois in 2004:
Dr. Darinka Mileusnic-Polchan, a [board-certified] forensic pathologist [for the NAME accredited Cook County Medical Examiner], testified that she performed an autopsy on Steven on February 12.
She documented more than 40 bruises and other marks.
Some of the bruises appeared to be healing.
She said the wounds were not consistent with being struck by a belt—except for one mark on his buttocks.
She testified that the wounds were consistent with being whipped with a plastic clothes hanger.
Mileusnic-Polchan said she found a three-inch hemorrhage under the skin of Steven’s head, indicating blunt force trauma.
She said she found a significant subdural hemorrhage
on the left side of his head.
She said that because surgery was performed on the right side of Steven’s head, she could not reach any conclusions about possible injuries there.
She said she found a perforated bowel and a hemorrhage around the head of the
pancreas—both resulting from blunt force trauma.
The injuries were consistent with child abuse and with Steven being beaten to death, she declared.
However, The defense also called Dr. Shaku Teas, a forensic pathologist and child abuse expert who had testified hundreds of times for prosecutors and fewer than two dozen times for defendants.
Teas told Judge Ann Jorgensen that she agreed with Mileusnic-Polchan that
Steven’s death was caused by multiple blunt trauma injuries.
The injuries to his abdomen were the result of punching, hitting, kicking, or some kind of crushing mechanism.
However, Teas said, a victim might experience pain for a while and then appear to be normal.
Meanwhile, the perforated bowel was leaking and peritonitis would set in.
She said that she believed the injuries all occurred around February 6.
She also said that what Liebich thought was choking on a hot dog was a seizure caused by either a previously sustained head or abdominal injury.
Postconviction, In 2012, Mileusnic-Polchan gave a sworn affidavit saying that at the time she performed the autopsy, she had already accepted a job as deputy medical examiner for Knox County, Tennessee.
When she returned in 2004 to testify at Liebich’s trial, she did not review the
medical records, but testified from her autopsy report.
“Although it is routine to order medical records, I do not believe that I received the
medical records in this case before completing the report and leaving for Tennessee,” she said. “I did not have an opportunity to review the slides, photographs or medical records before testifying at trial in 2004.”
She said that after reviewing the medical records in 2012 at the request of Liebich’s
lawyers, she discovered a surgical report that she had never seen.
That report established “that the massive subdural hemorrhage…did not exist.”
Mileusnic-Polchan said that a review of autopsy slides showed that Steven had acute pancreatitis resulting from injuries prior to February 8, 2002, the day that Liebich was babysitting.
“Given the pathology, it was improbable that any injuries occurred on February 8. Instead, the child’s collapse appeared to be the end result of a process that began days earlier,” Mileusnic-Polchan said.
The medical records showed that Steven was taken to surgery for evacuation of a large subdural hemorrhage based on the CT scan. However, “little or no subdural hematoma was found during surgery,” she said.
Mileusnic-Polchan said that the records showed that as a result of the pancreatitis, Steven’s body had lost the ability to regulate bleeding and clotting, resulting in “easy bruising.”
That explained the sudden appearance of bruises that were believed at the time to be the result of child abuse, Mileusnic-Polchan concluded.
“My recent review of the autopsy slides confirms that the child had myocarditis (damaged heart cells) and an older pancreatic injury (at least 10 days old) that would have made him more vulnerable to trauma or infection…There is no indication of trauma on the day of admission,” Mileusnic-Polchan said.
Liebich was exonerated in 2019.
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SHIFTING SCIENCE:
Cases such as this have been the basis for so-called “changed science” or “shifted science” claims that have now been written into law in at least seven states.
"In Texas, the conviction of Neal Robbins for murder in 1999 became the basis for a new law on changed science.
Dr. Patricia Moore, an assistant medical examiner for the Harris County Medical Examiner’s office, testified that she performed an autopsy and concluded, based on several contusions on Tristen’s back as well as areas of discoloration on her arm, face, and neck, that Tristen had died of suffocation by compression. Moore said she found internal hemorrhages as well.
Moore told the jury that she ruled out CPR as the cause of death because the injuries to the back were inconsistent with resuscitation efforts and because the
internal hemorrhages were caused by application of considerably more force than typical CPR efforts.
The defense called Dr. Robert Bux, the deputy chief medical examiner for Bexar County, who testified that the cause of death could not be determined.
He said the injuries cited by Moore could well have been the result of CPR efforts.
Bux also testified that EKG reports showed some electrical activity after 5:30 p.m., evidence that he said indicated the child was still alive after Robbins left the home.
However, post-conviction, In March 2007, an acquaintance of Robbins asked the Harris County Medical Examiner’s Office to review Moore’s finding of the cause of Tristen’s death.
The deputy chief medical examiner, Dr. Dwayne Wolf, re-evaluated the autopsy findings and concluded that the autopsy did not support a finding of death by asphyxiation by compression.
Wolf amended the autopsy report to say that the cause and manner of death was “undetermined.”
As a result, the inquest into Tristen’s death was formally re-opened and shortly thereafter, former Harris County Medical Examiner Joye Carter—who had been Moore’s supervisor at the time Moore conducted the autopsy—reviewed the case and in a May 10 letter to the Montgomery County District Attorney said she would consider the case as “undetermined” as well.
The prosecution asked Moore to review the case, and in a May 13 letter to the
prosecution, Moore said that while she believed the death was suspicious, “having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of undetermined…is best for this case.”
Moore said that in the ensuing nearly 10 years, she had had more experience and had reviewed additional information that suggested the bruises could have resulted from aggressive CPR, particularly by untrained individuals, and other efforts to save the child.
Still, Robbins could not find legal relief until the state legislature passed the first “changed science” statute in the country in 2013.
Robbins was exonerated in 2016.
At the time of Robbins’s trial, Moore was board certified in anatomic and clinical pathology, but not forensic pathology.
However, she received her board certification in forensic pathology in 2000, one year after Robbins’s conviction and sixteen years before his exoneration.-
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OVERSTATEMENT:
“Overstatements,” in which the forensic expert overstates the probative value of the evidence, are obviously problematic. As one forensic pathologist has commented, “The paradigm of poor expert evidence is the witness who overstates opinions. As doctors, most death investigators may be less prone to overstatement than forensic experts in other disciplines. Doctors are accustomed to the uncertainties inherent in inferring causation about human biological conditions and differential diagnoses. Perhaps for this reason, overstatements were relatively rare in death investigation cases.
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Nonetheless, they did occur in 20 cases.
For example, in the conviction of Cesar Munoz for murder of his common-law wife in Chicago in 1997, board-certified forensic pathologist Nancy Jones, of the NAME accredited Cook County Medical Examiner, who performed the autopsy testified that although the wound was a close contact wound, she believed “beyond a reasonable doubt” that the death was a homicide because the location (shot through the lip) and appearance of the wound were not indicative of suicide.
The pathologist said she was also influenced to believe the death was a homicide because the gun was moved and the body was dragged face down on the floor from the bedroom.
Munoz, who claimed his wife had locked herself in a room and shot herself, was acquitted by a judge at his fourth trial in 2013 based on evidence from a locksmith, a child psychologist, and gunshot residue suggesting the death was a suicide
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VAGUENESS:
Evidence that is “consistent with” many different possible factual scenarios arguably gives the factfinder too little information to be useful in court. Such evidence can fit nearly any theory of the crime.
An example is the conviction of Gregory Hobbs for manslaughter in New Mexico in 2013.
Hobbs claimed he shot the victim, Ruben Archuleta, Sr., in self-defense.
At trial, A pathologist with the state’s Office of the Medical Examiner testified that an autopsy showed Ruben Sr. was shot four times.
He said the fatal shot was fired at a downward angle into the left side of Archuleta’s chest from a distance of six to eight inches.
A second shot entered the bridge of Archuleta’s nose from two to three feet away. A third shot grazed Archuleta’s right shoulder, and a fourth shot hit him on the right side of the chest.
The pathologist also testified that Archuleta’s shirt had to have been pulled down in order to match a hole in the shirt with the wound on the left side of his chest.
He said this suggested that Hobbs was holding the shirt.
The use of the term “suggested” prevents this from being an overstatement of the probative value of the evidence.
The death investigator was not claiming to know that Hobbs was holding the
victim’s shirt, only that the evidence suggested it.
However, how strongly the evidence suggested that, and how strongly it might have suggested other explanations that were not mentioned, was not stated.
This is problematic because the factfinder was left having to guess how strongly the evidence supported competing theories of the crime.
For this reason, we call this evidence “vague.”
The evidence was not discriminating enough to provide the factfinder with useful information to weigh the competing theories of the crime, but the factfinder probably interpreted the evidence as probative of guilt.
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;
