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Dead Reckoning - Part 2
by Michael Baden, M.D. and Marion Roach
Chapter Three: "Witness"
Sometimes the manner and cause of death appear to be complete with little to question: a body, a scene and a story to go with it. But such a neat package can lead to all kinds of assumptions. Assumptions can be wrong - and frequently are. And that was so in the case of Ted Binion, whose death involved the jeweled handcuffs and the smoke of tar heroin.
Lonnie Ted Binion was found dead on the floor of his million-dollar Las Vegas home on September 17, 1998. The next-day headline in the Las Vegas Review-Journal trumpeted, "Ted Binion, Troubled Gambling Figure, Dies," with this subhead: "After a life of tumult, a former gambling executive's body is found next to an empty prescription bottle." It hardly sounded like a homicide.
The story had begun to form at 4:05 p.m. on the day Binion died, when Sandy Murphy, his live-in girlfriend, dialed 911 and screamed for help. Paramedics were unable to revive Binion, and the police who were called to the scene seemed to accept what Murphy said - that it was a drug overdose and that she had found him there on the floor.
They were dead wrong, as cops in such circumstances sometimes are. This happens all the time. Regular police precincts usually send out their experienced homicide squads only when there has been a reported homicide; their least experienced officers protect the scene when the death is reported as natural. But an experienced homicide detective can see through a staged scene.
Despite national attention given to such cases as the murder of JonBenet Ramsey, we have changed little about the initial police response to the scene of a death. In the JonBenet case, the initial call to the police reporting a kidnapping resulted in certain assumptions that led to the now-infamous destruction of evidence.
No homicide detective was sent to the scene of Ted Binion's death. Sandy Murphy told the responding police a story that matched the evidence: an empty bottle of Xanax, but no suicide note, next to the body of a known heroin user whose life had spun out of control.
Police recorded that, along with Murphy's reference to Binion as her "husband" and the fact that she was "hysterical," screaming, "He's not breathing! He's not breathing!" The day after the death, the local newspaper related the story of the dead man's life.
Reporters and cops alike knew about his ties to organized crime and his long-admitted heroin addiction, both of which contributed to his losing his gambling license as well as the ownership of one of Las Vegas's oldest establishments, Binion's Horseshoe, the family hotel and casino that is the site of the World Series of Poker.
It was a pure Las Vegas story, complete with a promiscuous start, a glittery midsection and a tragic finale: Two people on the outs find each other in a topless bar, live the high life together, and then one dies. It all seemed to make perfect sense.
The absence of a homicide detective from a murder scene means that there is no one present who is skilled in knowing how to protect the crime scene; no one to poke around the story being told by whoever found the body. Instead, all too often, the story is told, the body is removed and assumptions of innocence are born. And as soon as assumptions are made, trace evidence gets trampled.
Thinking you know what you are looking for is bad enough. Then you miss only the obvious. But history has proven that things get much worse when police officers assume that they are not dealing with a homicide and therefore are not supposed to be scouring the place for evidence. Then, they step all over it.
Many people feel that this is what happened in the O.J. Simpson case. As soon as the cops at the scene saw Nicole was murdered, knowing, as they did, the history of domestic violence between the estranged couple, the investigators assumed the killer was Simpson, figured there would be a quick confession and took less care than they should have in identifying, collecting, handling and preserving the evidence.
When I worked in the Office of Chief Medical Examiner of New York City from 1960 until 1985, I visited thousands of death scenes and saw an awful lot of trace evidence. These days I have a more diverse life. In private practice, I work as a forensic pathologist available for consultation, and I mostly review photographs and reports - which are evidence, but not fresh - that are mailed to me after I get that first phone call. Then, if I pursue the case, I will look at everything that is available.
As the co-director of the Medico-Legal Investigations Unit of the New York State Police, where I have served since 1985, and as the forensic pathologist for Dutchess County, New York, I still occasionally travel to crime scenes.
Most of the calls I get in my private practice come from prosecutors, police, defense lawyers or distraught family members. Often the request is made for me to re-autopsy a body following a hospital death or a cause of death determination that the family simply cannot accept. This often happens with suicides. People don't like to believe their family members may have committed suicide, so they want a re-investigation. And sometimes they are correct.
A few years ago, a bright, successful, talented, popular Ivy League student was found hanging in the attic of his dormitory building at school. The medical examiner's office determined it was suicide. But this didn't make sense to the parents: They were a close, loving family and had detected no suggestion that the young man had been depressed. Upon reviewing the case, I, too, disagreed with the medical examiner's findings. The boy had been experimenting in the world of autoeroticism. He would partially hang himself while masturbating and supposedly would experience heightened orgasm. This time he had passed out and hanged to death. I thought the family would find this to be more upsetting, but I was surprised to learn that they could accept their son's dying as a result of sexual experimentation. They couldn't accept his dying from suicide. This realization has helped me a lot over the years in dealing with families in cases of suicide.
There is a presumption against suicide in the courts. County medical examiners come up against this all the time and have to prove that someone did, in fact, intend to kill himself and was, in fact, successful in doing so. It can be difficult to prove, especially when families challenge a cause of death finding that will exclude an insurance claim, as often happens if someone commits suicide within the two-year exclusionary period after taking the policy.
Early in my career, I was brought into court to testify about a woman I had autopsied and found to have taken more than thirty sleeping pills. In my opinion, that could only have been done intentionally. I classified her death as suicide.
But an expert psychiatrist testified for the defense that the dead woman had not been depressed. He said that on the night in question, she was tired and took some sleeping pills, after which she fell partially asleep and then developed a condition called automatism: She woke up, forgot she had taken the pills and took another two. She did this - wake up, take two pills, fall partially asleep, wake up, take two pills, fall partially asleep - fifteen times, the psychiatrist testified.
There was a double indemnity, $200,000 insurance policy on the line: If her death had been accidental, the payment would have been $400,000; if it was suicide, it was nothing. In this case, the family had brought a civil action against the insurance company for nonpayment of the policy.
It is my experience that judges tend to allow all sorts of testimony in cases like this because the parents, spouse and children of the deceased are typically sitting in the front row of the courtroom every day. It has a tremendous effect. Juries, too, see the suffering family. They don't want to punish the children for their parents' behavior, and they equally don't care about insurance companies. And so they tend to side with the plaintiffs - the potential recipients of the payment.
Civil cases like these become battles of experts, because all parties can afford to pay the fees: The plaintiff's lawyer is operating on a contingency basis; if he wins, he gets paid, but if he loses, the family pays nothing. The insurance companies are rich and can pay experts plenty to protect their assets. Despite the way it is represented on television and despite the impression left by the O.J. Simpson case, most criminal cases do not include testimony by experts, for the simple reason that most defendants are typically poor, have inexperienced lawyers and cannot afford experts.
It's not that O.J. Simpson had too much expert assistance; it's that poor people have too little. In fact, one of the many problems with the death penalty that has only recently been brought to light is that most defendants do not have the money to hire such expert witnesses, and the court allowances do not give them enough to do so.
When a big tobacco company is being sued, the plaintiff's attorney taking on the case knows up front whether there will be a lot of money for expert testimony. Without that, the lawyer would not take the case. A large percentage of civil litigation is done by contingency. So a lot more attention is paid to the facts in a civil trial, in which money is involved, than in a criminal trial, when only the life of a human being is at stake. So, if you want to see an array of experts - forensic engineers, forensic climatologists, forensic linguists, forensic geologists - go to civil court.
In the overdose insurance case, I had done the autopsy and had testified in court. I was very young and inexperienced and took it personally when the jury ruled against my finding and in favor of the family. I felt that they did not believe me and that it was somehow my fault that justice was not being done. I felt they had ruled against me. Over the years I have learned not to take these things personally. From the moment someone calls, a process is set into motion that could go any number of ways. My impact on the case can be only as good as the science I do and how well I explain it in court.
The phone call alerting me to the Ted Binion case came to my private practice. It was from Tom Dillard, a former Las Vegas homicide detective turned private investigator. He said he had heard of me and asked if I would review an autopsy report and a toxicology report. That was all he had. That, and a backstory with all the seedy facets of film noir.
The characters were Sandy Murphy, Lonnie Ted Binion and Rick Tabish: the ex-stripper, her millionaire boyfriend and her secret lover. Spiking the drama were the facts that the lover was in serious financial debt and that he was arrested right after the death for digging up the late boyfriend's buried treasure in the desert; that the boyfriend was thirty years older than the ex-stripper; and that he had used heroin for fifteen years, but didn't shoot it, snort it or smoke it. He chased the dragon.
It is a method of heroin use popular in China and other countries where heroin is very cheap, but a method seldom used in America. Chasing the dragon involves heating tar heroin on foil and inhaling the resulting white smoke. This smoke curls upward and looks to some like the tail or the breath of a dragon. Other than geographic difference, chasing the dragon is distinguished by another exclusive quality: In this country, at least, no one has ever reportedly died from this means of heroin use.
One night Binion called his lawyer and instructed him to take Sandy Murphy out of the will in which he had left her his $900,000 house and $300,000 in cash. "If she doesn't kill me tonight," he added. Apparently she did. Within days her lover, Rick Tabish, was found by law enforcement officers in the desert digging up Binion's stash of silver bullion and coins, valued at $5 million.
Clark County Medical Examiner Lary Simms had been on the job only a few weeks when the body of Ted Binion turned up on his autopsy table. Despite Binion's known heroin addiction, one could not assume that he died of an overdose. And so toxicological tests were run. They revealed Xanax, an anti-anxiety drug that Binion was known to take when trying to stay off heroin. But the Xanax appeared to be present in a larger dose than could be taken accidentally. Also found was morphine, a breakdown product of heroin. Because of these findings, along with what was known of the history and circumstances, Simms determined the cause of death to be a drug overdose and the manner of death to be homicide.
The Clark County Medical Examiner's office contacted another medical examiner in Reno to review the matter. She confirmed Simms's conclusions. Her report was typed up and sent to Clark County.
But all this had taken several months, during which time Binion's family had grown uncomfortable with the lack of a determination of homicide. And in the interim it had emerged that Murphy and Tabish were lovers.
Tom Dillard, hired by Binion's suspicious family, sent me the report from the Reno medical examiner. At the time of his initial call, the reports from the Clark County Medical Examiner's office had not yet been released. After reviewing the Reno report, I sent a one-page letter to Mr. Dillard stating that I agreed with Dr. Simms's conclusions on the basis of the information I had reviewed. I had not yet seen the original documents from Clark County nor any photographs. I followed up the letter with a call to Dillard and said that since I agreed with Dr. Simms, "I guess you don't need me anymore."
That is the way it usually goes: I concur with the findings of the local medical examiner and I don't get called to the witness stand. Or, conversely, I disagree with the local examiner and I don't get called to the witness stand. In fact, in the great majority of cases in which I consult, I do not get called to testify. Often the accused is apprised of the outside findings (mine) and then pleads guilty to a lesser charge. Then no one gets called to the witness stand, because no one goes to court.
But every once in a while you go the distance.
Tom Dillard told me that David Rogers and David Wall, the prosecutors in the Binion case, were a little concerned about the length of time it was taking Dr. Simms to establish the cause and manner of death. Even though I was technically employed by the family, not the DA, the prosecutor wanted me to back up Simms's findings at the preliminary hearing. A preliminary hearing is like an open grand jury, where evidence is presented to a judge, but no jury, and witnesses are both examined and cross-examined. Then a decision is rendered whether or not to indict someone.
For that role, I thought I should do a more thorough review of the material. I needed to see it all - the autopsy photos, the tissue samples taken at autopsy, the clothing of the deceased, as well as any police reports and other documentation. And I needed to visit the scene of the death.
I flew into Las Vegas the day before the preliminary hearing and was met by Tom Dillard, who took me to the medical examiner's office.
The first things I saw when I got there were the photos. Right away I thought something was wrong. Simms seemed to sense this and grew visibly uncomfortable with my presence. It's odd, because I enjoy having people review my work. That way, if there is a misinterpretation of the evidence, it is caught long before trial. He didn't seem to agree. The pictures of the dead man's eyes revealed distinct petechial hemorrhages inside the lower lids, suggesting compression of the neck.
Petechial hemorrhages are capillaries that have ruptured because of pressure. The circulatory system consists of arteries, veins and capillaries. Simply put, arteries pump blood out from the heart, the blood continues into the capillaries, where it provides oxygen to the cells and then continues into the veins, which bring the deoxygenated blood back to the heart. If pressure is put on the neck, the blood backs up and the capillaries, which are the weakest part of the vascular system, can rupture; this sometimes happens when you sneeze too hard, causing a blood spot to appear in your eye. It takes sixty to seventy pounds of pressure to collapse an artery, but only five pounds to collapse a vein.
In suffocation, the pressure is primarily on the nose and mouth, not on the neck, and usually you do not see petechiae. However, when a person struggles, this often inadvertently leads to pressure on the neck, as well. A finding of strangulation is a subtle one, and suffocation is much more rare than strangulation. Of the thousands of autopsies I've performed since 1960, only a few dozen were found to be adult deaths resulting from suffocation.
Dr. Simms and I differed on whether there was congestion in the capillaries in the eyelids or actual rupture of capillaries. However, we didn't differ on the presence of significant bruising or rubbing of the skin around the mouth. We also both noted the presence of small, circular bruises that looked like button imprints on the dead man's chest and another large bruise to the front of the ribs. There were also interesting bruises on both of the dead man's wrists - small, round marks, the type most associated with handcuffs. While Simms and I agreed on the presence of all of these bruises - they were right there on the photos - we would come to differ about what they meant.
Simms had rightly taken tissue samples from various parts of the body and preserved them in formaldehyde. These samples are normally taken from every organ in the body - the heart, each lung, the pancreas, each kidney, the brain, the liver, adrenal glands, and so forth. To do the best job, samples of any bruises should be taken at autopsy, as well. In this case, only some had been taken at autopsy.
Looking at the photos again, I saw one bruise in particular that interested me. Thankfully, a tissue sample of that one existed. It was a bruise over the lower ribs, and by the looks of it, it could not have formed more than just shortly before the time of death. This suspicion was confirmed under the microscope.
At the time the body is bruised - say, a punch in the eye at a boxing match - little capillaries are ruptured and bleed, resulting in what we call a black-and-blue mark. Left to its natural devices, the body will respond to that bruise within an hour. Its first response is to hemorrhage. Then, after an hour or so, it sends in the white cells, or inflammatory cells. A hemorrhage without this response is called a bland hemorrhage, and we know it is fresh. If the person dies before an hour has passed since the bruise formed, there will be no response, and all that can be seen under the microscope at autopsy is fresh red blood cells.
If Ted Binion had lived for an hour after this bruise, I would have seen cells from the body trying to repair itself when I looked at his tissue samples under the microscope.
There were none.
This is very important to the forensic pathologist, but less so to the hospital pathologist, whose job it is to notice how we die, not necessarily when. When I was a resident doctor at Bellevue Hospital, most deaths were recorded as having occurred at about 6 a.m., when the nurses made medication rounds and found the bodies of anyone who had died during the night. The time of death did not matter in these patients, so times of death were listed as the time where the bodies were found.
I paused to reflect: If I can't see the body's normal repair process, I know the man died within an hour of being bruised. This could speak to a struggle. But could it speak to cardiopulmonary resuscitation (CPR)? Did someone trying to resuscitate him cause this bruising? Was this a case of death by friendly fire? A friendly bruise or a hostile one - how do you know?
(From Part 3:) "It was what Sandy Murphy had told anybody and everybody who would listen for a good long time before her boyfriend turned up dead. When she told it to the cops at the scene of his death, they believed her. It sure looked like an overdose...It all made sense. Until the autopsy.")
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