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Dead Reckoning - Part 3
by Michael Baden, M.D. and Marion Roach
Chapter Three: "Witness"
Many months later, in his closing argument at the murder trial, John Momot, Sandy Murphy's defense attorney, said, "She loves him. He loves heroin, and the heroin loves no one." It was a good defense. It had been Sandy Murphy's story from the start.
It was what she told the emergency medical technicians and then the cops when they rushed to the million-dollar home of Ted Binion.
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. He was a known heroin user and had been for fifteen years. Las Vegas is, after all, a small town; everybody knew that Binion had lost his gambling license, the ownership of his family's famous casino, as well as a long marriage because of the drugs. It all made sense.
Until the autopsy.
When CPR is performed on a living person, it can result in extensive bruising. Sternal rubbing, pounding on the chest, flipping over a person struggling for life - all of these may cause bruises to the body. There can be a lot of breaking of blood vessels in an effort to prolong life. A large hemorrhage, or bruise, develops when the heart is still beating and pumping blood. If the person is already dead when CPR is started, there may be some bruising, but it will be slight. This is because any bleeding will be passive, since the heart has stopped. That does not mean there is no blood in the body, only that it has little pressure behind it. Imagine cutting a garden hose when the water is turned off: You'll get a little leakage of water flowing passively. Cut the hose when the water is on, however, and the active pressure will make it spurt.
As I looked at the pictures and the tissues of Ted Binion, the story envisioned by Dr. Simms began to unravel for me. It was a troubling development. I had been flown out to support the conclusion that Ted Binion had died of a forced ingestion of a combination of Xanax and heroin. Suddenly that was not my opinion. I couldn't swear to that. And I wouldn't.
Usually if I am coming in on the same side and there are differing opinions, we talk about them freely: He sees this, I see that, but we are both there to advocate for the dead, for justice. We are both forensic scientists, so really we are on the side of the science. Any forensic scientist who feels that he must advocate for the side standing in the room is going to get into trouble.
This applies even when doing the job as the county medical examiner. The position does not require you to side with the prosecution: You must always ally yourself only with the science. The job a person holds must not influence a scientific finding.
Dr. Simms and I ran into trouble when I said that what he had listed in his report as congested vessels in the eye looked to me like petechial hemorrhages. He said that he had his opinion and that I could have mine, and that he didn't think it was appropriate to discuss it further. But he did make all the records, photos and samples available to me. While looking at the original reports, I realized that there was something amiss.
Comparing them to the copies I had been sent and had reviewed, I saw that the report typed at the medical examiner's office in Reno - a copy of which I had originally been sent - had an error in the toxicology report. Instead of listing the Xanax found in Mr. Binion in nanograms per milliliter, it had been listed in milligrams, which is a million times more. Instead of typing "ng," someone had typed "mg."
It was from this information that I had drawn my original conclusion that the amount in the body was a lethal level. In fact, what was found in Mr. Binion was a therapeutic level and one that can be easily tolerated by most people.
As a medical examiner I know that at any time some other professional may come and review my work. He might be someone come to back me up or someone from the opposite side brought in to review things. The family, in particular, has a right to review what we've done, which is one of the reasons we contemporaneously document everything we see. We dictate, take photographs and X rays, make microscopic slides: Everything we do, in fact, is done so that another person can come in and make an independent assessment, not relying on us. In the old days we said, "Trust me." There were few photos, no clothing analysis, and no independent judgment. And that's how lots of mistakes were made.
When we got outside the lab where I had reviewed Dr. Simms's findings and the data, I knew what I had to say. "This doesn't make sense now," I told Dillard. "I don't agree with Simms."
Dillard didn't look pleased.
There are five manners of death: accident, suicide, homicide, natural and undetermined. Dr. Simms had concluded Binion had died as a homicide due to overdose. But the facts, in my opinion, indicated that the levels of the drugs in Binion's system were not high enough to kill him. So while it may, in fact, have been a homicide, I told Dillard, it was unlikely that the homicide was caused by overdose. I based this finding on several things.
First, in my opinion you don't die from chasing the dragon. Certainly not in the United States. After thousands of heroin autopsies in New York City, several trips to Hong Kong (where heroin use by chasing the dragon is very popular) and an extensive search of the pertinent medical literature, I have not been able to identify a single such death. That makes the chances of Binion's dying this way very small - possible, but highly unlikely.
Then there was the fact that there were no injection marks on Binion's body. That means that not only did he not shoot the heroin but that no one injected him with it against his will. So how did the heroin get into his system?
Experience has taught me that it is very hard to force someone else to swallow enough of anything to cause death. I once had a case where a man had pointed a gun at his wife and said, "Swallow," as she downed what he thought would be enough sleeping pills to kill her. They weren't and they didn't. He was a physician, and even he didn't get it right. He had forced her to take enough medication to make her pass out, but she recovered and helped convict him.
Sometimes, of course, people die accidentally after taking drugs, especially as a result of drug interaction, when the combination of two or more drugs causes a reaction in the patient that one drug alone would not have caused.
The first photocopied autopsy report I had received and reviewed had indicated an amount of Xanax in Binion that he could not have taken by accident, and as a result, I ruled out accidental death, which left me with suicide or homicide.
Now, with the presence of the petechiae, the bruises on the chest, the freshness of those bruises, the circumstances of the death and the toxicological results, it was my opinion that although there were drugs in Binion's system, they were not sufficient to cause death. They were, I was convinced, just an incidental finding. I agreed that the manner of death was homicide. But I believed that the cause of death was suffocation.
As I was telling Dillard this, I could see that it was causing him concern. He had wanted my opinion. But he hadn't expected this one. He excused himself and went to call the DA, David Rogers. He too, it turned out, was concerned by this new and surprising opinion.
The preliminary hearing was scheduled for the next day; I had been flown in to act as backup witness to Simms. I wondered whether they wanted to put me back on the plane to New York with a big, "Thank you, but no thank you."
Dillard, Rogers, Wall and I went out to dinner to go over my findings. At 6 p.m. on the eve of the preliminary hearing, we sat down to do just that, and I explained to them what they had on their hands. In my opinion, it was a case of burking.
To burke means to murder by suffocation in a way that leaves few or no marks of violence. The name comes from an 1829 case in Edinburgh, Scotland, in which William Burke and William Hare were convicted of fifteen murders, after which they sold the bodies to the university's medical school to be used for anatomy classes. The bodies brought ten guineas each. Hare, the leader, turned against his partner and got out of prison in a few years. Burke, the follower, was hanged, and his body ended up on the very tables he had been filling. Their method of murder involved putting a hand over the nose and mouth of the intended victim while sitting on the victim's chest, thus preventing breathing. They did this thinking it left no marks.
But it can.
At dinner I explained that when I pointed out to Dr. Simms what I thought were petechial hemorrhages, he stated that he thought they were congested capillaries in the eye - that while blood had flowed into them, they had not, in fact, ruptured. This turned out to be an important distinction.
The prosecution had every reason to believe its own medical examiner. And, equally important, so might the jury. Outside experts can be perceived in many ways: hired guns, carpetbaggers, big-city big shots or, preferably, consummate professionals. But this was a rare situation: two expert witnesses - one hometown, one from New York - testifying for the prosecution that the manner of death was homicide, but disagreeing on the cause of death.
I told them that I knew this was not what they expected, that I knew the problems this could create and, if they wished, I could just go back to New York. But there was a legal problem.
If these had been defense attorneys I was meeting with, they would not have been compelled to reveal my findings to the prosecution. But, under the so-called Brady rule, established by the courts, the prosecution is compelled to reveal anything that might be helpful to the defense.
But if the defense attorney finds anything harmful to his client, he cannot turn it over. His job is to defend the client. If he thinks the client is going to lie on the witness stand, he can ask the judge to be removed from the case, since he cannot participate in a lie, but he cannot turn over evidence that might indict or convict his client. He cannot destroy the evidence, but he can't point it out, either. The legal system is designed this way so that the defendants can give any and all information to their lawyers in protected confidence without fearing that their counsel will snitch.
For a defense attorney, winning is not solely a matter of getting a client acquitted. It is also about the degree of guilt, which is more subtle than simple guilt or innocence. Even if the defendant is guilty, he might not be guilty as charged. He might not be guilty of a capital offense, for instance, for which he could receive the death penalty, and the defense attorney is there to ensure that the verdict is not harsher than it should be.
The prosecutor's job, however, is to do justice. Sometimes that includes letting someone go. We are not supposed to prosecute people in this country just because we can make bad evidence fit the crime and the suspect. It is the prosecutor's job to find justice, and to do that, he must bring out all that he knows.
By my calling into question a portion of Simms's intended testimony, the defense could argue there was doubt on the accuracy of his findings - all of his findings. I was opening up the possibility that with this disagreement Simms and I could both be challenged by the defense counsel. We agreed on the manner of death as homicide but disagreed on the cause, and if the jury was confused by that concept, they might choose to disbelieve all of our other findings. It is hard to be perceived on the stand as a little bit wrong - wrong about one thing but not wrong about other things. And it appeared to me that Simms was wrong about the congested vessels in the eye and the source of the bruising on Binion's chest and around his mouth, and therefore about how Binion was killed.
But how would the jury react?
While I was sympathetic to the problems my opinion could create for the prosecutors, I was not about to change my medical determination. Under those circumstances, most prosecutors would have said, "Well, that isn't according to the evidence we have, so you must be wrong. Good-bye."
People frequently misunderstand this situation. When the public hears about these types of negotiations, they think there is some kind of intentional cover-up. But it isn't that. Experts can have different views.
Rogers and Wall made a bold decision. They chose to go forth and present both opinions in the preliminary hearing the next morning. Interestingly, between the time Dillard first called me and when I flew out to Las Vegas to review the records, I had been contacted by lawyers for the defendants to review their material. Had I been called by them first and looked at Simms's reports and photos, my opinion would have been the same. It's the independent science that guides my opinion.
When it comes to testifying, it is important for an expert witness to review in detail all of his findings and opinions with the attorney. This is called preparation. No expert should go into court without sufficient time to talk through the case with the attorney who calls him to the stand. In my opinion, the three most important factors in testimony are preparation, preparation and preparation.
Often, this does not happen. This is especially the case with medical examiners working for large cities. An autopsy performed today on a man hit by a city subway may not come to trial for five years, during which time the doctor has performed or overseen many other autopsies. Imagine - hundreds or thousands of autopsies later, the doctor is called by the city's counsel and told to be ready to testify without ever having discussed the matter.
That is the worst case scenario, but at least there is a reason for it: Both sides are overworked. The infuriating cases, to me, are those where the attorneys just say to the expert witness, "Oh, you're the expert, you know what to do" or "You have testified in more murder trials than I have, so just do your stuff."
What that tells the expert is that the attorney does not understand the importance of preparation or does not want to spend the necessary time in preparing the case. Even something as mundane as explaining my qualifications, or how the lawyer will ask, "What is your occupation?" should be discussed ahead of time. Some experts like the attorney to say, "Tell us about yourself," and then let the expert speak at some length about his qualifications.
Handled poorly, this can sound a lot like the expert is bragging, and I learned early in my career by watching others not to allow anyone to put me on the stand and let me talk for a half hour about myself. It has made me feel very uncomfortable. Instead, I prefer to have it dragged out of me in the judicial process called qualifying. Whenever an expert testifies he has to be qualified - that is, the judge has to approve that the proffered expert is really an expert in the matter at hand.
Ideally, the attorney who calls me to the stand should follow a logical sequence of questions that leads me and, in turn, the jury, through five topics: my qualifications, the science I practice, the introduction and chain of custody of evidence, the examination and analysis of that material and, finally, my opinion.
There are twenty-four specialties in medicine. Within each specialty there are subspecialties. I am board certified, or a diplomate, in three subspecialties of pathology: anatomic pathology, which involves looking at the anatomy of the body and includes examining surgical specimens and performing autopsies; clinical pathology, which has to do with the chemistry of the body as tested in the laboratory; and forensic pathology, which has to do with investigation of unnatural and traumatic conditions that affect the body. All are more concerned with finding out why someone is sick or has died rather than with treating a patient.
The expertise of forensic pathology has long been accepted in the courts. But what about forensic climatology, forensic entomology, forensic botany? How about handwriting analysis, fingerprinting and blood-spatter analysis? All of these are currently being challenged as expert disciplines.
And what do we do with the lay expert? Movie buffs remember the scene in My Cousin Vinny in which the girlfriend testifies as a lay expert in auto mechanics. Should such a witness be allowed in court? She provided crucial testimony in the movie, but many judges would refuse to allow her onto the stand.
Evidence may be anything that the judge determines relevant to a trial. It is important stuff and must be handled with great respect. Perhaps Herb MacDonell, the authority on blood spatter, says it best in his book The Evidence Never Lies:
You can lead a jury to truth, but you can't make them believe it. Physical evidence cannot be intimidated. It does not forget. It doesn't get excited at the moment something is happening - like people do. It sits there and waits to be detected, preserved, evaluated, and explained. That is what physical evidence is all about. In the course of a trial, defense and prosecuting attorneys may lie, witnesses may lie and the defendant certainly may lie. Even judges may lie. Only evidence never lies.
Just because evidence exists, however, does not mean that it will find its way into court. In this country, we leave it up to the presiding judge to decide what the jury should hear, the so-called admissibility of evidence.
Beginning in the 1920s in America, scientific evidence was allowed into the courtroom if it was generally accepted by the scientific community. In 1993, however, the United States Supreme Court ruled in Daubert v. Dow that instead of "general acceptance," the new test of whether or not something was admissible in court could require an independent judicial assessment of the "reliability" of that evidence.
The old rule was called Frye, based on the 1920s case that established it. The new rule is called Daubert, and it applies in all federal cases and in those state jurisdictions that have adopted it as to deciding what will be heard as evidence in court. All courts make a determination of admissibility in either a pre-trial hearing or at trial, at which time the relevance of the material and the competence of the expert witness are judged. It can be grueling as well as confusing.
For instance, under Daubert, ballistics generally is acceptable as scientific evidence in the courtroom, while polygraphs are not. Under Daubert, cousin Vinny's girlfriend might not get in.
The language of the Daubert opinion gives broad discretion to trial judges and instructs them to consider at least four factors when determining admissibility: whether the theory or technique can be tested; whether the science has been offered for peer review; whether the rate of error is acceptable; and whether the method at issue enjoys widespread acceptance. Unfortunately, this is a huge burden on individual judges, who in general are not broadly educated in science.
Witnesses must be qualified in civil and criminal trials, preliminary hearings and grand juries, whether for the prosecution or the defense. I get up on the stand and am asked enough questions by the lawyer so that the judge can say, "Yes, you qualify to give expert opinions." This means that both my science and I can come to court. Then the judge will explain to the jury that the reason I have to be qualified is that from here on, I will be allowed, in this judge's courtroom, to give opinion testimony. Everyone other than the qualified experts will be giving fact testimony only: what they saw and when and where they saw it, not what they interpret it to mean.
The jury needs to know that the expert witness is in the courtroom to provide specialized information to assist it in interpreting the factual evidence. And the experts must be distinguished from fact witnesses.
Fact witnesses - the brother-in-law, the man on the street, the neighbor, the shop owner - come in and say, "I saw him." The expert witness comes in and says, "From my knowledge, experience, training and publications, I have found that you can't notice a reliable shape of the nose in this lighting condition." A fact witness who is a bank teller can say, "A woman came in, said, 'Give me a million dollars,' and then sat down and was twitching in her arms and her legs." An opinion witness who is a psychiatrist may say, "Based on my observations of her behavior, I can say that she was mentally ill at that time."
The forensic pathologist is usually both a fact and an expert witness - he both testifies to the facts of the autopsy findings and interprets their meaning. I may find that there are three gunshot wounds in the back. When I am called to testify about those facts, I am also usually asked to give an opinion about what the facts mean. The question will usually be "What is your opinion as to the cause of death?" The three bullet holes in the back are fact. Whether they are entrance or exit wounds is a matter of opinion. So in my testimony, I give a mixture of fact and opinion.
What the judge rarely mentions is something that attorneys love to bring out in court - who is paying whom and how much. Everybody loves to talk about the money expert witnesses make. There is an attitude that outside experts are hired guns because they get paid for their testimony, and the local medical examiner is trustworthy because he doesn't.
In general, medical examiners work for municipalities and are paid a salary to do the autopsy. Medical examiners are getting an annual salary, health benefits, job security, time to publish, academic advancement and promotions, which the outside expert does not get for his testimony.
Consider a civil litigation in which, for example, a person dies of multiple fractures. I can be called by the lawyer for one side and can certify the cause of death as multiple blunt force injury after being struck by a vehicle. That's all fact. He then may ask me, "How long did he live? How long was he conscious? How much pain and suffering did he endure? Could he have been saved if the ambulance had come sooner?"
When an expert is called into a criminal or civil matter for which he did not do the original fact work and for which he is not receiving a salary, he should be paid a fee. That's how our system of justice works. In the Binion case I was initially retained by the family to review what they thought was a murder but in which, after some time had passed, the local medical examiner had not yet made a determination. Subsequent to my involvement he did classify the death as a homicide, and the district attorney decided to retain me as a prosecution expert. It was an interesting twist, and one that some people found confusing.
It amazes me that, most of the time, juries are able to understand expert testimony. This, in part, is thanks to the judge, who explains to them that the reason experts are there is to help them gain insight and understanding into specialized knowledge that the average person does not have - whether it be anatomy, toxicology, forensic entomology or blood-spatter analysis. Expert witnesses are there to help them understand and interpret the evidence.
(From Part 4:) "Although they might be facing the death penalty for killing Ted Binion, Sandy Murphy and Rick Tabish looked very relaxed, almost carefree. It was striking to me, accustomed as I am to seeing people sitting rigidly at the defense table.")
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