There is another, more personal, reason why defence post-mortems can be a challenge for newcomers trying to make their way in the world of experienced forensic pathologists. That’s the fear of taking an opposing view. Our court system thrives on these differences, but they do nothing for relationships within the profession, particularly if you are just a newcomer facing one of the giants of pathology.
Before accepting my first defence case, I checked with trepidation the identity of the prosecution’s pathologist. I really hoped I wouldn’t find myself reviewing the work of, and perhaps differing in opinion from, some highly esteemed older colleague. To my relief, I learned that the prosecutor’s pathologist was one of my contemporaries.
So I went to the mortuary to examine the wounds a seventeen-year-old boy had confessed to inflicting on his father. There were twenty-seven injuries, all of them to the face and head. The skull was broken and the brain extensively injured. The boy’s defence team had hoped to persuade the prosecutors that their client was mentally ill. But they had got nowhere and now a murder trial was scheduled at the Old Bailey.
The lad’s statement was contradicted by the findings of the first pathologist. He said he had only struck about four blows while his father slept in bed. The pathologist insisted there had been more than twenty.
When I carried out the second post-mortem, I could not fault the prosecution pathologist’s report, which accurately described the father’s wounds. However, their varied nature raised some questions.
In a youthful and enthusiastic quest for truth, I set about making a replica of the crowbar the boy had used – except that my crowbar was made of foam. I asked how tall the defendant was and used photos of the scene to stand at approximately the height and angle he had stood to his father. I then spent a long time bashing a pillow with the crowbar: the pillow was standing in for the father’s head.
After considerable study, I was able to prove that the lateral motion of the blows would have caused the weapon to rotate on impact, and to bounce. I wrote:
The multiplicity of injuries can be accounted for by bounce of the end of the crowbar. The post-mortem appearances are entirely consistent with your client’s assertion that he struck his father 4 or 5 times.
But my Simpsonian deductions never saw the light of day. A head scan of the young man proved that he had been severely brain damaged in a car accident several years earlier. The plea of guilty to manslaughter with diminished responsibility was now accepted by the prosecution and the boy’s trial was withdrawn from the Old Bailey’s list.
No courage was required to contradict the findings of the prosecution’s pathologist for that case. But, beyond cowardice or careerism, is a deeper problem for both defence and prosecution pathologist. Neither party can ever – should ever – admit to being wrong. It is acceptable to admit that there may be other possible conclusions, but, in the absence of any new evidence, the pathologist should be sure enough of his or her view to stick to it.
It was alarming to understand at the beginning of my career that the pathologist is assumed to be right, whichever side he is working for. The day I became a fully qualified forensic pathologist was the day I turned from a not very sure trainee who still probably had a thing or two to learn, into an expert who can never put a foot wrong. Allegedly. So, if you have ever thrilled to the transformation of the insignificant Clark Kent into Superman’s invincibility, imagine what a disconcerting experience this must have been for Kent himself. Certainly, I have found the cloak of invincibility placed upon me a heavy burden.
But why is this? Why must I now always be right when it is the human condition to be wrong sometimes? Answer: because the adversarial nature of our criminal justice system has no room for ‘perhaps’ or ‘maybe’ or ‘possibly’.
Even though I was determined in many areas of my life to follow the lines of Pope my father had given me when I was a young man, and ‘speak tho’ sure, with seeming Diffidence’, the fact was that my job did require me to ‘speak tho’ sure with complete Confidence’. Any wavering, and defendants might be sent down for crimes they did not commit – or freed when they were guilty.
The greatest test of sureness comes in the witness box. Court cases (especially at the Old Bailey, which almost reeks of seriousness and importance), can be highly intimidating affairs. I knew that long before I experienced it at first-hand. The collapse of one famous case because the prosecution’s forensic pathologist had committed a minor error was a national news story shortly before I qualified. That pathologist’s long and distinguished career ended somewhere close to humiliation, not because his small error was even relevant to the trial (and, I fear, not because the defendant was innocent), but because an aggressive defence barrister had exposed a small oversight and used it to undermine the pathologist’s competence in the eyes of the jury.
This was disturbing, doubly so when Iain West created his own version of the entire cross-examination for us in the pub, playing both the insinuating barrister and the hapless pathologist for his transfixed but rather glum colleagues.
I found myself recalling this cautionary tale during my first major dust-up in court. I had been summoned by the police to a homicide and, as the pathologist at the scene, I was a witness for the prosecution. The defence ordered a second post-mortem from one of my former professors. He gave a different cause of death. The defending barrister only had to glance at my callow young face and compare it with that of the venerable professor to know his best line of attack. The exchange (recreated here from memory and not transcript) went something like this:
QC: Dr Shepherd, let’s be clear here, I am sure it will be of great interest and significance to members of the jury. Can you tell me how long you have actually been practising as a forensic pathologist?
ME: Er … well my first actual case was –
QC: By ‘practising’, I of course mean since the completion of your traineeship.
ME: Two years.
QC: Two years. I see. Are you familiar with the professor of forensic pathology who is also giving evidence at this trial?
ME: Yes, I am.
QC: Really? How do you know him?
ME: He was my professor.
QC: Ah. I see. He taught you. Well, Dr Shepherd, you will, then, be aware that he has been a practising forensic pathologist for forty years.
ME: I … I imagine something of that order.
QC: I can assure you that he has been practising for forty years. He taught you. Two years ago. And he feels the cause of death you have given is incorrect. Are you sure you have the knowledge and experience to contradict him?
ME: [Takes a large gulp.] I have examined the case fully and … er … I do not wish to … er … revise my opinion.
QC: Are you sure about that? You are absolutely sure you know better than your eminent professor?
ME: Um … er … naturally I respect my colleague’s … er, opinion. But … mine is different. He did … er … train me in how to … um … form opinions.
QC: And you are not disconcerted that you have formed an opinion at such variance from the professor you claim to respect so much?
ME: Um … no.
QC: Well, Dr Shepherd, I admire your hubris. [Shakes head with an air of tragedy and turns to the jury.] Members of the jury, you will, of course, want to come to your own conclusions about Dr Shepherd’s knowledge and experience. Or maybe the lack of it.
Ouch! But I don’t think my professor had a much easier time giving his evidence: in fact, he was forced to accept that I could be correct. Of course, there was a great deal more evidence beyond the pathology of the case, as the judge reminded the jury during his summing up. They then found the defendant guilty.
I really felt myself to be under pressure giving evidence in that case: pressure to give way on my view of the truth. Afterwards I reviewed my findings and conclusions and I was proud that I had stuck to my interpretation of events. Despite the battering I had received, I was still sure my interpretation w
as correct. As a result, I convinced myself that the truth was always so clear and that I would always be able to hold on to it so easily, despite attempts to push me this way or that. I still did have a lot to learn.
13
My children were now at school but it was well known that I was always disappearing early from the pub after work to take care of them, sometimes even dragging myself away from one of Iain’s spellbinding bar soliloquys, because the nanny was going home and Jen was busy at work. My colleagues got into the habit of saying, whenever a case concerning children came into the office, ‘Dick loves children, give that one to Dick.’ As if there was any similarity between helping a child of my own with reading homework and examining someone else’s dead child. No, the truth was that many people avoided child cases if they could.
It did not take me long to learn why. For there is nothing more likely to bring great joy to the private life of the forensic pathologist as a new baby and nothing so likely to bring great misery to his professional life. Fact: it is quite easy to kill a baby, especially a newborn, without anyone being able to prove it. Fact: sometimes it looks as though someone has killed a baby when the death is entirely natural.
A baby case came in, everyone looked at me and I soon found myself at a mortuary on the edge of London. The deceased was a newborn girl found in a black bin bag washed up at the edge of a lake at a beauty spot. The umbilical cord and placenta were still attached.
My examination told me that the baby had certainly been born at full term. She was fully developed, covered in the waxy vernix of the newborn, weighed over 7lb and seemed to have been entirely healthy with no anatomical abnormalities or diseases that could have caused her to die.
The police explained that the mother had been easily located. She was insisting that the baby had been stillborn. The police doubted her word. They wanted to charge her. In fact, they wanted to charge her not with infanticide but with murder. And so we found ourselves in the middle of a really difficult area of both the law and pathology. No wonder the office had been so pleased to hand me this case.
Infanticide is manslaughter, and so carries a far lighter sentence than murder. It was introduced in 1922 for the prosecution of mothers who killed newborns under thirty-five days old. Back then, killing a baby was not considered such a terrible offence as killing an adult. It was believed that no baby could suffer like an adult victim and no baby would be missed like an adult member of the family. And it was well understood that one possible motive was shame at illegitimacy.
We might discount this thinking today, but one important aspect of the 1922 Act has endured. The law recognized that there could be a ‘disturbance of a mother’s mind which can result from giving birth’, something which today we call postnatal depression – or its even more serious sister, puerperal psychosis. This view was retained by a new Infanticide Act in 1938. From then until now, a mother who kills a baby under twelve months old can be charged with infanticide if it can be shown that ‘the balance of mind is disturbed by the effects of childbirth or lactation’.
The reform of this law has been debated many times. The Royal College of Psychiatrists recently suggested the definition of infanticide should be broadened to recognize that a baby’s birth may have created overwhelming stress, for instance the stress of an extra member of the household where the family is struggling in poverty. Others thought that infanticide was a charge that should equally apply to fathers, and some that it should apply where the victim was under two years old, not one year. Some pointed to a lack of medical evidence to justify the reference to breastfeeding affecting the balance of a mother’s mind.
In fact, after reviewing all these suggestions, amendments have been minimal. But the unchanging law masks changing attitudes, including the recognition that children and babies have rights.
As I examined that baby found at the lakeside, the first question I had to ask myself was not whether this was murder or manslaughter but whether the baby had died at all. Because a baby who has never lived cannot die. Nor be killed. And, in the legal sense, a child in the womb has not lived. Anti-abortionists may disagree, but that is the current practicality of the law. The underlying question for the pathologist in such circumstances is: when is a person not a person? And this is important because a person has rights, legal rights to inheritance or title, and human rights. Kill a person and you can be charged with murder or manslaughter. But not if the person never actually lived.
Under English law, a dead newborn is assumed to have been stillborn. If murder or manslaughter is suspected, it is up to the pathologist for the prosecution to prove that the baby lived long enough to establish a separate existence.
One breath is all it takes. Or a movement. Or a pulsation of the umbilical cord which indicates a heartbeat. And the baby must be completely out of the mother’s body: a baby born head first, as most are, can theoretically take breaths but still die before the rest of the body is free of the mother. In that case, there has been no separate existence and the baby cannot have been killed.
A baby who has died in the womb in the last day or so of the pregnancy will show the early signs of decomposition, and these are distinctive (for instance, the colour of a dead Caucasian child will probably be pinky-brown). If the baby has been dead for a longer period, diagnosis is even easier: the skull may have collapsed and the skull bones might be overlapping, for instance. But if the baby died less than a day before birth or, much more commonly, during the process of birth, there is of course no decomposition.
If there has been resuscitation, mouth-to-mouth or chest compression, the effects can be marked on a tiny body and this can confuse things still further. A final problem is that the bodies of newborn babies who are killed or born dead are, for complex psychological reasons, often concealed. By the time they are found and the pathologist gets to work, it can be impossible to establish the cause of death, let alone whether the baby ever had a separate existence.
This little girl in the bin bag had been found soon enough to prevent decomposition and too late for resuscitation, so her body was unmarked. So now I had to try to establish whether she had actually breathed in this world or not.
I did carry out the centuries-old flotation test knowing that it had really lost credibility – but fearing I would be criticized if I did not. The belief that if the lungs of a dead newborn float then the baby must have breathed and had a separate existence has been proven a myth. A lung that sinks when placed in water does point to the possibility that the baby has been stillborn because it suggests that the baby did not breathe sufficiently to expand the lungs. But the opposite is even less likely to be true: if the lung floats, that does not mean the child must have breathed spontaneously. It is now known that the lungs of many stillborn babies will float, particularly where there are gases due to early decomposition if the baby has died a day or two before birth.
I also examined microscopically the lungs’ tiny air sacs, the alveoli. For what it was worth, the child’s lungs floated. Macroscopic and microscopic appearances did strongly suggest that there had been a period of separate existence.
My next job was to read the statements I had been given and see how they related to the baby I had examined. The key statement came from a barman who lived and worked at the same hotel as the baby’s twenty-one-year-old mother. It began:
When Mandy came to work at the hotel as assistant manager she seemed all right except that I only had to look at her to think she was pregnant. I have two sisters with children and she certainly looked pregnant to me. This was common knowledge among the bar staff but Mandy always denied it.
The staff all stayed in one part of the hotel and the barman’s room was by the fire escape at the back. He woke very early one morning to the sound of a baby crying outside his door. He looked out of his window
… and saw the back of Mandy, maybe fifty yards away, going through the gate towards the woods. It was definitely Mandy. I’m not sure what she was wearing and I couldn’t sa
y whether she was carrying anything. I wondered where she was going. I started to think about it. I thought she might have a problem so I got dressed and decided to go out and join her. I know people in this trade do sometimes get pissed off and just want to talk.
It took me a few minutes to get dressed. I went down the fire escape and out through the gate into the woods. I walked towards the lake and I saw Mandy walking back from the direction of the lake.
She said, ‘What are you doing out here?’
She seemed OK to me as far as I could ascertain. She was fully dressed but for the life of me I can’t say what she was wearing. She basically said she was pissed off with everything and everybody. She didn’t specify. I sat down with her on a seat facing the lake and we just spoke in general about my girlfriend and the band I play with and other things. We talked about the mist rising off the water. I didn’t suspect anything was particularly wrong. She seemed to be her normal self. The only unusual thing she said was, ‘I’ve come on tonight and I’ve had blood clots.’
I never pursued the point but it seemed a funny thing for her to say to me. We must have talked for about forty-five minutes and I never suspected anything. I never thought any more about the baby I’d heard crying.
We went back to the hotel and she came into my room for a cigarette, then she left. I never noticed anything unusual about her at all. I then went back to bed and had a sleep.
Later that day the staff remarked to each other that Mandy looked slimmer. And the next afternoon, there was a commotion. According to the barman’s statement:
I was working in the bar when a woman came in asking for the phone, she had a dog with her. A bit later another member of staff came in, Roger, and he said, ‘The Old Bill are over by the lake, a baby’s been found.’
When he said this I really came over ill. I remembered hearing this baby cry the previous morning and seeing Mandy by the lake and I suddenly thought it all fitted. I didn’t know what to do. I said to Roger, ‘I know who it is.’
Unnatural Causes Page 11