Appearing for the prosecution, I had briefed counsel on this and pointed out the lack of bruising or external mark at all resulting from the alleged fall. When this was put to the defence pathologist he cited the famous case of a two-year-old who fell off a stool just about half a metre high in McDonald’s and died because her brain was so swollen – with no obvious external injuries.
The jury decided that the mother in this case was not guilty of manslaughter. She walked free.
A year later she had another son. The local authority knew that she had been acquitted, but they believed there was still enough evidence to suggest that the next child might not be safe in her hands. They set in motion care proceedings to remove the new baby.
In the Crown Court, a mother charged with manslaughter would be convicted only if her guilt is beyond reasonable doubt. The Family Court, which hears the local authority’s request to remove her next child from her, must reconsider her case all over again – but apply a different level of proof. The Family Court applies the lower standard of proof – the balance of probabilities – to reach its conclusions. That can be defined as a 50.1 per cent chance of guilt – a ‘lower’ standard of proof than the standard of proof that is beyond reasonable doubt. So, different courts can reach different conclusions based on the different levels of proof they require, and it often happens that the Crown Court does not have enough evidence to convict for the death of a child but the Family Court feels there is sufficient evidence to remove the living sibling of that child. And so, truth, that elastic commodity I once thought so immutable, becomes a question not of fact but of definition.
No one can be criminally convicted because they are guilty ‘on the balance of probabilities’. Even if the Family Court decides, using this definition of guilt, that a parent has ‘most probably’ killed their child, the parent is free. And, because these courts are entirely closed to press and public, no one will ever know. Although they might be aware that the court has ordered any surviving or future children be taken away, or that some other safeguarding option has been chosen for them. The Family Court’s sole aim is not to jail parents, it is to safeguard children, and that is what happened in the case of the woman who said her child had fallen from his car seat.
For pathologists, the chasm between two courts and two standards of guilt can be a nightmare. According to our evidence about the death of a first child, innocent, bereaved parents may never be allowed to keep future children. Or alternatively, we may be exposing a second child to a killer parent.
The universal tendency to leniency where mothers are concerned, of which everyone, including me early in my career, has been guilty, is a symptom of the deep human compassion most people feel for parents under pressure. I only have to think of baby Chris to feel that same compassion right now. If poverty had been knocking at my door, debts climbing in the window, chaos pervading every air molecule in the house, would I have been able to bridle my exasperation? Without the luxury of a quiet place to escape to in the house, would I have been able to stop exhaustion and strain spilling into fury?
Compassion certainly has its place but, in the case of child abuse, we must extend our compassion to those who may not yet even be born. When society, when pathologists, finally realized how widespread child murder and abuse was, each baby death assumed a double importance. Justice for the deceased, yes. But the safety of other children in the family became paramount. Our tendency to leniency no longer had a place.
Sometimes, a year or more after a baby has been buried, we return to the file because another child has been born and there is the question now of safeguarding the living. By that time, a fuller picture of the baby’s life and death may have emerged. Parents’ abusive, neglectful or simply absent care may have been exposed or histories uncovered. The whole case has a new slant. So we reopen the file and review it. Of all the files I revisit, baby cases, that minefield of moral and emotional ordnance, are the ones I examine and re-examine the most. When I moved to St George’s I would have liked simply to avoid them, but as the 1990s wore on it became obvious that the question of babies and why they died was at the heart of forensic pathology and must be addressed by everyone, including me.
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There was another change in our profession, one that seemed to accelerate at an alarming rate when I arrived at St George’s: the stress involved in court appearances.
Forensic pathologists of the past were household names and every newspaper reader between the wars knew who Sir Bernard Spilsbury was: a sort of Sherlock Holmes figure whose brilliant analysis of any case ensured that, if he were appearing for the prosecution, the defendant would be hanged. Long after his death, the icon’s cases were re-examined and his logic found sometimes to be less than Holmesian. But at the time it was unthinkable to challenge him.
His successor was my own hero, Professor Keith Simpson. Simpson – whom, at the end of his career and beginning of mine, I had actually breathlessly watched carrying out a post-mortem – was a man with far more humanity and humour than Spilsbury. But he, too, operated in the days when the expert witness was held in such regard that he was rarely challenged.
In my early years of practice, court appearances hadn’t been too bad. In the first months I avoided controversial cases if I could, although it was hard to know in advance what would turn into a circus. In general, counsel just wanted the facts from the pathologist: there was then still, if not the respect of earlier ages, at least its residue.
However, by the time I reached St George’s, barristers had begun to see post-mortem reports as a possible chink in the opposition’s armour and more and more regarded the testimony of the expert witness as an opportunity to stick the knife into the other side. Some pathologists enjoy this. For anyone with macho pretensions, courtroom barracking is the professional equivalent of a Saturday night fight and there are many who are ready to roll up their sleeves. Watching their courtroom appearances would leave me open-mouthed and incredulous.
QC: Do you mean to tell me that you are absolutely sure that the knife wounds were inflicted while the deceased was lying down?
CONFIDENT COLLEAGUE: I do.
QC: You are certain?
CC: I am.
QC: But are you aware that we have heard from two witnesses that he was last seen walking down the Old Kent Road?
CC: I am aware of all witness statements.
QC: Then will you perhaps entertain the possibility he –?
CC: I will not.
QC: You will not even say there is a possibility that –?
CC: I am sorry that I have to remind you I have sworn an oath today. An oath to tell the whole truth and nothing but the truth. Therefore, you can produce a witness saying the deceased was playing premier league football or that he was walking down the Old Kent Road or anything at all, but it is still my duty, my oath, my role as an expert witness, to tell the truth and only the truth as I see it. (sonorously) And therefore I tell you that this man was stabbed as he lay on his back.
How I envied that colleague. I knew I could never be like him. In those circumstances I cannot but admit the possibility, however slim, that I may be wrong, that there are other explanations, other versions of the truth. While my job requires me, at the same time, to insist that I have reached the correct conclusion.
My favourite court was the one that, in theory at least, is non-adversarial and informal: the coroner’s court. Here, the coroner is leading an inquiry into the truth. Here is the deceased’s wife, sitting an arm’s length away, red-eyed, anxious for the truth but fearing it, still shocked many months after the death. Here are the deceased’s children, tearful, angry, telling the coroner they don’t think it was an accident and they have a good idea who was involved. Here are his friends, awkward, supportive, overawed by the court setting.
I turn to the relatives in order to explain, as simply, kindly, clearly as I can, causing as little pain as possible, how the deceased’s life ended. I answer their questions. I nod sympathe
tically. Often, they ask the same questions again and again as if they can’t hear the answers, no matter how hard they listen. The coroner thanks me and I return to my seat.
As I leave, some relatives catch me to ask the same questions. Again. I tell them once more that he really didn’t suffer, the end came quickly, he probably did not have time to comprehend what was happening, he was otherwise in good health, no, there was no evidence of cancer and the chest pains he used to complain of were not caused by heart disease.
Usually, the coroner then reaches a verdict. Accidental death, suicide, natural causes, misadventure, unlawful killing … the relatives leave feeling emotionally exhausted but with a sense that death’s formalities are all over now. They have listened and have, hopefully, been listened to. The deceased’s case has been fully examined in public and the reason for and fact of his passing officially stated.
If only the criminal courts had the same degree of humanity. There are few jobs where it is routine to stand up in public and defend your professional opinion in the face of very personal attack. There are, of course, expert witnesses who get the reputation of being a liar for hire. I’m not one of them and don’t like to be treated that way by solicitors asking if I might alter my view a little or delete an inconvenient paragraph in my report. When I chose this career, I thought that I would be conveying the truth about the dead to the living – who would be grateful to hear it. But, as we approached the new century, I instead was starting to feel like the faithful dog that proudly lays a stick at the feet of his master only to receive a hearty kick for his efforts.
Despite all this, I usually go to court feeling confident. I know my subject, I know my findings, I know my conclusions. But, once in the witness box under oath, I have no control over events. The barristers are in control, and when they say I must stay and answer questions, if there is no intervention from the judge, then stay I must.
Not long at St George’s, I had an experience in the witness box which was so unpleasant that it gave me many sleepless nights and seemed to point at things to come. I had no idea, when I performed the post-mortem on a ‘rent boy’, or teenage male prostitute, that this case would not be straightforward. He had been found the night before and had died in hospital. His body looked extraordinary. He was covered in livid bruises, and I do mean covered. He was virtually a definition of that old threat adults shouted at naughty children in my day, ‘I’ll beat you black and blue!’
I counted 105 bruises and many, many abrasions. The weapon used was a cylindrical metal bar from a set of weights. The bar had cross-hatching at the ends, which was reproduced in some of the wounds. There were abrasions also, where, it seemed to me, the circular end of the metal bar had been used in a sort of stabbing action.
It is unusual for someone to die of bruising, but the nineteen-year-old victim had sustained a remarkable number of blows. I gave the cause of death as multiple blunt trauma. In fact, once the patient arrived in A&E he developed a disorder called disseminated intravascular coagulation, which arises from the overactivation of the body’s defence system against trauma: this results in the blood-clotting mechanisms being overwhelmed and so further, almost continuous, bleeding takes place everywhere, including from vital organs. Shock follows and, in many cases, death.
I went to the block of flats where the events took place. The young man had been found on the third floor, but he had been beaten on the ninth floor, so he had somehow staggered down seventy-four stairs before collapsing. I measured the steps and the risers but it was clear to me that his injuries, except possibly for one or two where he had stumbled on the stairs, were caused because he had been beaten by the iron bar, and not because he had fallen downstairs.
The defendant, also a male prostitute, also about nineteen years old, was actually the deceased’s best friend, and they shared the same ‘uncle’ who pimped them or funded them or both. It has amazed me, over the years, how frequently men (but not noticeably women) will kill their best friend. And brothers commit fratricide even more frequently. In this case, the deceased went to the defendant’s flat. They drank all afternoon and evening: the dead lad’s extrapolated blood alcohol levels were around twice the drink-drive limit. It was just before midnight that a resident on the third floor called an ambulance: she had found the victim lying injured outside her flat. He was taken to hospital but died less than twelve hours later.
What had happened?
In my opinion the friend started to hit the deceased and just could not stop. Eventually, the deceased escaped from his flat and down the stairs. If his attacker had reasoned at all he had probably reasoned that no one ever dies of thumps and bruises – which is a fallacy.
I received notification that I was being called by the prosecution as an expert witness. That was routine. And it felt like a routine case. I did learn that the defence barrister was one I recognized, a particularly persistent tiger. An old tiger, actually. But not without teeth. He was known for stalking expert witnesses but I was still not really concerned. The case was quite straightforward and I’d probably be in and out of the witness box in a few hours.
At a pre-trial conference with the prosecution, counsel had warned me that he would be going through each of the 105 injuries with me. I hoped that after such a marathon it would be so obvious to the jury why the young man had died that the defence would have no further questions and I would be allowed to go.
I took the stand and made my oath. The court had been supplied with copies of some of the post-mortem photos: not as sanitized as the cartoonish images we use today, but nothing too horrific, and each area of bruising was documented and numbered. I had prepared these photographic exhibits and given them to the Crown Prosecution Service well in advance, but, as usual where pictures are concerned, there was a lot of bumbling about. Officials stumbled blindly here and there with the wrong pictures, judge and jury found they had different ones, people passed pictures to other people and I had to suppress hysterical laughter at the sheer disorganization of it all.
Prosecuting counsel began by lulling everyone to sleep as we discussed in detail, as previously agreed, each one of the 105 injuries. In the course of this, I made two small errors, both picked up in a kindly way by prosecuting counsel. The first was on injury 11 on the right-hand side of the back.
ME: … indicating that once again that injury has been caused by a linear blunt object of similar size to the object that caused the injuries on the left-hand side of the chest.
QC: When you refer to the chest, you mean the back?
ME: Oh, I do apologize, yes I did. Those injuries I have just been talking about are the highlighted injuries to the back.
A daft error. And idiotic when I did it again, much later:
ME: … and as you can see, injury 71 is a ten by three centimetres deep bruise.
QC: Now, did you not, in your report, in addition to those numbered injuries, find something else here?
ME: Indeed, once again as with the chest, I found some area of parallel bruising over the legs.
QC: As with the back?
ME: As with the back. I am sorry. You are quite right, I am confusing the back and the chest. Over the back were, at least, three areas of parallel bruising …
Considering the enormity of the crime we were discussing, these mistakes seemed small enough. I said back when I meant chest and was corrected. I don’t think I confused the judge, jury, prosecution or defendant. Counsel for the defence, however, must have been rubbing his hands.
When the judge asked the defence how long their questions would take, because he was deciding when to give the jury a break, the old tiger said, rather ominously, that, since new material had just emerged, it would perhaps be better to have the break now.
There was a twenty-minute pause, one that chess players might regard as strategic. I spent it wondering just what the new information was. Was it something I had said? I remembered defence counsel’s reputation and, sure enough, within a few minutes of our return …<
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Defence QC: You have, I think, on two occasions, referred to the chest when you meant the back?
Oh-oh. When a QC tries to catch me out on small and insignificant errors to prove to the jury my incompetence early in the cross-examination, then I know that there’s trouble ahead.
ME: I did indeed, yes.
QC: That is a mistake that can be easily made, can it not?
ME: Well, yes, it is easy to confuse these things. I tend to consider the back of the chest and the front of the chest.
QC: But, Dr Shepherd, that is not what you said.
ME: No. I mistakenly said chest when I meant back.
QC: Quite a mistake in its way, is it not?
ME: Well, it is a mistake. I’m not sure how ‘quite’ a mistake it is.
QC: Very well. When you are more precise though, perhaps you expect a higher degree of accuracy. For example, the weight of the metal bar (referring to the murder weapon here) – 450 grams. Is that right?
ME: That is what my notes say.
QC: Well, we shall be hearing, no doubt, an admission of evidence that it was 421 grams. Not a great deal turns on the weight, except the accuracy of what you say.
I felt myself turning red at this point. Confusing chest and back wasn’t serious but being accused of getting the weight of the alleged murder weapon wrong might look careless to a jury. No time to think about it; defence counsel, without warning, entirely changed subject.
QC: If a man had some drink – it all depends how much, and whether he is accustomed to it – it may affect his steadiness of gait?
Unnatural Causes Page 27