Grounds for Appeal

by Bernard Knight

  ‘This is where we need a detailed argument, Doctor Pryor,’ said Paul Marchmont. ‘You are directly at odds with their expert on this.’

  ‘Right, let’s take the easy ones first,’ said Richard. ‘Their Doctor Mackintyre said that he relied on a concurrence of post-mortem lividity, rigor mortis, stomach contents and temperature to arrive at his conclusion that death had occurred between eleven and twelve o’clock. That is utter nonsense, as any medical man who, from an imperfect examination fourteen hours later, puts a time of death within a one-hour bracket is either ignorant or foolish!’

  ‘Strong words, doctor!’ said the QC.

  ‘If he had said “consistent with those times”, I would agree with him, but that then fails to destroy Millie’s alibi, as someone else could have done the deed outside the very short time bracket.’

  Marchmont once again tossed his hair back. ‘Carry on, please, doctor.’

  ‘First, lividity, or “livor mortis” as it was probably called in Doctor Mackintyre’s day. Completely useless as a timer of death. It can even occur in deep coma, such as barbiturate overdose. But the time it takes to appear due to gravitational settling of the red blood cells is extremely variable. To use that to pin down a time to an hour, when seen half a day later, is little short of ludicrous.’

  Penelope Forbes, who had been very quiet in the presence of her leader, came in with a query that showed that she had researched the case in depth.

  ‘Haven’t I read that this lividity becomes fixed after a certain number of hours, which can be used in timing?’

  ‘That is certainly in all the textbooks, but in practice it is very variable and often doesn’t occur at all,’ was the firm reply. ‘I’ve experimented myself and found it to be totally unreliable.’

  Douglas Bailey was getting out of his depth here. ‘Can you explain that, Doctor Pryor?’

  ‘When the blood cells settle, they are still inside the veins under the skin, so that the dark reddish-purple colour is visible. The delay for this to happen is very variable – in fact, in some old or anaemic people, it is never visible. Now if the body is moved after death, such as being turned over, the blood may or may not reposition itself towards the new lowest areas. Sometimes it does, sometimes it doesn’t. For years, pathologists and police surgeons have tried to put a timeline on when it stops moving and becomes fixed. But even when fixation does occur, it’s so random in its timing as to be useless. I’ve copied out the opinions given for this and for timing rigor mortis from almost a dozen textbooks of forensic medicine and you will see that the range of disagreement runs to many hours, so it’s of virtually no value!’

  He passed around a few carbon copies of Moira’s typing and waited until the three lawyers had scanned them.

  ‘So what about rigor mortis? That’s always held up in detective novels to be the bee’s knees for timing death,’ said Paul Marchmont.

  ‘Much the same criticism as with hypostasis,’ replied Richard. ‘There are generalizations, which are not at all accurate – and so many exceptions to the generalizations that no useful rules remain.’

  ‘Can you expand on that a little, doctor? asked Penelope Forbes. Angela watched her partner and recognized him getting into lecture mode. She knew he was good at it and wondered if his students in Bristol University appreciated him.

  ‘Rigor is stiffening of all the muscles of the body after death, due to a chemical reaction affecting their proteins. The problem is that there are a number of factors which affect the speed and intensity of this stiffening. For example, strenuous activity shortly before death hastens it appreciably, which is why battle casualties often have a rapid onset of rigor. The same happens after electric shock. Then temperature also accelerates it and cold delays it. I’ve seen a body dead in the snow for some days with no rigor, but as soon as it was brought into the mortuary, it stiffened up.’

  ‘It was a very hot period when Arthur Shaw died in June last year,’ interjected the solicitor. ‘It was virtually a heatwave.’

  ‘I realized that, Mr Bailey, which was why I phoned the weather people at Bristol Airport the other day. Their records showed that the temperature, even at midnight, was much higher than usual for that date, so there’s another factor to use in the argument.’

  ‘What effect would that have had?’ asked the QC.

  ‘Rigor could have come on faster, giving the impression that death had occurred earlier than it really did. The trouble with that argument is that the accuracy of back-calculating is so poor that trying to adjust for temperature is not much use.’

  ‘So the old formulae given in the books I’ve seen for calculating from rigor is just not correct?’ persisted Miss Forbes.

  Richard shook his head. ‘It’s the old story of the bell-shaped curve, which pervades much of biology. There’s a high point on the graph where most of the cases lie where, say, rigor comes on in three to six hours or so. But on each side of the peak, there’s a slope where the other cases lie, either earlier or later. If the bell is high and narrow, then accuracy is better, but if, as with rigor, the bell is low and flat, then there’s no chance of accuracy.’

  He cleared his throat. ‘And that’s just for the onset of rigor. It increases in strength, then eventually passes off, called resolution, but the time when that happens is even more unpredictable. Unfortunately, many of the textbooks stick to the myth of a reliable timescale and copy it from edition to edition, because there’s nothing better to replace it with.’

  ‘You sound a bit of cynic, doctor,’ observed Paul Marchmont with a smile.

  ‘I prefer to think of myself as a realist,’ replied Richard. ‘The younger generation of pathologists are hopefully more critical of these sacred ideas of the older, dogmatic school. I met a German pathologist at a meeting last year, who is combing all the medical literature for over a century to list the variations in opinions about hypostasis and rigor.’

  ‘We’ve got stomach contents next; are you just as pessimistic about those?’ asked the senior barrister.

  Richard rolled his eyes towards the ceiling. ‘Even worse! The old legend about stomach contents emptying in about two and half hours is again the top of the biological bell, but there are even more variable factors. The type of food, amount of liquid in it, amount of starch, personal variation and even variations in the same person. You can measure the speed of emptying in Bill Smith one day, then give him the same food another day and get a different answer! Fear, injury, coma, pain and emotional upset all modify the speed of digestion and emptying. To use it to calculate a time of death to within an hour is frankly ridiculous!’

  ‘Is examining the stomach contents of no use whatsoever, then?’ asked Douglas Bailey.

  ‘Only in the very broadest terms, insufficient to use as probative evidence. It might tell you what the last meal was and therefore you’d know that death occurred after the time it was eaten. For instance, if a man ate a curry one evening and was found dead two days later with a stomach full of curry, you’d know he hadn’t lived long enough to have his usual ham and eggs for breakfast next day.’

  Angela came back here, as this was partly her province.

  ‘Even that’s not easy, unless digestion had not proceeded very far. We can often identify certain foods under the microscope, like meat fibres and some vegetables – but we’re not like the sleuths in crime novels, who can discover that the deceased had consumed a salmon sandwich and a cup of Earl Grey tea three hours before death!’

  Marchmont held up his hands in mock surrender. ‘I get the point. Now what about temperature, which you said was the best method?’

  ‘Well, I said the least inaccurate,’ amended Richard. ‘Doctors have been trying since about 1840 to devise a formula to calculate time of death from the obvious drop in temperature after death – unless, of course, you happen to die in some parts of the tropics, where the post-mortem temperature actually increases!’

  ‘I don’t think Bristol comes into that category,’ said Dougl
as Bailey wryly.

  ‘No, but the temperature at the scene is very important, and we know that Shaw was killed during a Bristol heatwave,’ countered the pathologist. ‘The problem is that the investigation was poorly carried out, as no one took the room temperature nor the body temperature when the scene was visited. Doctor Mackintyre didn’t attend the scene and didn’t even see the body until the afternoon, over six hours after it was found, when he eventually put a thermometer in the rectum.’

  ‘And that matters in calculating the interval?’ asked Marchmont.

  ‘It’s vital, as for at least six hours, the body was cooling in the mortuary, no doubt much colder than the flat in St Paul’s, which distorts the cooling curve. We should really find out whether the place was air-conditioned, as some big city mortuaries are, which would increase the cooling even more. I’ve actually heard of a case where the body was put in the refrigerator for some hours until the post-mortem and then the pathologist took a temperature!’

  ‘So you can castigate any attempt at arriving at an accurate result?’ asked Penelope.

  ‘Certainly, I can! Even when the best procedures have been followed, the accuracy is poor and cannot be narrowed down to less than a couple of hours either side of the calculated time. It’s traditional to use a rule of thumb that a body cools at about one and half degrees Fahrenheit per hour, but all one can say about that is that if the answer turns out to be correct, it must be sheer luck!’

  He paused for breath and then carried on.

  ‘The size of the body, the amount of fat insulation under the skin, amount of clothing, fever, hypothermia, the environmental temperature, draughts, humidity and other factors make this little better than guesswork.’

  Paul Marchmont leaned back in his chair. ‘So you can confidently go into the witness box and declare that at the trial, the pathologist had been in error when he claimed that Arthur Shaw must have died between eleven and twelve o’clock that night?’

  ‘Absolutely. I’m sure he was just agreeing with the prosecution who were maintaining that the man was killed during that short window of opportunity when Millie Wilson was alone with the deceased.’

  ‘If he had been challenged on that, do you think he would have admitted that death could have been outside those tight limits?’

  Richard Pryor shrugged and turned up his hands in a Gallic gesture.

  ‘It’s not for me to say that, but I would have hoped that Doctor Mackintyre would have done so. However, as I said earlier, some well-entrenched expert witnesses dig their heels in hard, if they are challenged.’

  Penelope Forbes pursued this issue. ‘Would he have been aware of these caveats you’ve mentioned, which affect the accuracy of any estimate?’

  ‘I don’t know about would have known, but he certainly should have known, if he appears as an expert. There have been innumerable research papers in the journals for decades. In fact, only this year, one of the most important papers was published from Sri Lanka, where Doctor de Saram made a careful estimate using forty executed prisoners, where obviously the time of hanging was known to the minute. He found, amongst other things, that there was a “lag period”, a variable delay in initial cooling of up to forty-five minutes. Others have shown an even longer “temperature plateau”, as it’s called, where the normal body temperature persists for a time after death. So already, we have an in-built error almost as long as the hour claimed by Doctor Mackintyre.’

  Richard felt that he had browbeaten his listeners long enough with his potted course in forensic medicine, but there were a few more questions from the lawyers, who wanted to make sure that they understood this most important aspect of their campaign to save Millie Wilson from many more years in prison.

  When they at last finished and had been given more details of the expected date of the court appearance in London, Richard and Angela bade the lawyers farewell and escaped into the chilly street.

  ‘Well, I think we’ve more than earned a gin and tonic and a decent lunch somewhere!’ said Richard firmly, taking his partner’s arm as they made their way back to the black Humber.

  TWELVE

  Markby Road in Winson Green was one in a series of long parallel streets lined with terraced houses, branching off Handsworth New Road like ribs from a spine. They were tidy dwellings, most with small front bay windows and were a cut above many of the streets in less attractive parts of the area.

  At ten o’clock that morning, the two detectives drove their grey Standard Vanguard slowly down the street, looking at the numbers on the doors. They found No. 183 almost at the end, a slightly shabbier house, but otherwise indistinguishable from scores of others. Sergeant Rickman had to park outside the house next door, as there was an old green van in front of their destination. It was a large Bedford of pre-war vintage, with ‘Franklin’s Fish and Chips’ painted on the side and a tin chimney poking from the roof.

  ‘Looks as if he’s swapped inn-keeping to become a chippie,’ grunted DI Hartnell, as they went through a rusted gate into the small concreted area in front of the door. There was no bell or knocker, so Rickman rapped on the glass pane with the edge of a half-crown coin.

  After a delay, a large shadow appeared inside and a disgruntled face appeared in the gap when the door was opened a bare six inches. Long experience told the sergeant that a direct approach was best in these circumstances and he thrust his warrant card towards the beefy, red features.

  ‘Oliver Franklin?’ he said briskly. ‘Police, we’d like a word with you.’

  The door opened a little wider, revealing a very large, pot-bellied man dressed in baggy trousers and a zip-fronted corduroy lumberjacket. He had a round, flabby face with sagging pouches under his watery eyes and a bulbous red nose. His coarse cheeks had the scars of old acne and Hartnell thought that he had rarely seen such an unattractive man.

  Franklin glared at the officers with undisguised dislike.

  ‘Bloody rozzers, is it? Look, if it’s about the van out there, I sent for the tax disc last week, but bugger all’s come back yet.’

  The sergeant put a large hand on the door and pushed it further open. ‘Nothing to do with your licence – not yet, anyway.’ There was a hint of a threat in his words.

  The detective inspector spoke again. ‘We’d better come in, sir, unless you’d like to answer some questions on your doorstep.’

  ‘Or down at the police station,’ added Rickman, menacingly.

  Olly Franklin got the message that these particular coppers were not ones to be messed with and opened the door wider.

  ‘Come on then,’ he growled grudgingly and shuffled back down the passage, his swollen feet encased in plaid slippers, the backs trodden flat by his heels. They squeezed past an old-fashioned bicycle propped against the stairs and walked down the worn linoleum to the kitchen at the end of the passage. Franklin went to stand with his back to a blackleaded fireplace, in which a small pile of coal was burning with more smoke than heat.

  ‘What’s all this about, then?’ he demanded, standing with his brawny arms folded defiantly across his chest.

  Hartnell took his time in answering, looking around first at the gloomy kitchen lit by a grimy window that looked out on to a brick wall. The room had a table and chairs, the former carrying a couple of used teacups and a half-full bottle of milk, together with several newspapers opened at the racing pages. There was another door in the corner leading into a scullery, from which came an intermittent chopping noise.

  ‘Who’s that in there?’ he asked, being cautious about who might overhear their conversation.

  ‘Only the missus, cutting spuds for today’s frying,’ grunted Franklin. ‘I hope you ain’t going to keep me long, I got a living to make!’

  ‘You don’t make it now from being a licensee, I hear,’ said the sergeant. ‘Fish and chips pays better, does it?’

  ‘Does it hell!’ snarled Olly, his face suffusing with anger. ‘One pub knocked down from under me, then the bloody brewery fired me from the o
ther, thanks to you lot who objected to the renewal of my tenancy.’

  ‘That’s partly what we’ve come about, your career in the local pubs,’ said the detective inspector.

  ‘What the hell for, that was years ago? Water under the bridge!’ snapped Franklin.

  Hartnell decided to chance his arm a little. ‘We’ve been hearing that you were a bit too pally with Mickey Doyle,’ he said. ‘There’s a real villain for you!’

  Olly’s hooded eyes flicked from one to the other. ‘Mickey Doyle? What the hell’s he got to do with anything? Haven’t seen him in years, honest.’

  His denial sounded genuine to the detectives, but Hartnell persisted.

  ‘So you say, Olly. But we want to know about the famous head you used to keep for him.’ Again he was making a guess, but it seemed to strike home, given the confused flush that spread over Olly’s unlovely features.

  ‘What head would that be?’ he growled unconvincingly. ‘I don’t know nothing about no head!’

  ‘The head you used to keep in the cellar of the old Barley Mow,’ snapped Tom Rickman. ‘Did you take it with you to the other pub when you moved?’

  ‘I dunno what you’re talking about,’ replied Franklin, but the slight quaver in his voice and the way his piggy eyes flicked from one officer to the other gave the lie to his denial.

  ‘Listen, we know you had a head pickled in a bucket,’ rasped the DI. ‘Whose was it – and where is it now, eh?’

  ‘How the ’ell would I know who it belonged to? And anyway, it weren’t in a bucket.’ The former publican was not over-endowed with intelligence and his reply caused the two officers to grin at each other in triumph.

  As Franklin slumped on to one of the hard chairs, a woman suddenly appeared at the door from the scullery.

  ‘Best tell them, Olly! That bloody thing has plagued us for years.’ His wife was a hard-faced woman with straggling grey hair falling about her shoulders. She wore a faded wraparound pinafore and her thick legs ended in a pair of man’s boots. In one hand she carried a wicked-looking knife and in the other, a large King Edward potato.