According to the Evidence

by Bernard Knight

  Prideaux nodded understandingly.

  ‘You took no blood samples for analysis to check for potassium?’

  ‘It would have been pointless. Potassium is a natural constituent of the body and leaks out rapidly from the cells into the blood after death.’

  ‘Then, doctor, the situation surely is this – you did a post-mortem on a lady with very advanced cancer and found no objective evidence whatsoever that this was not the sole cause of death. Do you agree?’

  When the pathologist accepted this, the defence QC had one last question.

  ‘You may not be a forensic pathologist, but you have been an experienced hospital consultant for many years and must have seen many cases of advanced cancer. Given the medical history of this lady and in the light of your own findings, have you any reason to think that the cancer could not have killed her?’

  When the doctor gave a firm ‘No’ as his answer, Prideaux gathered his gown about him and sat down with a confident thump.

  Behind him, Richard Pryor, who so far had not had occasion to tear up any paper for notes, could almost hear the rumble of stomachs on the judge’s bench. Sure enough, Mr Justice Templeman began gathering up his pens and notebooks as he declared a recess for luncheon. After warning the jury that they must not speak to anyone about the case, he announced resumption at two o’clock and the whole court dutifully stood as he led his colourful procession out of the court.

  Much as Moira liked Doris and appreciated her whispered explanations, she was eager to talk to Richard to hear how he thought the case was going. In spite of the life-and-death seriousness of the matter, she was as partisan over the case as if she was rooting for Wales in a rugby international.

  As soon as the court broke up, she waited for him to have a quick word with the defence lawyers until he caught up with her at the door of the court.

  ‘Let’s go and get something to eat first,’ he said, taking her arm. ‘We’ve got almost an hour and a half before the big guns come on this afternoon!’

  He grinned at her, and she suddenly felt that she was in danger of falling in love with him. Ignoring a couple of greasy spoons, he steered her into a hotel in Westgate Street where they were settled at a corner table of the dining room. It was an old-fashioned establishment, which seemed a throwback to the thirties or even the twenties, with dark furniture and a waitress in a cap and apron. However, the menu looked acceptable. Before they started talking about the case, Moira ordered Brown Windsor soup followed by a beef casserole, while Richard chose lamb and mixed veg after his soup.

  ‘So how do think it went,’ she asked anxiously as he poured glasses of water for them both, studiously avoiding any alcohol.

  ‘As good as can be expected,’ he replied. ‘But this is the calm before the storm. So far all the prosecution have is the accusations of that poisonous sister-in-law. The rest of the evidence is neutral – doesn’t prove or disprove that she died of either cancer or potassium chloride.’

  ‘So it all rests on Dr Angus Smythe this afternoon – and, of course, you!’

  ‘Battle of the giants!’ he said cheerfully, which made her shake her head in wonder.

  ‘I don’t know how you can be so calm about it, with probably the life of that poor man in your hands!’

  Richard shrugged as the waitress approached with their soup.

  ‘Maybe he did it, maybe he didn’t, but that’s not my concern. All I can do is state the scientific evidence as I see it. It’s up to the jury to decide who they want to believe.’

  ‘Do you think they’ll understand this chemical business?’ asked Moira, picking up her spoon.

  ‘I’ll do my best to put it in plain language – and no doubt Nathan Prideaux will rub it in as hard as he can.’

  In spite of her apprehensions, Moira enjoyed her meal, and Richard Pryor’s appetite seemed unaffected by the prospect of him taking centre stage in an hour or two. Over the coffee that followed a Pear Helene, they talked about the court and the various personalities, Moira being fascinated by the grim theatre of it all. She seemed particularly taken by the fact that the wives of the High Sheriff and the Lord Lieutenant wanted to attend such events.

  ‘Never turn down a free lunch, Moira! That’s their motto, part of the perks of public office.’

  She wanted to know why Dr Harrap-Johnson and Dr Rogers had not been allowed to sit in court, unlike Dr Stein and Richard himself.

  ‘Because they were witnesses to fact, being directly involved in the care of Mrs Parker. Theoretically, if they sat in court and heard other evidence from the other witnesses, they might be influenced by it.’

  ‘So what about you?’ she demanded.

  ‘The pathologists are classed as expert witnesses, there to offer opinions, as well as fact. You’ll see Angus Smythe sitting there when we get back. We’re supposed to be indifferent to anything other than the scientific facts of the issues. Actually, the distinction is a bit blurred, as you heard the other two doctors being asked about whether Mrs Parker could have died of her cancer, which is really an opinion.’

  He grinned at her again. ‘There are higher rates of pay for expert witnesses, but I doubt that young Lochinvar-Johnson or even Dr Rogers will hold out for a rise!’

  At half past one they walked back to the Shire Hall, in case the QC wanted a quick conference again, and by the time the court reconvened they were sitting back in their places. This time, as Richard had prophesied, a new face was present on the further end of the second bench. Dr Angus Smythe, a Home Office pathologist from Oxford, was a burly Scotsman with a big red face and short, fair hair showing a hint of ginger. During lunch, Richard had said that he was a competent pathologist, though inclined to resent contradiction, being quite dogmatic in his opinions, sometimes unwilling to accept another view.

  ‘Fancies himself as another Sir Bernard Spilsbury, that allegedly infallible operator who dominated the business for forty years.’ Moira was not sure if Richard’s criticism was a touch of sour grapes, though she thought this would be foreign to his nature.

  The butler appeared and, as the court rose, the now well-fed quartet followed the judge into their places. After the jury and the defendant had been settled, Lewis Gordon rose from his bench to call his last witness.

  Angus Smythe stumped to the witness box and took the oath in a loud, gruff voice with a pronounced Scots accent. After it had been established that he was a consultant pathologist at the John Radcliffe Hospital in Oxford and was on the Home Office list of approved forensic pathologists, the prosecuting QC cut straight to the chase.

  ‘Dr Smythe, you were asked by the coroner for North Gloucestershire to carry out a second post-mortem on the body of Mrs Mary Parker, were you not?’

  Smythe agreed and there was a brief confirmation of dates and places connected with the autopsy.

  ‘Why was this unusual procedure requested?’

  ‘Because neither the locum GP nor the coroner’s pathologist were willing to offer a cause of death, due to certain allegations that had been made by a relative,’ was the bluff response.

  More questions elicited that he had been informed of the nature of these allegations and of the contents of the used syringe and the two containers found in the veterinary surgery.

  ‘And what was the result of your examination of the body, doctor? Were you able to determine the cause of death?’

  The Scotsman gripped the edges of the witness box as if he intended to tear it apart.

  ‘I reviewed the dissections made by Dr Stein and agreed with all his findings. This did not assist me in arriving at a cause of death, so I took a variety of samples for examination back at my own laboratory.’

  ‘Did you perform these investigations yourself?’ asked the QC.

  ‘I did some of the analyses, and the rest were performed by my technicians under my direct supervision. The results led me to an unequivocal opinion as to the cause of death, which was cardiac failure due to the intravenous injection of potassium chloride.’ />
  There was an excited buzz of murmuring from the public gallery, and the pencils of the reporters scurried across their notebooks.

  ‘In plain language, can you explain what led you to this conclusion?’ asked Lewis Gordon.

  ‘The samples I took included blood, urine and the fluid extracted from the eyeballs, called “vitreous humour”,’ explained Smythe. ‘I ran analyses for barbiturates, as there was a vial of sodium Pentothal recovered from the premises, but none was discovered. There was a substantial amount of morphine in the blood, consistent with the painkilling use of that drug, but it was not in a lethal range. As to potassium, it was useless to seek it in the blood, as that substance leaches from the cells after death and a high value would be meaningless, even if extraneous potassium had been injected.’

  ‘So how did you arrive at your conclusion that an excess of potassium had been administered?’ asked Gordon, though he knew the answer full well.

  ‘I said that the blood is useless because of rapid contamination from potassium in the body cells – but there is a place in the body which is insulated from this effect, where potassium remains at the same level as during life. This closed-off place is the fluid within the eyeball – and I found very high concentrations of that substance in the samples I took from both eyes.’

  Again sibilant murmurs ran around the court, causing the judge’s head to jerk up in disapproval.

  ‘You are sure about this, doctor? Absolutely sure?’ asked the prosecuting counsel, wishing to fix the vital point in the minds of the jury.

  ‘I am in no doubt at all, sir,’ grunted Angus. He shuffled some papers on the edge in front of him and stabbed a big finger at one page.

  ‘The normal potassium level during life is about twenty milligrams in each hundred cubic centimetres, but my analyses revealed an average of no less than fifty-eight!’

  He looked up and glared at the jury defiantly. ‘The tests were run in duplicate on the fluid from both eyes and all four results were within the expected limits of analytical error.’

  He tapped his papers together into a neat sheaf and waved them at the court. ‘There can be no doubt at all that high potassium level – three times the normal amount – could only have been attained by a considerable amount of the substance being injected into the bloodstream, thus finding its way into the eye fluid.’

  Just to seal the fact in the minds of the jury, Lewis Gordon added a supplementary question. ‘You say that the only way potassium could get into the eyeballs would be from an injection. Do you exclude any other means, such as taking potassium by mouth?’

  ‘Absolutely!’ snapped the pathologist. ‘Potassium is present in all kinds of food, especially fruit. It is even given as a medicine for bladder and kidney infections, but it is selectively absorbed and excreted, and its concentration in the blood is regulated within a very tight range, so that it could never reach these very high levels that I found in the eye fluid.’

  ‘How does potassium chloride cause death, Dr Smythe?’

  ‘It poisons muscles, causing irregularity of contraction. The most immediate effect is on the heart muscle, disturbing the rhythm of its beat.’

  The prosecuting barrister pursued these matters in more detail, to emphasize the serious and indeed lethal effects of the substance. He led Angus Smythe to confirm that death from an injection of a large amount of strong potassium chloride solution would kill within minutes.

  ‘That is why vets use it to put down animals,’ he said gruffly. ‘They usually precede it with an injection of Pentothal or some other barbiturate, to literally put the animal to sleep, as the effects of potassium, though very rapid, can be distressing as the heart fails.’

  Final questions elicited the fact that Dr Smythe discounted the presence of the advanced cancer as the cause of death. ‘There were no catastrophic complications, like an internal haemorrhage or a pulmonary embolism – that’s a clot passing to the lungs. And given the potassium findings, there is no need to invoke the general effects of cancer, advanced though that was.’

  Lewis Gordon spent a few more minutes questioning the dogmatic Scotsman, though what he was really doing was covertly going over the same ground, intent on impressing on the jury that this was the crux of the evidence, that Mrs Mary Parker was virtually awash with potassium, which could only have been the sole cause of death. He pressed this point as far as he dared, until he sensed that the judge was beginning to get restive with his attempts at repetition.

  ‘That is the prosecution case, my lord. I am calling no other witnesses,’ he said, with an air of finality that suggested that nothing else was required for a guilty verdict.

  Mr Justice Templeman peered down over his glasses at the defence counsel.

  ‘You wish to cross-examine, Mr Prideaux?’

  Nathan rose to his feet and smiled almost ingratiatingly at the judge.

  ‘I do indeed, my lord, but I would like to crave your indulgence concerning the order in which we proceed.’

  Templeman looked suspiciously at the Queen’s Counsel, who continued. ‘As your lordship must be very well aware, the whole thrust of the prosecution case lies with the evidence of this witness. It would greatly facilitate my cross-examination – and indeed the course of justice – if I could call my only witness first, so that the evidence of Dr Smythe could be put into context with that of my expert.’

  There followed some minutes of complicated legal argument, before which the jury were led out and Angus Smythe, looking irritated at the delay, stood down from the witness box to sit at a nearby empty chair. The judge and the two leading counsel engaged in an almost private debate, phrases such as ‘natural justice’, ‘facilitating proper understanding’ and ‘outwith normal criminal procedure’ were bandied about.

  ‘What’s going on?’ Moira whispered to Doris. ‘Why have the jury been chucked out?’

  ‘This is all a bit irregular, as the prosecution normally have to finish completely before the defence have their turn,’ murmured the lawyer’s secretary. ‘The jury mustn’t be influenced by any goings-on that might affect their verdict.’

  However, they soon returned, shuffling back to their places, as it seemed that with the judge’s acquiescence the prosecution barrister had shrugged his agreement to Nathan’s request.

  Templeman turned to the jury to soothe them.

  ‘That was nothing to do with the facts of the case, gentlemen, it was a legal discussion about a procedural matter.’ He nodded at Prideaux and, pleased with his manoeuvre, the defence counsel called Richard Pryor to the box. Moira watched with mixed excitement, pride and foreboding as her hero mounted the steps, took the oath and identified himself in response to Nathan’s questions.

  ‘Dr Pryor, for how long have you been a pathologist?’

  ‘About sixteen years. I began before the war, then I was a Senior Specialist in Pathology in the army until 1946.’

  ‘And since then, you have been a full-time forensic pathologist?’

  ‘Yes, I was Professor of Forensic Medicine in the University of Singapore until last year, when I entered private practice in that speciality, recently being appointed to the Home Office list.’

  Richard said all this in a matter-of-fact way, free from any hint of aggrandizement. Nathan leaned forward against his table, as if reaching out to the witness.

  ‘You were engaged by the defendant’s solicitor to review the medical evidence in this case, doctor. You have heard what Dr Smythe said, what do you say in response?’

  Richard faced the jury, paused and then began speaking with careful deliberation. ‘Much of what my colleague said would have been perfectly true according to generally held medical and physiological knowledge – until recently.’

  ‘Which implies that you feel it is no longer correct?’ prompted Prideaux.

  ‘There is very recent and still-ongoing research from several parts of the world which reveals a fundamental flaw in Dr Smythe’s interpretation of his findings concerning potassium
in the eye fluids, on which this case largely rests.’

  Down in the well of the court, Angus’s red face became even ruddier, but he had had his say for the moment.

  ‘As part of my review of the evidence, I discovered that several pathologists have independently done research in Germany, Denmark and the United States, which shows incontrovertibly that the potassium level in the eye fluid rises progressively after death – to a lesser extent than blood, but still unrelated to externally administered potassium.’

  Nathan held up a sheaf of papers in his hand. ‘Are these copies of publication drafts and personal responses to your enquiries by those researchers?’

  Richard nodded, lifting his own copies briefly from the shelf in front of him. ‘Yes, I contacted Professor Braun of Cologne, Dr Stoddart in Chicago and Dr Kaufmann in Minnesota. They all kindly sent me the results of their work.’

  The judge made a gesture and an usher took the papers from Prideaux and handed them up to the bench.

  ‘I have a number of carbon copies of all this work, my lord. No doubt my learned friend and his expert would like to see them. I also have spare copies for the jury, if you feel they would derive sufficient understanding from what is undoubtedly a very technical subject.’

  There was a delay while papers were being handed around the court. Angus Smythe was given a set as he squatted on his chair, and there was a long silence as everyone scanned the flimsy carbons. After about ten minutes, with the court beginning to get restive, Prideaux began speaking again.

  ‘Dr Pryor, could you just summarize, in a way comprehensible to us laymen, the import of this work? First, can you tell me why this research was done in various parts of the world? Surely there has not been a global epidemic of potassium homicides?’

  Richard risked a grin, in spite of the fraught circumstances.

  ‘Not at all, sir! This was done for a totally different purpose. Estimating the time since death is a very important forensic problem, because of alibis and the like. Most methods are notoriously inaccurate, but these gentlemen discovered the fact that potassium in the eyeball fluid rises progressively after death. They have been trying to use this as a measure of time since death by making a graph of potassium level against the number of hours – or indeed days – that have elapsed since death.’