If You Only Knew

by M. William Phelps

  After being asked, he explained his craft of carving up bodies, taking fluid and tissue samples, weighing livers and hearts, sawing through skull and bone. He talked about his vast education experience and how qualified he was to be sitting in the courtroom. He was no novice; he had done some two thousand autopsies in his years behind the buzz saw. Contrary to an unquestionable, soon-to-be focus of the defense, Ortiz-Reyes explained, there were “hundreds of times” in which a medical examiner’s office would not perform a complete autopsy, but “only perform [an] external examination in order to determine the fate of the death. . . .”

  After some lengthy discussion between the judge and the APA, along with several questions by Piszczatowski to qualify the doctor as the expert he claimed himself to be, the court said it was going to go ahead and meet the requirements of Ortiz-Reyes being considered “an expert in forensic pathology.”

  He said he had testified in hundreds of cases, all over Michigan.

  The judge agreed and the questioning by the APA picked back up.

  Ortiz-Reyes talked about receiving Don’s body at the morgue. It was a Saturday, he explained, so he did very little examining other than what needed to be done, establishing a “natural death” diagnosis, tabling the remainder until Monday, as they normally do on weekends, unless it’s a law enforcement emergency of some sort.

  When he did conduct the examination—Ortiz-Reyes said he never did a complete autopsy on Don—he came to the conclusion that Don had died of a heart attack, and his death was ordinary and there was nothing outwardly pointing to anything else but an older gentleman who had likely died of natural causes, facilitated by an unhealthy lifestyle. Furthermore, he had come to this conclusion because “most men in this country,” specifically in Don’s age range, “die of heart disease.”

  It was common. The ME’s office saw it all the time.

  But on that Monday after Don’s death, a red flag popped up for Ortiz-Reyes and the team when the blood and urine analysis came back with those astonishing numbers, indicating an enormous amount of alcohol in Don’s system at the time of his death. So this revelation made him change his “opinion” about the heart attack.

  “In that death certificate, the first was alcoholic intoxication [as] the cause of death in this gentleman,” Ortiz-Reyes told the APA, “and the number two was the arteriosclerotic cardiovascular disease, meaning heart attack.”

  This new information on Monday alerted the office that it might be prudent to conduct an actual autopsy. But when they went to go get Don’s body, it had already been checked out under that first death certificate. They had no idea then that Don had been cremated.

  So Ortiz-Reyes amended the manner of death to now read “accidental.” This, too, wasn’t abnormal. Though not a common practice, it certainly happened from time to time.

  Don had ingested an accidental overdose of booze, Ortiz-Reyes thought.

  There was another surprise, Ortiz-Reyes explained, when the TPD called a “few days later” and said they had more information, which subsequently changed the status of Don’s death yet again. It was at this time, he said, that the medical examiner, his boss, Dr. Dragovic, got involved, as is generally the protocol when a case proceeds as such.

  “Every time there is a big surprise, he comes and takes over the case, because he is the chief medical examiner and he is in charge of the office. I also worked this case with him, but he is the one that takes over.”

  As they talked back and forth about Don’s death, and the way in which the medical examiner’s office handled it was not so uncharacteristic a series of events, Ortiz-Reyes mentioned that the amount of alcohol alone in Don’s system was enough to cause concern. Then, when they learned about Don’s drinking habits, they realized he could very well survive drinking that much—which meant maybe something else had killed him. The point was: The medical examiner was open to interpretation of death, as facts became available. And sometimes “small findings mean a lot,” Ortiz-Reyes made clear.

  Near the end of his direct testimony, Ortiz-Reyes talked about a “little abrasion” on Don’s nose and lip—a few faint red marks that he did not notice the first and only time he looked at Don’s actual physical body. It wasn’t until he saw the marks in the photographs of Don’s body later on, after they had learned Don might have been the victim of a homicide, that “it was suggestive that something was put on the face of this gentleman.”

  Not that the marks could have been made as Don fell to the floor, or as he maybe stumbled into a wall while walking into the kitchen or by some other way people hurt themselves when drunk. For Ortiz-Reyes, these marks, coupled with everything else they had learned from law enforcement, possibly meant that someone had murdered Don by suffocation.

  The APA asked what could have left those marks.

  “Like some rough piece of something that’s rough, like a pillow, but a rough pillow . . . and that [was] the reason he had that little scratch [on] there (meaning his nose).”

  These were strong, accusatory words coming from an experienced pathologist. Ortiz-Reyes believed what he was saying. He was speaking from confidence.

  The doctor called it a “fresh abrasion.” He likened the scratch to a cushion of a seat marking up the surface of the skin if a person, wearing shorts, sat down wrong.

  All of this led Ortiz-Reyes to change the manner of the death yet again: “After reviewing all of the additional information, I said the gentleman was smothered by putting something on the face, plus the alcohol, of course.”

  CHAPTER 62

  PISZCZATOWSKI BEGAN WITH A question about the doctor’s “initial external examination” of Don’s corpse, pointing out for jurors how the ME “never performed an autopsy” on Don.

  Ortiz-Reyes agreed, of course.

  It was important for the lawyer to get that out there, clear and concise as possible.

  No autopsy.

  From there, Piszczatowski went over the exact series of events as Ortiz-Reyes had just described for the APA: body on Saturday, staff meeting on Monday, toxicology report changing opinions. The defense attorney highlighted how those opinions were changed again “without conducting an autopsy” when the TPD called.

  “Yes,” the doctor said.

  They discussed the level of alcohol in Don’s system. Then Piszczatowski read a statute written for the state of Michigan that explained when an autopsy should be conducted, but Ortiz-Reyes corrected him by saying the statute didn’t specify “autopsy.”

  It specified “investigation.”

  There was a difference.

  The statute also required, Piszczatowski explained, ignoring his own mistake, that the medical examiner is warranted by the state to issue a permit before a body can be cremated.

  “Yes,” Ortiz-Reyes said.

  Piszczatowski then offered as an exhibit to the court the permit for cremation in Don’s case, which the ME’s office had given Billie Jean. But just then, as the lawyers started to argue this point, the judge allowed the jury to be cut loose for the day (it was late, anyway), so the attorneys could, in Judge Potts’s words, “tidy up a few things.”

  Which they did in a matter of a few minutes.

  Piszczatowski was now clear on how he could continue down the road of that supposed permit.

  Yet, the day—and testimony for first week of the trial—was over.

  CHAPTER 63

  AFTER THE WEEKEND BREAK, on December 3, 2001, Dr. Ortiz-Reyes was back in the witness seat answering questions from Billie Jean’s sharp, prepared lawyer once again.

  Piszczatowski started off the new week on the alcohol levels and the testimony balanced uneasily on that fence of boredom. One can only beat a drum so long before the tune starts to get old and overstated. There was a fine line. Piszczatowski was close to crossing it.

  Piszczatowski kept referring to the work of the ME’s office as an “autopsy.”

  Ortiz-Reyes kept correcting him, saying they never conducted an autopsy. It was an “examinat
ion.”

  A point the defense was able to bring out was that Ortiz-Reyes and the ME’s team signed off on Don’s body for cremation on August 16, 2000, four days after his body had been brought in and several days after it had been released. To Piszczatowski, this was significant. It meant there had been plenty of time for the office to make its determinations about how Don had died and it allowed Don’s body to be, essentially, destroyed.

  Why?

  Because they didn’t think they’d ever need to look at it again.

  For the next hour, Piszczatowski produced reports and toxicology tests and asked the doctor about his and the ME’s office’s findings—which routinely came back to the same cause of death: heart attack and/or acute alcohol poisoning. Then he began to pepper the doctor with simple questions that pointed to the idea that the ME’s office had ample opportunity to conduct an actual autopsy, but Ortiz-Reyes, on that Saturday, chose not to do so.

  All that the doctor could answer was “yes, yes, yes,” over and over.

  They talked about the lighting inside the morgue on that Saturday.

  It was adequate.

  They talked about how Ortiz-Reyes could “touch” the body.

  Yes, he was that close to it during his examination.

  They talked about the fact that Ortiz-Reyes could get “as close to the body” as he wanted.

  Again, his answer was yes.

  They talked about how Ortiz-Reyes could have done whatever he had wanted to Don’s body at that time, including a full autopsy, and that it was his decision alone.

  Of course, he could have, Ortiz-Reyes said.

  They spoke of how Ortiz-Reyes had made notes about Don’s eyes, specifically his “cornea” and how they weren’t remarkable in any way.

  Ortiz-Reyes said yes again. Unremarkable eyes, totally.

  They talked about the fact that Ortiz-Reyes investigated the inside of Don’s mouth.

  He found nothing.

  They talked about Don’s neck being “unremarkable.”

  Nothing there, either.

  They talked about how Don’s chest was—you guessed it—“unremarkable.”

  The point here for the defense was that Dr. Ortiz-Reyes had conducted a pretty damn thorough examination of this man on that Saturday and did not find anything whatsoever to indicate foul play.

  “And would it be fair to say that the body . . . of Donald Rogers showed no evidence of bruising at that time?”

  “I didn’t say that,” Ortiz-Reyes balked. “There were old bruises around the left eye socket.”

  “O-o-o-kay,” Piszczatowski said, drawing the word out, kind of hinting to the fact that the doctor did not mention any abrasions on Don’s nose. Those came later.

  Piszczatowski could have questioned Ortiz-Reyes all day and perhaps had gotten him to admit that the office believed nothing out of the norm when this old man came in and it was believed he had died of a heart attack. The message for Piszczatowski was quite simple in that regard: reasonable doubt, reasonable doubt, reasonable doubt.

  As Piszczatowski wound down his superb cross-examination, he had Ortiz-Reyes point out by the answers he gave that the office came to its “asphyxiation” determination slowly, over a period of time. And came to this conclusion only after the detectives pointed out what had been noted by a witness and then they relooked at the photos of Don’s face and—aha!—saw that there were abrasions on his face to match what the witness had said.

  Ortiz-Reyes even implied that it wasn’t until they got a magnifying glass out and studied the photos that they saw the abrasions, adding how, yes, they can sometimes be that small. But the size doesn’t change what the evidence suggested.

  By the time they got to the end, Ortiz-Reyes was using the phrase “it is our opinion” a lot of the time when he answered. It was the opinion of the ME that this and that took place, based on all of the information the office had received during the entire investigation.

  In his defense, Ortiz-Reyes held his ground fairly well, explaining that they always defer to several sources when making a determination of death by homicide. It’s not something the office takes lightly or comes to easily, maybe like a heart attack. Just because some cop comes up with a theory, it doesn’t mean the ME is going to back him, in other words. Ortiz-Reyes mentioned how it wasn’t only the abrasions that swayed them, nor was it the new information by the TPD. It was, in fact, the totality of it all, plus what the ME himself found within the toxicology and the study of available documentation and photographs.

  Accept it or not, that was how it happened.

  Before long, they got on the subject of alcoholics and how people that drink a lot routinely fall down and bruise themselves. Piszczatowski made a point that maybe that was where Don’s abrasions and bruises had originated.

  “Alcoholics tend to fall all the time,” Ortiz-Reyes agreed. “That’s the reason they have old bruises, new bruises, black eyes. You can see all kinds of injuries in an alcoholic. . . .”

  “And there’s no absolutes—is that correct?”

  “No.”

  “So you can’t say they would or they wouldn’t, but you’re just saying that it’s more likely?”

  “Yes.”

  “And is it also whether someone gets injured, if you will, when they fall, does it depend, for example, where they fall?”

  “Yes.”

  The gist for Piszczatowski, which he then explained by bringing into the conversation some photographs, was that there was nothing within the photos of Don’s home or Don’s body that would or could indicate how “he fell or how he came to rest on the ground.”

  Ortiz-Reyes agreed there wasn’t.

  Piszczatowski asked if there was anything indicative in Ortiz-Reyes’s opinion that the “manner and cause of death in this case, on those photos alone, was a homicide, as opposed to an accidental death or natural?”

  “No.”

  Piszczatowski was on a roll. He then got Ortiz-Reyes to say that Don had no bruises to the back of his head, which one might expect after someone was pressing a pillow against his face, or from a man who took a fall on the floor.

  They talked defensive wounds next. Don had none.

  Then Piszczatowski pressed Ortiz-Reyes to admit that he had no idea whether Don was alive or dead before he came “to rest on the ground” inside the kitchen.

  That was an important piece of this puzzle.

  The three words Piszczatowski kept going back to as he wrapped things up were “acute alcohol intoxication.” He said these words, over and over, to thrust into the jury’s collective consciousness that Don was wasted and had enormous amounts of alcohol in his system, and he could have died any number of ways. The least likely way in all of this was asphyxiation by smothering with a pillow. If Don had been murdered in that manner, where was the evidence? Billie Jean’s attorney suggested this, time and again.

  “The information that the police gave you,” Piszczatowski asked, “caused you to doubt—is that correct?”

  “Yes.”

  “And so you changed your opinion. Is that correct?”

  “That’s correct.”

  “And could you agree that reasonable people, reasonable experts, reasonable doctors, could differ as to the cause of death in this case?”

  Ortiz-Reyes gave a somewhat awkward answer, noting, “Anybody has the right of giving an opinion. It depends on what is their mood or what they think. You know, everybody can say whatever they want. . . .”

  Piszczatowski got Ortiz-Reyes to admit he had “no scientific discovery” in this case that was inconsistent with the initial conclusion of death by acute alcohol intoxication or from heart attack.

  Thus, as Ortiz-Reyes repeated many times, after all the information was in, it was his and the chief ME’s “opinion” that Don had been murdered.

  “And the evidence that the police gave you that changed your mind,” Piszczatowski concluded, “was the statement of an individual that they had talked to, that said the
death occurred by asphyxiation—is that correct?”

  “Yes. That’s correct.”

  Piszczatowski had nothing further.

  CHAPTER 64

  APA SKRZYNSKI BROUGHT IN Don Rogers’s business partner, Donald Kather, after forty minutes of redirect and recross with Dr. Ortiz-Reyes had become very monotonous and nonproductive. The state was losing this case. The PO needed a strong witness, someone to elaborate for jurors the sort of personalized evidence showing why Billie Jean had a reason to place a pillow over her husband’s head and smother him. The APA was two steps back from where he wanted to be at this point. Ortiz-Reyes had not really put into the record a cause of death for Don Rogers. One could speculate, sure, that Don had been smothered, but there was no actual forensic evidence besides an “opinion” of some photographs and an ME’s office that kept changing its mind based on what law enforcement was telling them. And if there was no proof of one spouse having killed a spouse, well, how could a woman be found guilty of murdering her husband?

  Donald Kather told jurors he and Don Rogers had known each other for close to four decades. They ran a machine shop in Troy that focused on car assembly tools. They had five employees, and about four thousand square feet of space. It wasn’t much, but at one time it made money. Plenty of it. The past five years, however, Donald Kather explained, “We haven’t been generating any profits.”

  This didn’t mean they were broke. It meant the business was breaking even, keeping five families working and the doors open.

  Donald then talked about the last time he saw his old buddy, Don Rogers. It was that Friday, August 11. They had gone to lunch together, as they normally did almost every day. And with that, and the fact that Kather saw Don Rogers every workday, came the next question, making it clear where the APA wanted to go with Don Kather’s testimony.

  “So, any other day of the week, had you noticed any kind of bruising or abrasions?”

  Piszczatowski rolled his eyes. Billie Jean did the same.