Steeped in Blood

by David Klatzow

  CHAPTER 3

  ALCOHOL IS A GOOD FRIEND, JUST DON’T OVERDO THE FRIENDSHIP

  ‘It isn’t what we don’t know that gives us trouble,

  it’s what we know that ain’t so.’

  – WILL ROGERS,

  American actor, humorist and social commentator

  I waved the academic world farewell, saying goodbye to the regular pay slip. In preparation, I paid off my accommodation expenses a year in advance, so my only worry would be my living expenses for the next year.

  Dorothy Gill found a position at the Jockey Club (now the National Horseracing Authority of Southern Africa). Unfortunately she would cut all ties with me after my involvement in a case against the Jockey Club, and we would not go into business together.

  It is illegal to race a horse whose performance has been enhanced by certain substances, and, up until the early 1980s, blood samples had to be sent overseas to be analysed. In about 1984, the Jockey Club set up its own laboratory for testing in South Africa.

  Around 1988, the first big case that came up was that of Alan Forbes, a wealthy trainer who owned and raced horses. Amidst ongoing friction between Forbes and the Jockey Club, one of his racehorses, I’m Proud, was tested, and traces of naproxen, an anti-inflammatory drug, was supposedly found in its bloodstream. Forbes was accused of enhancing his horse’s performance by using drugs.

  He was entitled to have his own expert cross-examine the Jockey Club expert at the hearing, and I was called in. The head of their laboratory testified at length about how he had conducted the tests and reached his conclusion that naproxen was present in the horse’s bloodstream, but I managed to poke many holes in his evidence. He quoted from books, and I brought these same books with me, pointing out that his quotes were simply not there. In the end, the Jockey Club expert was disbelieved. It was a walkover, and Alan Forbes was acquitted.

  I was subsequently called in to assist another trainer. This time, the Jockey Club would not allow me the privilege of cross-examining their expert – I was not permitted to attend the hearing. I flew to Durban with the trainer and suggested to him that we act in the following way: he would go into the hearing with a tape recorder and ask the first question. He would then come to me with the recording, and I would listen and give him the next question. This is what we did – by tea time we had asked only three questions!

  The chairman of the inquiry was livid and said he wanted all the questions at once. I said that I couldn’t do that because each question would depend on the answer to the previous question. Out of frustration, they eventually let me into the hearing, and after one or two questions, I demolished their expert again.

  Animals (and people) have different levels of hormones in their systems. To prove that abnormal levels are the result of a substance being administered artificially, you have to prove it statistically, using the sample you have taken. The flaw in their case was a misunderstanding in the evaluation and analysing of this sample. The statistics were incorrect, and I even called in a statistician to show how wrong the basis of their calculation was. It was a technical error on their part, but this case was enough for them to ban me from ever being involved with the Jockey Club again. It’s hardly fair, but no trainer can approach me again to assist them. I am not allowed to cross-examine their witnesses either.

  Unfortunately – or maybe fortunately – Dorothy cut ties with me because of these hearings. So, I was on my own in my fledgling practice and set about finding clients. With great anticipation, I placed an advert in the South African attorneys’ journal De Rebus, only to discover that attorneys either didn’t read it or couldn’t read. I watched my slender reserves of money dwindle at an alarming rate.

  In order to feed myself, I had re-established my handyman business in Johannesburg, and was doing handyman work in and around the city. One of my suppliers was a glazing business called MUG Glaziers. I became friendly with the owners, and they asked me one day if I would be interested in running their shop in Green-side, a suburb of Johannesburg. I thought about it and realised that my resources were good for another two months at the most, so I accepted the offer. I was now an apprentice in the art of glazing – in fitting shower doors. Ironically, I was now learning the business in which my father had been involved during the Standerton days.

  One day, while I was applying silicone to a shower door near Sandton City, my pager went off. (This was the pre-cellphone era – I had a small radio pager in case of emergencies.) It was a law firm. I found the nearest public telephone and called the attorney immediately.

  With great excitement, I spoke to Reg Kossuth, who was acting for an insurance company called Commercial Union Life. Hillel Shapiro, the forensic pathologist I’d met at Wits, had suggested that he call me. The company had a problem and they wanted to know if I would be interested in investigating it. The documentation was delivered to me, and eagerly I started reading.

  It was the case of a young woman who had been found dead in her bed, in Durban, with a packet of antidepressants and a bottle of wine by her side. She ran her own business and had recently taken out a substantial life insurance policy, with her husband designated as the beneficiary. Her death had occurred within the two-year suicide exclusion clause contained in most insurance policies, which prevents people from taking out policies with the sole intention of committing suicide and making money out of it for their beneficiaries. My brief was to determine whether her death had been a suicide or not.

  I flew to Durban to investigate the case, and discovered that the woman had been a severe and chronic depressive. She was on significant doses of antidepressant drugs and had visited several doctors. She had had the scripts from these doctors dispensed at various pharmacies, using different names, and she’d even forged some of the prescriptions. These facts should have been disclosed to the insurers when she took out the policy. In instances where this does not happen, it is known in insurance jargon as a ‘material non-disclosure’.

  I did not conduct any analysis in this case – I obtained information from the mortuary. The results were puzzling. One particularly strange aspect related to her liver. The liver was weighed at the autopsy, but the recorded mass differed significantly from the mass of the liver that was received for analysis. I suspected that there had been a switch in the samples, and that the organs of another body had been sent instead. Whether her husband had had a hand in this was never established, but it was strongly suspected.

  The claim was repudiated successfully because her state of depression had not been disclosed. No one challenged my finding. I now came to the daunting task of submitting an invoice: I didn’t have a clue what to charge. My girlfriend at the time suggested that I charge R100 per hour, a figure that seemed exorbitant to me. I followed her suggestion and submitted my account with bated breath. To my surprise, I received a letter of thanks and a cheque for R10 000 in return! This was more than I had earned in an entire year as an academic, and I realised that a good living could be made in private consulting. My career as a budding glazier was cut short – all my energy would now be channelled into running a private forensic practice.

  One of my first steps was to call Hillel Shapiro to thank him for referring the case to me. After some difficulty in getting through to him, I finally spoke to his secretary, Maureen Stroud. She told me that Shapiro had passed away the previous week and that she was busy sorting out the estate and tidying up his affairs. I was shocked and deeply saddened by the news.

  It had become clear to me that I would need some administrative support in my practice, so I called Maureen about a week later to ask her what her future plans were. She wasn’t quite sure, so I invited her around to my house to offer her a position as my secretary. (I had typed the first report with one finger on an IBM Golfball typewriter.) Over a cup of tea Maureen agreed to come and work for me, and we sealed the agreement with a bottle of marmalade and a jar of beetroot preserve, which I had made. Maureen was to work for me for the next twelve years, and she prove
d to be a godsend in many ways.

  We set up office in a pair of semi-detached houses in Fox Street, opposite the Jeppestown post office in Johannesburg, and I began to establish a laboratory. Setting up a laboratory was no cheap exercise, and I decided to lease the equipment to start with. John Green and MLS Bank loaned me the money, and I spent it with gay abandon.

  Shortly after Maureen had joined me, she sat me down one day and asked me what I thought I needed to earn in order to service my debt. The thought had not even crossed my mind – I hadn’t a clue. My passion is for science, and once a case is completed, I have no interest in the financial side. This is perhaps a result of my childhood experiences of the terrible trauma caused to my family by my father’s horse-racing addiction. I earn the money, and what happens to it after that is of no consequence to me.

  Maureen took over and ran the business for me with little intervention from my side. She spoke to the bank manager, arranged an accountant to submit tax returns, and single-handedly kept the practice afloat despite my excesses. She set up processes that I still use today, and I owe her a huge debt of gratitude.

  At one point, the practice was particularly slow and we needed to cover our overheads. I recall telling Maureen the story of the verger at St Peter’s Church in London, who couldn’t read or write. When a new vicar came into office, he told the verger that he should either learn to read and write or vacate the position. The verger felt that he was too old to start learning new things, so he left the employment of the church. As he was walking down the street, he felt like a cigarette, so he looked around for a tobacconist. There wasn’t one anywhere. So he walked down the adjacent street, and then the next street – nowhere could he find a tobacconist.

  He decided to start his own tobacconist. Within a few years, he had set up a chain of shops around London, and had amassed a great fortune. One day, he went to see his bank manager to discuss how to invest this money. When he was asked to sign some documents, he admitted that he couldn’t read or write. The bank manager looked at him in horror and said, ‘You have done so well in business. Imagine where you would have been today if you could read and write.’ The tobacconist looked at him and smiled. ‘Yes,’ he said. ‘I would still have been the verger at St Peter’s.’

  With this story in mind, I suggested to Maureen that she and I make sandwiches and find someone to sell them for us, as there were no food outlets around our offices. We got to work and made delicious sandwiches. We did not, however, have the same success as the St Peter’s verger – our product hardly sold. We ate most of the sandwiches ourselves!

  These were exciting times forensically, and the lack of cash flow at times was something that I did not take very seriously or worry about for any length of time.

  I was contacted by a reporter from the Sunday Times, who came to interview me. A few days later, an article titled ‘Forensic Scientist aims to show the other side’ appeared in the newspaper, which brought me my second case, a drunken-driving case in Bronkhorstspruit.

  There were major flaws at that time in the process of testing for drunken driving. When attempting to convict a man of driving while under the influence of alcohol, a blood sample is drawn and analysed to determine the alcohol content in the bloodstream. The law states that the sample must be sterile in order for it to be suitable for chemical analysis. In other words, there must be no micro-organisms in the sample. This implies a completely germfree process when the blood is drawn.

  Almost all alcohol that is produced for drinking purposes, however, is created by the fermentation of sugar by micro-organisms. The yeast that converts grape juice into wine is but one of a myriad small creatures that converts sugar and other chemicals into the wonderful, simple alcohol called ethyl alcohol.

  The way in which doctors took samples in the mid-1980s was guaranteed to lead to contamination with micro-organisms. The government doctor would bare the driver’s arm and, without cleaning the injection site, would draw a sample of blood. The sample would then be placed in a small bottle with a screw-top lid called a McCartney Bottle. This bottle contained certain chemicals that were supposed to prevent the formation of alcohol by any microbes that had inadvertently found their way into the bottle during the opening and filling process, thus making the analysis accurate. Unfortunately, about 40 per cent of the bottles tested by Dorothy Gill at the time contained living microbes, which could alter the alcohol concentration.

  The moment it could be established that living microbes inhabited the bottle, the accused was perfectly entitled to ask if the state could prove that these microbes had not converted some of the blood sugar into alcohol. Of course, the state could not rule this out, and conviction under those circumstances was out of the question.

  Drinking and driving was, and still is, one of the major problems in this country. I faced a moral dilemma in the Bronkhorstspruit case, and in some of the cases that followed, in that I was helping drunken drivers to get off scot-free. I wrote a letter to the then Attorney-General, raising the issue with him, as I was genuinely concerned by the fact that I might be assisting drunken drivers to walk away without facing the consequences of their crime. I also decided to raise the issue with the Deputy Attorney-General, Kevin Atwell. He was a man of great integrity, and one of the few state employees whom I had felt comfortable dealing with. I wrote to him, and he replied, saying that the matter was out of his hands and that I should contact the state health chemical laboratories.

  I did this, and drove to Pretoria to see the head of the state health laboratories, Dr van Niekerk. He listened to what I had to say, politely thanked me, and indicated that they were quite satisfied with the way things were run, and that they would contact me if they felt the need. My meeting with Dr van Niekerk was the start of a process that, in retrospect, can only be described as a three-ring circus.

  It would have been easy to solve the problem – all that the state needed to do was to take the blood in sterile conditions, something that any junior nurse could have told them. I explained this to Atwell, but he was adamant that his hands were tied, and suggested that I try to win a case or two and then come back to discuss the matter with him.

  It was around the same time that an attorney came to see me on the way home from court. He was accompanied by Advocate van Nieuwenhuizen, who was interested in my work. Shortly afterwards, I started receiving instructions from the attorneys who had briefed him. One of these was Nick von Wesel from the law firm Cliffe Dekker & Todd (now Cliffe Dekker Hofmeyr). Between Von Wesel, Van Nieuwenhuizen and me, we were briefed on around 100 cases of drunken driving, and we won all of them. Thanks to the total intransigence of the state over alcohol testing, I was comfortably kept in business for the first two years of practice.

  Criticism was received from far and wide, and at one point I even had the organisation Mothers Against Drunken Driving (MADD) publicly criticising my role in helping drunken drivers to get off the hook. The reality, of course, was that I was not making the law, but simply taking advantage of it. The state’s stupidity kept me alive for a good few years, and I started to earn a reputation for finding the loopholes. All we had to do was ask a few pertinent questions of the state prosecutors regarding the taking of blood samples. Their charts and graphs would mean nothing when the blood sample could not be guaranteed to be sterile.

  The state hated me. General Lothar Neethling, who headed up the police forensic laboratory, in particular despised me. We were adversaries for many years, and he always used to say to me, ‘Klatzow, I can’t wait to get you in a witness box. I will crush you!’ But, sadly for him, he never did.

  Apart from the problems with blood testing, the police periodically made some other mistakes in their zeal to arrest drunken drivers. I was involved in one such case, in which Nick von Wesel had developed a malignant tumour of the parotid gland (one of the salivary glands near the ear). A mutual friend, Grant Kassner, had removed the tumour, but there was some facial-nerve bruising, as often happens in such cases. Nick e
nded up with a surgical Bell’s palsy, which caused the left-hand side of his face to droop. It also made him slur his words and meant that he had a problem with his balance.

  One day, while on his way home from work, Nick was stopped by the traffic police for a minor offence. The traffic officer took one look at him and immediately arrested him for driving under the influence. He was taken away, and at the forensic laboratory he was examined by the young district surgeon. Of course, there was no case for drunken driving.

  Some time later, Solly van Nieuwenhuizen and I were in court on another drunken-driving case. Who should be the district surgeon who had been called to give evidence? None other than the same one who had examined Nick. She was being particularly stubborn, and would not concede that unsteadiness on the feet could be caused by a wide variety of conditions, of which inebriation was only one. State officials, as I had learnt, rarely make any concessions in court. The district surgeon took refuge in technical terms and kept referring to the positive Rhomberg sign, which is just another fancy name for being unsteady on the feet.

  Van Nieuwenhuizen asked her to demonstrate the Rhomberg sign. She called for the court orderly, but the legal counsel insisted that she use the instructing attorney – Nick von Wesel. Of course, Nick swayed around like a branch in a storm, and the district surgeon had to concede that there may indeed be other reasons for unsteadiness on the feet!

  According to law, blood samples taken within two hours from the commission of the crime will be presumed to be an accurate measure of the blood alcohol at the time of the crime. But what happens if there are two conflicting blood test results within the two-hour period?

  A young man had attended his work office party and, after consuming vast amounts of punch, was on his way home in his father’s Mercedes-Benz. As luck would have it, he was stopped in a roadblock and asked to blow into a breathalyser. Of course, he was found to be over the legal limit, so he was promptly arrested and taken to the police station, where he was charged and then told to sit on a bench in the charge office. A blood sample was taken from him, and he sat waiting. When no one seemed to take any notice of him, and still in possession of his car keys, he eventually decided to sneak out and go home.