Blood on the Table_Greatest Cases of New York City's Office of the Chief Medical Examiner

by Colin Evans

  At the end of the mass spectrometer is a narrow slit, with a detector on the other side. When the magnetic field is weak, only the lightest fragments are deflected enough to pass through this slit. Increasing the magnetic field allows heavier particles to pass through. At the same time the detector moves across the slit, producing a spectrum of the different fragments. By studying the position of each fragment within this spectrum and its intensity, it is possible to determine the chemical makeup of each constituent in the sample.

  This was the science; now Dr. Robert E. Finnigan at his laboratory in Sunnyvale, near San Jose, California, needed to compare the Savino samples against a database of more than forty thousand compounds. Finnigan had no doubt that if curare was present, this technique would find it. As he put it: “If the mass spectrometer test is positive for a compound, the identification is absolute.”

  All these various experiments took place over several weeks. Finally, on March 5, 1976, Baden was ready to announce the results: the scientists had found curare in Nancy Savino’s body. Just days later confirmatory traces of curare were also found in samples taken from another alleged poisoning victim, Emma Arzt.

  During the interim between these two revelations, “Doctor X” was finally unmasked. The dénouement came on March 16, when Joseph C. Woodcock, the Bergen County prosecutor, announced his intention to seek indictments against Dr. Mario Jascalevich for an unspecified number of murders. All at once the previously publicity-shy Dr. Jascalevich had to deal with the uncomfortable reality that newspapers all over North America had his name plastered across their front pages.

  By the time the grand jury had heard all the evidence, the eye-watering numbers of alleged murder victims being bandied about in the press had been whittled down first to single figures, then further still. This still left enough to scare the average newspaper reader out of his or her wits, as, on May 19, 1976, Jascalevich was indicted in the deaths of five patients at Riverdell. The first four were:

  NANCY SAVINO, age four; operated on for removal of intestinal cysts. Died March 21, 1966. Stated cause of death: undetermined physiological reaction.

  MARGARET HENDERSON, age twenty-six; admitted with abdominal pain, exploratory incision revealed no abnormalities. Died April 23, 1966. Stated cause of death: acute hepatic necrosis.

  FRANK BIGGS, age fifty-nine; operated on for a bleeding peptic ulcer. Died August 28, 1966. Stated cause of death: ventricular fibrillation.

  EMMA ARZT, age seventy; operated on for removal of gallbladder. Died September 23, 1966. Stated cause of death: acute circulatory failure.

  All four patients had been recovering in their rooms from surgery, after having been operated on by colleagues of Jascalevich. The fifth indictment against Jascalevich concerned seventy-three-year-old Carl Rohrbeck who had died on December 13, 1965. This case differed from the others because this time it was Jascalevich himself who had been scheduled to operate on Rohrbeck. The procedure was relatively straightforward: the repair of a ventral hernia scar. On the morning of the operation, at about 7:30 A.M., Jascalevich visited Rohrbeck in his room for a final checkup. When he emerged a few minutes later, he stunned Rohrbeck’s doctor, Jay Sklar, who was already scrubbing up, by saying that he had decided to cancel the operation. Sklar, a director of the hospital, listened in utter disbelief as Jascalevich declared that he’d had a “premonition” and did not want to proceed with the operation. Sklar couldn’t swallow all this mumbo jumbo. Nor could Rohrbeck. When Sklar visited him, Rohrbeck seemed bewildered. “What’s holding up the show?” he asked. Through gritted teeth, Sklar explained that he would have to double-check the patient’s heart, lungs, and blood pressure. All were fine. Sklar then stormed off to find Jascalevich. After a heated shouting match between the two, Jascalevich went back to reexamine Rohrbeck, at which time he started an IV drip. Upon his return, he again told Sklar that he would not operate. Before Sklar even had time to respond, a nurse rushed in with the shocking announcement that Rohrbeck was dead! An autopsy found marked arteriosclerosis in his left main artery—a long-term condition—and his death was ascribed to “coronary occlusion.” Sklar was flabbergasted. It was as if Jascalevich had known that Rohrbeck was going to die.

  The Jascalevich affair was a real eye-opener for most Americans. Doctors had been accused and convicted of murder before, but in each case the victim had been someone either related to or close to the physician. Never before in the United States had a doctor been accused of randomly killing strangers. For many, such an assumption tested the limits of believability. A serial killer in the medical profession? Preposterous! Where, they spluttered, was the motive?

  The district attorney’s office was sure it had the answer: Jascalevich’s murderous campaign had been sparked by an evil determination to discredit his professional rivals, who he feared were undermining his status and eating into his bank balance. Ironically, the defense said pretty much the same, except that their spin on events had the run-of-the-mill surgeons at Riverdell ganging up against the brilliant import from South America, using him as a scapegoat for their medical incompetence. Their client, they said, had then been the hapless victim of a vicious witch-hunt orchestrated by Farber and Baden to further their own ambitions. And those much vaunted curare tests had been flawed, the defense scoffed, and they intended producing expert witnesses to say so.

  While the sniping got sharper and the insults flew like daggers, time dragged on. One year passed. Then another. It was two full years before Jascalevich stood trial. At the time of his indictment, Jascalevich had been running a popular clinic for people on welfare and had voluntarily surrendered his license to practice medicine. Now, in his hour of extremis, his grateful and idolizing former patients had no intention of abandoning their benefactor. They packed the courtroom daily, applauding wildly for every point in the defendant’s favor, pointedly remaining silent when the evidence told against him. For Baden this was the biggest case of his already tempestuous career, a golden opportunity to stamp his authority on the big stage. His longtime feud with Helpern had been consigned to history, and DiMaio had just retired. By the time he took the stand—July 21, 1978—Baden was the anointed, but not permanently appointed, chief medical examiner. A strong performance here could nail down the job for life.

  Unfortunately, it didn’t work out that way. Long before Baden even gave evidence, the prosecution had suffered nagging doubts about two of the indictments. And so had the judge. After listening to arguments from both sides, Judge William J. Arnold ruled that for the court to accept the presence of curare in the bodies two different scientific procedures were necessary, with one corroborating the other. In neither Henderson nor Arzt had this happened. The toxicological claims advanced by the prosecution were based on a single test. As a result, Judge Arnold threw out these two charges against Jascalevich, saying, “I find that a jury could not find beyond a reasonable doubt that the defendant murdered Margaret Henderson and Emma Arzt.”

  This left the prosecution to concentrate all their efforts on just Rohrbeck, Biggs, and Savino. It also meant that Baden had to pick his words very carefully indeed. Unfortunately, the chief prosecutor, Sybil R. Moses, was not so circumspect. At one point she asked Baden, “Can you give an opinion as the manner of [Rohrbeck’s] death?”

  “The manner of death was homicidal,” Baden replied. Defense counsel Raymond A. Brown was on his feet immediately. With the jury excused, he argued that there was nothing in the record to show that murder had been committed, and Judge William J. Arnold agreed. Admitting he had made a mistake in allowing the question, Arnold recalled the jury and told them to “absolutely disregard” Baden’s answer and to “not consider it in any way.” This ruling ripped the heart out of Baden’s testimony. All he was permitted to say was that Biggs, Rohrbeck, and Savino had died from curare poisoning. It was a frustratingly limp closing to what at the outset had looked a rock-solid prosecution case.

  For the defense, Dr. Henry Siegel, medical examiner for Westchester County,
New York, and another OCME alumnus, took issue with the methodology used to detect the curare. “The tests do not tell me how much curare was found. Without knowing the amount, I cannot estimate whether there was a fatal effect on the patient.”

  Thus far the trial was following traditional lines: one expert witness says one thing; another says something diametrically opposed. But with the case dragging on through the long, hot summer, suddenly the defense was thrown a gold-plated lifeline. And it had nothing to do with science. It concerned Myron Farber.

  To mount the most effective defense possible for their client, attorneys of Jascalevich decided to subpoena Farber’s notes. Except that the reporter refused point-blank to hand them over. To do so, he said, would violate the journalist’s code and make him reveal a confidential source. Farber’s obduracy meant that, overnight, the defendant became virtually a sidebar at his own trial. Forget all the groundbreaking work that Baden and his team had so painstakingly carried out: henceforth, the Jascalevich trial was less about science and criminal culpability and more about the Constitution.

  In the wake of Watergate, the power and profile of journalism in America had undergone a quantum shift. Suddenly the reporter was no longer some mere ink-stained wretch but rather a custodian of the public conscience, a gallant seeker-after-truth, with the power to topple presidents. Grabbing just a little of that post–Woodward/Bernstein kudos didn’t hurt the bank balance either.

  The defense now worked itself up into a self-righteous lather. They thundered that Jascalevich had been framed by a tripartite conspiracy consisting of Riverdell hospital, Baden, and Farber. The critical nature of Farber’s role, defense attorneys argued, made him as much a member of the prosecution team as, say, District Attorney Joseph Woodcock, and therefore he should be stripped of any journalistic immunity. Farber, unsurprisingly, didn’t see it that way at all. Like any reporter worth his salt, he was prepared to protect his source at all costs. The outcome was a legal standoff as overwrought as it was contrived. Especially when one considered the oft-overlooked irony that Farber’s unidentified source was no “Deep Throat” lurking in parking garage shadows, desperate to preserve his anonymity at all costs, but someone actually clamoring to be exposed!

  Matthew Lifflander, a lawyer friend of Dr. Allan Lans, was the person who had compiled the “Doctor X” dossier and passed it to Farber. In light of all the publicity, he felt he deserved at least some credit for his part in the investigation, credit that he now felt Farber was denying to him. Farber’s holier-than-thou stance stuck in Lifflander’s craw, especially when details of the hefty book deal that Farber had secured were revealed, and it turned him into a mortal enemy of the reporter. In time, Lifflander would publish his own account of the case, making plain his antipathy.*

  There was plenty of moral high ground to be taken here, and Farber managed to grab it all. The courts didn’t share his enthusiasm and sided unequivocally with the defense, ordering Farber to hand over his papers. He refused. Even the threat of imprisonment failed to budge him. What some lauded as commendable ethics, left others feeling distinctly cold. Farber’s intransigence, however well intentioned, had the effect of holing the prosecution’s case several fathoms below the waterline. An ecstatic defense team couldn’t believe its good fortune. Their claim, that Farber’s notes were needed to prove Jascalevich’s innocence, was never tested in court, and we’ll never know what the jury might have made of the elusive revelations.

  Between July and October 1978, Farber was in and out of jail for a total of forty days, while his employer, the New York Times, which supported Farber up to the hilt, was initially fined one hundred thousand dollars for criminal contempt and five thousand dollars for each day that he refused to comply with the court’s wishes. (Legal fees would eventually boost the bill by another million dollars). When the case reached the State Supreme Court, Judge Frederick Lacey delivered a scathing verdict on Farber’s motives, saying that the book contract meant he had a financial stake in seeing the doctor convicted. “This is a sorry spectacle of a reporter who purported to stand on his reporter’s privilege when in fact he was standing on an altar of greed,” said Lacey. Fast losing allies, even in the press, Farber bowed to the court’s wishes and handed over his manuscript to Judge Arnold.

  But it had all come too late. Farber’s liberty came on the same day as Jascalevich received his. On October 24, 1978, after one of the longest trials in American history, lasting eight months, the jury required less than three hours to acquit Jascalevich. His supporters in the courtroom were jubilant. Much of the credit for Jascalevich’s acquittal must go to his chief defense counsel, Raymond A. Brown. He had outgunned and outmaneuvered the prosecution at every turn—some conspiracy theorists insisted Brown had deliberately engineered the Farber farrago, not because he wanted to see the notes but because he calculated that Farber would start hollering “First Amendment!” at the top of his lungs, thereby neatly deflecting attention from his client—and he had time on his side. In some kidnapping cases victims experience what is called the Stockholm syndrome, whereby they begin to build a rapport, often even a bond, with the hostage taker.* Much the same can happen in a long trial. Over the course of several months, the jury begins to see the defendant no longer as the accused but as just another person in the courtroom. Smiles, sometimes even pleasantries may be exchanged, all of which may, even if only on a subconscious level, affect the verdict. Possibly something like that happened in this instance. Certainly, the immaculately groomed Jascalevich was affable and pleasant to everyone in court. He thanked witnesses—even when they gave evidence against him—for their testimony, and he always conducted himself in a reasonable, even-handed manner. One thing was certain: he didn’t come across as any serial killer. As noted earlier, his former patients turned out in droves to support him, and it’s hard to imagine that their highly vocal encouragement, combined with all the other factors, did not have some impact on the jury’s decision. Some idea of Jascalevich’s charisma can be gleaned from the fact that in an extraordinary display of loyalty, a few weeks after the trial the jury petitioned for Jascalevich to have his medical license restored.

  But the state wasn’t yet finished with Mario Jascalevich.

  What the jury didn’t know was that several malpractice charges remained on the docket against Jascalevich, including one of operating on a patient whom he had misdiagnosed as having cancer and others of fraud and neglect. All these cases had arisen from Jascalevich’s time at another hospital in Jersey City, and none was related to the murder charges.

  On October 8, 1980, the New Jersey Board of Medical Examiners decided it had had enough of Jascalevich and revoked his license permanently. The following year, Jascalevich sold up and returned to Argentina where he continued to practice medicine. In 1984 he died at Mar del Plata in his home country at the age of fifty-seven.

  So far as Baden was concerned, the acquittal of Jascalevich amounted to a devastating setback. His was the marquee name above the team of forensic science experts who were supposed to convict the mysterious “Doctor X,” and in the end a jury had thumbed its collective nose and tossed out months of brilliant, groundbreaking work and thousands of dollars of investigative science. Baden’s team had performed forensic miracles in demonstrating that curare somehow got into the bodies of at least three of the Riverdell patients. What they could not do—nor was it part of their remit—was prove by whose hand the poison had been administered. This was the prosecution’s responsibility and they came up short. In truth, the case against Jascalevich was never more than circumstantial. While great swathes of suspicion adhered to Jascalevich, there was precious little hard evidence to say he was a serial killer. If Farber had handed over his notes, maybe the outcome would have been different, maybe not. Still the suspicion lingers that in the case against Mario Jascalevich journalistic stubbornness outweighed the causes of justice.

  In the aftermath of this debacle, the New Jersey legislature rewrote the shield law, so that a h
earing was required before a reporter could be forced to reveal his sources. Just over one year later, New Jersey governor Brendan Byrne pardoned Farber and the New York Times.

  Baden’s knack of stirring up hornets’ nests stayed with him. When he took over as acting head of the Office of the Chief Medical Examiner, it was investigating approximately twenty-eight thousand deaths a year, about one-third of all those in the city. Late in the evening of January 29, 1979, this total was increased by one. Ordinarily the death of a seventy-year-old man from cardiac arrest would be little cause for comment, except that on this occasion the victim was former vice president and four-term governor of New York State Nelson Rockefeller. When paramedics got the call at 11:15 P.M., they rushed to Rockefeller’s Manhattan townhouse at 13 West Fifty-fourth Street. There they found him lying fully dressed on a couch, still warm but without a pulse. Quickly they stretchered him into the ambulance and prepared to set off for nearby St. Clare’s Hospital, only to then receive instructions ordering them to Lenox Hill Hospital, some considerable distance further away. Doctors did their best, but at 12:20 A.M. on January 27 Rockefeller was pronounced dead. Thus far, it was just another tragedy. Newsworthy, of course. Controversial? Hardly. Then it became clear that something peculiar was going on. The official version had Rockefeller succumbing to a heart attack while researching a book on art history with his assistant, twenty-five-year-old Megan Marshack, who lived in a co-op apartment just a few doors down. Pretty soon the rumor mill began churning out hints that Miss Marshack’s duties extended well beyond the merely archival. Whatever the truth of these stories, Baden contacted the family physician, Dr. Ernest R. Esakof, and was told that contrary to public announcements, Rockefeller’s health had recently been giving grave cause for concern, and that a heart attack had come as no surprise. So far as Baden was concerned, such an assurance from the family doctor obviated any need for an autopsy. As a result, less than forty-eight hours after his death, the former vice president was cremated and his ashes laid to rest. (In his will, Rockefeller provided handsomely for Marshack; a fifty-thousand-dollar loan was forgiven, and she got to keep her co-op apartment.)