EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, June 15, 2015

The ME at Adnan's Trial Previously Testified That Lividity Fixes 8-12 Hours After Death

I have written a number of posts about livor mortis/fixed lividity as it relates to the prosecution of Adnan Syed for the murder of Hae Min Lee. Since a post in February, my theory has been that Cristina Gutierrez did not even need to call her own forensic pathologist to destroy the State's theory of the case; instead, she merely needed to cross-examine the State's own forensic pathologist -- Dr. Margarita Korell -- to establish how long lividity takes to fix. The conclusion in my prior post was based upon a prior case in which Dr. Korell was corrected by her supervisor on the timing of lividity. Based upon this correction, my assumption was that Dr. Korell would testify to the correct lividity timeline at Adnan's trial and could have been impeached through her supervisor's correction in the event she testified to a different timeline. It turns out, however, that the analysis of this issue is actually much simpler.

The case in question was Wiggins v. State, 597 A.2d 1359 (Md. 1991). As I noted in a prior post, Wiggins was eventually appealed to the Court of Appeals of Maryland, which discussed the lividity issue at length in an opinion issued the same day that Dr. Korell performed the autopsy on Hae Min Lee. As I noted in my prior post, in Wiggins, the victim was discovered with fixed lividity, and Dr. Korell initially told the defense team that the victim could have died as soon as four hours before her body was discovered. She was later corrected by her supervisor, who testified at trial that lividity fixes "after a period of eight to twelve hours."

I was also aware that Dr. Korell also testified at trial, but I hadn't been able to locate a copy of her testimony. The other day, however, I was able to track down the Joint Appendix in Wiggins from when the case was appealed to the United States Supreme Court (which found that the defendant received the ineffective assistance of counsel on another matter): 2003 WL 21511704. Luckily, that Appendix contains Dr. Korell's testimony. Here's the relevant portion:

Q. If I could have the Court's indulgence for one minute. Can you please tell the members of the jury how much it takes livor to become fixed?

A. Again, livor becomes fixed, considering an ambient temperature of 70 degrees or so, without being in water, and again, it takes several hours. It can be from eight to twelve.

And there you have it. Dr. Korell's testimony is basically exactly what Dr. Hlavaty told me on the Undisclosed Podcast about lividity fixing between eight to twelve hour after death, assuming room temperature.

It was unsurprising to see that both Dr. Korell and her supervisor testified to the timing of livor mortis in Wiggins. In every case I've read involving livor mortis, an expert has testified about the time it takes for lividity to fix. Every case, that is, except for Adnan's case. I can understand why the prosecution didn't ask Dr. Korell how long it takes for lividity to fix, but I can't understand how or why Gutierrez didn't ask this essential question. With it, the jury would have known that Hae couldn't have been buried on her right side in Leakin Park in the 7:00 hour. Without the question, the jury had no idea whether lividity fixes within eight minutes or eight hours after death, making the livor mortis evidence irrelevant.

As things now stand, there's really only one caveat on the issue, which is that Dr. Hlavaty wasn't able to observe the burial photos and was therefore relying on the autopsy photos, the autopsy report, and Dr. Korell's testimony. Obviously, this is not ideal, but experts are frequently allowed to testify at trials based upon such second-handed evidence.

One example can be found in Deese v. State, 786 A.2d 293 (2001). Deese was a homicide case with lividity issues in which Dr. Korell performed the autopsy. In her initial autopsy report, Dr. Korell listed "the manner of death as 'undetermined,' rather than as homicide." Dr. Korell later, however, issued a supplemental report listing the manner of death as homicide; "Dr. Korell admitted to having met with prosecutors and police before filing the supplemental report and that new medical tests did not account for the change." Dr. Korell later  

explained that she was "suspicious from day one," but was waiting to receive an "alternate explanation" as to how [the victim] had been bruised; after no such explanation was forthcoming, she concluded that the manner of death was homicide.

The prosecution did not call Dr. Korell as a witness at trial (although the defense did). Instead, the State called Dr. Allan R. Walker, who was an assistant professor of pediatrics and director of pediatric emergency medicine but "not board certified in pathology or forensic pathology." Dr. Walker offered testimony about cause of death after "read[ing] portions of the autopsy report describing 'evidence of injury' and locat[ing] the injuries on photographs of [the victim's] body."

After he was convicted, the defendant appealed, claiming that Dr. Walker wasn't qualified to testify and that he didn't have a proper factual predicate to testify because he testified that

instead of personally examining the physical samples taken for the autopsy, he relied on Dr. Korell's reports; and that, if there were an error in Dr. Korell's autopsy report, then there "may be" an error in his own opinion as well.

The court easily turned aside these arguments, principally citing another lividity case -- Massie v. State -- and concluding that Dr. Walker's qualifications and base of knowledge were sufficient to render his expert opinion at a criminal trial.

All of which goes to say that the information I've provided to Dr. Hlavaty and other experts isn't perfect, but it is the type of evidence upon which experts frequently rely in rendering expert opinions at trial. Hopefully, one day we will have access to the burial photos so that all doubt can be put to rest.



| Permalink


That statement says ambient temperature of 70; but it was a snow day as Asia wrote in the letter. So the conclusion does not apply.

Posted by: RC | Jun 15, 2015 10:49:09 AM

RC: Colder weather would tend to slow down the fixing of lividity. On January 13th, it was mid-50s during the day before cooling off later at night. This means that (1) lividity probably started partially fixing closer to 3-4 hours after death, rather than 2 hours; and (2) lividity probably became fully fixed closer to 11-12 (or 13-14) hours after death rather than 8-10.*

*Rough estimates.

Posted by: Colin Miller | Jun 15, 2015 11:01:06 AM

RC: The average temperature on 1/13/99 was around 45 degrees, with a high in the mid/upper 50's if I recall. The snow/ice/whatever didn't happen until overnight or early on 1/14/99.
So you're right that it wasn't 70 degrees, but it wasn't freezing during the day either. Additionally, it's generally warmer in a closed vehicle than the ambient temperature on days when there is any kind of sunshine, so who knows how warm it was in the trunk.

Posted by: xo | Jun 15, 2015 11:08:41 AM

xo: Good points. Of course, this all assumes that Hae actually was in the trunk, which I don't think was the case. She easily could have been in any number of indoor or outdoor locations in the hours after her death.

Posted by: Colin Miller | Jun 15, 2015 12:39:21 PM

Hey Collin, am listening to the Addendum 5 right now and just got through your bit about Baltimore County and Hae's car.

Is it not possible that Baltimore County simply ran a search on the plates to check the status? I'm not sure that them running the plates is any hard proof that they saw the car in Baltimore County. Perhaps the officers were merely checking for updates on the vehicles status since it was a local missing persons case?

Unless I am missing something. Is this specific search run by Baltimore County absolutely contingent on them seeing the vehicle in Baltimore County jurisdiction?


Posted by: Jake | Jun 15, 2015 3:58:10 PM

Jake: The February 4th checks were mobile checks while the other checks were from a terminal. I suppose it's possible that the cops were driving around and randomly decided to do a plate check on Hae's car. The likelier scenario seems to be that they saw her car and ran he check.

Posted by: Colin Miller | Jun 15, 2015 6:18:37 PM

Also related to this week's addendum: is there any possibility that Hae's car was impounded, if it sat for a month in a location that was suspicious to passing cops, especially two in one day? I guess in that case there might have been notices sent to the Lees' house; but it could also provide a possible explanation for the cops knowing its location before Jay.

Posted by: Leia | Jun 15, 2015 6:59:10 PM

You said that the previous searches were from terminals and the 2/4 searches were from mobile units, but how can you tell? The searches on 1/14 and 1/15 look similar, don't they? Also, I think someone said that there was a news report on 2/4 about the case. Did it mention her plate number? Maybe it was just curious officers wondering if it had been found?

Posted by: gc | Jun 15, 2015 9:51:41 PM

If these truly do show the car was in Baltimore Co, would the officers have a motive to move it to Baltimore City? If they didn't have the keys, could they have been the ones hot wiring it to move it?

Posted by: gc | Jun 15, 2015 9:53:56 PM

Leia: It's an interesting theory.

gc: Susan would be a better person to answer that question.

Posted by: Colin Miller | Jun 16, 2015 3:58:36 AM


Just heard episode 5 (Autopsy). Based on the massive, irrefutable autopsy inconsistency, other evidence and Jay’s burial time change in the Intercept interview, it is clear that there is substantive doubt about Adnan’s guilt.
I’m wondering whether the court has the authority to simply overturn the conviction or would it have to go to a new trial? If a new trial, I cannot see how the prosecutor could now possibly introduce the same timeline and evidence and not lose the new trial.
Is it likely, to save reputations, etc., that the state would drop the charge if a new trial is ordered (assuming any appeals prior to that by the state are not upheld)?
Sarah and you guys have done an incredible job. To me the upshot, that the police and prosecutor decided he was guilty and made the case fit their whim, is abhorrent. They let a killer go scot-free, with no effort to find the truth.


Posted by: Fayyaz Alimohamed | Jun 19, 2015 6:24:25 PM

Fayyaz: The court would likely just grant a new trial. It's up to the prosecution to decide whether to bring charges again.

Posted by: Colin Miller | Jun 20, 2015 3:30:26 AM

Post a comment