Monday, June 15, 2015
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.