Forensic pathology is a complex subspecialty of the science of medicine, subject to varying opinions and judgments not subject to mathematical precision, and in many ways a developing science.

Kentucky has 9 state medical examiners. There are three state medical examiners in Frankfort, four in Louisville, one in Madisonville and one in Ft. Thomas.

Each year Kentucky has 300 or so homicides. There are medical examinations on all 300 by the Commonwealth's medical examiners. David Jones, director of Kentucky's State Medical Examiner's Office ((502) 564-4545), estimates of these 300 homicides perhaps 25 or 8% are reviewed by a defense-hired forensic pathologist. Mr. Jones believes the reasons for so few is due to the cost involved in securing another pathologist to conduct the review, and the few times there is any real dispute in the findings. Defense experts are obtained, according to Jones, to review toxicology tests, the manner of death and arguments over the time of death.

Another likely explanation for so few reviews by a defense pathologist is the failure of crim-inal defense attorneys and public defenders to do their job of obtaining expert help to invest-igate and evaluate the opinions of the state's medical examiner called by the prosecutor. Defense attorneys are also failing to secure the necessary help in cross-examining the state's pathologist and in rebutting the judgments of that expert from the perspective of the defense theory of the case.

It is vital to appreciate two characteristics of today's field of forensic pathology. First, in most ways pathology in the criminal justice system is in its infancy. "It took man several hundred thousand years to discover that force and its effects can be measured." Luke G. Tedeschi, The Wound: An Introduction to Related Issues, Chapter 1 in Forensic Medicine (1977). It was many years before courts were willing to entertain a pathologist's opinion. Pathology struggled to be recognized as a field relevant to medicine. See generally Russell C. Maulitz, Morbid Appearances: The Anatomy of Pathology in the Early Nineteenth Century (1987). The science of forensic pathology is far from being fully developed. It was only in 1958 that the American Board of Pathologists recognized the subspecialty of forensic pathology. Curran, McGarry, Petty, Modern Legal Medicine, Psychiatry and Forensic Science (1980) at 23. The complex articles in the pathology journals attest to the many remaining mysteries of death. At best, lawyers receive elementary training in this specialty.

Secondly, forensic pathology has been primarily fostered and driven by police needs. "Forensic scientific work has continued to be supported in the United States primarily by law enforcement agencies with the continued stimulation and encouragement of the Federal Bureau of Investigation in the Department of Justice." Id. at 17. While this is understandable, primary development of a science through the filter of the law enforcement lens should give pause to those relying on the results of the pathologist called by the prosecutor. The adversary criminal justice system relies heavily on vigorous testing of opinions and testimony by the advocate for the citizen-accused who faces the loss of his liberty.

The basic questions a forensic pathologist seeks answers for are:

We need look no further than the information recommended to be contained in an autopsy report to appreciate the complex nature of this science. Bernard Knight in Forensic Pathology (1991) lists the data that must be contained in an autopsy report in the order he views as logical:

a.    Cardiovascular system: heart weight, any dilatation, ventricular preponderance, the pericardium, epicardium, endocardium, valves, coronary arteries, myocardium, aorta, other great vessels, and peripheral vessels.

b.    Respiratory system: external nares, glottis, larynx, trachea, bronchi, pleural cavities, pleura, lungs (including weight), and pulmonary arteries.

c.    Gastrointestinal system: mouth, pharynx, oesophagus, peritoneal cavity, omentum, stomach, duodenum, small and large intestine, liver (weight), pancreas, gallbladder, and rectum.

d.    Endocrine system: pituitary, thyroid, thymus, and adrenals.

e.    Reticulo-endothelial system: spleen (weight), and lymph nodes.

f.    Genitourinary system: kidneys (weight), ureters, bladder, prostate, uterus, ovaries, and testes.

g.    Musculoskeletal system: skull, spine, remaining skeleton, and musculature where necessary.

h.    Central nervous system: scalp, skull, meninges, cerebral vessels, brain (weight), middle ears, venous sinuses, and spinal cord (when examined)."

Id. at 31-32.

It is likely that many homicides have no con-tested issues about the cause of death. However, it defies probability that 92% of the homicides in Kentucky have no need for the expertise of a forensic pathologist in defense of the criminal prosecution, especially considering the developmental limits and the natural bias' of the field.

We need look no further than recent experi-ences to appreciate the extent of the limitations and the bias' of the field. In Coroner at Large (1985), Thomas T. Noguchi, M.D., former Chief Medical Examiner of Los Angeles, County, with Joseph DiMona, explore a series of controversial cases, including Claus von Bülow, Jean Harris, Dr. Jeffrey MacDonald, and Buddy Jacobsen. Noguchi reviewed the forensic evidence in these four cases and found that "chillingly, it was possible that such forensic evidence might not have been correctly understood by juries. If so, innocent men and women had been convicted of crimes they did not commit." Id. at 9. "[F]orensic science had provided the evidence that really convicted all of the defendants: an insulin encrusted Hypo-dermic needle discovered in Claus Von Bülow's 'little black bag'; Jeff Macdonald's pajama top; the bullet wounds in Dr. Tarnower's body; the bullet shell found in a wastebasket in Buddy Jacobsen's apartment." Id. As an example, Dr. Noguchi believes islet cell hyperplasia, a natural chemical abnormality in the body, was the cause of the insulin surge that vaulted Sunny into the coma, not insulin injected by Claus. His analysis across many cases is a call to honor the difficulties of forensic evaluation by medical examiners, and to pause before accepting at face value the conclusions of pathologists testifying for the prosecutor.
 

Once you are open to questioning time-honored rituals and practices you find that one question leads to another. -- Carl Sagan (Cosmos)

There are no neutral, unbiased experts who can serve the interests of the adversarial system. "Some scientific and technical areas, such as medicine, are not so precise or exact as to permit one opinion. If this fact is not made clear to the jury, the opinion of a court-appointed expert may be accorded too much weight. 'Impartial' does not necessarily mean 'right' when looking at a question where ex-perts may differ as to the answer. Finally, it should be remembered that court experts are human beings and are not without their own 'biases' concerning their expert opinions."

Oliver C. Schroeder, Court Appointment of Experts, Chapter 18 in Forensic Sciences (1995).

We should not be surprised that different qualified forensic pathologists can arrive at different, conflicting conclusions. After all, this is a complicated, developing science. The very reason for seeking out an expert is to obtain the professional judgment based on experience, specialized education, and the inferences made from those. If the matters in dispute were obvious to all, a highly trained expert would not be needed. Different professionals often have different judgements about the meaning of "facts."

Evaluations done by forensic pathologists has two obvious realities: "first, the quality of the phenomenon observed; second, the character and quality of the observer. The phenomena we are called upon to consider in forensic medicine are often indefinite, shadowy, and illusory. The observer himself is hampered by the uncertain evidence of his more or less imperfect senses, sometimes by his undisciplined intellect, by the perversions of hazy memory, by the limitations of his general knowledge and experience, per-haps by the modifying influence of emotions, and, very rarely, it is true, by a tendency to deliberate deception and misrepresentation of the matters under consideration. We are constantly confronted, in our study and practice of medicine, with the mass of our ignorance of the things yet to be known, and with the defects and limitations of the students of these things." Peterson, Haines, Webster, Legal Medicine & Toxicology (1923) at 19.

Medicine is far from an exact science. "From the very nature of the subject, medical opinions cannot be formulated with absolute mathematical certainty. Despite the enormous advances made by medicine in recent years, there remain vast areas, including the sequelae of trauma, which are today undergoing constant study, experiment and thoughtful revision.... [I]n a substantial number of individual cases equally competent and equally honest physicians can and do disagree." Elwood S. Levy, Impartial Medical Testimony-Revisited, 34 Temple L.Q. 416, 419-20 (1961).

The adversary system recognizes the limits of science and the difficulty of ascertaining "the truth" so it provides for each side of the dispute to have its expert present the judgment of science through the lens of that side's theory of the case. The factfinder is immensely benefited.

Qualified professionals who make judgment are at times in error or are operating under misconceptions. Patrick E. Besant-Matthews, Examination and Interpretation of Gunshot Injuries in The Pathology of Trauma (2nd ed. 1993) illustrates the dangers of misconceptions:

"There are those who believe that exit wounds are always larger than those of entry; this is untrue and the misconception is a frequent source of serious interpretive errors. There are several reasons why an entry wound may be larger than an exist, including:

There is a principle which is a bar against all information, which is proof against all arguments and which cannot fail to keep a man in everlasting ignorance - - that principle is contempt prior to investigation.   -- Herbert Spencer

   The Kentucky Supreme Court has recognized the need for funds for a defense forensic path-ologist. In Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992) the defendant was convicted of two counts of murder and sentenced to 1000 years. The prosecutor's experts were of the opinion that the likely cause of death was suffocation prior to the fire.

In holding that the "defense demonstrated 'reasonable necessity,' and was entitled to the assistance of an independent pathologist and an independent arson expert or the equiva-lent," Id. at 885, the Court noted the following factors:

Sommers distinguished Smith v. Common-wealth, 734 S.W.2d 437 (Ky. 1987) where the Court found no error in denying the defendant funds for a pathologist. In Smith, the defendant admitted he shot and killed a number of people, and the firearms expert cooperated with the defense. Sommers, supra, 734 S.W.2d at 883. More importantly, the defense in Sommers "were at pains to demonstrate to the trial court the necessity for defense experts." Sommers, 843 S.W.2d at 884. The effectiveness of the threshold showing for funds by the defense is likely the real difference between the holding of Sommers and Smith.

Cases from Texas, Mississippi and the Fourth and Sixth Circuits agree with the Kentucky Supreme Court's holding in Sommers.

In Rey v. State, 897 S.W.2d 333 (Tex.Cr.App. 1995) Johnny Rey was convicted of murder during a burglary and was sentenced to death.

At the end of the first day of testimony of the guilt phase of the trial, the defense attorney asked for appointment of an independent forensic pathologist to assist in preparing and presenting the defense. The judge reserved ruling until the state's pathologist testified.

The state argued that there was no need for a defense pathologist since "the opinion of a pathologist is not comparable to the opinion of a psychiatrist" and therefore under Ake a pathologist was not as important as a psychiatrist in conveying to the factfinders information about the defendant's behavior and culpability. Id. at 337. Because a "pathologist's opinion is based upon 'concrete observations' as compared to the opinion of a psychiatrist which is based upon more uncertain variables," Ake is inapplicable according to the state's argument. Id. at 338.

Contrary to this contention, the Court found Ake applicable to pathologists because "pathology, like psychiatry, is a subspecialty of the science of medicine. Medicine in any of its sub-specialties eludes mathematic precision, as evidenced by the need for a 'second opinion' with regard to any important medical question." Id. The Court observed that "causation or mechanism of death are examples of important medical questions addressed by pathologists that require more than objective or rote determination." Id.

The defense's theory of the case in Rey was that the deceased died from a heart attack, not blows to the head. The defendant confessed that he and the co-defendants did not intend to kill the deceased but struggled with him, kicking him in the head, and leaving him alive as they fled. The defense hoped "to establish reasonable doubt on the issue of intent and/or deliberateness by showing that [the defendant] could not have foreseen that his actions would result in the death of the deceased." Id. at 341. The state's pathologist found that the previous open heart surgery of the deceased did not aggravate or directly affect the death.

In support of his motion for an expert, the defense attorney attached an affidavit of a co-defendant's pathologist who said he disagreed with the state pathologist's finding that the death was caused by the blows. This patholo-gist also found that in all likelihood the deceased would have survived the blows but for his diseased heart. He also noted that the state pathologist did not take notes during the autopsy and had erased the audio tape of his observations. Neither the photos nor the report of the state pathologist documented findings about the condition of the heart, skull or brain that would allow a pathologist to rule out the heart as a contributing cause of death. Id. at 340-41.

Also, the defense attorney's cross-examination of the state pathologist revealed that the findings of the state pathologist in another case were found to be invalid by another pathologist.

The Court found that the defense "clearly established that the mechanism of death was to be a significant factor at trial." Id. at 342.

The State argued that there was no prejudice to the defense since the co-defendant's pathologist testified to as much. Id. at 342.

Rey determined that "the appointment of an expert under Ake is not only for that expert's testimony" at trial. Id. It is also for an expert who helps identify the weaknesses in the prosecution's case, the strengths of the defense case and one who assists in cross-examining the state's expert. Id. at 343. Rey was entitled to his own pathologist to provide all these services. Further, the court found this error so significant that it was not subject to harmless error analysis: "the denial of the appointment of an expert, consistent with Ake, amounts to structural error which cannot be evaluated for harm." Id. at 346.

In Harrison v. State, 635 So.2d 894 (Miss. 1994) the defendant was sentenced to death for killing and raping a 7 year old. A forensic pathologist was a critical witness at the trial. His opinions included:

Since the defense had access to the state's expert pathologist prior to trial and had the right to cross-examine him, the state argued that the defense was not entitled to funds to hire an expert.

Contrary to this contention, the Court held that the defendant was entitled as a matter of due process and fundamental fairness to an in-dependent pathologist to rebut the state's evidence. Id. at 902. The Court reasoned that the state pathologist was "very important to the state's case," and the expert provided the only evidence on rape by stating a penis caused the injuries. Id. The Court noted that the expert the defense sought to employ stated in an affidavit "that a pathologist cannot determine to a reasonable medical certainty that a given injury could only have been caused by a human penis." Id. n.2.

In Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980) the defendant shot and paralyzed the victim who died 8 months later. The state medical examiner believed that death was caused by a pulmonary embolism resulting from a thrombosis that formed in her leg due to immobilization caused by the paralysis from the gunshot wound.

Defense counsel requested an independent pathologist since medical books said there are numerous causes of a pulmonary embolism, and since 8 months passed from the shooting until the death. These facts raised a complex issue of medical causation in this case where the defense was self-defense.

The South Carolina Supreme Court found no error in denying funds for the defense expert since: 1) the autopsy demonstrated to the highest possible degree of medical certainty that the gunshot wound caused the death; and 2) there was no showing that another pathologist would have aided his defense.

The Fourth Circuit disagreed and held that the defendant was denied equal protection, due process and effective assistance of counsel by the failure to be provided a pathologist for two reasons. There was a substantial question over an issue requiring expert testimony for its resolution, and the defense could not be fully developed without professional assistance.

In Terry v. Rees, 985 F.2d 283 (6th Cir. 1993) the defendant was sentenced to life for the murder of a 14 month old girl. The trial judge refused to give the defense the funds to hire a pathologist to rebut the prosecution's expert's finding that the death was caused by blunt force trauma to the head.

The federal district judge followed the procedure outlined in Williams v. Martin, supra and remanded the case to the state court ordering it to appoint an independent pathologist to determine the victim's cause of death. That expert agreed with the state expert's finding and did not support the defense of an accidental fall. The district judge ruled the error harmless and the Sixth Circuit agreed.

Significantly, the Sixth Circuit stated, "Criminal trials are fundamentally unfair if a state proceeds against an indigent defendant without making certain that he has access to the raw materials integral to building a defense. Ake v. Oklahoma...." Terry, supra, 985 F.2d at 284.

While it was ultimately found harmless, the Sixth Circuit ruled that "Terry was deprived of the opportunity to present an effective defense when he was denied an independent pathologist in order to challenge the government's position as to the victim's cause of death." Id.

Greater awareness by the bench and bar of the realities of forensic pathology will no doubt lead to more funds for defense pathologists being authorized, especially in view of the Kentucky and national caselaw.

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