“Yes, it did.”
“When you say it matched, are you referring to blood type or…”
“Well, the blood types matched. We also did a DNA comparison, but I wasn’t the one who did it.”
“We’ll get someone else to tell us about the DNA match, but just for some background, how accurate is DNA analysis?”
“Every person’s DNA is unique. It’s the best form of identification we have.”
“Your honor, I request that this bullet be marked and received into evidence as People’s Exhibit 7.” The first six exhibits had been photographs of the victim.
There was a pause while that was taken care of, then Biggs returned to the podium. “Dr. Birdsong, can you tell us at what time the decedent met his death?”
“Not with pinpoint accuracy, but I can give you a window.”
“Give us a window, please.”
“Sometime between eleven p.m. the night of December 6 and the time I examined him, which was 2:18 a.m. the morning of the seventh.”
“How did you establish this window?”
“The absence of post mortem lividity, the absence of rigor mortis, and the temperature of the body.”
Biggs grimaced in my direction, perhaps intending it as a smile. “Your witness.”
I stood. “You say that every person’s DNA is unique. Has that enabled you to identify the decedent?”
“No. You have to have something to compare your sample to.”
“In this case, you had the body of the decedent, and you had the traces of blood scraped from the bullet.”
Dr. Birdsong glanced in Biggs’ direction. “Yes. Well, DNA testing can allow us to identify the bullet as the fatal bullet, but that’s all.”
“It’s believed that every person’s fingerprints are unique, isn’t it?”
“Yes, it is.”
“Are you familiar with the work of Simon Cole, the criminologist at UC Irvine?”
“I’ve heard of him.”
“Have you read his 2005 article from the Journal of Criminal Law and Criminology?”
There was the briefest of hesitations. “I’ve heard of it.”
“It’s a study of courtroom errors in fingerprint identification, isn’t it?” During my days of enforced idleness, I’d had little to do besides walk Deeks and surf the internet; hence my sudden courtroom display of erudition.
“I believe it is,” Dr. Birdsong said.
Biggs stood. “Objection. Your honor, no fingerprint evidence has been presented in this case. This testimony is irrelevant.”
I said, “A great deal of testimony was elicited concerning Dr. Birdsong’s qualifications as an expert in forensic pathology. I’m entitled to cross-examine him as to his expertise in the field.”
“Are we going to devote very much time to this, Ms. Starling?” Judge Cheatham asked.
I gave him a broad smile. “No more than necessary, your honor.”
He didn’t quite roll his eyes as he raised a hand in acquiescence. “Objection overruled.”
“Thank you. Dr. Birdsong, Professor Cole’s article finds that since 1983, the aggregate error in fingerprint identifications has been eight-tenths of one percent. Correct?”
He shook his head slightly. “I’m not familiar with the specifics, but I will point out that those figures suggest that fingerprint identification is 99.2 percent accurate.”
“Given the thousands of criminal cases processed by crime laboratories each year, that impressive success rate would still mean that there are hundreds of cases of mistaken identifications.”
“I wouldn’t say hundreds.”
“The article estimated nineteen hundred in 2002 alone.”
The doctor opened his hands in capitulation. “DNA comparison is considerably more accurate than that. The chance of an error has been estimated to be in the neighborhood of one in 350 million, which puts the accuracy of the test in excess of 99.999 percent. If you’ll let me get out my phone, I can tell you just how many nines.”
“You’d be using the calculator function to divide one by 350 million?”
“And then subtracting from one.”
“The point of the DNA evidence in this case isn’t to identify the victim though, is it? It’s to identify the fatal bullet.”
“That’s right.”
“Your testimony links the bullet to the unidentified decedent, but does nothing to link it to Natalie Stevens, the defendant in this case.”
“By itself, no. It may be one of the links in a chain.”
“And maybe there are weaker links than yours. You may be right.”
Biggs said, “Your honor,” and the judge said, “Ms. Starling, confine your cross-examination to asking questions.”
I gave him a nod. “Of course, your honor. Dr. Birdsong, what I’m really interested in exploring with you is your testimony about time of death.” The point of the questions about fingerprints had been to establish some credibility with the jury before I started. “You said that death occurred after eleven p.m. and before 2:18. The end of that window was when you arrived on the scene and examined the decedent, is that right? He had no pulse, he had no heartbeat. He was clearly dead.”
“That’s right.”
“Could he have been killed there at the scene, right on the street where you first examined him?”
“No. There was insufficient blood at the scene. The body had lost between one and two pints, and it simply wasn’t there.”
“Just one or two pints? Wasn’t the exit wound rather large?”
“When death is instantaneous, what blood the body loses simply drains out under the force of gravity. The heart isn’t beating to force blood out through the wound.”
“So the decedent didn’t expire moments before you arrived on the scene. The body was moved post-mortem.”
“Clearly death had occurred some minutes before. How long it takes to move a body is outside my expertise, so I made no attempt to calibrate the time of death based on that.”
“So the three factors you mentioned—rigor mortis, postmortem lividity, and temperature of the body—they all went to establish the earliest time death could have occurred.”
“That’s right.”
“Let’s take them one at a time. Rigor mortis is the stiffening of the muscles after death—correct? It typically begins in the small muscles of the eyelids, lower jaw, and neck, then moves to the joints of the hands and feet, and finally to the elbows, knees, shoulders, and hips. Is that right?”
“It is. Though rigor mortis probably develops simultaneously in all muscles, it becomes apparent in the small masses of muscle much earlier than the larger ones.”
“And in this case, when you first examined the body at 2:18, rigor mortis was not yet apparent anywhere. Is that right?”
“That’s right.”
I flourished the autopsy report. “When you began your autopsy at 4:14, had rigor begun to develop in the small muscles of the eyelids, jaw, and neck?”
“Yes. In fact, by that time rigor mortis was noticeable in the elbows and knees as well.”
“Indicating it was already fairly advanced?”
“That’s right. By 5:30 it was all but complete.”
“Indicating that death would have occurred when?”
“Probably three to six hours previously.”
“So, sometime after 11:30.”
“Yes.”
“When did rigor start to disappear?”
Dr. Birdsong shook his head. “I don’t know.”
“Are you familiar with Bernard Knight’s Legal Aspects of Medical Practice?”
“Yes. I believe it’s been long out of print. Knight’s Forensic Medicine is still available in reprint editions.”
“Yes. Knight’s Forensic Medicine was for a long time the standard textbook in the field, wasn’t it? In fact, when other people took over the editing job for later editions, it was still called Knight’s Forensic Medicine. Wasn’t it?”
“I believe so
. Yes.”
“Isn’t it Knight’s opinion that ‘it is extremely unsafe to use rigor at all in the estimation of time since death’?”
Dr. Birdsong shifted in his seat. “I don’t believe so.”
“I believe that’s an exact quote.” I went to my table and bent to lift a textbook from the briefcase beside it. I’d ordered the book online on Friday, and Amazon had gotten it to me the next day. “It’s on page 123. ‘It is extremely unsafe to use rigor at all in the estimation of time since death.’ Would you like to see it?”
At a nod from the judge, I took the book to the witness. While Birdsong flipped to page 123, studied it, and flipped back to the beginning of the book, I was giving photocopies to the judge and the district attorney. “This is a twenty-year-old textbook,” he said, his finger on what must have been the copyright page.
It was a weakness in my choice of authority, but I hadn’t been able to find what I wanted in anything more recent. “So later science has contradicted Mr. Knight?” I said.
“I didn’t say that. But this opinion of his is outside the mainstream.”
“Can you quote an authority for that?”
I waited.
“P.F. Niderkorn. Francis E. Camps. Those are two.”
I felt a surge of elation. Dr. Birdsong had just handed me an unbelievable gift. “Really, doctor?” I said. “Niderkorn and Camps?”
His eyes moved as if he had realized his mistake. “Well, there are others.”
I went back to the table for one of my legal pads and flipped through it. “Didn’t Niderkorn’s primary work on rigor mortis come out in seventy-two?”
Birdsong didn’t say anything.
“Eighteen seventy-two?” I said. “Wasn’t Knight’s book published more than one hundred years later? Just who disproved whom?”
There was murmuring in the gallery, some shifting of position in the jury box. When the courtroom quieted, Dr. Birdsong said, “Niderkorn did some of the pioneering work in the field. He’s been tremendously influential. And there’s been more recent work. I’ve read dozens of articles on the subject.”
“But you can’t give us any names.”
“Not off the top of my head.”
“When you first saw the body, what was the environmental temperature?” I asked, changing tack.
He glanced at his notes. “Thirty-nine degrees Fahrenheit.”
“Isn’t it true that when the environmental temperature is below 50 degrees, it is unusual for rigor mortis to develop at all? That it is only when the environmental temperature is raised above 50 degrees that rigor mortis begins to develop in the normal manner?”
There was a long pause. “I really didn’t put much weight in rigor mortis in determining the time of death,” Dr. Birdsong said.
“You relied on postmortem lividity and body temperature.” The blood in a corpse remains liquid and never coagulates, so over time gravity settles it in the tissues of the body closest to the ground. Postmortem lividity refers to the darkening of those tissues.
“Primarily body temperature.”
“That’s because the development of lividity is too variable to serve as a useful indicator of time of death?”
“Well, lividity usually becomes apparent within two hours and is well developed within four.”
“But it is highly variable,” I said.
“It is highly variable.”
He’d given up the point more easily than I’d expected, which was fortunate. I had lucked onto a really good article on rigor mortis that had led me to Knight and other sources, but I didn’t have nearly as much on postmortem lividity. I said, “So when you give your opinion that the decedent met his death after eleven o’clock, you were relying on body temperature.”
“Primarily.”
I took a breath. Natalie had an alibi before ten or ten-thirty, so I needed to move the time of death back as much as possible. I was two down with one to go.
“When did you first take the temperature of the body?”
“At the scene, shortly after I arrived.” He consulted his notes. “2:25.”
“And the temperature at that time was what?”
“Thirty-two point four degrees Centigrade.”
“Which is what in Fahrenheit?”
“Ninety degrees, maybe a few tenths over.”
“You assume that the normal temperature of this particular individual was 98.6?”
“Thirty-seven point two Centigrade. I think that’s about 99 degrees Fahrenheit.”
“Isn’t normal temperature 98.6?”
“Well, that’s oral temperature. Rectal temperature is about a half-degree higher, maybe three-quarters of a degree.”
“You took the temperature rectally?” I had a visual image of the doctor rolling the body over and pulling down its pants, but he’d probably cut a slit in the clothing. My gaze flicked toward the jury.
“In this case, I made an abdominal stab over the lower ribs and inserted a chemical thermometer into the substance of the liver. The temperature readings would be comparable.”
I thought I detected a slight exhaling of breath from the jury box.
“So you assume the temperature of the body was 99 degrees at death. At the scene you recorded a temperature of 90 degrees, so you based your conclusions on a temperature drop of nine degrees.”
“That’s right.”
“Though the temperature at death could have been as low as 97 degrees, which would mean it only dropped seven degrees by the time you made your observations. Could the temperature at death have been as low as 97 degrees?”
“It could have been.”
“Or it could have been significantly higher. Temperature at death has been recorded as high as a hundred and nine, hasn’t it?”
“I’m not familiar with that case. That would be rare.”
“But it is possible.”
“Highly unlikely.”
“But possible. Which would mean the temperature had dropped not seven degrees, not nine degrees, but nineteen degrees.”
“If the baseline temperature was one-oh-nine.”
“Which is possible?”
He turned over his hands so that the palms were facing up. “This is your fairy tale.”
“I don’t believe fairies are recorded in the scientific literature, doctor.”
The gavel cracked. Judge Cheatham looked annoyed. “Let’s refrain from personalities, shall we?”
I nodded. “Body temperatures are usually higher in the evening aren’t they?”
“I believe so.”
“And after exercise.”
“Yes.”
“And as the result of infection.”
“Yes.”
“And due to individual variations in baseline temperatures.”
“Yes.”
“The decedent in this case might have had a temperature at death of more than one hundred degrees, which by itself would throw off your calculation of time of death by at least an hour. The time of death could have been as early as ten o’clock.”
“Combined with the absence of rigor mortis and postmortem lividity…”
“Which we’ve just thrown out as unreliable,” I said.
“They’re an indication.”
“With too much variability to be reliable.”
“Taken individually.”
I rolled my eyes. “Let’s stick with body temperature then. Tell us about the postmortem plateau.”
Dr. Birdsong’s tongue appeared briefly between his lips. He took a breath and let it out. “There is an initial maintenance of body temperature. The human body is a large mass, irregular in shape, that is composed of tissues with different physical properties. Observations have shown that there is often an initial maintenance of body temperature, which is followed by a fairly linear rate of cooling.”
“This initial maintenance of body temperature may last for some hours, might it not?”
“Generally one-half hour to one hour.”
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p; “But may last for as long as three hours. Isn’t that right?”
“I don’t believe so.”
“Please turn to page 118 of that textbook you’re holding: Knight’s Legal Aspects of Medical Practice. Do you see it? I’ve highlighted it for you.”
Dr. Birdsong flipped pages. When he looked up, I said, “Evidently some authorities claim the postmortem plateau lasts as long as five hours.”
He cleared his throat. “As I’ve said…”
“You disagree with another opinion in this otherwise mainstream textbook?”
“Yes.”
I waited about ten seconds to let the jury pounder that. I said, “There seem to be two big unknowns in assessing the time of death: the initial body temperature, and the length of the postmortem temperature plateau. Aren’t there some authorities who hold that assessment of time of death from body temperature can’t be accurate in the first four to five hours after death, because early on those two factors have such dominant influence?”
He held up the textbook. “Am I holding one of them?”
I said, “But we have a third problem in this case, and that’s the environmental factor. According to Newton’s law of cooling, the rate of cooling of a body is determined by the difference between the temperature of the body and the temperature of the environment. And we don’t know the temperature of the environment, do we?”
He hesitated. “It was thirty-nine degrees, as I’ve said.” His voice sounded weak, though, as if he knew what was coming.
“Thirty-nine degrees where the body was found. But you’ve testified that the body was moved. Suppose the death occurred inside a much warmer motel room, and suppose the body lay there for several hours. Suppose it had only been on the street for a few minutes, which seems likely if the body was dumped by the young woman Kim Beecher saw outside his home. It would have cooled much more slowly, wouldn’t it? The time of death would have been significantly earlier than the eleven o’clock you’ve testified to.”
“Not in my opinion.”
I gave him skeptical look, held it for a couple of beats. “Thank you for your opinion,” I said, and I went and sat down.
Chapter 24
Court recessed for the day. The judge left the bench, the jury filed out, a sheriff’s deputy led Natalie away. I sat at the defense table, my papers and pens and legal pads still spread out in front of me, as the gallery behind me emptied of spectators. I found I was suddenly too tired to move. Though I felt like I had done a good job with the medical examiner, the details of the cross-examination were slipping away from me, and I wasn’t sure.
Dog Law (A Robin Starling Courtroom Mystery) Page 18
