by David Ellis
“We will show you that the defendant scheduled an appointment with the victim that was originally set for lunch on Thursday, and that the defendant rescheduled it for after-hours on Friday night, when no one would be there except the victim. We will show you that Dale Garrison was murdered by strangulation. We will show you that a security guard named Leonard Hornowski found the defendant in the offices of Dale Garrison and that the defendant lied to Mr. Hornowski about what had transpired. And we know one final thing. We know that the defendant was the only person in that suite of offices with Mr. Garrison from the time he was last alive until the time he was strangled.”
The prosecutor steps away from the table, toward the center of the room. I’m still stuck on something she said near the beginning—I scheduled the meeting for after-hours. That’s not true. We were planning to meet for lunch on Thursday and Garrison’s office called me and changed it to Friday night at seven. Their story makes sense, that I wanted no one else around so I could commit murder. But that’s not what happened.
Erica Johannsen takes her seat after a brief summary, all in all a very simple opening statement. This is a very straight-forward case from their perspective. I was the only one there and I told a bullshit story when I was caught.
Before we started today, Bennett informed the judge that he wanted to reserve his opening statement until the defense puts on its case. So the prosecutor turns to her first witness.
“Dr. Mitra Agarwal.”
Mitra Agarwal is a tall, angular woman with kinky salt-and-pepper hair with no apparent style in mind, just falling to her shoulders. She looks like a professional in the world of science or academia, unconcerned with physical impressions. She is wearing a yellow blouse with a clasp at the collar. Her skin is light brown and freckled, with deep worry lines on her brow. Her spectacles rest on the middle of her nose.
Erica Johannsen takes the doctor through her credentials. She is the chief deputy medical examiner in the county coroner’s office. Practiced over twenty years. Lots of schooling.
Next, Dr. Agarwal testifies to the basics of this case—receiving the body of Dale Garrison in the morgue, performing the autopsy, sending an investigator to the scene and to consult with the police. She describes the precise incision she used, the organs she examined and weighed. The judge, who undoubtedly has put on MEs during her stint as a prosecutor, seems to know that this information can be glossed over. Even I lose interest. Bennett raises no objection to the prosecutor’s request to certify the doctor as an expert.
“In the course of your autopsy, Doctor, did you reach an opinion as to cause of death?”
“I did,” says the doctor. She has a slight Indian accent, speaks quietly and deliberately. “The cause of death was asphyxiation by manual strangulation.”
Erica Johannsen takes a step away from the lectern where her notes rest. “On what do you base this diagnosis?”
The doctor blinks rapidly, pushes her glasses to the top of her nose and examines her notes briefly before looking up. “The presence of external evidence of abrasions and contusions on the skin of the neck. Internal hemorrhage beginning with the sternocleidomastoid, the omohyoid, the sternothyroid, and the thyroglossus.” She begins to go on but stops herself. “I’m referring to what we call the ‘strap muscles’ of the neck.”
“So—abrasions on the external neck skin and internal hemorrhaging in the neck?”
“That’s correct.”
“Go on, Doctor.”
“There was petechiae in the eyelids. Hemorrhaging, in other words.”
“All of these findings are consistent with your diagnosis?”
“Yes,” Dr. Agarwal says. “It’s the only logical diagnosis.”
The prosecutor approaches the witness with photographs of Dale Garrison at the morgue. Some are full-body shots, others are close-ups that turn the stomach. A shot of his eyes, his neck, his face. Doctor Agarwal confirms the external evidence of hemorrhaging.
“Okay.” Erica Johannsen moves back to the lectern. “And did you fix a time of death?”
“I would say the time of death was sometime in the evening of Friday, August eighteenth.”
“And what do you base that on?”
The doctor blinks quickly again, narrows her eyes. “Based on the livor mortis, rigor mortis, and algor mortis. In other words, from looking at the settling of the circulating blood, the freezing of the muscles, and the cooling of the blood. One can never precisely determine time of death. In fact, it becomes slightly more difficult with a cancer sufferer such as the decedent.”
“The decedent had cancer?”
“He did, yes. He suffered from cancer of the lung and lymphoma. That will affect rigor mortis because patients with cancer do not show rigor well. And algor mortis—the cooling of the blood—is less helpful than usual because the rule of thumb is that a body cools off by 1.5 degrees centigrade an hour, but this presupposes that the original temperature was normal, which is not necessarily true of the cancer patient. So when we—” The doctor stops as she notices Bennett on his feet.
Bennett holds up his hands. “I certainly didn’t mean to cut off the doctor,” he says. “But in the interest of saving the doctor’s and the court’s time—we would be happy to stipulate that the range of the time of death included the hour of seven p.m. on the evening of August eighteenth.”
This is a fairly minor point all in all. There is no doubt Dale was dead by around seven because the security guard can testify to that. But unless I testify—which is never a guarantee—they need to set an earlier boundary for his death.
The prosecutor turns to the doctor, who nods and says, “Certainly.” So Erica Johannsen says, “We will stipulate.”
“Just one final question, then,” says the prosecutor. “Doctor, to what level of certainty do you—oh, I’ll just speak plain English. How sure are you of your diagnosis as to cause of death?”
“I am entirely certain. There is no alternative.”
Erica Johannsen thanks the witness and takes her seat. I see the slightest measure of relief on her face.
Bennett is doodling on his notepad, which contains scrawlings from his interview with the forensic pathologist at the downstate university. “There was hemorrhaging in the eyelids,” he says without looking up.
“Yes, there was.”
“Hemorrhaging internally as well, in the strap muscles of the neck.”
“Yes.”
“What about the brain, Doctor?” Ben asks. “The brain was swollen significantly, wasn’t it?”
“Yes, there was cerebral edema,” says Dr. Agarwal.
“Herniation of the brain stem?”
“That as well.”
“And therefore asphyxiation.”
“Correct.”
“Thank you.” Bennett writes something on the paper. After a moment’s pause, the medical examiner actually begins to leave her chair. Ben looks up with a smile. “Not quite done, Doctor.” She settles back in, crosses a leg, an embarrassed smile on her face.
Ben says, “Tell the court, if you would, what the superior vena cava is.”
The doctor’s eyes narrow slightly. She is confused. “The superior vena cava is the vein leading to the heart from the head.”
“It’s how blood travels from the head to the heart.”
“Correct.”
“Okay. Now, wasn’t there a cancerous tumor found near the superior vena cava?”
The medical examiner holds her look on Bennett a moment before pushing up her eyeglasses and reviewing her notes. While she reads over her autopsy findings, Ben wags the pen in his hand. The prosecutor is looking through some papers as well.
“There was,” Dr. Agarwal says. “A tumor of approximately two and a half inches in diameter arose in the mediastinum—the chest cavity—near the superior vena cava.”
“Thank you. And if you would, please describe what’s known as superior vena cava syndrome.” Bennett drops his pen. “In layman’s terms, if you could.”
Dr. Agarwal cocks her head. She opens her mouth but stops, considering the question a moment without a hint of defensiveness, more with academic curiosity. “Superior vena cava syndrome involves obstruction of the superior vena cava.”
“Obstruction by a cancerous tumor,” says Ben.
“That’s correct.”
“Blood is cut off.”
“Or partially obstructed.”
“Okay,” says Ben. “But completely obstructed in fatal cases.”
“Yes, typically.”
“And SVCS—that’s what you call it, right?”
“You can refer to it that way, of course.”
“SVCS occurs most commonly in patients suffering from cancer of the lung or lymphoma, isn’t that true?”
“That’s true.” The doctor seems to be glancing at her notes now.
“The very cancers Dale Garrison had.”
“That is so, yes.”
“To put it simply—a cancerous tumor intrudes on the superior vena cava and obstructs, partially or completely, the flow of blood from the head.”
“That’s correct.”
“And”—Ben raises the notepad, making a point of reading verbatim—“with death caused by SVCS, there is marked vascular congestion of the head and neck, with petechiae.”
“That’s correct.”
“Which were present in Mr. Garrison.”
“Yes.”
“And the tumor obstructing the superior vena cava can be rather small, can’t it?” Ben once again reads deliberately from his notepad. “No bigger than the size of a grape, isn’t that so?”
The doctor answers through veiled eyes. “I believe that’s correct.”
“Okay. So.” Bennett claps his hands lightly. “SVCS is accompanied by hemorrhaging in the neck.”
“Yes.”
“And in the eyelids, too?”
“That could be, from the increased venous pressure, yes.”
“And swelling of the brain—cerebral edema.”
“Yes.”
“Which leads to herniation of the brain stem.”
“That’s right.”
“Which leads to asphyxiation.”
“Yes.”
“And all of these characteristics I have just named—hemorrhaging in the eyelids and neck, swelling of the brain, herniation of the brain stem, the presence of a cancerous tumor at the superior vena cava—all of these things were part of your autopsy findings in this case.”
“Yes, sir. Which is not to say I believe SVCS is the cause of death. But yes, you are correct.”
Bennett folds his hands on the table and stares at the doctor for a moment. Certainly, he is not pleased with her qualification. “You can’t rule out asphyxiation as a result of superior vena cava syndrome as the cause of death, can you?”
“I find the theory untenable,” she says curtly. “The victim died as a result of manual strangulation.”
“But surely you’re not saying you rule it out completely?” Ben is holding his hands out.
“I would say it is highly unlikely but conceivable.”
“You say you find death by superior vena cava syndrome untenable.” Ben leans back in his chair. “How many times have you diagnosed death by SVCS?”
“I don’t believe I ever have.” The doctor frowns. “I don’t autopsy everyone who dies, sir.”
“You autopsy deaths of suspicious, usually violent origin, right?”
“And virtually all children under the age of twelve,” the doctor adds.
“So you’ve never diagnosed SVCS?”
“No, sir, I have not.”
“Well, have you ever even seen it?”
Dr. Agarwal wets her lips and searches her memory bank. “Once, in an academic setting. Maybe ten years ago.”
“Oh.” Ben is slightly condescending here. He smiles out of the side of his mouth. “Well, how many times have you diagnosed asphyxiation by manual strangulation?”
“Oh—many times.” The doctor’s voice rises with authority.
“Dozens, Doctor?”
“I would say over thirty cases, probably closer to fifty.”
“Thirty to fifty cases.” Bennett nods agreeably, turning to the prosecutor as he does so. “And not one SVCS case in the bunch.”
“It’s an uncommon process,” she says. “Particularly in a fatality. People do not often die of SVCS. It’s very treatable.”
Bennett straightens. “Doctor, are you aware the decedent was not treating his lung cancer?”
“Objection.” Erica Johannsen follows Bennett’s lead and remains in her chair. “There is no foundation for that testimony.”
“I’ll try again, Your Honor.” Bennett fixes on the witness. “Dr. Agarwal, did you find any evidence that Mr. Garrison had been treated with chemotherapy or radiation?”
“I don’t believe I did.”
“Or any other medical treatment for cancer?”
“I saw no indication that the victim had treated his cancer.”
“And, Doctor, if the decedent had chosen not to treat his cancer for whatever reason, would it surprise you to learn that he had not treated his SVCS, either?”
“Objection,” says Johannsen. “Assuming facts not in evidence.”
The judge considers the objection, but before she rules, Bennett offers to rephrase. “Doctor, regardless of whether you believe it was the cause of death, aren’t you forced to agree with me that the decedent suffered from superior vena cava syndrome?”
The doctor purses her lips and takes her time with the question. “Certainly, there was a tumor around the superior vena cava. Whether it constituted an obstruction of the SVC is another matter.”
“Okay, but you can’t rule it out, can you?”
“No, I can’t rule it out as a condition from which the decedent suffered. I absolutely do not agree it was the cause of death.”
“Just as you’ve never found it in any other strangulation death you diagnosed.”
“That’s correct.”
“And you’d agree with me, wouldn’t you, that SVCS is more likely to be fatal when it’s never treated?”
“Like any malady, it is more dangerous if not treated.”
Bennett pauses a moment, takes his pen, and scans the page. “Thank you, Doctor.”
Erica Johannsen rises violently from her chair. I don’t think she had any idea that we would be challenging the diagnosis. Bennett did not name a forensic pathologist as a witness for the defense, in part for the sake of surprise during Dr. Agarwal’s cross-examination, in part because all of the medical examiners we consulted believed that death by manual strangulation was far more likely.
“Doctor,” Johannsen asks, raising the volume of her voice, “do you consider it plausible that the decedent died as a result of superior vena cava syndrome?”
“I do not consider it plausible, no.”
“Please tell the court why not.”
The doctor inclines her head toward the judge. “Two reasons. First—something that the defense attorney didn’t mention. The abrasions and contusions on the neck were of sufficient force that I don’t believe they could have been self-inflicted. The second reason is that death by SVCS is sudden, and my findings are not consistent with sudden death. The abrasions on the neck would not have been produced by a single, sudden clutching of the throat. The hands were on the neck for a longer time than that. There was friction that caused the abrasions, which is indicative of movement between the victim and the assailant—a sign of struggle, in other words. Moreover, the decedent’s collar and tie were out of place. His collar was unbuttoned.” She raises a hand. “There are too many inconsistencies. This man died from asphyxiation by manual strangulation.”
“Thank you, Doctor.”
The judge and witness turn to Bennett for recross. Bennett brings his hands to his throat. “Wanna see how fast I can open my collar and grab my throat?” he asks.
“Not particularly,” says the doctor. The judge s
miles. Someone in the courtroom laughs. It’s the first time since the beginning of today’s proceedings that I’m aware of the spectators.
Ben releases his hands. His smile fades. “Two reasons you gave why my idea doesn’t work. One, the force on the neck.”
“That’s right.”
“Aren’t you aware of cases where people who are suffocating grab their throats?”
“Of course.”
“And you completely rule out the possibility that such a grabbing—a quick, violent grab of the neck—could cause abrasions and contusions? You’re saying, there’s no way that could happen?”
Dr. Agarwal sighs audibly. “One might be able to make some mark on one’s own neck. Perhaps a very minor contusion. But I would not expect the skin to be abraded. We must also account for the fact that this man was frail from cancer. He was elderly. We are making rather large leaps, sir. A frail, ill, elderly man nearly dropping from sudden death by a SVCS-induced asphyxiation simply could not make those marks on his own neck.”
“Again—you categorically rule it out? Yes or no?”
“He also wouldn’t have the time,” she says. “Not to undo his collar, grab his throat with that amount of force. I would have to say that, under these circumstances, the likelihood is so infinitesimal that it’s hardly worth discussing.”
Bennett can’t stop here, so he moves on to the issue of timing. The medical examiner states that SVCS-induced death would be from one to three seconds. Yes, it is conceivable that Dale had time to make some marks on his neck within that time, but it is unlikely that he would do so while seized with a blood clot. Highly unlikely, she adds before Ben can continue. Ben moves to his safest area—that Dr. Agarwal wasn’t there, she can’t know for certain what Dale did, in what order, for how long. It’s window dressing. He just didn’t want to end on a bad note. I can see it in the judge’s face as well, an ease in her expression, the lack of concentration. She has lost interest. The medical examiner was right. Ben’s theory is nice on an academic level, makes for a decent cross-examination, but in the end nobody thinks Dale Garrison died of natural causes, not with the bruising on his neck. The best Bennett can do, in closing, is to get Agarwal to concede that SVCS-induced death is conceivable.
