Blood on the Table_Greatest Cases of New York City's Office of the Chief Medical Examiner

by Colin Evans

  This marked a turbulent period for Leffers. On April 25, 1988, she was herself added to the list of crime statistics, when a mugger in Brooklyn struck her twice over the head with a pistol and stole her purse. Fortunately, the injuries were not severe and Leffers was able to go home after hospital treatment, nursing a sore head and ruing the theft of five hundred dollars.

  She was also having to adjust to the fact that just a few days beforehand the special mayoral advisory board had announced that its headhunting quest for a permanent CME was at an end. After much sifting and competition they had reduced the short list of preferred candidates to just three names: Dr. Ross Zumwalt, the chief medical investigator of New Mexico; Dr. Brian D. Blackbourne, the CME for Massachusetts; and Dr. Charles S. Hirsch, the CME for Suffolk County, Long Island. Of these, the Chicago-born Hirsch was the panel’s unanimous choice. They reckoned that he best possessed the “professional qualities” and the “administrative and personal leadership” necessary to restore the OCME’s reputation.

  At the time of his appointment, Hirsch was fifty-one years old and the first nonnative New Yorker since Norris to be appointed to the top position. He’d received his medical degree from the University of Illinois and his original ambition had been to open a general practice in Alaska, but during an internship in Cleveland he became hooked on forensic pathology and all dreams of the northern wilderness were pushed firmly to one side. For the next sixteen years he taught pathology in Cleveland and Cincinnati, until 1985 when he moved to the New York area, becoming the CME for Suffolk County, on Long Island.

  Once in place there, he speedily carved out a reputation as a no-nonsense administrator and a first-rate pathologist. His mental toughness was never in doubt, nor was his willingness to thwart what he perceived to be meddlesome interference. When Suffolk County judge Kenneth K. Rohl was mulling over how best to sentence a teenager convicted of drug offenses, “Hizzoner” decided it would send the right message if the defendant were obliged to witness the autopsies of two drug-overdose victims. When news of this decision reached Hirsch, he took a step back and drew a deep, dark line in the sand. Turning an autopsy into a public spectacle, as he saw it, offended every ethical and professional fiber in his body. Plus, there was an added risk: some might consider that such a sentence amounted to “cruel and unusual punishment,” possibly leading to all kinds of legal ramifications. He refused point-blank to accede to Rohl’s wishes. Eventually the judge did find another pathologist prepared to accede to his rather curious sentencing procedures, but Hirsch had made a very public declaration of his independence.

  He could be just as single minded when problems cropped up in his own backyard. On January 31, 1985, an employee at the Suffolk County morgue managed to upset just about everyone it was possible to upset with a departmental snafu as farcical as it was profoundly upsetting. The fiasco was triggered when a representative from a local funeral home called to collect the body of Patrick Hosang for cremation. The morgue attendant, James White, had gone into the refrigerated storage room and, without bothering to check the identification tag on the toe, had wheeled out Hosang’s body. Except it wasn’t Hosang. The body on the gurney was that of sixty-two-year-old William Podstupka. Only later, after Mr. Podstupka had been cremated, did the blunder come to light. As far as Hirsch was concerned, such insensitive negligence was unpardonable, and he wasted no time in firing White and demoting his superior.

  In 1987 Hirsch carried this independent streak into the courtroom with him when he figured prominently in one of the most sensational American trials in years. The defendant, thirty-six-year-old electrical engineer Bernhard Goetz, stood accused of shooting four young black males on the New York subway system. It was a sensational story that had circled the globe. From Alaska to Australia, people got to hear about Goetz’s December 1984 shooting spree that had left one man paralyzed and three others injured. His claim—that he had opened fire because the men had surrounded him and he feared being robbed—drew plenty of sympathy from some quarters. Others weren’t so sure. And this included the State of New York, which portrayed Goetz as an unbalanced racist out to get revenge for having been mugged twice before. Two headline-making years passed before Goetz stood trial, during which time the defense put together an impressive lineup of expert witnesses. Among these was none other than former CME, Dr. Dominick DiMaio. He told the court that by tracking the course of the bullet wounds, it was possible to determine that the victims were standing in a menacing semicircle around Goetz at the time they were shot, as the defendant had claimed. Furthermore, DiMaio also stated that Darrell Cabey, the most seriously injured of the four nineteen-year-olds shot by Goetz, could not have been seated, as the prosecution alleged, when he was hit.

  Hirsch, called by the prosecution as a rebuttal witness, was appalled by DiMaio’s conclusions. When asked what he thought of his testimony, he replied, “In my opinion, it’s completely false…Not only is it unsupported by fact, but it is unsupportable.” This was powerful stuff. Expert witnesses, especially those in the medical profession, are rarely so critical of each other in public—behind closed doors it’s an entirely different matter—but Hirsch’s mold-breaking belligerence availed him and the prosecution little. When the jury came back, the so-called Subway Vigilante was acquitted of attempted murder charges and served only a few months for illegal weapon possession.

  What this trial did do was to highlight Hirsch’s supereffective courtroom manner. Not all experts make expert witnesses. It is a rare talent. Unlike some medico-legal specialists, whose circumlocutory style of testimony littered with non sequiturs could glaze the eyes of judge and jury alike, Hirsch was a model of lucidity on the witness stand. In this respect he was cut from the same cloth as Milton Helpern: no fancy words; just clear, concise descriptions of the matter in hand. This enviable courtroom fluency was just one of the many talents that New York City was hoping to acquire when it appointed Hirsch as its chief medical examiner.

  There was just one stumbling block: nobody could agree about how Hirsch was going to be paid. A controversial proposal that Hirsch’s salary should be derived from both public and private sources raised plenty of hackles and was referred to the city’s Board of Ethics. After considerable head scratching, board members okayed the idea and cobbled together a package whereby Hirsch’s $125,000 annual city salary could be topped up by $50,000 from the NYU Medical Center, where he would serve as chief of forensic pathology, plus another $25,000 from a consortium of local medical schools. It was an original and contentious settlement. Widespread, muttered complaints that such an arrangement opened the door to accusations of possible conflicts of interest were speedily quashed by the new incumbent. An independent autopsy, Hirsch said, “is the only kind of autopsy I know how to give, whoever I may be working for. That is my hallmark.”

  So it was that on January 1, 1989, Hirsch, the pipe-smoking physician who had originally dreamed of a nice quiet practice in the backwoods, officially took charge of the busiest medical examiner’s office in the world. Item number one on the agenda: slashing that enormous backlog of cases. The budget increase granted one year beforehand now came into play as Hirsch went on a big hiring drive, taking on new pathologists and lab technicians. Paying staff more money is always good for office morale. Hirsch’s next move, however, sent shock waves through the department. He decided to farm out some of the more complex forensic tests to private laboratories. There was no intended reflection on the abilities of those around him, just a pragmatic realization that given the pace of modern technological development, certain specialized labs already had the necessary equipment in place for the latest, most sophisticated analysis; for the OCME to duplicate these services would amount to an unconscionable waste of tax dollars. Hirsch’s revolutionary approach might not have pleased everyone, but it paid off. By the summer of 1989, those six-month autopsy reports were now routinely taking a week.

  Which was just as well, because this was a period when New Yorkers were slaughterin
g each other with Balkan-like frequency and ferocity. In 1989 the OMCE investigated no fewer than 1,905 homicides. The following year saw that number soar to 2,245. This meant that every four hours or so, somewhere in the five boroughs another life was being snuffed out. The lonely procession of bereaved relatives calling at 520 First Avenue to identify loved ones was growing at a heartbreaking rate. Like other CMEs before him, Hirsch was acutely aware of the distress this caused. Wherever possible, he arranged for identification to be done through photographs, thus sparing the bereaved the often daunting ordeal of the refrigerated steel compartments and the all-pervasive odor of formaldehyde.

  Although no one realized it at the time, 1990 marked a watershed for New York’s homicide rate. For reasons about which the sociologists and criminologists argue to this day—though most agree that a significantly increased uniformed police presence on the streets and markedly improved levels of forensic detection played a major role—the murder toll began, year on year, to decline dramatically.* This was great news for New York. However, it was overshadowed by another potentially far more sinister development. At 12:18 P.M. on February 26, 1993, a bomb exploded at the World Trade Center.

  A van containing 1,310 pounds of explosives had been parked in the underground garage of the North Tower (Tower One). The intent of the terrorists who planted the device was for Tower One to collapse onto Tower Two after the blast, destroying them both. But the bombers had grossly underestimated the amount of explosive required to initiate such a chain reaction. Although the tower shuddered on its foundations, and six people died and more than one thousand were injured, the structure withstood the blast and remained intact.

  In freezing weather, search-and-rescue teams combed the wreckage for days. The final body to be recovered came on March 15, when construction workers spotted a black boot among the rubble. Clearing away chunks of concrete and twisted steel, they found Wilfred Mercado buried twelve feet deep. Mercado, the purchasing agent for Windows on the World, the tower’s elegant penthouse restaurant, had been checking food deliveries at the time of the explosion and had plunged through three floors into the midst of the collapsed wreckage. Hirsch explained why the body had eluded searchers for so long: the icy temperatures had delayed decomposition, making it that much more difficult for the tracker dogs to detect Mercado’s presence.

  Although New York was no stranger to the use of bombs as an instrument of terror—the 1981 FALN (Fuerzas Armadas de Liberación Nacional) campaign and before that the eccentric sixteen-year crusade by the “Mad Bomber,” George Metesky, that ended in 1957 were just two such incidents—this was the first time that Middle Eastern terrorists had carried their struggle into the heart of America’s greatest city. For most New Yorkers the hellishness of what had happened was dwarfed by the prospect of what might have been. As wake-up calls go, it was brutal. Just a few hundred dollars’ worth of commercially available chemicals, carefully mixed together, had almost silenced the iconic heartbeat of American capitalism.*

  Besides dealing with the aftermath of terrorist atrocities, Hirsch had another problem, this time homegrown, to contend with: an awful lot of New Yorkers were dying in police custody or else following encounters with the police. The fact that many of the victims came from ethnic minority backgrounds only hardened the suspicion held in some quarters that a hard core of NYPD cops were redneck racists, patrolling the streets with a license to kill. Even those few police officers that did face charges of abusing their powers seemed to bear charmed lives once they reached the courtroom. A case in point began on December 21, 1994, when Anthony Baez, aged twenty-nine, was playing a game of touch football with his brothers outside the family’s home in the Bronx. At some point the football struck a passing patrol car. When Officer Francis X. Livoti exited the vehicle and loudly ordered the brothers to quit, Anthony Baez ignored him. Livoti grabbed hold of Baez and said he was under arrest. As Baez struggled, face down beneath Livoti, family members shouted for the officer to take it easy as Baez suffered from asthma. But Livoti kept on squeezing. At some point during the struggle, Baez lost consciousness. He later died. Livoti was no stranger to violent incidents—his record listed eleven abuse and brutality complaints—and the district attorney’s office decided that this time the loose cannon had let off one shot too many. Livoti was charged with criminally negligent homicide.

  Whenever a cop stands trial on charges of official malfeasance, he or she can be guaranteed two things: top-quality legal representation and, if required, some very fancy-priced expert witnesses. On this occasion the defense produced a whole string of experts prepared to testify that Baez had died from a severe asthma attack after being arrested. In rebuttal, the prosecution called just one person—Dr. Charles S. Hirsch.

  Now, there had been accusations in the not too distant past that certain CMEs were overly chummy with the NYPD, far too eager to testify on behalf of beleaguered officers. But Hirsch had taken office promising to “call ’em like I see ’em,” and in this case he had seen petechiae in the dead man’s eyes. In his book, that pointed overwhelmingly to asphyxiation as the cause of death. He said that bruises on the dead man’s neck—clearly visible in the postmortem photographs—were indicative of “probably a minute or more of constant pressure. They were caused by choke marks.” Again and again, Hirsch told the court that Baez had been choked to death.

  Then the trial took a curious turn. The judge, Acting Justice Gerald Sheindlin, who was hearing the case without a jury, asked Hirsch to play the devil’s advocate. Assume for a moment, said Sheindlin, that Baez was released from the neck grip, regained consciousness and struggled, whereupon he was pinned facedown and one or more officers put pressure on his back. “And I also want you to assume that as a result of that activity, Mr. Baez suffered an acute asthma attack.” Hirsch listened closely as Sheindlin warmed to his theory, certain he knew where this was heading. Would it be possible, the judge asked, for this set of circumstances to produce results consistent with what was found at autopsy? It was a skillfully framed question and, of course, left Hirsch with no alternative but to reply, “Yes, sir, it could.”

  On October 10, 1996, Judge Sheindlin announced his verdict. After condemning Livoti’s quick temper and unprofessional conduct, and also denouncing Livoti’s fellow officers for having engaged in a “nest of perjury,” the judge then proceeded to acquit the defendant. It was all too bewildering.*

  Verdicts such as this did nothing to undermine a commonly held belief in the mid-1990s that New York cops were untouchable. And weary veterans of the civil liberties wars weren’t holding out too many hopes the following year when yet another NYPD officer found himself in court on charges of unlawful killing.

  No one disputed that Patrick “Hessy” Phelan died from a gunshot wound in the early hours of January 22, 1996. Far more contentious was the answer to this question: whose hand held the gun that fired the bullet? The jockey-sized Phelan—he stood less than five feet tall and barely nudged the scales over one hundred pounds—had spent most of the preceding day drinking at the Oak Bar on 206th Street, a popular hangout for Irish immigrants in the Bronx. According to his barroom buddies, the thirty-nine-year-old housepainter was a bad drunk, and this particular midnight found him reeling on his feet and belligerent. The bartender, Margaret McGrath, worried that Phelan was too inebriated to find his way home, asked her boyfriend to help the little fellow across the road to her apartment, where he could sleep it off on her couch. Richard J. Molloy, an off-duty cop, stood on little ceremony as he bundled Phelan roughly from the bar. Too roughly, in the view of most who witnessed the incident. According to Molloy, after they reached McGrath’s apartment, just as he was laying Phelan down on the couch, the Irishman suddenly yanked Molloy’s service revolver from its holster and shot himself to death. Acquaintances of both men pondered the likelihood of a skinny little guy like Phelan getting the better of the hulking Molloy in a fight for possession of a pistol. Some scoffed, some shrugged; everyone agreed it didn’t smell righ
t.

  So what would Hirsch make of Molloy’s story? Phelan had been shot once, through the left eye at close range, and when Hirsch opened up the skull, he was able to track the path of the .38-caliber slug, which had traversed the brain and exited the back of Phelan’s head. Judging from the angle of fire, and allying this to an estimate of the shooting distance—the scorch marks and powder burns around the entrance wound had been minimal—Hirsch was able to pour cold water on any notion that this gunshot had been self-inflicted.

  Hirsch’s doubts received strong corroboration when a hitherto unknown witness named Cormac Lee suddenly materialized. Investigators from the Internal Affairs Bureau had stumbled across Lee during the course of their inquiries. Lee, it transpired, had been in the kitchen when the two men entered the apartment. They were unaware of his presence, and he’d overheard them arguing heatedly in the lounge. At one point he had peeked in, only to recoil quickly when he saw Molloy brandishing a gun. Retreating to the bedroom, Lee had then heard Phelan yell challengingly, “Go on! Go on!” Almost immediately a shot rang out. When Lee rushed into the room, Molloy was standing no more than two feet from the stricken Phelan, who lay on the couch, blood pumping from a head wound. There was no gun in sight. (Investigators later found the revolver, with one spent shell and five live rounds, in Molloy’s possession.) The next day, Molloy, bristling with menace, had cornered Lee at the Oak Bar and warned him to keep quiet about what he had seen.

  Around the neighborhood Molloy was feared as a bully with a hair-trigger temper. In 1993 he had shot and killed an ex-con named Granson Santamaria, using the excuse that he thought Santamaria was reaching for a gun. No weapon was ever found. Six months later, Molloy was again spraying bullets around, when he opened fire from his patrol car at a man named Paul Lipsy. One of the bullets passed through Lipsy’s jacket but did not hit him. Since Lipsy was found to be carrying a gun—he had been mugged twice and claimed to be carrying the weapon for self-protection—he was sentenced to one year’s imprisonment for illegal possession of a weapon, despite the trial judge’s condemning Molloy’s actions as “offensive and shocking” and also branding Molloy’s testimony as “incredible.” Molloy’s record was littered with other disciplinary infractions, most for excessive violence. In his career, Molloy had fired his gun on no fewer than nine separate occasions and had been on the receiving end of fifteen complaints.