by Gerry Spence
“Your Honor, I believe Mr. Coker was about to cross-examine Dr. Norton.”
“Oh, yes, of course. You may proceed, Mr. Coker.”
The courtroom was packed, as before. The onlookers eagerly awaited the expected Coker fireworks. Coker’s face reflected his raw disdain for the witness, Norton, as he threw his yellow pad with its illegible tracks on the lectern and aimed his first question at the coroner.
“I suppose, Dr. Norton, that before you testified yesterday you had a conference with the prosecutor?” He pointed at Haskins Sewell, who was thumbing through a thick file, his back turned against Coker.
“Yes, I met with Mr. Sewell.”
“I wasn’t present, was I?”
“Of course not.”
“I wasn’t invited to hear your secrets.”
“We have no secrets.”
“And he told you to keep talking about all that blood, didn’t he?”
“No.”
“He told you to throw in that clever little remark about this being a murder, that poisonous conclusion of yours that the judge told the jury to ignore because it was improper. That’s true, too, isn’t it?”
“No, it isn’t.” Dr. Norton glared back.
“I suppose you can’t figure out who moved this body, if it was moved.”
“That’s not my job.”
“But you want the jury to believe that the body was moved?”
“It was. The drag marks of blood were clearly discernible on the floor, and his clothing had smears of blood.”
“Where are the clothes he was wearing?”
“I don’t know.”
“What did you do with them?”
“I gave them to Deputy Huffsmith, who attended the autopsy and who was appointed as the custodian of the evidence in this case.”
“And I suppose you saved a sample of the so-called blood on the floor?”
“I didn’t, no. That would be the job of the criminalist, Deputy Illstead.”
“So you don’t know, not even by hearsay, whether the marks you saw on the floor were blood, and if so, whose blood it was, isn’t that true?”
“I know blood when I see it,” the coroner said.
“Well, what about this?” Coker walked up to the coroner, holding out his sleeve for the witness to examine. “Is this blood?” The witness glanced at the lawyer’s sleeve, where a brownish red substance appeared.
“This is improper cross-examination,” Sewell objected.
“Is it blood, Dr. Norton?” the judge asked.
“I wouldn’t know,” the witness said.
“You wouldn’t know? How can you say you wouldn’t know?” Coker asked.
“It’s easy, I wouldn’t know.”
“Well, well, well. Could it be catsup?”
“Perhaps.”
“Could it be red paint?”
“Perhaps.”
“Could it be raspberry jam?”
“Probably not.”
“But maybe? Maybe it is raspberry jam?”
“An outside chance.”
“Do you make your decisions as a scientist on outside chances?”
“I take in all of the facts available, my years of experience, and give my opinions.”
“You have had as many years’ experience, perhaps more, looking at catsup than at blood, isn’t that true? I mean, you eat catsup on your hamburgers, don’t you?”
“I don’t eat hamburgers.”
“A good scientist doesn’t base his science on something he assumes, don’t you agree?”
“One can assume the obvious.”
“So you’ve forgotten to tell us something, haven’t you, Mr. Coroner?” Coker demanded.
“What would that be?”
“You’ve not told us the time you arrived at the Adams residence and how long the deceased had been dead when you first saw him.”
“I wasn’t asked.”
“I wonder why you weren’t asked.”
“You would have to ask Mr. Sewell. I only answer the questions I’m asked.”
“But you talked about your testimony with Mr. Sewell before you came here today—talked about it behind closed doors in Mr. Sewell’s office, isn’t that true?”
“Yes.”
“And you discussed the time of death, didn’t you?”
“I don’t remember.”
“You don’t remember?” Coker’s voice was alive with dramatic disbelief.
“How can you tell this jury that you can’t remember setting the time of death for the prosecutor, but you can remember every little gory detail about the blood?”
“That is argumentative, purely argumentative,” Haskins Sewell objected.
The judge examined his hands, his unattractive, powerless old hands—good-for-nothing hands, except to scratch behind Horatio’s ears, and to wave them about in his futile scolding of the lawyers.
“That is argumentative,” Haskins Sewell insisted.
The judge seemed absent for the moment.
“Your Honor, please. Please. May we have a ruling?”
“Your objection is sustained.” I can still make a correct ruling, he thought, even with the smattering of functional brain tissue that remains in my head.
“So you don’t know the precise time of death?” Coker asked.
“The time of death is always an approximation.”
“Does that mean it’s another one of your guesses?”
“It is an opinion based on reasonable medical probability.”
“An ‘approximation’ is a reasonable medical probability?”
“Yes.”
“‘Reasonable’?” Coker echoed. “Who says it’s reasonable?”
“I say so.”
“Very well. You’re asking us to just take your word for it?”
“If you put it that way.”
“And another expert might ask us to take his word for a different time, even though his opinion varies substantially from yours, and even though he says his opinions are also based on reasonable medical probability, isn’t that true?”
“I don’t know what another expert would say.”
“What did you do, if anything, before you left the death scene to establish the time of death?”
“I checked the body temperature rectally.”
“Rectally? You checked it rectally? Why did you do that?”
“It’s an established fact that the rectal temperature drops at an average of one and a half degrees per hour.”
“So from this measurement, what did you conclude?”
“I concluded that the deceased had been dead four hours by the time I arrived at the Adams residence.”
“Now that’s another guess you’ve made, isn’t that true?”
“No, it’s a reasonable medical opinion.”
“Yesss,” Coker said. He drew his cynical “yessss” out across the courtroom.
Sewell jumped up. “This sarcasm, this scorn, is inappropriate, Your Honor.”
The judge turned to Sewell. “Well, Mr. Sewell, when Mr. Coker says ‘Yes’ in the record, he’s only agreeing with your witness.”
“It didn’t sound like agreement to me,” Sewell said.
“Was it agreement, Mr. Coker?” the judge inquired.
“Hardly.”
“You mean that yes means no?” the judge asked, scowling.
A skiff of sniggers from the audience.
“I mean,” Coker replied, “that every modern authority on this subject holds that a thermometer up the rectum of a dead person is unreliable for establishing the time of death.”
“Ask the witness,” the judge said.
Coker pressed on. “Do you argue with the authorities who say that the use of the rectal thermometer is a guarantee of inaccuracy?”
“I wouldn’t go that far.”
“Don’t you agree that a considerable weight of reasonable medical opinion holds that a rectal examination should never be used in suspicious deaths, that no instrument should
be inserted into the rectum before trace evidence has been sought?”
“I haven’t given that any thought.”
“Well, please give it thought. Did you make a rectal examination of the corpse before you took his temperature?”
“No, I did not.”
“Let me say it then: You did not follow standard medical procedures, isn’t that true?”
“I did what I thought necessary under the circumstances.”
Coker rolled his eyes upward to record his dismay. Then he asked, “What is meant by ‘the bracket of probability’ as it applies to the time of death?”
Norton studied the ceiling. “It means that the time of death falls within a time period—likely not sooner than a certain time and likely not later than a certain time.”
“But you’ve testified to a certain time.”
“No, an average time.”
“You didn’t say it was an average time. You said that the deceased had been dead four hours.”
“He is arguing with the witness,” Sewell objected.
“Well then,” Coker said before the judge could rule, “what time do you guess the deceased died?”
“I arrived at the Adams residence at five A.M. If the deceased died four hours earlier, he would have been alive at approximately one A.M. the same morning.”
“What times did you use to arrive at your average?”
“What do you mean?”
“You said four hours was an average time. Between one in the afternoon and nine in the evening makes an average of four hours. Is that how you arrived at the time of death?”
“Of course not.”
“Well then, between three in the afternoon and eleven at night is an average of four. Is that how you arrived at the time of death?”
“No.”
“You said an average of four hours,” Coker repeated. “In the last example, the time of death, averaged between three and eleven, would be seven in the evening. Is that how you decided the time of death?”
The coroner looked up to the judge as if seeking help.
“Is this another example of what you refer to as a ‘reasonable medical probability’?” Coker asked this side of a sneer.
No answer.
“You don’t know when Mr. Adams died, do you?”
“I’ve given my best medical opinion.”
“Well then, tell us what was the first thing you did at the scene?”
“I took in the scene. I examined the deceased without moving him. I then lifted his head to observe the entry wound. I made notes of my observations.”
“Did you talk with the officers who were there?”
“Yes.”
“What time did you leave the scene?”
“About an hour later.”
“You say you arrived at five A.M.? So you would have left at approximately six A.M.?”
“Yes.”
“Were you present when these photographs were taken by Officer Illstead?”
“Yes. He took them just before I left.”
“I notice by these photographs that the deceased is still fully dressed.”
No answer.
“So what you are telling us is that you arrived at the scene, you somehow had the deceased lifted from his chair, you pulled down his trousers and shorts and inserted your thermometer into his rectum, and then you pulled his trousers up again, put him back in the chair, and Officer Illstead took these photographs?”
“May I refer to my notes?” Dr. Norton asked. “Yes, I see that I didn’t take his rectal temperature until he was at the mortuary.”
“What time would that have been?”
“Sometime after six. My notes don’t reveal the time.”
“That could be one minute or ten hours.”
No answer.
“What was the temperature outside at the time?”
“I don’t know.”
“It was considerably below room temperature, was it not?”
“I suppose.”
“Do you know how long the deceased was outside in the cold in the hearse before he was finally removed inside to the mortuary?”
“Not exactly.”
“And even the workroom in the mortuary is somewhat below room temperature, isn’t that true?”
“I suppose.”
“So the longer the deceased was located in cold or cool rooms, the faster his body temperature would have lowered, isn’t that true?”
“Yes.”
“The one-and-a-half-degrees-per-hour loss of body temperature is based on room temperature, isn’t that true?”
“I suppose so.”
“His body would have cooled faster than if it had been kept at room temperature, isn’t that true?”
“I suppose.”
“As an expert, can’t you offer an opinion other than ‘I suppose’? ‘I suppose’ is hardly a scientific conclusion, wouldn’t you agree?”
Norton offered only his silent glower to Coker.
“Well, don’t you suppose?”
Sewell: “He’s badgering the witness, Your Honor.”
“I suppose,” the judge said. “Sustained.”
Coker continued: “Considering that he was out in the cold, and after that in a room below room temperature at the mortuary before you took his rectal temperature, according to your formula he must have died on his way to the mortuary or in the mortuary itself.”
“That is ridiculous.”
“Yes, isn’t it? You don’t know when you took his temperature. You don’t know the temperatures to which the body was exposed between death and the time you took the temperature reading, and, last, you have no idea how fast or how slowly the temperature of the deceased’s body decreased under the circumstances, isn’t all that true?”
“I can only testify to my expert conclusion.”
“Wouldn’t it be your honest testimony that you do not know, and cannot even approximate, the time of death in this case based on the body temperature you took at an unknown time at the mortuary?”
No answer.
“Don’t you want to answer my question, Dr. Norton?”
No answer.
“You now admit that you didn’t take his temperature at the scene and you don’t know what time you took it at the mortuary, isn’t that true?”
No answer.
“Would you please answer.”
“My notes may be mistaken.”
“Something is mistaken here, wouldn’t you say, Dr. Norton?”
No answer.
“Perhaps this is why Mr. Sewell didn’t ask you any questions about the time of death, don’t you agree?”
“I am not able to answer for Mr. Sewell.”
“Of course you can’t. You know we contend that Mrs. Adams came home about midnight and found her husband dead and sitting at his desk, as shown in State’s Exhibit three.”
“I don’t know what you contend.”
The judge had been following his wondering mind. Death does not just sit out there like a bunch of turnips at the grocery store, he thought, because death is beyond the realm, and therefore it cannot be understood, and it ought not be feared, because fear exists only in this realm.
“I’m not afraid of it,” the judge heard himself say.
“I beg your pardon, Your Honor,” Coker said.
“I said, ‘Proceed,’” the judge replied.
Coker blinked half a dozen times, as if to corral his thoughts. Then he started anew. “You talked about the time of death with the prosecutor, didn’t you?”
“I said I don’t remember.”
“And he told you that we have adamantly insisted from the outset that Mrs. Adams was not home at the time of Mr. Adams’s death.”
“He told me your client claimed she got home about midnight.”
“So you knew our contentions here after all, Dr. Norton! And by your guessing and averaging, you attempted to lead this jury to the conclusion that Mr. Adams didn’t die until something like one in the mornin
g—an hour after Mrs. Adams arrived home.”
“These are not guesses. These are opinions based on—”
“You are quite willing to guess in favor of the prosecution. Couldn’t you now guess for the defense? Guess that Mr. Adams was dead five or six hours before you arrived, which would mean he died between eleven and midnight that night, before Mrs. Adams arrived home?”
“No, I don’t think I could say that.”
“Because this would leave Mrs. Adams’s defense still alive and well before this jury?”
“No. There were other matters that I took into consideration,” Norton said. “I considered his blood-alcohol level.”
“How does this blood-alcohol thing work?” Coker asked Norton, as if he didn’t know. He’d defended a hundred drunk drivers and had cross-examined dozens of experts about “this blood-alcohol thing.”
Norton spoke directly to the jurors, as if they were a class of medical students. “The amount of alcohol in your bloodstream is referred to as the blood-alcohol level, the BAL, as it were. It’s recorded in milligrams of alcohol per one hundred milliliters of blood. For example, a BAL of point ten means that one-tenth of one percent, or one one-thousandth of your total blood content, is alcohol. When you drink alcohol, it goes directly from the stomach into the bloodstream. This is why you typically feel the effects of alcohol quite quickly, especially if you haven’t eaten in a while.”
“So was Mr. Adams drunk at the time of his death?”
“I would say so. Very. More than twice the BAL for drunk—he was passed out, or nearly, I would say without hesitation.”
“But you don’t know when Mr. Adams drank or what he drank, do you?” Coker asked.
“He was drinking scotch.”
“Do tell! And so when did you take the blood sample?”
“At the funeral home. As you know, we always do our autopsies at the funeral home. Hopefully, the county will one day provide us with facilities elsewhere.” Dr. Norton looked to the jury to solicit their support.
“But at what time did you perform your autopsy?
“About noon.”
“Noon the same day? What were you waiting for?”
“It was ungodly early when I was called to the scene.” He looked pained. “I went home after my initial examination to catch a few winks. I had a heavy schedule ahead. I got up again about ten-thirty, ate a late breakfast, and went to the funeral home to do the autopsy. I would say about noon.”
