12

Very shortly after that talk came my first defence case.

So far I had only ever been called to a death by the police or the coroner. That meant I was, almost automatically, adopted as an expert witness for the prosecution if charges and a court case followed. Sometimes the pathologist’s report alone will satisfy the court, sometimes a court appearance to answer questions is required. The most searching questions, of course, come from the defence barrister.

The defence team will usually call a forensic pathologist too, and they probably will ask for a second post-mortem. On occasions, when a whole group of people is accused of the crime, there may be more defence teams ordering a third, a fourth and even more post-mortems. In these rare cases, all the defence pathologists might perform their post-mortems consecutively, but more usually together, observing each other’s work, clustering around the body like moths around a lamp. Then, if we go to the pub afterwards, it looks like a pathology convention. Each pathologist will write a report for the prosecution or for one of the defendants, each report will be used as evidence, each pathologist may be called as an expert witness.

You might assume pathology is such a precise science that all reports on the same body must be identical. This is not the case. Wounds and injuries recorded identically may be interpreted differently. Interpretation can be influenced by many things, especially the information supplied concerning a case: the more information there is, the less likely that conclusions may be erroneous.

So, as the pathologist on call one night, I might be summoned to the scene of a crime by the police and subsequently write a detached, scientific report based on all the evidence at my disposal. This would be used by the Crown Prosecution Service in deciding whether or not to prosecute the alleged killer. I’d probably then have to give my evidence in court for the prosecution. However, if I’d just come off duty when the police’s call came, one of my colleagues would attend the scene instead but a few weeks later I might nevertheless find myself working on the same case – for the other side, after a call from the defendant’s solicitor.

At the very least, defence lawyers require corroboration of the first pathologist’s findings and report. But some defence teams are hoping for more than that. They would like their pathologist to find an error in the original report – which is rare, but still they hope for information which might help exonerate their client. They at least expect a wide-ranging review of alternative explanations or interpretations of the findings and facts.

Defence reports are a normal part of a forensic pathologist’s workload, but it takes a while for defence lawyers to learn a newcomer’s name, so no defence case came my way for some time. I wasn’t sorry. I knew how hard it can be to carry out a post-mortem on a body already examined by another pathologist. I mean, how technically difficult: there will be an inevitable degree of deterioration, whether the body has been frozen or just kept refrigerated; further bruising may appear and wounds may change size; organs are occasionally absent when they have been submitted for another expert opinion and tissues have usually been sent away for analysis. However, all the information the later pathologist needs should be available, whether these are found in colleagues’ notes or in the scene-of-crime pictures, reports or tissue samples.

There is another, more personal, reason why defence post-mortems can be a challenge for newcomers trying to make their way in the world of experienced forensic pathologists. That’s the fear of taking an opposing view. Our court system thrives on these differences, but they do nothing for relationships within the profession, particularly if you are just a newcomer facing one of the giants of pathology.

Before accepting my first defence case, I checked with trepidation the identity of the prosecution’s pathologist. I really hoped I wouldn’t find myself reviewing the work of, and perhaps differing in opinion from, some highly esteemed older colleague. To my relief, I learned that the prosecutor’s pathologist was one of my contemporaries.

So I went to the mortuary to examine the wounds a seventeen-year-old boy had confessed to inflicting on his father. There were twenty-seven injuries, all of them to the face and head. The skull was broken and the brain extensively injured. The boy’s defence team had hoped to persuade the prosecutors that their client was mentally ill. But they had got nowhere and now a murder trial was scheduled at the Old Bailey.

The lad’s statement was contradicted by the findings of the first pathologist. He said he had only struck about four blows while his father slept in bed. The pathologist insisted there had been more than twenty.

When I carried out the second post-mortem, I could not fault the prosecution pathologist’s report, which accurately described the father’s wounds. However, their varied nature raised some questions.

In a youthful and enthusiastic quest for truth, I set about making a replica of the crowbar the boy had used – except that my crowbar was made of foam. I asked how tall the defendant was and used photos of the scene to stand at approximately the height and angle he had stood to his father. I then spent a long time bashing a pillow with the crowbar: the pillow was standing in for the father’s head.

After considerable study, I was able to prove that the lateral motion of the blows would have caused the weapon to rotate on impact, and to bounce. I wrote:

The multiplicity of injuries can be accounted for by bounce of the end of the crowbar. The post-mortem appearances are entirely consistent with your client’s assertion that he struck his father 4 or 5 times.

But my Simpsonian deductions never saw the light of day. A head scan of the young man proved that he had been severely brain damaged in a car accident several years earlier. The plea of guilty to manslaughter with diminished responsibility was now accepted by the prosecution and the boy’s trial was withdrawn from the Old Bailey’s list.

No courage was required to contradict the findings of the prosecution’s pathologist for that case. But, beyond cowardice or careerism, is a deeper problem for both defence and prosecution pathologist. Neither party can ever – should ever – admit to being wrong. It is acceptable to admit that there may be other possible conclusions, but, in the absence of any new evidence, the pathologist should be sure enough of his or her view to stick to it.

It was alarming to understand at the beginning of my career that the pathologist is assumed to be right, whichever side he is working for. The day I became a fully qualified forensic pathologist was the day I turned from a not very sure trainee who still probably had a thing or two to learn, into an expert who can never put a foot wrong. Allegedly. So, if you have ever thrilled to the transformation of the insignificant Clark Kent into Superman’s invincibility, imagine what a disconcerting experience this must have been for Kent himself. Certainly, I have found the cloak of invincibility placed upon me a heavy burden.

But why is this? Why must I now always be right when it is the human condition to be wrong sometimes? Answer: because the adversarial nature of our criminal justice system has no room for ‘perhaps’ or ‘maybe’ or ‘possibly’.

Even though I was determined in many areas of my life to follow the lines of Pope my father had given me when I was a young man, and ‘speak tho’ sure, with seeming Diffidence’, the fact was that my job did require me to ‘speak tho’ sure with complete Confidence’. Any wavering, and defendants might be sent down for crimes they did not commit – or freed when they were guilty.

The greatest test of sureness comes in the witness box. Court cases (especially at the Old Bailey, which almost reeks of seriousness and importance), can be highly intimidating affairs. I knew that long before I experienced it at first-hand. The collapse of one famous case because the prosecution’s forensic pathologist had committed a minor error was a national news story shortly before I qualified. That pathologist’s long and distinguished career ended somewhere close to humiliation, not because his small error was even relevant to the trial (and, I fear, not because the defendant was innocent), but because an aggressive defence barrister had exposed a small oversight and used it to undermine the pathologist’s competence in the eyes of the jury.

This was disturbing, doubly so when Iain West created his own version of the entire cross-examination for us in the pub, playing both the insinuating barrister and the hapless pathologist for his transfixed but rather glum colleagues.

I found myself recalling this cautionary tale during my first major dust-up in court. I had been summoned by the police to a homicide and, as the pathologist at the scene, I was a witness for the prosecution. The defence ordered a second post-mortem from one of my former professors. He gave a different cause of death. The defending barrister only had to glance at my callow young face and compare it with that of the venerable professor to know his best line of attack. The exchange (recreated here from memory and not transcript) went something like this:

QC: Dr Shepherd, let’s be clear here, I am sure it will be of great interest and significance to members of the jury. Can you tell me how long you have actually been practising as a forensic pathologist?

ME: Er … well my first actual case was –

QC: By ‘practising’, I of course mean since the completion of your traineeship.

ME: Two years.

QC: Two years. I see. Are you familiar with the professor of forensic pathology who is also giving evidence at this trial?

ME: Yes, I am.

QC: Really? How do you know him?

ME: He was my professor.

QC: Ah. I see. He taught you. Well, Dr Shepherd, you will, then, be aware that he has been a practising forensic pathologist for forty years.

ME: I … I imagine something of that order.

QC: I can assure you that he has been practising for forty years. He taught you. Two years ago. And he feels the cause of death you have given is incorrect. Are you sure you have the knowledge and experience to contradict him?

ME: [Takes a large gulp.] I have examined the case fully and … er … I do not wish to … er … revise my opinion.

QC: Are you sure about that? You are absolutely sure you know better than your eminent professor?

ME: Um … er … naturally I respect my colleague’s … er, opinion. But … mine is different. He did … er … train me in how to … um … form opinions.

QC: And you are not disconcerted that you have formed an opinion at such variance from the professor you claim to respect so much?

ME: Um … no.

QC: Well, Dr Shepherd, I admire your hubris. [Shakes head with an air of tragedy and turns to the jury.] Members of the jury, you will, of course, want to come to your own conclusions about Dr Shepherd’s knowledge and experience. Or maybe the lack of it.

Ouch! But I don’t think my professor had a much easier time giving his evidence: in fact, he was forced to accept that I could be correct. Of course, there was a great deal more evidence beyond the pathology of the case, as the judge reminded the jury during his summing up. They then found the defendant guilty.

I really felt myself to be under pressure giving evidence in that case: pressure to give way on my view of the truth. Afterwards I reviewed my findings and conclusions and I was proud that I had stuck to my interpretation of events. Despite the battering I had received, I was still sure my interpretation was correct. As a result, I convinced myself that the truth was always so clear and that I would always be able to hold on to it so easily, despite attempts to push me this way or that. I still did have a lot to learn.