Last week the U.S. Supreme Court found another exception to the Constitution’s prohibition on double jeopardy. In a 6-3 ruling (PDF), the Court found that when a jury is given a range of mutually exclusive charges to chose from, the fact that the first jury voted to acquit on the most serious charges doesn’t prevent the state from trying the suspect on those charges again.
In this case, the jury could have chosen to convict on a range of charges from capital murder to manslaughter. They voted unanimously to acquit on the more serious charges, but hung on manslaughter, with a majority voting to convict. The Court’s ruling means Blueford can again be charged and tried for capital murder and first-degree murder.
I don’t agree with the Court’s decision, but that’s not really even the most objectionable part of this case.
The state relied entirely on circumstantial medical evidence, and emphasized an autopsy report by a state medical examiner. There was no evidence of any history of abuse by Blueford.
The state’s principal witness was Dr. Adam Craig, a medical examiner at the Arkansas State Crime Lab, who conducted the autopsy and testified about its meaning. Dr. Craig testified that he is not board certified in anatomical pathology despite five attempts to pass the board exam. He concluded that the cause of death was a “closed head injury.” Dr. Craig opined that the death was a homicide based on the “severity of the injuries” and the absence of any other “reasonable explanation” in the information given to him by law enforcement. He rejected the possibility that the injury could have been caused by an accident or a fall, citing one dated medical position paper, and he admitted that he was unfamiliar with recent medical literature documenting that very possibility.
So it’s another shaken baby case. And here, the diagnosis was made by a doctor with questionable credentials.
Blueford’s defense was supported by two expert medical witnesses. The first was Dr. Robert Bux, the head medical examiner for El Paso County, Colorado. Dr. Bux is board certified in anatomical, clinical, and forensic pathology. He has worked on international matters, including service for the International War Crimes Tribunal in former Yugoslavia, and he has published in the Journal of the American Medical Association, among other publications. Dr. Bux testified that Dr. Craig’s autopsy was so poorly performed as to be useless, and suggested that, as a supervisor, he would not continue to employ an examiner who turned in an autopsy like Dr. Craig’s. He also explained that the position paper on which Dr. Craig relied had long been understood to be “inaccurate and not scientifically valid,” In light of the botched autopsy, Dr. Bux explained, either the State’s version of events or Blueford’s could be accurate, and “[t]here’s no way as a forensic pathologist I can tell you which happened.”
Dr. John Galaznik, a board-certified pediatrician with thirty years of experience at the University of Alabama, also testified on Blueford’s behalf. Like Dr. Bux, Dr. Galaznik testified that the available medical evidence was entirely consistent with Blueford’s account of the accident. He explained that the last decade of research had conclusively shown that children can suffer fatal head trauma from short falls. He also expressly rejected the state’s theory that Blueford slammed McFadden into mattresses, emphasizing that the same scenario had been examined by the biomechanical literature, which, in his view, concluded that the mattress-slamming scenario “would not cause the injuries in this case.”
The problem, as we’ve discussed here before, is that a state expert witness, no matter how unqualified, always carries an air of authority and credibility. He’s just trying to help put bad guys away. What incentive would he have to lie? Defenses witnesses, no matter how qualified (and of course, defense attorneys sometimes put hacks on the stand, too), carry the air of a hired gun. Other problems play into this, such as why Craig is doing autopsies for Arkansas in the first place—which itself may have something to do with the nationwide shortage of medical examiners.
Craig’s credibility wasn’t the issue before the Court, so it only comes up in a footnote in Justice Sotomayor’s dissent. Sotomayor also points out that Craig took only two slides of the child’s brain, where the current medical standard is to take 10-20.
The Supreme Court has issued a number of rulings about how to determine the validity of scientific evidence. But I don’t know that the Court has ever addressed how the courts should go about certifying expert witnesses who may be practicing in a credible field, but who themselves clearly aren’t credible. The Daubert test isn’t really applicable to a specific witness who is testifying in an established field. (I’m open to the possibility that I’m wrong on this—if so, please correct me in the comments.) And it seems to me that this is just as important. A persuasive fraud can make a much better impression on a jury than a qualified, credentialed professional who isn’t as skilled at testifying.
I’ve made this point with respect to Steven Hayne in Mississippi, but once you’ve shown an expert witness is willing to give testimony wholly unsupported by science, you have to go back and retry every other case in which that expert’s testimony played a significant role in a conviction. If he’s willing to say something outlandish or is proven to have lied on the witness stand in one case, there’s no reason why his expertise in less cut-and-dried cases should be trusted, even when it’s scientifically plausible.