“You wouldn’t believe what happened to me.”
“What?” I said, leaning closer. “Are you OK?”
“I was asked to do a second autopsy by the family of a man who died in police custody. When I got to the neck, I found that it hadn’t been fully dissected. So I did it — and found a bag of drugs blocking the back of his throat. The coroner’s pathologist missed it in the first autopsy!”
“What did you do?”
“What else could I do? I photographed it, bagged it up as evidence, and called the coroner to let them know what I had found.”
“Oh boy. Quality control, right? They must have been relieved that you found the real cause of death!”
“Are you kidding?” she said. “They accused me of planting it.”
I shouldn’t have been surprised. I’ve worked nearly 2 decades in the morgue, and this wasn’t the first time I’ve heard that story. I have a close colleague who told me about a decade-long legal struggle he fought to overturn his own wrongful criminal conviction for tampering with evidence. It arose from a second autopsy in which he found a hyoid bone fracture that had been missed by a prior practitioner. The original investigative agency accused him of breaking the bone himself, and the district attorney went ahead and filed criminal charges against him. They won at first. He fought the conviction at a huge personal cost in legal fees. The conviction has been quashed and my colleague has been exonerated — and yet, years later, that record of legal proceedings still gives attorneys pause when they think about hiring him as an expert witness.
Over the years, I have become attuned to news stories that call a colleague’s competence into question during the investigation and trial of a high-profile case. Forensic pathology is a small field, and in some of these cases, I know the colleague personally or from their professional writing. If I know they are a respected expert, I’ll be skeptical, at least initially, of the allegations. Cyril Wecht, MD, JD, one of the best-known experts in our field, has had to deal with a highly expensive public-eye prosecution that pertained to his expert witness work. It was widely regarded among those in our field as being politically motivated: Wecht had angered a federal prosecutor by working as an expert for the successful defense in a case the prosecutor had tried. They lost the battle, then shot the messenger.
There is a subset of prosecutors who believe, and will not be dissuaded, that the investigative work done by a medical examiner always ought to align with the goals of law enforcement. Some forensic pathologists feel the same way. They label anyone who does medicolegal consult work as a “defense expert,” and disparage their testimony as being bought and paid for. They are suspicious of anyone who does second autopsies for family members of decedents, or for attorneys who are concerned about the competency of a county office. When these doctors do act as experts themselves, they will only testify for the prosecution and will not even speak to defense attorneys.
When I was working at the San Francisco Office of Chief Medical Examiner, I started doing a little consult work on the side, on my own time. I was careful to balance both criminal and civil cases, and worked for both defense attorneys and for prosecutors who would call me to testify from other counties. Despite following all the rules and filling out all the forms required for approval for my outside work, I found increasingly that my supervisor at the San Francisco office would rule that one after another of my private-practice cases was considered a conflict of interest. I was barred from undertaking them. I went to meet with a woman at the county’s Department of Human Resources about it. Here’s what she told me: “You are like a star football player. We don’t want you playing for other teams because you might get hurt.”
Who was out to hurt me? What the hell was she talking about? I asked this to the HR counselor at the time, but she didn’t give me any sort of good answer.
It’s a dirty little secret of forensic pathology: We eat our own. Because we are doctors who work for county agencies, we always need to be able to produce a squeaky-clean background check with no hint of ethical impropriety. If you wanted to punish a colleague who’s crossed you, just file an ethics complaint against them. It doesn’t much matter if it’s sustainable or not — the fact that it’s been lodged at all is enough to red-flag their next background check. You can also cause them employment problems by bad-mouthing and disparaging them to others on email lists, in whisper campaigns, or to attorneys who will cross-examine them in court. There are only about 500 of us — gossip gets around real fast. I have seen brilliant men and women, who care about the job and want to do well, who publish and teach and inspire, get sidelined and damaged by this process. Most of the rest stand by and watch it happen, afraid to speak up about it. Nobody wants to become the next target.
As for me, I can’t abide this aspect of my profession. It is the one thing I wish I could change. I want our professional colloquies — in person, online, and in publications — to be places where (to quote my mentor, the late Charles S. Hirsch, MD) we can agree to disagree, without being disagreeable. I will continue to work to make our specialty one where we support each other and encourage students to ask questions, and, when we testify, to speak for the science and avoid ad-hominem attacks. We are neither defense witnesses nor prosecution experts. We are witnesses for the voiceless. We speak for the dead.
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