Friday, March 13, 2015





From Prosecutor Kathleen Murphy's Closing Argument (pages 51-52)

This is my eleventh post about autopsies following my first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth posts. There were ostensibly three pieces of evidence that Hae Min Lee was attacked in her Nissan Sentra. The first piece of evidence was the "broken" windshield wiper or turn signal lever, which I will again address in my post about conclusion #4. The second piece of evidence was used to be Hae's note to Don about having to attend the Randallstown wrestling match, which was found in the trunk of her Sentra; in the absence of evidence to the contrary, however, the note has now been debunked* as a note written on January 13, 1999, the day of Hae's disappearance, making it irrelevant for this purpose..

That leaves the third piece of evidence: the bloody t-shirt.

What is a Pulmonary Edema?

According to the Mayo Clinic,

Pulmonary edema is a condition caused by excess fluid in the lungs. This fluid collects in the numerous air sacs in the lungs, making it difficult to breathe. In most cases, heart problems cause pulmonary edema. But fluid can accumulate for other reasons, including pneumonia, exposure to certain toxins and medications, trauma to the chest wall, and exercising or living at high elevations.



A CT-Scan of a Pulmonary Edema

If a person has a severe pulmonary edema, she might have a pink frothy sputum, i.e., mucous material from the lungs. In rare cases, this sputum will come out of the person's mouth and/or nose, with the sputum appearing pink based on the combination of blood, mucus, and other watery fluids.

What Testimony Regarding Pulmonary Edemas Was Presented at Trial?

On day two of trial, Lee's brother identified State's Exhibit 13 as three photographs of his former t-shirt that his sister had been using as a a cloth/rag to "wipe off windshields and stuff like that." (pages 34-35). One of the photographs that he identified showed the t-shirt in or around the driver's seat of his sister's Sentra, where it was recovered.

On day five of trial, Sal Bianca of the Trace Analysis Unit testified as a witness for the prosecution. Bianca identified State's Exhibit 26 as the t-shirt recovered from the Sentra. (page 109). According to Bianca, upon being shown the t-shirt, he noticed "some red stains on it" that he tested and determined to be human blood. (page 109). Bianca also thought there might be nasal mucous on the front right of the t-shirt, but he never submitted this fluid for testing. (pages 135-137).

On day six of trial, forensic chemist Theresa Long testified for the prosecution. According to Long, a DNA analysis of the t-shirt was done, which (1) excluded Adnan and Jay as possible donors for the blood stains on the t-shirt; and (2) showed that Lee had a DNA profile that "matched" the DNA profile from the blood samples on the t-shirt, making it a near statistical certainty that the blood on the t-shirt was her blood. (page 20).

Also on day six of trial, Assistant Medical Examiner Margarita Korell testified as a witness for the prosecution. According to Dr. Korell,

•"Pulmonary edema is non-specific [i.e., it occurs in multiple circumstances], but it's fluid that accumulates in the lungs essentially, and it's made out of watery fluids mixed with red cells." (page 44); •This fluid "may" come out of the mouth and/or nose at or around the time of death in a case of strangulation (page 44); •The staining on the t-shirt in State's Exhibit 13 was "consistent" with pulmonary edema because "[i]t's light pink in color." (page 46); •While performing her autopsy on Lee, Dr. Korell determined that both of Lee's lungs "were heavy." (page 48); •Dr. Korell was never given the t-shirt to examine; instead, she merely saw the photographs in State's Exhibit 13 (pages 60-61);

•Dr. Korell was never asked to examine the t-shirt for the presence of nasal fluid or fluids associated with pulmonary edema; if asked to do so, she would have been able to confirm or dispel the presence of such fluids (pages 63-64); •Dr. Korell did not note the presence of a pulmonary edema in her autopsy report, but medical examiners don't explicitly state the presence of pulmonary edemas in autopsy reports. They list the presence of "bloody fluid or bloody, foamy fluid." In her autopsy report, Dr. Korell "described a pulmonary parenchyma" [the bronchial passages in the lungs] and said that there was an "extreme amount of bloody fluid." (pages 64-65); •Dr. Korell couldn't say with 100% certainty that the fluid on the t-shirt was consistent with a pulmonary edema, but the light pink color of the stains was "consistent with pulmonary edema." (page 67). •In response to being told that Bianca determined that the stains on the t-shirt were blood stains, Dr. Korell responded that "pulmonary edema has red blood cells, and []he may, this person may call it blood, yes." (page 67).

The start of this post had the prosecution's summary of Dr. Korell's testimony during closing argument. Here is defense counsel's attempt to attack Dr. Korell's testimony:

You can kind of see the point that defense counsel was trying to make: Dr. Korell never affirmatively said that there was a pulmonary edema, and the stains on the shirt were never sent for testing. As with much of defense counsel's closing argument, however, this point was fairly muddled

What Should We Think About the Pulmonary Edema Evidence & Testimony?

I had a (new) Medical Examiner, who has years of experience, review Lee's autopsy report and the claims made by the State. His response? This case was a "disgrace," the claims by the Assistant Medical Examiner were "obviously directed by the police/DA," and the failure to do further testing on the stains on the t-shirt was "disgraceful and borderline negligent." Let's get into some specifics:

First, and this is obvious, Dr. Korell was incorrect in her testimony when she said that she found an "extreme amount of bloody fluid" during her autopsy of Lee. Quite clearly, the autopsy report states that "[t]he pulmonary parenchyma was deep purple, exuding moderate amounts of bloody fluid." (emphasis added). This is a significant misstatement that defense counsel failed to catch and that the jurors might not have realized unless they pored over the autopsy report. Simply put, an extreme amount of bloody fluid is much more consistent with pulmonary edema and possibly sputum than a moderate amount of bloody fluid. In fairness, though, a moderate amount of bloody fluid can support a finding of pulmonary edema if combined with other evidence.

This takes me to my second point: Medical examiners do list the presence of pulmonary edemas when they are found during autopsies. Here's an excerpt of the autopsy from Rollins v. State, 897 A.2d 821 (Md. 2006) (which am I citing because it ties back to my first point and is relevant to a later point):

RESPIRATORY SYSTEM: The upper airway was clear of debris and foreign material; the mucosal surfaces were smooth, had scattered erythema with yellow mucus in branching airways. The pleural surfaces had posterior adhesions with scattered bullae that were up to 5 cm. The pulmonary parenchyma was red-purple, exuding slight to moderate amounts of frothy edema; the right middle lobe was focally firm and had dark discoloration. The pulmonary arteries were normally developed, patent and without thrombus or embolus. The right lung weighed 610 grams; the left 490 grams.

The autopsy from Rollins is not unique. I could cite to any number of other cases in which a medical examiner concluded that there was pulmonary edema as part of an autopsy. For example, in Eben v. Beaver Dam Swimming Club, Inc., 2001 WL 34848065 (Md.Cir.Ct. 2001):

The positive findings at autopsy were primarily those seen in the lungs. It was noted that there was frothy fluid present in the trachea, the lungs were hyper-inflated and met anteriorly in the mid-line of the chest after removal of the chest plate, and there was pulmonary edema noted.

That said, my third point is that it is rare for an autopsy report to list the presence of pulmonary edema. According to my medical examiner,

most reports don’t indicate pulmonary edema unless it's obvious by the dried foaming around the mouth and it is a lot. By the time the autopsy starts they would indicate the amounts of fluid found since they are no longer circulating through the body and settle in the organs. They could not state specifically it was pulmonary edema without the physical evidence to prove it and that is usually gone by the time the body gets to them.

In other words, it is completely unsurprising to find a mild to moderate amount of bloody fluid in the pulmonary parenchyma during an autopsy because the blood is no longer circulating, which is also what causes fixed lividity/livor mortis. Therefore, a medical examiner needs to look beyond the presence of bloody fluid to determine whether there was a pulmonary edema, and such physical evidence is often lacking unless the victim was found soon after death. Indeed, in my review of autopsies in which there was a notation about bloody fluid in the pulmonary parenchyma, more often than not (by a wide margin), there was no finding of a pulmonary edema. For instance, in Davis v. United States, 2008 WL 7541770 (D.Hawai'i 2008), Dr. Gregory K. Yim, M.D. concluded to a reasonable degree of medical probability that the victim did not have a pulmonary edema after the following discussion:

Third, the autopsy, on page 6 of 9, reports that the pulmonary parenchyma is red-purple and exudes moderate amounts of blood and frothy fluid. This finding may indicate the presence of pulmonary edema, which is defined as a collection of fluid in the alveolar airways of the lungs. However, there are multiple factors in the autopsy report that do not support the diagnosis of pulmonary edema.

This takes me to my fourth point, which deals with the factors that do not support a finding of pulmonary edema. One factor is the cause of death. As you can see from my above citation to the Mayo Clinic, manual strangulation is not listed as one of the leading causes of pulmonary edema. In researching the issue, I found a lot of testimony similar to the testimony of Michael M. Baden, M.D., in Kunnemann v. Janssen Pharmaceutica Products, L.P., 2007 WL 7231721 (N.D.Ill. 2007):

There are three things that would cause this much pulmonary edema which, normally most common, is heart failure, because congestive heart failure is pulmonary edema, and the most common cause of death, probably, in all of us; second, drowning; third, would be drug overdose.

This is roughly consistent with what I was told by my medical examiner: "unless [Lee] was OD’ing on drugs, or drowned you will not see the pulmonary edema happening."

Now, can there be a pulmonary edema as the result of strangulation? It seems that the answer is technically "yes," but it is not likely at all. Most sources that mention the possibility classify it as remote. For instance, Forensic Pathology, Second Edition, states that

On occasion, in cases of manual strangulation, pulmonary edema is present, with foamy edema fluid visible in the nostrils.

Other sources note that hanging is the only method of strangulation that has any real chance of producing a pulmonary edema. For instance, the Rape Investigation Handbook notes that

pulmonary edema can occur, but this is generally only seen in hanging victims who remain comatose after emergency department arrival.

How rare is it to find a pulmonary edema resulting from strangulation? My medical examiner said that he had "never seen it on a strangulation case by either manual hands or hanging." One of the residents who has provided me with information before (and who has worked on a decent number of cases at a medical examiner's office) had a similar reaction. She chuckled in response to the State's theory of the case and said she "has never seen or heard of pulmonary edema in a strangulation;" "it is something that you see when a person is dying from a medical condition, a drug overdose, a drowning but not strangling."**

This feeds into my fifth point, which you can probably infer from some of the prior material, such as the mention of pulmonary edema possibly occurring "in hanging victims who remain comatose after emergency department arrival." According to my medical examiner.

in no way would pulmonary edema come out of Hae's mouth at the time of death or even for the first couple of hours after, especially in the winter.... If she had been transferred to the trunk on her side than possibly after 5-7 hours she could have started to ooze fluids from her mouth but they would be brownish since the body is not pumping fresh blood. If it was really warm out than you would see the fluids leak earlier. Since there was no forensic evidence in the trunk of Hae's car, she could have only been there for a very short period of time.

Of course, this all assumes that there was sputum/pulmonary edema fluid. It's not uncommon to see testimony like this Q&A with Charles Maltz, M.D., in Selvie Muse-Freeman v. Armen Simonian, M.D., 2008 WL 7242495 (D.N.J. 2008),

Q. Would you also agree that you frequently will see pink frothy material coming from the lungs in a patient who has pulmonary edema? A. You can, it's not that common. It's written about more than it's actually seen.

This takes me to my sixth and final point: There is no way that Dr. Korell should have been allowed to testify concerning pulmonary edemas at trial. According to my medical examiner, the court should have sustained defense counsel's objection to this testimony on the grounds that the State admittedly failed to test the stains on the t-shirt to determine whether fluids consistent with a pulmonary edema were present. You see, defense counsel did object to Dr. Korell's testimony (page 46):

Dr. Korell then laid a foundation for her testimony by (1) testifying that pulmonary edema fluid is often light pink in color but can be darker if the capillaries break; and (2) claiming that the stains of the t-shirt were light pink. And...that was it. The judge found that a foundation was laid despite the fact that Dr. Korell never tested the t-shirt and only saw photographs of the t-shirt that Bianca described as having "red stains."

This leads to the obvious question of whether merely looking at stains on (a photograph of) a t-shirt can lead to a conclusion that the stains are consistent with pulmonary edema. The clear answer seems to be "no." For instance, from the Affidavit of Cyril H. Wecht, M.D., J.D., in Estate of Owensby v. City of Cincinnati, 2002 WL 33969003 (S.D.Ohio 2002):

I do not know of any test to reliably say a stain on clothing is, in fact, due to pulmonary edema.

Of course, this all assumes that the stains were in fact light pink, despite the contrary description given by Bianca. My medical examiner said it would be unlikely that pulmonary edema fluid would have still been light pink a month after Lee was killed because stains tend to darken. He thought that a much more plausible explanation for light pink staining, assuming it was present, could be "that the shirt had blood on it and it was washed out without the stains being completely removed and it is used as a rag."

Conclusions

1. Pulmonary edemas are rare in any case. 2. Pulmonary edemas are even rarer in strangulation cases and rarer still in strangulation cases not involving hanging. 3. Even in cases of pulmonary edemas, pink frothy sputum is rare, and it is even rarer for it to come out of the mouth and/or nose. 4. If sputum did come out of a victim's mouth or nose as the result of strangulation, it would not come out until hours later. 5. There was no finding of a pulmonary edema in Lee's autopsy report, and pulmonary edemas are noted when found. 6. The Assistant Medical Examiner misstated the circumstantial evidence of Lee having a pulmonary edema in a significant way. 7. A pulmonary edema cannot be detected from looking at a (photograph of) a stain. 8. Dr. Korell should not have been allowed to offer testimony about pulmonary edemas. 9. The State's case was a "disgrace." 10. The t-shirt can almost certainly be eliminated as evidence that Lee was attacked in her Sentra.

______________________

*For what it's worthy, Susan Simpson and I each independently reached the conclusion that Lee's note to Don was written on the date of the Randallstown wrestling match (1/5/99), with Lee subsequently deciding to skip the match and see Don. It will be interesting to see whether this conclusion is confirmed or dispelled by additional evidence.

I've been thinking about the wrestling match information for a few days, and, eventually, I landed back on my post about the most logical scenarios for Lee's death. Now, the only reliable witness who saw Lee after school on January 1, 1999 is Becky, who remembers Lee telling Adnan that she couldn't give Adnan a ride because she had "something else" to do. As I've noted before, it's likely that this "something else" was something that Lee had to do before picking up her cousin, meaning that Lee likely left Woodlawn soon after the final bell at 2:15. Unless new information about a Woodlawn wrestling match on January 13, 1999 emerges, this looks like an even likelier scenario. This both makes Asia McClain more important as a factual (as opposed to a simply legal) alibi witness and increases the likelihood that Lee died while doing an unknown "something else" (the wrestling match having been ruled out for the moment). Of course, I'm fully open to the possibility that there was some type of Woodlawn wrestling match on January 13, 1999, but I haven't seen any evidence of it...yet.

**I also cited Rollins because it was the only case I could find in which a finding of a pulmonary edema was tied to an alleged death by asphyxiation. If you look at the case, you can see that there was a pretty big dispute over whether this conclusion was correct or even admissible, with other things such as cardiovascular disease possibly causing the edema.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/03/from-prosecutor-kathleen-murphys-closing-argument-pg-51-52-d.html