Monday, April 13, 2015

Today at 2:00 P.M., Rabia Chaudry, Susan Simpson, and I will be posting the first episode of our new podcast, "Undisclosed," at http://undisclosed-podcast.com. The podcast will deal with the legal intricacies of the prosecution of Adnan Syed for murdering Hae Min Lee and new discoveries that have been made in the case since the Serial Podcast last aired. To tide you over until that episode is posted, here is a post about some interesting new medical discoveries in the case:

At both of the trials of Adnan Syed for murdering Hae Min Lee, Assistant Medical Examiner Margarita Korell gave testimony indicating why she believed that Hae had been dead for weeks before she was discovered. Here is part of her testimony from Adnan's first trial (pages 27-28):

Meanwhile, here is part of her testimony from the second trial (page 42):

Given what I know about rigor mortis, I was confused by this testimony about Hae's body still having "some rigor" that "was easily broken." This is because I could point to any number of cases in which experts have testified that the presence of "some rigor" that was "easily broken" was consistent with death less than 36 hours or so before discovery. For example, according to the Report of Cyril H. Wecht, M.D., J.D., in Schilling v. Baldwin, 2002 WL 33004188 (E.D.Wis. 2002),

as long as rigor is present, even if “easily broken”,...the decedent has been dead less than 36 hours.

Dr. Korell's testimony led me to consult with a medical examiner and some pathology residents, and they concluded the following: Either (1) Dr. Korell was wrong; or (2) Hae was dead at most a few days before she was discovered. This post will explain why I think Dr. Korell must be wrong and how it led to two conclusions: (1) Hae was in a face down position for at least 24 hours after death; and (2) the "right side" burial described in Hae's autopsy report was actually a back/right burial.

Let's start with the basics. At Adnan's trial, the prosecution claimed that Adnan killed Hae by 2:36 P.M. on January 13, 1999 and buried her in Leakin Park later that day, in the 7:00 P.M. hour. Hae's body was subsequently discovered by "Mr. S." during his lunch break on February 9, 1999, and she was pronounced dead at 2:00 P.M. that same day. Someone thereafter took a photo of the body after it was disinterred and placed on a tarp:



From the State's Photo Exhibit List

As you can see, whoever completed this disclosure said that "[r]igor appear[ed] to be fixed" at the time of the photo. The next day, February 10, 1999, Dr. Korell performed the autopsy on Hae at 10:00 A.M. and stated in her report that "[r]igor was broken to an equal degree in all extremities."

So, why is this evidence inconsistent with Hae being killed weeks before her body was discovered? When a person is alive, her body produces Adenosine Triphosphate, or ATP, "the gas line that runs the movement of your muscles." When that person dies, her body stops producing ATP, causing the muscles to start to stiffen about 8-12 hours later, with stiffening taking longer in colder climates. Then, however, about 18-24 hours after death, rigor begins to dissipate, and the decedent's limbs can thereafter easily be moved after it has completely dissipated, or "broken."

If a decedent has "some rigor" that is "easily broken," this means that the decedent is in that period of partial dissipation before rigor has completely broken. As noted, this period of partial dissipation typically occurs between 18-24 hours after death, and it can extend to 36 hours in colder climates, as was shown by the testimony of Dr. Wecht that I cited above. Sometimes, in even colder climates, there can still be some rigor present up to 72 or even 96 hours after death. From the Report of Darinka Mileusnic-Polchan, M.D., Ph.D., in Sutton v. Bell, 2007 WL 7142625 (E.D.Tenn. 2007):

Dr. Harlan testified for the prosecution. Dr. Harlan stated that based on the fact that rigor and livor mortis were present at 17:50 on February 24th, 1992, death had to have occurred within the previous 72 hours. Dr. Harlan also determined that examination of the tissues under microscope revealed that death would have occurred between 72 to 96 hours (3 to 4 days) prior to the time of sample collection.

Given that Hae had "some rigor" as late as 2:00 P.M. on February 9, 1999, this would allow for a time of death back to February 5, 1999 at 2:00 P.M. Would it allow for an earlier time of death? According to my experts, this is a theoretical possibility.

There is a process known as cold stiffening:

When a body is exposed to freezing temperatures, the tissues become frozen and stiff, due to freezing of the body fluids and solidification of subcutaneous fat simulating rigor. If the body is placed in warm atmosphere, the stiffness disappears and after a time, the normal rigor mortis occurs.

Could Hae have had cold stiffening, delaying the onset of rigor? No. In January 1999, Baltimore had an average high temperature of 57 degrees, with the temperature reaching 68 degrees on January 28th. Because cold stiffening passes when a body is left in room temperature for even one hour, it's almost certain that rigor had already come and gone by the time Hae's body was discovered.

That said, February 9, 1999 was a relatively cold day, with a low of 26 degrees and an average temperature of 40 degrees. Therefore, my experts have speculated that Hae's body could have had frozen body fluids and solidification of subcutaneous fat, which Dr. Korell mistook for "some rigor."

Why is Dr. Korell likely wrong about rigor? I finally got the autopsy photos for Hae Min Lee and passed them along to a pathology resident. They are consistent with the finding in Hae's autopsy report that she had "[g]eneralized skin slippage." Specifically, the resident noted that there were two distinct patterns of skin slippage: (1) anterior (frontal) skin slippage that was centralized; and (2) posterior (back) skin slippage that was more pronounced, with the skin slipping from left to right.

I will start by defining skin slippage, which was described a bit by Dr. Korell in her testimony above. Here are some relevant expert statements on the subject:

From the Deposition of Dr. Josette Montas in The Estate of Clara Scheuer v. The City of New York, 2000 WL 35568142 (N.Y.Sup. 2000):

Q. Can you describe what skin slippage is?

A. Skin slippage is part of the decomposition process. What happens is, the skin loosens up, the upper layer of the skin, and at a point will just shed and the area where the skin is will just burst because there is fluid under it. It will leave the underlying skin exposed of those areas.

From the testimony of Cynthia D. Gardner, M.D. in Anderson v. Caldwell County Sheriff's Office, 2011 WL 2283849 (W.D.N.C. 2011):

Q. What is skin slippage? A. Skin slippage is -- it's a chemical reaction, a breakdown of the skin, the bonds that hold your skin in place. And it just -- the skin just sort of sloughs off.

From the Deposition of Donald Richard Jason, M.D., J.D. in Anderson v. Caldwell County Sheriff's Office, 2011 WL 438351 (W.D.N.C. 2011):

Q. Okay. Going to skin slippage, you have one line or one sentence on skin slippage. You say, “It's not inconsistent with nine to ten days' postmortem interval, depending on the temperature of the body.” Would you explain that? A. Well, skin slippage is the chemical breakdown of the connection of the epidermis, which is the outer portion of the skin to the underlying tissue. And then, again, that is a temperature-dependent thing, like any other kind of decomposition. And under those temperature conditions, it's not inconsistent. The fact that skin slippage was not seen is not inconsistent with nine or ten days. That's what I'm saying.

Finally, let's take a look at Wiggins v. State, 597 A.2d 1359 (Md. 1991), the case in which Dr. Korell made a mistake regarding livor mortis, and the case in which Court of Appeals of Maryland issued its final opinion the same day that Dr. Korell performed the autopsy on Hae Min Lee. From the partial testimony of D. Ann M. Dixon (Dr. Korell's boss) in that case:

Q. Okay. What's that? A. The skin slippage is a phenomenon which occurs when a body starts to decompose and the outer layers of the skin, outer epidermal layers separate from the underlying skin. Fluid accumulates underneath the skin surface and the skin breaks and slides off from the underneath layers of the deeper skin. Q. Okay. Was that present in this case? A. No. Q. Now, based on these principles which you've described and your review of the autopsy which was performed in this case, can you state within a reasonable degree of medical certainty a range of time prior to the autopsy having been performed in which Mrs. Lacs was killed? A. A broad range, yes. Q. Okay. A. I would say that the death occurred at least 24 hours prior to, actually prior to the examination by the Deputy Medical Examiner at the scene, and it could easily have been 36 or 48 hours or even more, based on the body changes.

And this is from the testimony of Dr. Silvia O. Comparini from that same case:

Q. All right. Can you give us a timeframe for this, please? A. These manifestation I described, bloating and marbling, and also I didn't tell you, but if you would scratch my skin the first 24 to 36 hours, you won't be able to make it slip and peel it off. But around 36 hours, a little bit, after 24 hours going into 36 hours, if I take the body, when I'm trying to move the body from the areas of handling which are like the wrist areas and the legs to lift the body out, that skin just sloughs off. We call that skin slippage. This skin slippage, bloating, marbling appear within, in a temperate climate, around 24 to hours they begin to appear.

So, skin slippage tends to start 24-48 hours after death, sometimes longer. My resident noted that Hae's centralized anterior (frontal) skin slippage was consistent with her centralized anterior (frontal) lividity, which corroborates the claim that Hae was face down for some period of time after her death. Specifically, it now seems clear that Hae was initially face down for at least 24 hours and quite probably closer to 36-48 hours after her death.

Thereafter, she was likely placed in the "right side" position in which she was found in Leakin Park. According to my resident, Hae was likely placed in Leakin Park weeks before she was discovered because the posterior (back) skin slippage is significant and much greater than the anterior (front) skin slippage. This also led my resident to conclude that Hae's position in Leakin Park was more of a back/right position than a right side position.

This is because "slippage is usually found where there is greater pressure." According to my resident, you wouldn't expect as much anterior (back) slippage if Hae's body were buried directly on her right side, i.e., at a 90 degree angle, perpendicular to the ground, with the right side lowest. Instead, Hae might have been at, say, a 120 or 130 degree angle, with her head to the right and something pushing her left shoulder up and out. Such a position would explain the left to right slippage on Hae's back as well as the lack of left to right slippage on her front. It would also explain the fact that Hae's top left shoulder area was relatively intact, without (much) skin slippage. Conversely, if Hae were at more of a 90 degree angle, you would expect left to right skin slippage on both her front of back and a fairly consistent amount of skin slippage on her front and back.

Now, my resident did caution that Hae's autopsy photos were black and white and fairly low resolution. Therefore, it is tough to say anything definitive. But the slippage evidence certainly seems to indicate that Hae was initially in a face down position for at least 24-48 hours before being placed in a back/right position for weeks before discovery.

[Update: I got further clarification from the resident on the time when Hae would have been placed on her right side in Leakin Park:

I think the only comment is the 24-48 hour on her stomach may not be reflective of what we were discussing. Hae had to have been on her stomach for a good amount of hours to have the livor mortis be on her face, chest area, arms and be symmetrical. Due to that fixed lividity, that is the area that would break down first with the skin slippage, not necessarily having to still be on her stomach longer. Like Hae being on her back more, the pressure created the larger amount of breakdown and slippage.]

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/04/at-both-of-the-trials-of-adnan-syed-for-murdering-hae-min-lee-assistant-medical-examiner-margarita-korell-gave-testimony-ind.html