One of forensic medicine’s biggest failings is its inability to meet the needs of defense attorneys and their clients.
Forensic pathologists are in short supply. We’d need almost double the current number to do the autopsies that should ideally be performed by a pathologist with forensic credentials.
The epidemic in drug overdose deaths and suicides has made matters worse. Medical examiner offices are overwhelmed. Cases must be triaged, and many autopsies that would have been done in the past no longer make the cut. Certifications are made based on circumstances, history and an external examination of the body. Toxicology tests are done on blood or urine obtained by a needle stick – a far less reliable technique.
Most forensic pathologists have more than enough to do. Their employers, many of them governmental agencies, don’t offer paid leave and may not grant unpaid time off for consultations or testimony.
Prosecutors with a proprietary view of “their” pathologists disapprove of defense consulting. So do members of law enforcement. Defense work by a medical examiner is too often and too widely viewed as a betrayal of “the team.”
Other medical examiners can be touchy when their work is second-guessed by a colleague. Some refer to defense experts as “defense whores.”
The top tier of private defenders employed by wealthy clients – people like O.J. Simpson’s “dream team” – can pay enough to make defense consults worth the bother. Most lawyers and public defenders can’t.
The problem isn’t limited to defense work. Plenty of families want autopsies when the local coroner or medical examiner has declined to investigate a loved one’s death. Some believe they have grounds for a wrongful death lawsuit against a doctor or health care facility.
Others are convinced a murder has been missed because of incompetence or concealed by a cover-up. They disagree with the original coroner or medical examiner’s findings and want a second autopsy by an outside expert of their choosing.
In desperation, some lawyers and some families turn to the unscrupulous and untrained who offer autopsy services. Many aren’t doctors, though they claim their work is “supervised” by a physician.
Medical examiners rail against such people and try to have them censured, fined or jailed for practicing medicine without a license.
But people denied access to the competent will seek help from the incompetent when a seemingly comparable service is offered.
A few members of the forensic pathology community spend much of their time doing private autopsies for defense lawyers or for families. Some of these folks stand up at professional conferences and beg other medical examiners to give some time to the defense. But audiences full of pathologists these experts have testified against in the past or might testify against in the future aren’t overly sympathetic.
Some medical examiners will accept the occasional defense or family consultation when a case piques their interest. Some work for a reduced fee; a few will do a particularly heart-rending case pro bono.
During my career, I did only a small handful of private consultations. I had plenty of work, made plenty of money and didn’t want to take the time. I knew if I disagreed with the original pathologist in a criminal case, I’d offend a colleague and undergo an unpleasant grilling on the stand. I knew most family allegations of murder and cover-up, however heart-felt, are baseless.
I sympathized with people needing help that I was qualified to give, but I didn’t care enough, and I’m not proud of it.
Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003-12. She now lives in Florida and Maryland. Reach her at firstname.lastname@example.org.