Death Investigation in America: Coroners, Medical Examiners, and the Pursuit of Medical Certainty

Death Investigation in America

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DEATH INVESTIGATION IN AMERICA Coroners, Medical Examiners, and the Pursuit of Medical Certainty

JEFFREY M. JENTZEN

HARVARD UNIVERSITY PRESS Cambridge, Massachusetts London, England 2009

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Copyright © 2009 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Jentzen, Jeffrey M., 1953– Death investigation in America : coroners, medical examiners, and the pursuit of medical certainty / Jeffrey M. Jentzen. p. cm. Includes bibliographical references and index. ISBN 978-0-674-03453-2 (alk. paper) 1. Medical examiners (Law)—United States—History. 2. Coroners—United States— History. 3. Death—Causes—United States—History. I. Title. [DNLM: 1. Forensic Medicine—history—United States. 2. Cause of Death—United States. 3. Coroners and Medical Examiners—history—United States. 4. Forensic Medicine—legislation & jurisprudence—United States. 5. History, 20th Century— United States. W 611 AA1 J54d 2009] RA1063.J46 2009 614'.1—dc22 2009004969

For Dorianne, Nicole and Kaitlin

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Contents

Introduction

1

1

Good and Lawful Men

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2

Rockefeller Philanthropy and the Harvard Dream

31

3

A Model Law

53

4

Creating an Identity

71

5

In Search of Authority

96

6

Autonomy Challenged

115

7

Beyond Vital Statistics

134

8

The Road to Demedicalization

154

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The Popularization of Forensic Pathology

174

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In Search of Reasonable Medical Certainty

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Epilogue

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Notes

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Select Bibliography

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Acknowledgments

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Index

281

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Introduction

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n any single day, the newspapers, books, and television newscasts of every American city and town describe the gruesome details of thousands of homicides, suicides, and accidental deaths. Although these represent a small percentage of the total number of deaths in the United States, they captivate the public’s attention and imagination. Yet the realities of these deaths are invisible to the public they entertain. Beyond the friends and family of the dead, that reality is known only to those who investigate these cases. It is the role of coroners and medical examiners to determine the cause and manner of these deaths, to preserve the dignity of those who die, and to bring meaning to their deaths. Death investigations do not compose any single occupation but represent an assortment of personnel, embracing up to seventy-two different job categories.1 They include physicians, nurses, lawyers, law enforcement personnel, and funeral directors. Some, such as forensic pathologists, are professionally trained; others, including most coroners, are not. The term coroner, orginally brought to the American colonies from England, refers to an elected county officer who is responsible for the administrative duties of death investigation. According to the U.S. Constitution, individual states legislate policing laws and determine the minimum requirements for the office of coroner—typically only that the occupant be of voting age and of good moral character. Medical examiners for the most part are physicians. In large urban areas, they are with few exceptions forensic

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pathologists: physicians with advanced training in forensic pathology and death investigation techniques. (I will use the terms forensic pathologist and medical examiner interchangeably.) Death investigation systems across the United States are determined by a patchwork of state and local jurisdictions. Some counties and states have retained the traditional position of elected coroner; others have transferred the office’s duties to appointed physician medical examiners. When they first appeared in America in the late nineteenth century, attempting to model themselves after European medicolegal officials, medical examiners were physicians appointed to provide scientific expertise to the death investigation process. In a large city, the medical examiner might be a physician, a pathologist trained to recognize disease and injury, or a more specialized forensic pathologist with advanced training in legal medicine. Today, at the beginning of the twenty-first century, the lines delineating expertise, training, and title in medicolegal death investigation have become blurred, in a system that is controlled not by physicians but by politicians, lawyers, public health officials, and law enforcement personnel. In the nineteenth century, according to historian James Mohr, civicminded physicians aggressively pursued inclusion in the medical legal process. Early medical schools included the study of medical jurisprudence in their curricula, and medical leaders encouraged their colleagues to assist lawyers in adjudicating legal cases. In time, however, physicians retreated from the legal arena after enduring embarrassing quarrels in the courtroom with unscrupulous attorneys and denial of reimbursement for their professional time and expertise. Physicians were relegated into subservient positions assisting coroners with autopsies. By the later half of the century, physicians could only claim authority over one area of legal medicine—the autopsy room. Eventually, though, civic leaders angry about rising crime rates, politically corrupt inquests, and bungled investigations pressed cities to begin to replace coroners with physician medical examiners.2 In the same way that Paul Starr has characterized the advance of medicine in general, social historians of medicine have largely portrayed the transition from traditional lay-dominated coroner systems to physiciancontrolled medical examiner systems as a progressive and unidirectional process, assured by the physicians’ scientific authority and medical expertise. The few historians who have written about death investigation have assumed that the use of medical examiners, once conceived, spread unopposed, following the great American western migration. By 1900, however, only Maryland, Massachusetts, and Rhode Island had any statutes requiring physician medical examiners.3 In 1928, physicians working with the support of the Rockefeller Foun-

Introduction

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dation focused national attention on the shameful state of death investigation. By 1950, New York City, Newark, Milwaukee, and the states of Massachusetts, Virginia, and Maryland had progressed to using medical examiners instead of coroners. In each case, the reform required the cooperation of local legal, medical, and political powers, as well as citizen groups incited to action by the corruption or incompetence of the coroner. By 2000, 60 percent of the population of the United States was served by physician medical examiners—a victory of sorts. But the march of scientific authority suggested by Starr had stalled. Many observers have assumed that the American Medical Association (AMA) and organized medicine in general have fully supported the development of a modern medical examiner system guided by expert forensic pathologists. And it is understood that physicians are becoming more qualified than nonphysicians to investigate sudden, unexpected deaths. But this is not the case. The very nature of death investigation, located at the intersection of law, medicine, politics, crime, and public health, challenges these and other generalizations about medicalization, professional boundary work, and expert authority.4 In the past decade, medical historians and sociologists have begun to examine in greater depth, the complex process that is American death investigation. Catherine Crawford has described the role of physicians in colonial death investigations in seventeenth-century Maryland.5 In Doctors and the Law, James Mohr has used court records and physician narratives to trace the evolution of American legal medicine from the period of the early republic to the close of the nineteenth century. Julie Johnson has painted a vivid picture of the twentieth-century conflict that arose in changing from a coroner system to a physician-controlled medical examiner system in Philadelphia.6 More recently, the sociologist Stefan Timmermans has examined the changing professional and cultural authority of forensic pathologists and the social influences that affect the certifying and defining of death.7 Unfortunately, his work does not offer a focused picture of the economic realities, policies, traditions, and personalities that have shaped American death investigation in the United States. This book expands on the previous work of historians by focusing on physicians’ attempts to replace lay coroners and create a physician medical examiner system in the United States during the twentieth century. Three overarching themes dominate: the role of conflicting political concepts of democracy in shaping reform; the fear of crime as a motivation for citizen action; and the reluctance to ascribe medical authority to forensic pathologists—on the part of politicians, jurists, and most surprising, many physicians. Minor themes woven into the narrative throughout include the

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AMA’s ambiguous role in supporting medical expansion, public health officials’ co-opting of the death investigative role to enhance their own authority, lawyers’ debate over physicians’ medical specialization, conflicts between government officials and medical professionals over control of death investigation, and legal conflict over admission of expert testimony and evidence in the courtroom. Chapter 1 describes the coroner system from the early colonists’ importation of it to America from England to the emergence of early medical examiner systems. The coroner initially had legal and administrative responsibility for the convening of inquests and burying of bodies. During the colonial period, governors appointed ordinary citizens to serve as coroners. Following the American Revolution, the Philadelphian Benjamin Rush, among other leading physicians, promoted the development of a national system of death investigation. They sought to create a system based on the French model of a state-supported medical police force controlled by physicians who could perform autopsies and investigate deaths, in addition to having legal and administrative powers. Although this early effort failed, nineteenth-century physicians succeeded in incorporating courses in medical jurisprudence into almost every medical school curriculum. In 1847, recognizing the importance of legal medicine, the newly formed AMA attempted to create physician-led medical examiner systems. By that time, physicians had become increasingly frustrated at not being paid for their courtroom testimony and being poorly treated at the hands of politicians and lawyers. Westward expansion allowed coroners to thrive as they enlarged their role in law enforcement and took on the additional responsibility of determining guilt or innocence through inquests. In the late nineteenth century, the increasing specialization of medicine and physicians’ abandonment of their earlier ambitions to control the field of legal medicine allowed coroners to firmly entrench themselves. And by the turn of the century, many of them had become pawns of political patronage and influence. The beginnings of the medical examiner movement at the end of the nineteenth century presaged advances in modern medicine and refinements in the law. Physicians once again attempted to gain control of death investigation and throw out the ostensibly corrupt coroners. Efforts were made to reform the coroner system in four major cities: Boston, New York, Chicago, and Cleveland. Each of these cases illustrates the difficulties of removing a constitutional officer in a democratic society. In Massachusetts, frustrated attorneys led the way, calling into question the coroners’ competence to certify deaths correctly. In 1877 Massachusetts created the first medical examiner system in the country. Elsewhere, the coroner system proved more resistant to reform. Almost forty years would pass before physicians and municipal reformers replicated the success in Boston by removing the coroner in New York City.

Introduction

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Chapter 2 describes the efforts of the Rockefeller Foundation to improve death investigation, the work that led to the creation of the Department of Legal Medicine at Harvard University. The foundation aimed to duplicate the earlier success of Abraham Flexner in reforming American medical education. In response to increasing crime in the nation, reformminded physicians and philanthropists at the foundation sought to improve legal medicine as it applied to both crime detection, medical research, and education. E. Richard Brown has portrayed the foundation as pursuing medical advancement solely for capitalistic gains; in fact, the foundation’s desire to implement its plan for full-time medical educators and its fear of crime motivated its support of medical jurisprudence at Harvard. Chapter 3 focuses on the work of industrialist and municipal reformer Richard C. Childs and the National Municipal League in developing the “Model Law” of death investigation in 1954 and his subsequent campaign to establish a national system of physician medical examiners. His efforts were sometimes successful, sometimes not. Physician coroners and coroner’s pathologists, who supported the lucrative status quo, rallied in opposition and organized local state organizations to protect their privileged positions. Although the legal profession came to recognize the benefits of trained physicians in death investigation, most legislative bodies did not. Chapter 4 examines the development of the medical subspecialty of forensic pathology, after World War II. My account supports Rosemary Stevens’s observation that the AMA generally failed to control the proliferation of medical specialties.8 I tell how pathologists began to create the specialty of forensic pathology to satisfy their own economic motives, and how the federal government first attempted to enter the field of death investigation. Before the establishment of formal training programs and board certification, the federal government, seeking to improve the education of forensic pathologists, established the first forensic fellowships through the Armed Forces Institute of Pathology. Despite this effort, because of police powers’ local control, federal reform of the death investigation system never fully succeeded. Chapter 5 traces forensic pathologists’ rise in authority and their continuing conflicts with other professionals and politicians. This chapter is framed by discussions of the assassinations of President John Kennedy and Senator Robert Kennedy. I also look at the Chappaquiddick incident involving Edward Kennedy, in order to illustrate the best and the worst practices in forensic medicine in late twentieth century. The conflict between law enforcement officials and forensic pathologists is clearly apparent in the Black Panther shootings in Chicago in 1970, the Attica penitentiary uprising in 1971, and numerous police-related deaths. These examples also highlight the role of the forensic pathologist as a governmental watchdog.

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Chapter 6 examines the conflicting ethical issues medical examiners (and coroners) are encountering in the new world of transplantation, euthanasia, religious protectionism, and burgeoning malpractice claims. Armed only with an old medical technology—the autopsy—chronically underfunded medical examiners and coroners have found themselves involved in a rapidly advancing scientific enterprise, which has sometimes outrun the legal system charged with controlling it. By the end of the twentieth century, forensic pathologists had responded to these new medical realities and expanded their role from simply performing autopsies to participating in a wide range of social activities. This development has both enhanced and threatened their professional authority. As they are part physician and part policeman, organized medicine has done nothing to protect them from politicians’ frequent criticism of them for alleged failures in their professional duties that have cost taxpayers money. Chapter 7 recounts the evolution of the relationship between the fields of death investigation and of public health throughout the twentieth century. Initially, to enhance their occupational and political standing, coroners energetically investigated deaths that had public health implications. With the eradication or control of the majority of epidemic infectious diseases by the early twentieth century, public health officials began to encroach on other fields and soon found in death investigation many public health issues amenable to their expertise. As a result, they eventually coopted much of the epidemiological and public health role of death investigators and in some jurisdictions assumed ultimate control over medical examiners themselves. Chapter 8 chronicles the demedicalization of death investigation that accompanied the overall decline of medical authority during the late twentieth century. In other medical specialties, physicians controlled the patient interaction and delegated the technical chores; in contrast, forensic pathologists depended on dwindling public funding to manage increasing caseloads. Some states placed laypersons who were more skilled in management in charge of death investigation systems and over physicians. In other states, statutory restrictions to protect religious freedom or personal privacy, such as Florida’s Dale Earnhardt law, curtailed medical examiners’ authority to decide their own actions. DNA analysis replaced the autopsy and other traditional forensic evidence as the gold standard of forensic science, reducing the forensic pathologist’s role in the determination of guilt or innocence in the courtroom. Medicalization requires broad-based support from a public concerned about health and safety; forensic pathologists failed to convince the electorate that they could protect the public’s health better than nonphysicians.

Introduction

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Chapter 9 traces the popularization of forensic science in literary works, ranging from the early novels of Edgar Allen Poe to recent works by Patricia Cornwell and on to real-life accounts by forensic pathologists themselves. Although pulp fiction writers of the mid–twentieth century frequently characterized forensic pathologists as “drunken medical refuse,” modern mystery writers have represented them as dedicated public servants and moral reformers with keen intellects. At least in fiction, physician death investigators successfully evolved from handmaidens of police detectives to scientifically trained experts, and finally to medical heroes. Although forensic pathology as a specialty has garnered immense exposure from its popularization in books, magazines, and television crime shows, in the end it has gained little tangible support. The final chapter discusses the negotiated boundaries between the forensic scientist’s search for truth and the lawyer’s quest for justice. According to author Sheila Jasanoff, in the highly contested, adversarial American system of law, science and law coconstruct one another. At the center of the intersection between law and science are twin contested points of modern American jurisprudence; the burden of proof and the admissibility of expert testimony. At issue in any expert’s testimony is the expert’s standard of proof based on his or her level of certainty determined by training, education, and experience. The variability in increasing standards of proof is, I believe, one of the most important determinants of the contested boundaries between science and the law in the courtroom. The field of forensic pathology operates in the realm of experience where absolute certainty is not possible; where levels of certainty fluctuate with the quantity and quality of available evidence. Courtroom challenges of the admissibility of DNA evidence eventually led to the passage of a triad of federal statutes—the Daubert Trilogy—that intended to impede the introduction of “junk science” into the courtroom. In the end, some critics argued, these rules only empowered judges to prevent meaningful evidence of guilt or innocence from ever reaching the jury. In the spirit of full disclosure, I must state that I am a board-certified, forensic pathologist with over twenty years of experience directing a large metropolitan medical examiner office. Despite my obvious biases, I have striven to write as impartial a history of the evolution of the American death investigation system as possible. Close readers will note that I have been involved personally in some of the cases I describe. Throughout my career, I have performed over six thousand autopsies, certified fifty thousand deaths, and, as a big-city medical examiner, investigated thousands of deaths involving homicide, child abuse, police action, and epidemic infection, not to mention common sudden heart attacks. I have been involved

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in high-profile case investigations such as those of Jeffrey Dahmer and the 1995 Midwest heat wave epidemic. I have also assisted in the development of numerous educational and research projects for medical examiners and coroners to advance the science of death investigation. I hope this personal knowledge has added to the depth and veracity of my account.

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Good and Lawful Men

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he aforesaid William Bateman was sett on shore upon a the necke of land neere Pullen Poynte, in the bay of Massachusetts, by a shallop of one Mr. Wright,” began the first inquest in the Colony of Massachusetts Bay, in 1630, in front of John Winthrop, governor of the colony. Also in attendance were Isaack Johnson, justice of the peace, and twelve men impaneled for the inquest jury from the surrounding community. “They, returning home, left him with provisions and a fire; but when they returned, they found the said William Bateman dead, about the high water mark. . . . Soo the jury presents that he dyed by Gods visitacon.”1 The American system of death investigation derived from English common law. English coroners were drawn from the class of educated men who sought higher appointments within a government dominated by inherited titles. In America, the work of the coroner depended on common men who recognized the duty of public service as a republican ideal required of any citizen in a democracy. Although the ordinary colonial coroners possessed little or no knowledge of medical practice and theory, they nonetheless functioned well in a political environment that required mostly common sense and a commitment to public service. Historians credit King Henry II with having created the English office of coroner in 1194, in an attempt to consolidate governmental functions, check the growing power of the sheriff, and raise revenue for the Crown.2 The name “coroner” derived from these officials’ duties as “keepers of the pleas

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of the Crown.” The name was later shortened to “crowner,” and finally to coroner. The coroner’s duties were both magisterial and judicial. The former consisted of hearing pleas to the Crown, making inquiries of shipwrecks, assisting the sheriff on request, overseeing the royal fishes, such as sturgeon and whales, and performing other obscure tasks.3 The judicial duties related to impaneling inquest juries to preside over the bodies of the dead in order to determine the cause, manner, and instrument of death. Vestiges of these duties remained in the American coroner statutes for centuries—including such oddities as that only the coroner could arrest the sheriff.4

Coroners in America Daniel Boorstin has characterized the American colonies as “insistent on allegiance to English institutions,” which accurately describes the position of coroner in America during the first three hundred years of European settlement.5 The English king vested his power to investigate deaths in the colonies with local governmental officials: the justice of the peace, the sheriff, and the coroner. In England and the colonies as well, the head of the local judicial system resided in the quasi-judicial position of justice of the peace. At times, the justice of the peace and sheriff worked interchangeably with the coroner to perform the duties required by the king as defined by English law. The charters of the colonies allowed the governor’s council to appoint coroners directly. The prestige of English coroners had diminished over the centuries with the decline of the importance of the inquest, the erosion of the coroner’s duties, and encroachment by the newly created justices of the peace. Not so the American coroner, who grew in power with time as a result of a general lack of governmental officials and an evolving democratic political structure.6 The American colonies were settled by a combination of religious pilgrims set on harvesting souls and entrepreneurs in search of riches. The English king instructed these colonists to establish governmental systems similar to those in England. In 1624, the first Assembly of Virginia instructed the governor to appointment coroners with the following oath: You swear that well and truly you shall serve our sovereign lord the King in the office of a coroner, and as one of His Majesty’s coroners of the county of S., therein you shall diligently observe and accomplish all and everything and therein appertin to your office after the best of your cunning, will and power, the profit and good to the inhabitants with the said county, taking such fee as you ought to take by law, and not other. So help you God.7

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James Baldridge, appointed the first coroner of Maryland in 1637 by Lord Calvert, pledged by his oath to “Doe all and everything done by any coroner of any county in England.”8 The basis of the coroner system in colonial America during the seventeenth and eighteenth centuries thus remained identical to that in England. Elaborate oaths often preceded the findings at inquests, which further served to bind the colonists to the service of a faroff king.9 American coroners adopted verbatim the statutory language for oaths and inquest verdicts from English law.10 The colonies’ large territories required that the coroner’s duties and functions be shared with the justice of the peace, or in the absence of a coroner, completely assumed by the justice of the peace, sheriff, or constable. Rhode Island’s charter of 1663 ascribed the duties of coroner to the governor’s assistant located closest to the death. A later charter, in 1747, assigned the oldest justice of the peace in the county to be “constituted coroner in and throughout the County in which he dwells.”11 Over time, the laws of the colonies evolved to resemble a commingling of English common law, the Bible, and local tradition, with the percentage of each element depending on the individual colony. Plymouth and Massachusetts Bay colonies, for example, followed strict Puritan laws based on a literal interpretation of the Bible. In contrast, Virginia and Maryland, Anglican and Catholic, respectively, operated exclusively under English common law. Because of the singular origin of the coroner’s office, the general procedures, directives, and statutory duties of that office remained surprisingly consistent from one colony to another, whereas the methods of appointment, number of coroners per county, and terms of service varied according to each colony’s individual charter.12 The enduring and most visible duty of the coroner was the coroner’s inquest. First, the coroner initiated a warrant to the county constable or sheriff to convene the inquest, after receiving notification that a person was “supposed to have come to his death by violence or suffered an untimely death.” The coroner could not initiate his own investigation—an early instance of balance of power. Rather, the coroner directed the sheriff to summon ordinary citizens from the county where the body was found—“good and lawful men”—to be impaneled on the inquest jury. English law restricted citizenship and inquest jury membership to free, white, adult males who owned property. The coroner convened the inquest jury at the actual site of the death, where the jury viewed the body in its original location and examined the evidence at hand. The minimum number of jury members varied from colony to colony; it was six in Massachusetts, fourteen in South Carolina.13 The first documented coroner election in America was that of William

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Collier in Plymouth Colony in 1636.14 Two years later, Massachusetts Bay elected its first coroner. Elections were based not on political affiliation but on a man’s integrity and, more important, availability to serve in a location near his residence. Governors sometimes appointed several coroners to serve simultaneously in the same county. William Penn provided for the appointment of coroners in Pennsylvania in the Charter of Liberties (1683). “Choose a double number of persons to present to the Governor for sheriffs and coroner,” he wrote, “to serve for as long as they behave themselves in the Office or place to respectively granted and no longer.”15 After 1688, the term of service of Pennsylvania’s coroners changed to one year. In Massachusetts, a coroner was appointed for each square mile. To cover the colony, the “Justice of the Courts of General Session of the Peace” appointed an unlimited number of coroners for indefinite terms.16 Coroners faced severe punishment for failing to perform their duties. “Coroners concealing felonies . . . shall be imprisoned a year, and fined at the king’s pleasure.” Laws regulating coroners forbade them to delegate their duties to another. “If any coroner be remiss, and make not inquisitions upon the view of the body dead . . . he shall forfeit to the king an hundred shillings.”17 In some instances, owing to the great distances between towns and the paucity of government officials, citizens took matters into their own hands and appointed coroners to proceed with an inquest—as best they could. A group of Pennsylvania citizens, presented with a dead body and unable to secure a coroner, moved quickly in proceeding with the inquest. This is to inform the Publick that Upon the fourteenth Day of February in the year of Our Lord 1778 the Bodys of Thomas Fullerton and Thomas Farfith was [sic] found Dead in the Township of Farmanack in Cumberland County as it was inpossible to Git a Magistrat We thought it proper to a Point James Mitcheltree as a Coroner and he to a Point a Jury of twelve men to Vu the bodeys of Fullerton and Farfith . . . and it is our judement according to the Beast of Our knowled it is was—the Coald and feateaige that was the Cause of their Death.18

When fatal injuries and cause of death were obvious, citizens generally accepted the opinions of the lay coroner and inquest jury without question.19 Jurors determined the cause of death through their direct observation of the body. In the colonial period, the coroner functioned somewhat like a religious elder, moderating or chairing the inquest jury but not directing its verdict.20 The coroner’s jury also attested to the live births of infants and the potential mortality of wounds. Jurors often relied on popular beliefs as well as medical tests to convince themselves of the guilt or innocence of the accused. Early juries believed in cruentation, the belief that the

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corpse would bleed in the presence of the murderer; this test continued to be accepted well into the seventeenth century. Far from England, coroners in the colonies actively investigated deaths and vigorously demonstrated a desire to uncover suspicious acts of violence. In South Carolina’s low, marshy country where snakebites were common, authorities looked with suspicion on deaths that citizens seemed too quickly to attribute to poisonous bites. As a remedy, the coroner’s code made an investigation mandatory for any death attributed to snakebite: If any person in this Province shall be bit with a Rattlesnake and shall die suddenly and immediately of such bite, such death shall be deemed a violent and untimely death, and the Coroner shall have a view of such body, and make enquiry thereon as of any other body that came to any other violent or causal death.21

As in England, coroners in the New World struggled to investigate a deluge of infant deaths. The practice of floating the lungs of dead infants to determine whether they had been born alive, the first medicolegal laboratory test, was still in use, albeit controversial.22 In 1743, the first New York coroner, John Bunyan, investigated a number of such cases, one at the house of John Crieger. The jurors concluded “that the said infant never had life but was brought forthwith into the world by an untimely birth either natural or unnaturally and thrown in the river by person or persons unknown.”23 As with most other coroner records of the period, no mention was made of an autopsy; the jury relied on their own observations and those of friends, family, and midwives, not medical men, to determine guilt or innocence.

Doctors and the Law American medicine during the seventeenth and eighteenth centuries mirrored medical practice in Europe. Colonial practitioners possessed varying amounts of medical education. Some had attended medical school in Europe; a larger number had learned medicine as an apprentice; and others simply declared themselves to be doctors without any training at all. The first American medical school, established in Philadelphia, did not open until 1765. The ratio of physicians to citizens in America rose from an estimated 1 per 1,000 inhabitants in 1700 to 1 per 450 by 1780.24 Coroners rarely requested physicians to act as medical experts or members of the inquest jury or to perform autopsies. Physicians performed autopsies only when some doubt about the cause of death existed or when internal injuries needed to be revealed to the coroner and jury. In such

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cases physicians performed limited examinations, typically at the place of death.25 The first reported autopsy in America was performed in 1638 to investigate the death of a pregnant woman, who was found to have died of a ruptured uterus.26 Examinations and reports of dissections were typically cursory and succinct, focusing only on the site of the injury or disease. No attempt was made to provide a systemic dissection, and normal anatomy or pertinent negative findings were not mentioned. The role of the surgeon was limited to determining whether the injuries were “mortal” in nature.27 Physicians performed systemic dissections—the study of anatomy—on the bodies of the executed criminals who were “condemned to be anatomically dissected.” In Massachusetts, a 1647 statute modeled on English common law permitted the court to provide the body of a convicted criminal every four years to be dissected, “to reade anatomy, & to anatomize . . . some malefactor” for medical education. Courts considered medical dissection an extra punishment reserved for capital offenses. Bodies of criminals were dissected, publicly displayed and left hanging, a graphic reminder of their crime, until picked clean by crows or simply rotted off the gallows. Later statutes limited dissections to perpetrators of specific crimes such as rape or killing an opponent in a duel.28

The Church and State The coroner represented the complete authority of the king. English law allowed the king to confiscate the property of convicted felons and persons who had died from unnatural deaths. The king stood to benefit financially from determinations of unnatural deaths made by his appointed coroners. Coroners took possession of any articles or personal property they determined to have been instrumental in causing a violent death. If the crown waived its right to the property, the coroner turned them over to the church or charity as a “gift to God,” or deodand, which served as an appeasement of God’s wrath and recompense for shed blood. A horse and wagon that struck a pedestrian or a pistol that discharged a fatal round, for example, would be considered deodand, confiscated, and presented to the church for disposition.29 During the early colonial period, religion greatly influenced the practice and philosophy of coroners’ investigations. The Puritan belief that the providence of God affected every human action strongly influenced both criminal and civil justice. The public understood the coroner and the jury, as civil servants, to be God’s agents. Sudden or untimely deaths were special acts of providence or Satan that reflected both the sovereignty and retribution of

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God. Deaths expressed God’s promises and punishment, as well as the salvation, grace, and hope that were available for all sinners. Coroners attributed sudden, natural deaths primarily to “acts of God” or “God’s Visitation”; accidental deaths were certified simply as “misfortune.” Suicide was a willful act against an angry God and therefore the state.30 “Said Sarah Beard not having the fear of God before her eyes and being seduced and moved by the instigation of the Devil,” a Pennsylvania coroner opined, “with malice aforethought did hang herself with a silk scarf.”31 Sentences for suicides by American juries did not end at death and included postmortem abasement of the body by “burial by the highway with a stake through the grave” and public humiliation to “lay in sad spectacle, gazed on till the late afternoon.”32 The sentences of coroner juries became more lenient over time as suicides came to be rationalized in inquests as “fits of insanity”; victims were “not in their right mind,” or their deaths simply were certified as “misfortune.”33 Death investigations also examined the killing of slaves or indentured servants by their masters. Coroners did not hesitate to call inquests in cases involving slaves or servants. In her examination of coroner records from 1633 to 1683, Catherine Crawford found that twenty of the forty-five trials for homicide involved the killing of indentured servants by their masters.34 The coroner of Cumberland County, Pennsylvania, determined that a slave had died when his master “tye[d] & fasen[ed] a Rope about the neck of the said Cesar and put it over the sweep of an apple tree and there and then did whip and beat and otherwise abuse him.”35

Paul Revere: A Colonial Coroner Paul Revere, a Boston coroner from 1796 through 1801, gives us in his inquest journal a glimpse of the coroner’s role in early American society. Sixty-five-years-old at the time of his appointment, he recorded forty-two death investigations. “The first Inquisition which I took was on the Body of Daniel Keller A Sea faring Man, who poisoned himself by taking a large dose of Laudanum at the house of Mr. Sheridan on the 20th of February 1796,” Revere wrote. He investigated two homicides, thirty-five accidental deaths, and four natural deaths, all within walking distance of his North Boston home. “It appeared to the jury that he with four others went to Bibo Island to bury a man who was found dead and very offensive,” Revere wrote of the death of James Dill in his entry of August 10, 1799. “A flash of lightning killed him instantly. It was the first flash they had seen and did no[t] Rain.”36 Although these short reports reflect a lack of medical

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insight, there is a keen sense of observation by an ordinary witness in describing classical meteorological findings of a lightning death. Elsewhere, Revere struggled with investigations lacking medical evidence and modern chemical techniques. The twenty-third Inquisition was on the Bodys of two male children Sons of Jesse Porter March 7, [1]799 The opinion of the Jury was that the children came to their deaths by some active matter taken in their stomachs (opium) and that it was administered to them by their Parents Jesse and Hannah Porter. He was tryed for murder and aquitted.37

The Beginnings of Medical Jurisprudence With the appearance of American medical schools at the end of the eighteenth century, physicians began to explore their involvement in medical jurisprudence. Benjamin Rush gave the first lectures on this topic for medical students at the University of Pennsylvania in 1811, in which he elucidated the components of the discipline, including matters of rape, child murder, poisoning, abortion, and mental incompetence. He also discussed at length the physician’s responsibility to share his medical knowledge, when requested, on issues of the law. Rush exhorted his students to study medical jurisprudence so that they could assist judges and juries. He considered a physician’s contributions to the community—in the form of service to the courts, during epidemics, and in other areas of public health—to be a republican virtue and the highest form of patriotism.38 Trained in Scottish medical schools, Rush and other American physicians like him transferred their knowledge of medical jurisprudence to America’s fledgling medical schools. Study of medical jurisprudence had become a prominent part of a Scottish medical education. Inspired by European practitioners, Scottish physicians such as Andrew Duncan incorporated elements of the French medical police system into their lectures.39 Medical jurisprudence came to be taught in most American medical schools; the primary emphasis was on anatomical dissection and issues related to paternity, mental incompetence, sexual dysfunction, and other related topics—and not the death scene.40 Cadwallader Colden, a New York physician, urged legislation to provide for universal, systematic postmortem examinations that included examination of all organs and an attempt to correlate the anatomic state with the deceased’s symptoms. Other physicians, including John Godman, W. E. Horner, Daniel Drake, and Samuel Gross, stressed the need for an exact record of morbid anatomical changes in establishing the cause of death in

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medicolegal cases. The first professor of medical jurisprudence in the United States was James S. Stringham (1775–1816), a graduate in medicine from Edinburgh. He presented lectures at Columbia College in New York beginning in 1804 on “the particular manner in which bodies of those suspected to have died by violence are to be examined.”41 Physicians acknowledged their potential role in helping legal authorities understand these medical issues pertaining to the law. The early advocates for medical jurisprudence were prominent physicians who, according to James Mohr, possessed the necessary medical knowledge and zeal but lacked the “political acumen” to create lasting medicolegal reform.42 In 1815, Theodric Romeyn Beck became professor of the institutes of medicine and lecturer on medical jurisprudence at the College of the Western District of the State of New York at Fairfield. In collaboration with his brother, John Brodhead Beck, he published Elements of Medical Jurisprudence (1823), a two-volume set covering all aspects of medical jurisprudence. The work received acclaim both in England and continental Europe and remained the seminal text on American medical jurisprudence for a century. The Becks described the functions of the expert witness, methods of dissection, the theory of putrefaction, and the method of examining a corpse. The Elements laid the foundation for much of the modern ethics of forensic pathology in America.43 Theodric Beck spent a large portion of his professional career attempting to persuade New York politicians to develop a system of state medicolegal officers modeled on the continental medical police system. In 1828, he argued that physicians should be designated medicolegal officers, similar to those in France, to perform both medicolegal and public health duties. Physician medicolegal officers would, in his opinion, provide a consistent level of medical expertise and “lead to the more accurate study of the science [medical jurisprudence] . . . afford numerous and favorable opportunities of improving it . . . [and] in a great degree, prevent the disputation of facts, which produces so many unpleasant collisions in courts of justice.”44 Beck successfully changed the New York statutes to require coroners to summon a physician in most medicolegal cases. This change proved to be unenforceable, however, and because of the antiprofessional tenor of the time, Beck was unable to establish lasting reforms in the coroner’s office.

Coroners in the New Republic In postrevolutionary America, the selection of coroners continued in the same fashion as before the war, with the governor appointing sheriffs, jus-

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tices of the peace, and coroners. The authority of the Northwest Ordinance (1787) and the Constitution (1788) tied local police powers, including that of the coroner, to the states. Constitutions of states entering the Union included statutes for the creation of the coroner positions. The wording of these statutes continued to borrow heavily from English law. Southeastern states employed a similar procedure under the Mississippi Territorial Laws, enacted in 1799, which followed the basic plan of the Northwest Ordinance.45 In the early nineteenth century, under the influence of emerging political parties and a national geographic expansion, classic republicanism gave way to populous reform. The office of the coroner, once a public service where men performed in accordance with republican ideals of citizenship, was now influenced by politics and funded by patronage. As America became more egalitarian and antielitist, the position of coroner became a stepping-stone for the common man seeking to enter the political arena. By 1820, for example, the number of coroners in New York state had swelled to 630. A new constitution in 1821 eliminated the appointment of New York coroners by the governor and instead allowed each county to elect up to four coroners for a three-year term. Yet this change did little to decrease the number of coroners.46 Despite their lack of formal qualifications in law or medicine, coroners had the legal authority to subpoena physicians, forcing them to testify or perform postmortem examinations without reimbursement. The coroner’s subpoena power over physicians can be traced to the ancient English roots of the office. As a result of the proliferation of unlicensed, propriety medical schools, physicians were often poorly trained and lacked a basic knowledge of postmortem techniques. According to Mohr, lay coroners in many cases elected not to involve physicians when the cause of death was obvious and simply examined the bodies themselves. Once they had determined that there were “no marks of violence,” they attributed deaths to “visitation of God in a natural way and not otherwise.”47 Physicians became increasingly frustrated and disgusted with being made to look ridiculous by a legal system they could not change. “It is the duty of the witness on the stand to state the truth,” David Humphreys Storer, a prominent Boston physician, lamented. “It is the business of legal counsel to distort and suppress the truth, except so far as it suits their own purpose.”48 Physicians began avoiding situations that required them to appear in court. More important, they ignored their leaders’ pleas to engage in death investigation as a public service. No physician served as coroner in New York until 1841. The Maryland Code of Public General Laws mandated that the coroner or his jury must require the attendance of a physician

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in cases of violent death. States did not require coroners to be physicians until Maryland mandated this in 1860, and Maryland continued to be the exception.49

Physicians Confront Coroners Physicians increasingly called for a “scientific” approach to death investigation. Their mounting complaints challenged the antiquated coroner’s office and increasingly began to appear in medical journals. In the mid-nineteenth century, in a series of editorials in the Boston Medical and Surgical Journal, physicians in Boston began to wage open war on the lay coroner: Does it not seem strange, that the custom so generally prevails throughout the country, of appointing gentlemen to the office of coroner, who, although otherwise qualified, are not medical men? . . . On the contrary, we see the character and life, wholly dependent upon the examinations, exertions, and decisions of men totally ignorant of everything connected with those questions. This great public evil has, for years, existed in our city, and calls loudly for the profession to awaken the public mind to a proper consideration of the subject.50

The language of the physicians’ protests against the coroner grew more confrontational and became charged with allegations of inadequate training and overt insults of incompetence. In an 1851 lecture to the Massachusetts medical society, Storer summed up the problem of uneducated coroners: Absurd as it may seem, the men who are appointed to settle the expediency of having an inquest or not to examine a dead body,—to select the jury to constitute the inquest,—to designate the professional man, should one be supposed by him necessary to perform the post-mortem, are individuals entirely unacquainted with medical science, and who on this account at least, if for no other, cannot be competent to determine the questions entrusted to them . . . I could not pass it by, without expressing the hope that the day is not far distant when our coroners shall be well-educated physicians.51

To bolster their claim to the coroner’s office, American physicians pointed to the scientific nature of death investigation, the use of medical experts, and the autopsy. They published articles discussing the British medicolegal autopsy procedure as a model for American physicians to follow.52 In 1847, at its initial meeting, the American Medical Association (AMA) sought to improve the dismal state of expert medical testimony. The flood of poorly trained physicians jeopardized the integrity of the entire medical profession in the courtroom. The problems physicians encountered in med-

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ical jurisprudence became a major factor in the development of the AMA and its code of ethics.53 The first constitution of the AMA devoted an entire section to forensic medicine and the responsibilities of the physician in death investigations. The AMA sought to unite concerns of medical jurisprudence with public hygiene. Two years later, a newly formed AMA committee on forensic medicine recommended that all physicians receive instruction in medical jurisprudence to prepare them for their role as medical witnesses. In 1857, the committee reported the inadequacies of the position of coroner and recommended that coroners be “competent and respectable doctors of medicine appointed by courts and subject to removal by impeachment if necessary.”54 The report recommended the complete abolition of the coroner’s office, separation of medical and legal duties in criminal cases, elimination of the coroner’s inquest, and cessation of political appointments of coroners. But despite the work of the special committee, nothing changed with regard to coroners. The AMA met with little success in improving legal medicine, owing in part to the strength of the legal profession, physicians’ poor training, and politicians’ lack of interest in developing state medicine. In 1876, Stanford Chaillé, a New Orleans physician with a lifelong interest in medical jurisprudence, recounted both the progress and failures of the field in America, in a lecture in Philadelphia celebrating the American centennial. He condemned the legal system, which rejected “the medical evidence of competent experts,” and “the absence of provisions to apply medical knowledge to the administration of justice.” The reason, he argued, related to the democratic system of government: “the delays and incontinences in the forms of justice are the price all free nations must pay for their liberty.”55 He denounced the poor state of jurisprudence in the medical curriculum and the lack of preparation of students to assist the state in investigating sudden death. In English and continental death investigation systems pathologists were beginning to be recognized by courts as medical experts, but America remained tied to politically corrupt coroners. Chaillé further criticized a medicolegal system that entrusts medico-legal autopsies, which require special medical and some legal knowledge, to those having neither the one nor the other, except by accident; for these coroners (whose inexperience our law ensures by constant “rotation in office”) owe their position wholly to political popularity, a qualification which a competent expert is most unlikely to possess.56

Chaillé recommended the abolition of the coroner’s office and the development of a state system of medical jurisprudence backed by medical experts,

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trained in the developing science of pathology. The talk represented a call to arms; it echoed through the medical profession for the next hundred years.

Massachusetts: The First Medical Examiner In March 1877, selectmen from Canton, Massachusetts, met with a group of lawyers and physicians who were petitioning the state legislature’s joint committee on revisions of the judicial system for the removal of one of Boston’s many coroners. In 1875, the issue had come to a boiling point when numerous lawyers and physicians had openly opposed the appointment of A. W. K. Newton, a physician of “little talent and questionable reputation,” to the office of coroner. The petitioners argued that Newton had obtained his position by providing false information about his medical training, misrepresenting the number of coroners in his area, acting with “malice and ignorance” in at least five inquests, and stealing or embezzling money during his death investigations. After attending a death and presenting the family with a large bill for services, he would obtain copies of the deceased’s life insurance policies, have himself assigned as beneficiary, and order an inquest to prove an alternate cause of death. Insurance companies, fearful of excessive losses, usually settled with him for lesser amounts.57 The testimony indicated that Newton was not a properly licensed physician and had lied about much of his previous work experience. The allegations against Newton snowballed into an outcry for an overhaul of the coroner’s office. The legal profession had long criticized his testimony as unprofessional and partisan. The Boston Medical Society had complained bitterly about the process of coroner selection, the large number of coroners, and the frequent reports of financial abuses in the coroner’s office.58 Incited by the allegations of impropriety, even after Newton withdrew, members of medical, legal, and political groups, as well as local journalists, pushed for reform. Leading the fight was the young Boston lawyer Theodore H. Tyndale. Addressing the Department of Health of the American Social Science Association in Boston in the spring of 1877, Tyndale called for the abolition of Boston’s coroners. At that time, the governor appointed Boston’s coroners for a period of seven years, selecting his appointees from political loyalists. Suffolk County had a plethora of coroners—forty-seven, compared to four in New York City and two each in Chicago and Philadelphia. Coroners were selected simply by presenting a list of nominating signatures for approval to the governor. Coroners selected inquest jurors from hangers-on who typi-

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cally loitered at the constable’s office in search of financial rewards, some even making an occupation of it. The coroner frequently determined the outcome of jury deliberations by asserting his influence in subtle or not-sosubtle ways.59 Tyndall’s speech to the Boston Medical Association set the tone for reform: the principal change he proposed was to separate the medical and judicial functions of the coroner. The legal duties—holding inquests and interviewing suspects—would come under the supervision of the local district attorney. The medical functions, identifying the body and conducting a postmortem examination to determine the cause and manner of death, would be transferred to physicians.60 Medical examiners in Massachusetts would be physicians appointed by the governor for a period of seven years and selected from “able and discreet men learned in the science of medicine.” In their respective districts they were to investigate all deaths that were supposed to have occurred from violence, and they were to perform only autopsies “authorized in writing by the district attorney, mayor or selectmen of the district.”61 The new law, passed the following month, proved an overwhelming success. The governor appointed seventy-five new physicians as medical examiners for the state and replaced Boston’s forty-seven coroners with two. The cost of operating the new system amounted to only two-thirds that of the previous coroner’s system. Seven years later, all but one medical examiner was reappointed, although three others resigned for “geographical reasons.” Boston’s physicians and lawyers reveled in the remarkable improvements in death investigation, boasting the “the American coroner’s fate has been sealed.”62 Tyndale continued to reserved his harshest criticism for physicians who aided the coroner. The skill of average physicians to perform that duty was insufficient, he said. Determining the cause of death required “more than average training and special training . . . Most of the unfortunate blunders known as judicial murders have been from the inexperience or ignorance of the medical men engaged in the case either as witnesses or coroners undertaking to decide medical questions.”63 The Boston physicians and lawyers who rallied around the new medical examiner system had little actual training or experience in investigating medicolegal problems. To remedy this deficiency, in May 1877, a group of fifty physicians and lawyers created the Massachusetts Medico-Legal Society, which sponsored educational seminars for physicians desiring to become medical examiners. The society aimed “to elevate the official character of the medical examiner, and to assist him in the discharge of his duties; to collect and utilize such facts as have a medico-legal value; and to

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excite a general interest in the subject of forensic medicine and to promote its successful cultivation.”64 According to its proponents, the main purpose of the Massachusetts medical examiner law had been “the detection of crime”; but the new law limited investigations to those “only as are supposed to have come to their death by violence.”65 Medical examiners complained that the act restricted them from performing the two major functions of their position: determining the facts of the death and providing expert medical testimony.66 This limitation in time proved to inhibit medical examiners’ attempts to investigate all sudden and unexpected deaths. Progressive-minded lawyers and medical examiners had sought to expand the definition of violence to include all suspicious deaths, not just those resulting from observable violence. Instead, the law failed to provide the authority to search for hidden murders.

Progressive Reform The principles of Progressive reform were meant to guide the modernization of municipal government by addressing political corruption through the authority of science, the efficiency of technology, and the acceptance of progress and change. Moved by the rhetoric of Lincoln Steffens’s Shame of the Cities, progressive urban reformers sought improvement in all aspects of politics, public health, and crime prevention. Migration to the cities by millions of immigrants during the late nineteenth century had overwhelmed outdated judicial and law enforcement systems, which motivated citizens to fight for modernization. The National Municipal League, a municipal reform organization, believed that ordinary citizens of the United States wanted an American democracy that was responsive to scientific solutions, arguing: “the mechanism of the democratic process in this country was a monstrous complex of impractical contraptions.”67 The office of coroner, which Tyndale identified as archaic and corrupt, was an obvious target for change nationwide.68 The movement to remove coroners that began in Boston spread to other cities. In Cleveland (1914), New York City (1915), Chicago (1922), and Newark (1927), urban reformers sought to abolish the office of coroner and replace it with a system of physician medical examiners. In the nineteenth century, lawyers had attacked physicians in the courtroom and denigrated medicine as a profession; they now recognized their interdependence and could point to the benefits science could bring to the law, especially in the area of death investigation. Lawyers who before had ac-

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cepted dishonest coroners now called for their removal. Physicians once reluctant to become involved in issues of medical reform such as medical licensing now openly criticized the medical incompetence of coroners’ physicians and the lack of adequate medicolegal education.69 Academic physicians also recognized the benefits scientific death investigations could bring to society, as well as the abundance of wasted medical knowledge that lay fallow behind the doors of coroners’ autopsy rooms. In 1910, R. B. H. Gradwohl, a coroner’s pathologist in St. Louis, drew attention to the conflict between the medical and legal responsibilities of the coroner. For Gradwohl, the most admirable part of the medical examiner system was the “opportunity to develop legal pathology . . . the recognition of the work of the autopsy physician.” Quoting Tyndale, Gradwohl sought to separate law and medicine and to elevate legal medical expertise to the same level as the law: the qualities of mind called into exercise the practice of the two professions are not only different and distinct, but diametrically opposed to each other. “Science is armed with the microscope; Justice is blind.” The scientific investigator himself seeks facts and testifies to them. A judge never comes in personal contact with facts but receives them from others, and holds a balance between them. Who can undertake to do both—to be interested in the one and remain impartial to the other?70

The success in Massachusetts, though limited, motivated other states to examine the office of coroner and begin to turn to physician experts as medical examiners. Within the next five years several other states—Kentucky, Louisiana, Michigan, Connecticut, and Rhode Island—moved to create their own medical examiner systems. In 1884, the governor of Rhode Island created a state medical examiner system, proposed by the state medical society, appointing twenty-four “able and discreet men, learned in the science of medicine,” medical examiners for each county. The Rhode Island plan differed slightly from the Massachusetts one; independent inquest officers, retaining the name of “coroner,” were to be elected every three years by the council of each town; they served in addition to the medical examiners, who were required to be physicians. This unwieldy compromise was repeated many times as legislators in other states encountered intense political pressure from coroners when politicians attempted to create medical examiner laws. Retaining coroners and the remnants of their duties placated them sufficiently to allow legislation to proceed. Vermont quickly followed Rhode Island in abolishing coroners; Vermont’s, unlike Rhode Island’s, were replaced by nonphysician judicial examiners.71

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The Modernization of Death Investigation In New York, George LeBrun, a coroner’s secretary for forty years, described rampant corruption and abuses of coroners who “were outrageous crooks who dispensed ‘justice’ for cash. Their only interest in each new case was to discover how they could extort money, and they used the power of their office for blackmail purposes.”72 Most coroners in the city at that time had obtained their positions as a reward for party loyalty. Some could neither read nor write. They blatantly tailored inquest trials to benefit their political supporters. Because the coroner received the first notification of death, he was able to refer much of the legal work of intestate estates to attorneys in surrogate or probate court. For attorneys politically attached to the coroner, being assigned as probate court administrators provided a financial windfall in an era of tight political funds—and a steady stream of capital for the Tammany Hall–like political machines of urban America. The coroner could also limit the power of the district attorney by refusing to refer certain cases. Physician reformers in New York had long envisioned a medical examiner system but continually ran into stiff political opposition. The successful campaign in Massachusetts encouraged New York physicians and sympathetic lawyers to propose their own legislation to remove coroners. As one physician argued, “the whole department is now steeped in politics. What we need are men of science who will be of use to science.”73 In 1904 the Elsberg Bill, abolishing the office of coroner and creating an office of medical examiner, passed the New York state legislature. The bill created the position of chief medical examiner under the administration of the New York City Board of Health. The reformers’ euphoria quickly subsided when the mayor, bowing to intense pressure from judges, coroners, and coroner’s physicians, vetoed the bill. New York waited another twelve years for meaningful change to occur.74 Richard Childs, a twenty-one-year-old political reformer, was the next leader of the charge to abolish coroners in New York City. His interest in reform began when he created a movement to abolish the long ballot. While voting during one election, he realized that he knew only the candidates running for major offices such as mayor, city clerk, and sheriff. Minor elected officials, such as the coroner, were “invisible,” listed at the end of long ballots. For Childs, this arrangement cheated citizens of engagement in the democratic process. His interest in democratic reform led him to believe that advances in medicine should result in the professionalization of the coroner’s office. He set about to abolish the long-ballot practice—and coroners as well.75

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Childs rejected the concept that lay coroners—in fact often inefficient and incompetent—were capable of investigating death. Citing numerous newspaper articles, he spoke out about the coroners’ inadequacies and corruption: their mishandling of bodies, taking kickbacks from funeral directors, and rigging inquests for bribes. Prior to the consolidation of the New York boroughs, coroners and jurors were paid per inquest, which caused the number of inquests to be grossly inflated.76 As a result, the inquest had lost much of its civic and legal importance. In 1914, the New York Short Ballot Association, with Childs as secretarytreasurer, aggressively moved to remove the coroner from the New York ballot. In a pamphlet entitled The Abolition of the Office of Coroner in New York City, the group documented the shortcomings of the office of coroner and called for the creation of a physician-led medical examiner system. The association recognized the importance of sending a medically trained expert to the death scene as soon as possible following notification of a death, while at the same time openly criticizing the coroner’s selection of physicians to perform the autopsies. The report of the association eventually caught the attention of the mayor.77 John P. Mitchel, the mayor, finally acted to abolish the coroner system, but only after a coroner mishandled the body of one of his personal friends.78 Mitchel then appointed Leonard M. Wallstein, commissioner of accounts, to make a general investigation of New York City government. Wallstein’s report painted a revealing picture of an archaic and politically corrupt office that had grown meaningless in modern urban society. Of the sixty-five coroners practicing in the five boroughs of New York, not one, according to the report, was qualified for the position. An analysis of eight hundred inquests indicated that in 40 percent of the cases there was no evidence to support the certification of death. More important, most coroner’s physicians were “drawn from the ranks of medical mediocrity” and were selected to “balance the ticket and for purely political reasons.” Many of them were ignorant of the scientific and legal aspects of their work. The report identified widespread corruption, including payoffs by insurance companies and industry offices to obtain preferential rulings in deaths resulting from accidents in factories. Insurance companies’ increasing resistance to paying claims for deaths attributed to “contributory negligence” placed more importance on the certification of death. For a price, coroners also made questionable changes in death certificates in response to families’ requests.79 The Wallstein report recommended establishing a medical examiner system and abolishing the coroners’ positions whenever their terms expired. The resulting law required that the medical examiner be a physician selected

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and protected by the civil service system and a “skilled pathologist.” For the first time, the medical examiner could order autopsies not only on victims of violence but also on “persons who died suddenly while in apparent good health.”80 The state legislature passed the reform bill on April 14, 1915. It took effect on January 1, 1918, which allowed for time to make the modifications necessary to change the system. Following passage of the act, New York City’s coroners went on the offensive. Citizens loyal to the institution of the coroner criticized the loss of surveillance of the medical community and lamented the growing strength of the local medical societies. Although some of these people agreed that coroners’ physicians were grossly incompetent, they warned the governor of the corruption of organized medicine, pointing to the “awful slaughter of our school children,” referring to thirty deaths that had resulted from compulsory vaccinations. Physician medical examiners would, in their view, be coconspirators in the concealment of vaccination deaths by the Department of Health, which, along with the Vital Records Department, was under the control of the vaccinating doctors of the medical society. The lay coroners, these citizens believed, represented the only force to stem the medical authorities’ growing abuse of power.81 In this atmosphere of distrust for medical science, on January 1, 1918, Dr. Charles Norris, a pathologist from Bellevue Hospital, assumed the office of New York City medical examiner, which he held until his death in 1935. He would modernize the office by developing a toxicology laboratory, improving identification techniques, instituting death scene investigations, and training young physicians in the field of legal medicine. At the time of his death, municipal reformers considered his office the best in the country. In Chicago, Peter Hoffman, Cook County coroner for twenty years, was an example of early progressive coroners who performed their duties with distinction. Chicago’s politicians praised him for creating a “system” of death investigation that used well-trained coroner’s physicians to perform autopsies and statistical methods to capture epidemiological data. He took an active role in investigating accidental deaths, paying special attention to the investigation of those related to railroads, streetcars, and the workplace. The Illinois Constitution of 1870 created the position of coroner for the state’s 102 counties. Beginning in 1890 with the appointment of Victor Hektoen, a pathologist trained in Germany under the famed Rudolf Virchow, the office maintained a scholarly and scientific atmosphere. As the first Cook County coroner’s physician, Hektoen performed autopsies and supervised investigations for the coroner. He used the extensive anatomic

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material of the coroner’s autopsies for basic research in forensic medicine and pathology. He went on to play a major role in studying infectious disease transmission, serology blood typing and allergic reactions, and cancer diagnosis, as well as in the development of pathology as a specialty.82 In 1911, a special committee of the Chicago Bureau of Public Efficiency made a comprehensive examination of Chicago’s governmental offices, including the Cook County coroner’s office. The committee found the office to be “well-organized” and in “perfect working order.” The committee proclaimed Hoffman’s advocacy against accidental deaths as “a new type of public service for the coroner.” The committee expressed concern, however, over the inquest procedures of the coroner’s office, citing the presence of “14 ‘professional’ jurors who do all the jury service on all but a very small percentage of cases.” It found “some of the 14 have served as jurors at the morgue continuously since 1907” for the princely sum of one-dollar per day. The committee went on to recommend that “the coroner ought not be an elected official.”83 In Cook County and others like it, undertakers attempted to influence the conduct of the office and constantly pressured the coroner to reduce the number of autopsies and the extent of dissection. Elected coroners, dependent on the undertakers for money and position, often acceded to their demands. Laws restricted coroners and their pathologists from performing autopsies without permission of the family. Although most states allowed autopsies in the face of obvious violence, legislation restricted many coroners from performing autopsies where there was no obvious trauma or suspicion of criminal activity. Coroners in many states could perform autopsies only with the permission of the district attorney, the courts, or the decedent’s family. Families filed lawsuits against coroners for performing inappropriate autopsies. Undertakers, who opposed autopsy on the grounds that mutilation of the body and delays in receiving the corpse impaired their work, introduced legislation to restrict the performance of autopsies.84 Chicago’s medical and legal leaders considered the period 1923–1927 “four dark years,” during which the office of the coroner fell under the influence of political corruption. The coroner dismissed the well-trained and experienced pathologists who had worked with the previous coroner and replaced them with his political cronies, for the sake of “political expediency.” These abuses of power led local citizens to protest and to call for an investigation to remove him from office. An investigation by the Illinois Association of Criminal Justice found the pathology staff to be “incompetent” and their work “practically worthless, therefore, in establishing the cause of death for any purpose and of doubtful value as the basis of evidence for criminal trials.”85

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In 1928, Dr. Herman N. Bundesen resigned from his position as commissioner of health to run for coroner and became the first physician-coroner in Chicago in sixty-five years. He rehired a number of the previous coroner’s physicians and reinstituted the medical examinations begun under Hektoen. However, in 1931 when the elected officials once again began to fight over political control of the office, Bundesen resigned, allowing the office to return to a political spoils system.86 In 1912, the Municipal Association of Cleveland, a social club organized by the Chamber of Commerce to investigate civic improvements, set out to examine every aspect of county government, including the coroner’s office. It concluded: public safety, especially in large and congested centers of population, requires now, as perhaps never before, that the inquiry into the cause of death shall be conducted according to the best modern theories and with the most expert knowledge and skill . . . It is clearly unsafe to trust such work to any but a highly competent pathologists and medico-legal experts.87

The committee, chaired by Oscar Schultz, a longtime advocate for a medical examiner system, recommended the elimination of the coroner’s office and the transfer of its legal function, the inquest, to the prosecutor. The committee further urged that violent deaths be investigated by a properly qualified medical examiner, as in Massachusetts.88 At a 1915 state senate meeting, Cleveland’s coroners successfully argued that the coroner’s physicians had examined a very large number of cases, and that establishing a medical examiner office would be excessively expensive. Insisting that they were “the protectors of the rights of the people,” the coroners railed against medical examiner systems, describing them as “instituted purely for the benefits of the medical colleges” and “merely a scheme to obtain sufficient autopsies for medical purposes.”89 In 1921, at the request of the mayor, the Cleveland Foundation, a philanthropic community organization that provided grant support to improve the city’s quality of life, undertook a comprehensive study of the administrative management of Cleveland’s criminal justice system. In the view of the reviewers, nothing had substantially changed since the previous report of 1912. There were no special requirements for coroners except that they not be lawyers. The county commissioners controlled the funding and thus determined which autopsies could be performed, restricting them to cases of obvious homicide. The coroner had no designated salary and relied solely on fees he could collect. Though openly critical of the coroner system, this report lacked the power to initiate any meaningful change to the coroner’s office in Cleveland. *

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By the turn of the century, death investigation, like many of the ideals of the original founders, lay in disarray. Medical jurisprudence as a separate field had disappeared from the medical school curriculum, and frustrated physicians had abandoned the courtroom. Nineteenth-century physicians had failed in their attempt to professionalize and institutionalize death investigation along a European model, and the opportunity to create a national system of death investigation had passed. In the early decades of the twentieth century, as a result of the successful implementation of the medical examiner system in Massachusetts, pressure again began to mount as a number of cities and states attempted to emulate Boston and moved to improve or abolish the office of coroner. Progressive Era reformers played on the public’s growing fear of crime and called on urban politicians to abolish the political spoils system and replace it with a nonpartisan civil service system. Reformers called for the application of scientific methods of efficiency in municipal administration and the use of scientific expertise in urban areas, eventually succeeding in 1915 in New York City. Elsewhere, coroners in other major cities came under intense scrutiny by local efficiency commissions searching for new ways to improve people’s lives and eliminate political corruption. Each group maintained its own agenda, ideology, and measure of success. At the local level, individual professionals and lay citizens urged their politicians and legal and medical societies to abolish coroners, but conflicted loyalties and a fragmented, democratic political structure made the task insurmountable. Coroners who functioned well as public health and safety advocates secured the support of reformers. As a result, at the beginning of the twentieth century, coroners remained firmly entrenched in the American political system. Without a strong, unified national effort, the movement to reform death investigation would have to be led by academic physicians funded with Rockefeller money.

chapter

two

Rockefeller Philanthropy and the Harvard Dream

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n the waning months of World War I, communist radicals threatened the lives of American capitalists, mailing bombs to the homes of icons of American industry, including John D. Rockefeller Jr. After a bomb exploded in front of the residence of U.S. attorney general A. Mitchell Palmer in Washington, D.C., the FBI instituted an all-out effort to export some sixty thousand alleged alien radicals. In the charged environment of this so-called Red Scare, on April 15, 1920, two holdup men shot and killed the paymaster and guard of the Slater and Morrill shoe factory in South Braintree, Massachusetts, and escaped with $15,776. Within weeks, Nicola Sacco and Bartolomeo Vanzetti, two Italian immigrants who were suspected anarchists, were arrested for the crime. The evidence against Sacco and Vanzetti was incriminating. When apprehended by police, Sacco was carrying a .32-caliber revolver that was alleged to have fired the fatal bullet into the guard and a shell from a shotgun that had been used in an earlier holdup attempt; later, it was also proven that Sacco’s cap was found at the murder scene. At the time of his arrest, Vanzetti was carrying the slain guard’s handgun he allegedly had taken from the body during the holdup. This seemingly open-and-shut case gained worldwide notoriety as a cause célèbre among communist and socialist sympathizers, who saw the immigrants as scapegoats for American capitalists, fearful of the spread of Marxist ideology and union organization. Sacco and Vanzetti were convicted and, after more than six years of ap-

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peals and the creation of a special governor’s advisory board, were electrocuted on August 22, 1927.1 John D. Rockefeller Jr. had long sensed the growing threat of criminal activity and its deleterious effect on American society. His foundation had grown increasingly interested in curbing crime in America. In 1915, he sent Raymond B. Fosdick to study European police systems, and later Fosdick examined the problem of criminal investigations in America. In 1924 he published The American Police System, which underscored the Rockefeller Foundation’s fear of crime and its interest in using scientific methods to curb urban crime and corruption for the betterment of American society. In an era of frequent wild speculation by so-called scientific experts, Rockefeller had provided the only scientific analysis of an actual crime when shortly before Sacco and Vanzetti’s execution he hired Colonel Calvin H. Goddard, the first ballistic expert to practice a newly developed technique of bullet identification. Goddard used the comparison microscope to determine that the bullet recovered from the body of the murdered guard matched the land and groove markings of Sacco’s handgun.2 After the execution, Rockefeller also funded the printing of the massive five-volume record of the proceedings for review by future legal scholars. The Sacco and Vanzetti case served as the first crime in America that was solved by newly developed scientific techniques and continued to have a monumental effect on the future course of American law, expert testimony, and death investigation.3 Rockefeller believed that scientific experts could solve the problems of crime that were haunting America. He looked not to the law but scientific medicine to provide expertise in criminal cases. Having convinced his father in 1903 to create the General Education Board (GEB) to improve health and education in the South, later, in 1913 he created a subsidiary, the Bureau of Social Hygiene, to study the problems of prostitution and drug abuse in New York City. By 1920, the Rockefeller Foundation had committed a major portion of its vast philanthropy, nearly $50 million, to the improvement of medical practice and education in America.4

The Rockefeller Foundation and Death Investigation Before World War II, the Rockefeller Foundation played a major role in funding for medical research in America. Money for medical and other types of research was in short supply until the end of the war, when the federal

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government took over much of the cost of basic medical and scientific research. Before that time, medical research had been funded either by private philanthropies, industrial laboratories, or a few governmental agencies. In the financially depressed environment of the late 1920s, seemingly inconsequential amounts of research funds could have a major influence on the development of medical programs. Such was the case with forensic medicine.5 In May 1922, a group of distinguished academic pathologists met at the urging of Dr. Charles Norris, New York City’s medical examiner, under the auspices of the National Research Council (NRC).6 First created to direct war research efforts during World War I, the NRC became the federal government’s primary agent for directing research by academics, industry, and private agencies. The group met in Washington to discuss methods of improving the poor state of autopsy pathology and medicolegal investigations. Norris had contacted Henry S. Pritchett, director of the Carnegie Foundation, and Alexander Flexner, then with the Rockefeller Foundation and author of the 1910 Carnegie Report on American medical schools, to urge their assistance. Norris hoped that Flexner and the Carnegie Foundation could replicate their success in improving medical education to the field of death investigation. Pritchett, although enthusiastic, was unable to provide assistance now that the Carnegie Foundation’s interest in medical educational reform appeared to have waned. The pathologists’ pleas went unheeded.7 Three years later, Victor Vaughan, chairman of the NRC Medical Science Division and a University of Michigan bacteriologist, urged the division to develop a committee on medicolegal problems. Vaughan was struck by the larger number of homicides occurring in the United States compared to other countries. He urged a plan for a detailed study of crime, especially homicides; “the scientific study of crime and its repression seems to me to be the biggest and most important problem before us at present, and, in my opinion,” he told the committee, “it is the duty of the Medical Division of the National Research Council to press it.”8 Vaughan invited Ludvig Hektoen, the distinguished Chicago pathologist and public health advocate, to lead the committee, along with Adolph Meyer, a Johns Hopkins psychiatrist. Hektoen was director of laboratories at the McCormick Institute for Infectious Diseases in Chicago and chairman of the NRC’s Division of Sciences. Through newspapers and communications, Hektoen had followed the decline of the Chicago coroner’s office he had once fought to improve. A progressive-minded reformer, he believed that competent legal medicine in America was nonexistent.

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The public is not receiving the full benefit that medical science and skill applied to legal problems can give it, and as a nation we are far behind most European countries in this line . . . We have no periodicals, no organization (except for two local ones), practically no common standards, no medicolegal institutes, and no adequate teaching of legal medicine—Everywhere politics, chaos, and a surfeit of so called expert testimony.9

The three men struggled to conceive how medicine might aid in the study of criminology. To define problems they might address, Hektoen sent a questionnaire to teachers of pathology concerning their provisions and facilities for medicolegal purposes. The preliminary results stunned him: “It is quite obvious that what may be called medicolegal science is in a rather disorganized condition in this country, and it seems that a systemic and rather comprehensive survey of the situation is indicated and desirable.”10 However, because of the poor state of the medicolegal autopsy, the committee decided to limit its focus to improving autopsy pathology in legal medicine. Vaughan once again contacted Flexner at the Rockefeller Foundation, who advised limiting the topic to the practice of legal medicine. By this time, the full extent of the success of Flexner’s 1910 report on the state of medical education had become readily apparent to the Rockefeller Foundation trustees, who now looked on improvements in medicolegal death investigation as the starting point of an overall attempt at crime prevention. But Flexner indicated the foundation was reluctant to take the lead in this effort, instead reserving that function for the NRC, and he agreed to provide only financial support and oversight. The committee arranged for a nationwide survey of the merits of the coroner system versus the newly developed medical examiner systems in New York and Boston, with special emphasis on the number of autopsies performed, facilities, jurisdiction, and methods of administration employed in death investigation. The committee hoped to gain insight into the practice of legal medicine, including the teaching and application of pathological anatomy. To a member, the committee placed the blame for the deplorable state of death investigation squarely on medical schools, which were ill equipped to train physicians in the competent practice of autopsy pathology. Despite the poor state of pathology at the time, the committee was optimistic that the problem could be remedied simply by replacing coroners with physicians adequately trained to perform autopsies.11 In April 1926, Hektoen wrote to Alan Gregg, chairman of the medical science section of the GEB, requesting $5,000 for a survey to study medicolegal autopsies and general pathological procedures. Flexner considered the amount “ridiculous,” and the board, with Flexner’s final approval, granted

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Hektoen and the NRC $15,000 for the first year of the study, with the assurance that if the survey “justifies itself,” funds would be available for its completion.12 The committee moved quickly. Hektoen, having recently been replaced as chairman of the medical sciences section at the NRC, chaired the first meeting of what was to become known as the Committee on Medicolegal Problems in Washington. The committee first decided to compile a list of general laws governing the current state of death investigation. They sought an experienced lawyer to study the legal aspects and a physician to study the medical portion and chose legal professor Edmund M. Morgan of Harvard University to perform the legal study and Oscar T. Schultz of Michael Reece Hospital in Chicago to carry out the medical survey. Both men had received Flexner’s prior approval. No stranger to the politics of medicolegal issues, Schultz had served on the 1912 committee to study the Cleveland coroner’s office. The committee requested a study of three cities with coroners—Chicago, San Francisco, and New Orleans—and the two major cities with a medical examiner, New York and Boston. By its second meeting, in February 1926, the committee had come to recognize not only that coroner’s laws were obsolete for meeting the needs of modern society but also that the related branches of law and medicine had remained woefully underdeveloped in the United States. The committee developed a list of questions to use for collecting data during site visits by local teams, each consisting of a neutral physician paired with a lawyer.13 The result of the committee’s work was a 101-page NRC report, “The Coroner and the Medical Examiner,” released in 1928, which presented a scathing criticism of the coroner’s office.14 The report reiterated the obvious: coroners’ qualifications were nonexistent, most coroners were not physicians, and in many cases the office was involved in illicit activities with undertakers. Coroners who were undertakers often had monetary conflicts of interest. Inquests frequently did not follow the required legal procedures, often used quasi-professional witnesses, and in many cases reached unrealistic, politically influenced conclusions. The committee documented that autopsies were the exception and not the rule in coroners’ offices. Undertakers asserted constant political pressure on coroners either to reduce the number of autopsies performed or to limit the extent of dissection, thereby restricting their work. On the rare occasion when an autopsy was performed, it was inadequately documented and frequently performed in deplorable, unsanitary conditions in full sight of “street riff-raff and hangers on” who collected around the morgue during the performance of an autopsy.15 Coroners had little communication with community physicians, and autopsy material from their offices gener-

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ally was not made available for medical education. Physician medical examiners, in contrast, made every effort to use their offices for the education of practicing physicians and medical students by allowing them to observe and assist with autopsies. In language reminiscent of the accolades bestowed on the Johns Hopkins Medical School for its role in advancing medical education some eighteen years earlier, the NRC report identified the New York medical examiner’s office as a model to be emulated. In the scientific attainment and administrative ability of its chief, in the character and volume of the work done, in the working facilities and budget allowed it, in its functioning in the investigation of crime, in its cooperative relation with other agencies, in the service which it gives to the public, and in its freedom from political interference, the office of the medical examiner of New York City is the most outstanding agency devoted to forensic medicine in the United States.16

The NRC report went on to compare the relative costs and staffing of medical examiner and coroner offices. Medical examiner systems, in addition to being more efficient, were consistently less expensive to operate than coroner systems. With coroners choosing the physicians who performed autopsies for their political affiliation rather than training and education, there was no market or stimulus to encourage young doctors to study to become medical examiners. The report pointed to European forensic institutes as models for future development. For the first time, the report proposed educating physicians for full-time work in medical institutes dedicated to death investigation. In its final recommendations, the report dealt a severe blow to the institution of the coroner’s office. First and foremost, it recommended that the office of coroner be completely abolished, its medical duties vested in physician medical examiners, and its legal duties transferred to the judiciary. In addition, the report advised that medical examiners be trained and adequately compensated pathologists who would be selected and protected under civil service laws. Further, medical examiners were encouraged to provide scientific medical assistance to other levels of government involved in crime detection. The report concluded that rural areas should be developed into medical examiner districts, whereas large urban areas should develop forensic institutes. The NRC report met with widespread acknowledgment and acclaim from the medical and legal communities. In numerous editorials, the AMA called for the universal adoption of the medical examiner system and the training of men for the field, as well as the creation of a specialized journal

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devoted to legal medicine, arguing that “the medical examiner system points the way to the development of forensic medicine.” The AMA called for the creation of forensic institutes modeled on the European system of university-based facilities staffed by professors with specialized training in pathology, with access to a wide range of experts in the various fields of criminology, and noted with satisfaction the recent requirement in England that all coroners must be physicians or attorneys.17

A Lost Opportunity In addition to this report, the Committee on Medicolegal Problems generated three other publications. Concurrent with its research on coroners, recognizing the increasing incidence of lawsuits against coroners and their pathologists who performed autopsies, it commissioned George Weimann, a talented blind lawyer, to write a compendium of state laws regarding autopsies.18 And Oscar Schultz, his own eyesight failing, impairing his diagnostic capabilities, now focused solely on the reform of death investigation. In 1932, he published a reconfigured version of the 1928 NRC report entitled “Possibilities and Need for Development of Legal Medicine in the United States.” In this report, Schultz reiterated the importance of creating medical examiners and examined additional offices in Cincinnati, Philadelphia, and Newark.19 He boldly pressed for the organization of a system of American medicolegal institutes similar to those in continental Europe. Continuing to criticize the work of coroners, he compared them unfavorably with medical examiners in New York and Boston. He blasted both the legal and medical professions for their apathetic attempts to improve death investigation and, more important, their failure even to recognize the present crisis. “Legal medicine,” Schultz concluded, “as a distinctive subdivision of medicine cannot be said to exist in this country.” He further accused the legal profession of being interested only in homicidal deaths, neglecting other types of deaths with serious public health consequences and medical importance.20 Moreover, Schultz demonstrated that coroners’ offices in general were inefficient and more expensive to operate than medical examiners’ offices. For example, in 1930, the Hamilton County (Cincinnati) coroner’s office spent $4,250 per 100,000 population investigating 16.8 percent of all deaths and autopsying 14.3 percent. In contrast, a year earlier, the New York City medical examiner had investigated 19.3 percent of all deaths and performed autopsies on 20 percent, at a cost of $2,646 per 100,000.

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According to the report, coroners frequently appointed general physicians with marginal practices and with no pathology training or experience to perform autopsies.21 Despite receiving accolades from the AMA, the NRC report failed to stimulate the enthusiasm and action Hektoen and the committee had hoped would result from their efforts. The report did not result in the development of any institutes of legal medicine or improvements in practice of facilities of existing offices. “I also saw Norris in New York,” Schultz reported to Hektoen; “he is very pessimistic as to any hope that might be expected for the city in work that relates to the office. I do not blame him. He was in the midst of three necropsies, working entirely alone. In each case the head was to be examined, and he would have to do his own sawing of the skull.”22 The committee considered other ways to stimulate the development of legal medicine: publish an encyclopedia of legal medicine, form a national medicolegal society, create a specialized journal of forensic medicine, conduct a survey of the field of expert testimony. The Rockefeller Foundation had also attempted to stimulate the growth of legal medicine by giving a limited grant to a New York University pathologist who had immigrated from Germany, in the hope that he would establish an institute of legal medicine in New York. However, the president of New York University School of Medicine had declined to create the institute. “I can see no demand at present for men who have graduate training in legal medicine,” Schultz noted, dejected. “An encyclopedia of legal medicine might be very valuable,” he said, “but who would use it?” Eventually, Schultz and Hektoen concluded that they had “fussed enough with the coroner’s office.”23 Growing more openly critical, Schultz argued for a complete revision of the judicial system. He also called for state universities in Michigan, Wisconsin, California, and Ohio, each with a developing crime laboratory, to step up and create medicolegal institutes. Pathologists asserted a growing need to move forward by developing updated statutes to address deficiencies in death investigation. In 1933 at the opening of the Conference of Southern Pathologists, led by Dr. Wiley Forbus, dean of the Department of Pathology at Duke University, there was a general recognition by pathologists in attendance that “the judicial system of the country as a whole is political and more or less corrupt.” They also admitted that “all of these obstacles do not take the responsibility away from departments of pathology in medical colleges.”24 Failing to ignite the interest of either the legal or the medical profession in remedying the situation, Schultz and Hektoen decided on an intense propaganda campaign to promote their cause. “What is needed is some well

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directed publicity,” Schultz proposed to Hektoen, shortly after release of the NRC report; “propaganda if you will, aimed at the laity rather than the medical or legal professions, working toward the abolition of the coroner. Such efforts should not be spread out thinly over the entire country, but should be concentrated upon one or two states, where conditions seen [sic] opportune . . . If the ice could be broken in one or two states, the leaven might spread to other states.”25 Schultz’s campaign began with a blitz of propaganda in numerous popular journals. In an era of continual gangland murders, he aimed to stir up the fears of the public and politicians about growing crime.26 “The medical and legal professions have from time to time made studies of the workings of the coroner’s office,” Schultz argued, “but the functions of the office do not concern these professions to so great a degree as to the general public. It is the latter that is entitled to intelligent service in matters relating to criminal justice, accidents and industrial compensation.”27 Schultz continued the publicity campaign at the 1934 Chicago World’s Fair, in an exhibit organized by the Institute of Medicine of Chicago. He obtained the collaboration of Dr. William Carney, a pathologist at Marquette University in Milwaukee and head of the pathology section of the AMA, in creating a presentation highlighting forensic pathology. The exhibit’s numerous drawings and pictures portrayed the various manners of death and accentuated the differences between scientifically trained physician medical examiners and lay coroners. Items symbolizing the modern scientific procedures medical examiners used in death investigation were displayed: a microscope, autopsy table, and toxicology laboratory. In vivid contrast, a diorama depicted a coroner’s inquest jury, with paintings that emphasized how little it had changed since the Middle Ages.28 Publication of the NRC report had the unintended consequence of galvanizing coroners throughout the United States to organize. Coroners viewed the report as a call to action to improve their practice or face elimination. They quickly moved to revise their state constitutions to correct deficiencies in the statutes. A national coroners association had begun to take shape in 1927, but initially it lacked political status and organization. Now coroners began in earnest to organize state associations, and physician coroners from large cities began to fight for their offices. Cook County coroner Hamilton Fishback published a report entitled An Analysis of Coroner’s Statistics from Cook County with a Pathological Review of the Cause of Death. Although Fishback declared that the “question of the coroner system versus the medical examiners system is outside the scope of this study,” there could be little doubt that the intention of the report was to medicalize the office of coroner.29

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Legal Medicine Begins at Harvard On March 14, 1935, Schultz’s dream finally came true. Frances Glessner Lee approached Dr. Alan Gregg, chairman of the medical science section of the Rockefeller Foundation’s GEB, with a letter of introduction from George Burgess Magrath, medical examiner of southern Boston. Lee was the independently wealthy heiress of the International Harvester fortune; her brother had been Magrath’s Harvard College roommate. After graduating from Harvard in 1898, Magrath had gone on to study medicine; in 1907, he had become medical examiner for the southern region of Suffolk County and had begun giving regular lectures to Harvard medical students on topics in forensic medicine. Lee, drawn to the intrigue of police work, had set out to improve legal medicine in the United States by educating police officers about the medical aspects of death investigation. In 1931, she had begun to support Magrath financially with a salary of $3,000 and supplied him with a two-thousand-volume library of medicolegal books for his use at Harvard—the largest library devoted to medicolegal topics in the world. In 1936, she had endowed at Harvard the first chair of legal medicine in America, which had gone to Magrath. The medical science section of the Rockefeller Foundation’s GEB maintained a watchful eye over developments in legal medicine. The board had previously funded Fosdick’s study of European and American police systems, as well as the 1928 NRC study. Magrath was now sixty-five years old and crippled by alcoholism. Lee asked Gregg for advice on how to develop legal medicine in the United States. Gregg relayed to the board that Lee was interested in training a young man in the field of legal medicine to take over from Magrath. Two weeks later, she sent Gregg a suggested outline for a department of legal medicine at Harvard Medical School. She followed up her “suggestion” with an initial donation to Harvard of a $250,000 endowment. Minutes after their meeting, Gregg had telephoned Harvard Medical School dean, C. Sidney Burwell, and proposed that if the university decided to go into legal medicine on a full-time departmental basis, the foundation would provide a fellowship for training a man to head the new department. Burwell quickly accepted.30 With the Lee gift, the GEB set out to develop the first department of legal medicine at Harvard, modeled after the medicolegal institutes in Europe. In April 1936, the committee set up to create the department agreed that there was “a splendid opportunity for pioneer work in this nation in the gradual elevation of standards of practice of the office of coroner and medical examiner and in many other ways of performing service.”31 The

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department would provide autopsy work in cooperation with medical examiners, police departments, and attorney generals’ offices. In addition, it would develop graduate courses designed to educate medical examiners and coroners’ physicians throughout the country, instruct undergraduates in medicine and law, and conduct research in the field of legal medicine. The first full-time academic department of legal medicine in the United States officially opened in 1937. The Rockefeller Foundation intended to develop the position of chairman on the basis of its “full-time policy,” which promoted both research activity and service in an academic environment.32 From the start, the committee experienced difficulties in filling the chairmanship. The political nature of the position required that the chairman be an American familiar with local politics and legal practices; however, no desirable candidate could be found. It was finally decided to appoint a competent pathologist and send him to Europe to obtain the necessary training. Lee suggested Magrath as a mentor to the new chairman, despite his age and infirmity. She detested Timothy Leary, the medical examiner for northern Boston, and did not care for Harrison Martland in Newark. Leary, she said, was jealous of Magrath. On the advice of Dr. William Karsner in Cleveland, a Rockefeller favorite, Harvard finally selected Dr. Alan Moritz, a young academic pathologist in Cleveland, to head the medicolegal department; his selection received the unanimous approval of the Rockefeller Foundation.33 Moritz, a Nebraska native who had received his medical school training at the University of Nebraska, had moved to Lakeside Hospital in Cleveland for residency training in pathology under Drs. Howard Karsner and Henry Goldblatt, who were already giants in the field of general pathology. Moritz became an instructor in pathology in 1925 and was working as an associate professor of pathology at Western Reserve University at the time he was chosen for the chairmanship; his selection was due to Karsner’s close affiliation with the Rockefeller Foundation through the Institute of Pathology at Western Reserve. Because Moritz’s office was close to the morgue, the local coroner frequently consulted Moritz on cases, so he had gradually developed a peripheral interest in legal medicine. At the time, however, his primary interest lay in medical research. He had already published articles on a wide variety of important pathological topics, including the etiology of atherosclerosis. Moritz’s 1934 article on the pathogenesis of sudden death displayed his growing interest in legal medicine, which had initially been stimulated by a case involving misinterpretation of injuries. On this occasion, the coroner, who was utterly unfit for the job according to Moritz, had accused a local

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police officer of killing a prison inmate. According to witnesses, the inmate had sustained injuries to his face during a seizure. Moritz had performed the autopsy at the request of the coroner and determined that the inmate had died from an acutely ruptured brain aneurysm, a congenital defect of the blood vessel, which had led to his seizures and ultimate death. The injuries to the face, Moritz hypothesized, had resulted from the seizure activity and not an assault. Moritz’s findings had exonerated the police officer, and Moritz had experienced the exhilaration that comes from solving a medicolegal mystery in which an innocent man is falsely accused. Moritz became hooked on forensic medicine, and his publications began to reflect his growing interest. Nonetheless, Moritz had no intention of making a career solely of performing medicolegal autopsies.34 He had basic training in the medical aspects of pathology but knew nothing about the legal aspects of law and medicine. The dean of Western Reserve, with the support of the foundation, offered him a two-year travelling fellowship to examine the medicolegal institutes in Europe in order to enhance his knowledge of legal medicine. He had wanted to succeed Karsner as chairman of the Institute of Pathology; nevertheless, he decided to accept Harvard’s offer. In Europe, Moritz examined most of the major European medicolegal institutes. He spent the first year in Glasgow and Edinburgh, then traveled to Vienna, and finally visited in Egypt. In Vienna, he studied under Élie Metchnikoff, the Russian microbiologist and winner of the Nobel Prize for his work in cellular immunity, and was impressed by the prominent role of forensic studies in the European system of pathology training.35 Harvard’s Department of Legal Medicine had an initial budget of $15,000, consisting of $10,000 from interest on Lee’s endowment and $5,000 from Harvard. In 1939, with Moritz still on tour, the Rockefeller Foundation granted an additional $15,000 to cover the three-year period 1939–1942. The GEB intended the money to be used to hire two fellowsin-training. When Moritz returned to Harvard in 1939, he immediately visited a dozen top medical schools to examine their legal curricula and to recruit aspiring forensic pathologists for fellowship positions. Eventually, Herbert Lund and Edwin V. Hill were hired as Moritz’s first fellows. Through Moritz’s tireless activity, the department rapidly expanded. Although Lee initially had been “lukewarm” about Moritz, she eventually decided he had been a good choice. A 4,200-square-foot area on the third floor of the pathology building was renovated to house the department and the George Magrath Library. Moritz lectured to medical and law school students, published articles on forensic medicine, and provided autopsy coverage to rural medical examiners. In a short time, the department had

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trained talented forensic pathologists at Harvard through the Rockefeller Fellowship, such as Russell Fischer and Joseph Spelman, who would soon occupy important chief medical examiner positions in Baltimore and Philadelphia, as well as others, such as Geoffrey Mann, the Canadian lawyer and physician who would become chief medical examiner in Virginia. Suffolk County medical examiners’ offices remained closed to Moritz while under the control of Timothy Leary and Magrath’s successor Richard Ford; both were politically strong men and suspicious of the new department and its chairman. Moritz’s first challenge was to gain access to the Boston morgue’s medicolegal autopsies for study. Leary remained less than cordial and rebuffed Moritz’s attempt. The situation escalated to the point that Gregg had to contact the governor of Massachusetts to procure a position for Moritz that would provide him access to bodies in Suffolk County, which was necessary for the department to flourish. As a result of this intervention, Moritz was appointed Leary’s assistant as consultant in pathology to the Massachusetts Commission of Public Safety. With the constant and unsolicited intervention of Lee, the department developed a series of courses in legal medicine for local police officers, whose attendance was double what had been expected. Using official reports and police photographs, she constructed scale-model recreations of actual crime scenes, “the Nutshell Collection,” which the policemen used as an adjunct to their study of crime scenes.36 Unfortunately, despite teaching legal medicine to law students, Moritz failed to gain the cooperation or support of Harvard’s law school, which was necessary for developing the type of European forensic institute that he and the Rockefeller Foundation envisioned.

Promoting Forensic Medicine Moritz verbalized the general sentiment that the field of legal medicine would not be improved until organized medicine took a strong stand, and then only if the medical community and the public demanded it. The general medical practitioner was not interested in forensic medicine, according to Moritz, because the coroner’s office had little to do with preventing disease. In addition, improvements in forensic pathology would not affect the income of the average practitioner; and most physicians had little idea of the magnitude of deaths resulting from violence. For Moritz, the path was clear—pathologists needed to get the word out about the importance of legal medicine to the general practitioner. He recognized that pathologists who pushed for improvements in forensic pathology would be criti-

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cized for promoting their own financial welfare and their plight accordingly discounted.37 He began the arduous task of promoting forensic medicine with a series of lectures in forensic medicine at the annual New England summer seminar on forensic pathology that was held in Colebrook, New Hampshire, through which he hoped to influence young pathologists to become forensic scientists. In his one-man campaign to promote the creation of medical examiner systems in numerous states, Moritz embarked on an exhaustive travel schedule, traveling from Richmond, Virginia, to Portland, Maine, in the effort to educate physicians, especially pathology department chairmen, on the need for professional forensic pathologists. He published numerous articles on the need for improvements in death investigation, the role of the medical examiner, and the relationship between law and medicine. As he continued to pursue basic research on the pathology of death, his research interests shifted from experimental pathology in immunology and atherosclerosis to issues related to death investigation. He published papers on topics such as cardiac contusions, mechanisms of head injury, chemical methods to determine drowning, and sudden death. In 1942, he published a textbook, The Pathology of Trauma, which he dedicated to Lee. The work maintained a scholarly tone, with liberal use of references to basic medical research; it raised the scientific character of death investigation to a high level and set a new standard for work on the topic.38 Moritz recognized that his role as professor of legal medicine required him to “exert whatever influence I can toward improvement in medical legal practice.”39 During the first year, he gave twenty-seven lectures in ten states to promote the institution of the medical examiner. He wrote letters to state pathological societies, encouraging them to change outdated coroner laws in their own states so as to create physician medical examiner systems. At the 1941 meeting of the AMA, he conferred with Dr. Olin West and J. W. Holloway Jr., members of the AMA Bureau of Legal Medicine and Legislation, and as a result, the House of Delegates passed a resolution to create a Committee on Legal Medicine. Mindful that the AMA had created a similar committee in 1931 in response to The Coroner and the Medical Examiner, without significant results, Moritz proposed a small committee, comprising representatives from law, public health, and the judiciary, who would meet frequently. He chaired the committee, which included Edward R. Cunniffe and J. W. Holloway, representing the American Bar Association and the AMA, respectively. Harrison S. Martland was invited to survey existing laws relating to medicolegal practice and to make recommendations for their improvement. The commit-

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tee attempted to involve other agencies, such as the National Safety Council, state workman’s compensation boards, and the U.S. Public Health Service. Moritz urged the AMA to improve death investigation by advocating the use of autopsies, model laws, and careful investigations, not by maligning coroners. He was unwilling to condemn the practices of individual coroners, many of whom were physicians and members of the AMA. He believed that in most jurisdictions, the office of coroner should be improved or abolished and state medicolegal institutes eventually established. However, he realized “there are undoubtedly many alternative and probably more easily attainable means of improving medicolegal practice.” He said “the problem of improving the practice of legal medicine will not be solved by changing an official’s title from coroner to medical examiner or by changing the method of his selection to appointment.”40 The following year the joint committee completed its “Report of the Committee of the AMA to Study the Relationship of Medicine and the Law,” which was published in the Journal of the American Medical Association. The report, written almost entirely by Moritz himself, was a detailed examination of the status of death investigation and included recommendations for improvement. Echoing the comments Stanford Chaillé had made more than sixty years earlier, the report focused on the duties of the coroner and medical examiner, the qualifications of coroners, the legal definition of death, determination of which deaths should be investigated, authority to perform an autopsy, and comparative costs of coroner and medical examiner systems.41 At the time of the AMA report, only seven states had medical examiner systems; in four other states, the coroner position had been abolished and its duties assigned to another county official. Ohio, Indiana, and Michigan had attempted to abolish the coroner position and failed. Louisiana required the coroner to be a physician, while eight other states required that a physician be involved in the inquest proceedings.42 In thirteen states, the coroner could investigate only those deaths supposed to have resulted from a criminal act by another person. In the AMA report Moritz expressed his beliefs about the issue of title and authority: obviously the name under which the medical investigator operates has little or no bearing on the effectiveness with which his public duties are discharged. If the law requires first that he be professionally competent and second that he have both the authority and the facilities for the conduct of such investigations as are required in the interest of public welfare, the name of the office is inconsequential.43

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The report concluded with a call to produce model legislation that could be adapted nationally, following the outline of Moritz’s plan. In response to the 1941 publication of the AMA resolution, Samuel Gerber, the physician coroner of Cleveland, came to the support of coroners with a presentation at the 1942 annual meeting of the AMA entitled “Advantage of the Coroner System Over That of the Medical Examiner System.” Gerber had been president of the National Coroner’s Association in 1938 and was now secretary-treasurer, a position he would hold for fifty years. In his presentation, he pointed out that there was no essential difference between the two systems. He accused physician reformers of bias and prejudice due to their envy of medicolegal institutes in Europe, which for the most part could not function in the American system of democracy. He further chastised physicians for believing that the medical examiner system was the “panacea for all the weaknesses which exist under the coroner system in some localities.”44 The AMA continued its unrelenting editorial attack on coroners, stating: “wherever the coroner exists in this county his privileges are exceedingly elastic.”45 The AMA’s call for the creation of medical examiners, not only in large cities but also in all jurisdictions, was a strategy that eventually placed it in the regrettable position of attacking many of its own members. By 1942, Moritz had demonstrated the value of a scientific approach to forensic medicine by providing highly rigorous postmortem examinations. His investigations had already exonerated at least six innocent persons from homicide convictions and had identified the actual offender in another nine cases in which the police would have carried out no further investigation. As assistant medical examiner under Leary, Moritz sought further assistance from the Rockefeller Foundation, requesting for an additional $150,000 in funding based on the success of the program.46 Lee also remained active, traveling throughout the nation to promote interest and competence in legal medicine. As usual, she emphasized the importance of educating law enforcement officers on the science of crime investigation and their need for education in the medical aspects of police work. She also promoted the development of other medicolegal specialties, such as odontology, entomology, and toxicology. “Mrs. Lee bids fair to be the Lucretia Mott of legal medicine,” commented the Harvard dean in reference to the famous philanthropist of children’s health.47 Although Lee was content with Moritz’s enthusiasm and fund of scientific knowledge, she considered him a poor politician, which she thought slowed the overall progress of the department. As Moritz and Lee continued crisscrossing the country in their efforts to

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improve death investigation, they worked tirelessly with officials in Virginia to formulate a bill that eventually became law. In 1943, at the urging of the chairman of pathology at the University of Virginia, public officials there appointed a commission to consider the abolishment of the coroner office. Although this initial effort failed, a state medical legal service was eventually established in Richmond, in cooperation with the medical school. As in Maryland, the Commission on Postmortem Examinations had oversight of the system and the chief medical examiner. The state provided the salaries of the pathologist and toxicologist, as well as a fund for a central laboratory. Herbert Breyfogel, a Moritz trainee from Harvard who had initially taken a position as a coroner’s pathologist in St. Louis after completing his training, became the first chief medical examiner in Virginia. Because of the size of the state, local physicians were to act as regional medical examiners, with hospital pathologists serving on a fee basis—$50 per autopsy. The legislative actions in Virginia set the pattern for other states where it had been impossible to abolish the office of coroner for political, constitutional, or other reasons.48 States such as Connecticut, Rhode Island, and Nebraska considered taking similar steps; Massachusetts did not. In Massachusetts, Moritz expected to be named Suffolk County medical examiner on Leary’s retirement, which was fast approaching. However, bowing to political pressure, the governor informed Moritz and Gregg that the position would have to be filled by a man of both Irish and Catholic background. If no such trained person were available, the appointment would go to an incompetent.49 By 1947, Lee had grown impatient with the relatively slow progress of the department in developing education programs for police. Although she recognized Moritz’s professional capability, he did not fit her model of a medical examiner being actively involved with the police in criminal investigations. She considered his lack of political acumen a weakness and believed he was still at heart a general pathologist and researcher, and always would be. She thought Russell Fischer, the current Rockefeller fellow in the crop of young forensic pathologists, was best suited for the position. Frustrated with the department’s lack of attention to police needs, Lee hoped Harvard would “do as much for the police as it has for the businessman,” and hinted that any further financial contributions to the department would have to wait for her will.50 In his 1947 report to the Rockefeller Foundation, Moritz first expressed his frustration with the law school’s continued lack of involvement in the development of the department. Despite his many efforts with the legal education program, including moot courts and lectures, he had not been able to interest young law students in legal medicine. He had not received the

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cooperation promised by the law school, like that enjoyed by his friend Wiley D. Forbus at Duke University. He also suspected that elitist Harvard professors resented the media attention the department received and the grisly depictions of its work. The story of the Ruth McGurk slaying, for example, detailing the discovery of a twenty-three-year-old woman’s badly decomposed and strangled body in a New Bedford pond, had dominated Boston headlines throughout the fall of 1946.51 His frustration about his unsuccessful attempts to develop the department and, despite a missionary’s zeal, to encourage the development of forensic pathology, is evident. During the past eight years the Professor of Legal Medicine has traveled hundreds of thousand of miles to talk to state, county, and city medical societies, to medical and law faculties, to lawyers, to police, and to politicians. He has visited twenty-six states, many of them several times in an effort to stimulate legislative enactment necessary to create demand for persons trained in legal medicine. Members of the department have been responsible in some degree for drafting legislation reforms for at least ten states, in three of which all or part of the proposed changes have received favorable action.52

The Beginning of the End Harvard dean Sidney Burwell recognized Moritz’s growing frustration about obtaining funding for the department and the difficulty of coordinating with other departments such as law and preventive medicine within the university. Burwell could sense Moritz’s impatience and recognized that a man of his professional stature and age was ripe for a move. Moritz had once threatened to leave Harvard for Cleveland, in 1944, but at that time he had come to accept the fact that his ability to accomplish something really constructive in the field of legal medicine would be greater in Boston than in Cleveland. Despite his already hectic schedule, though, he had accepted another position, as pathologist-in-chief at the Peter Bent Brigham Hospital in Boston. In a bold move to retain Moritz and ensure the future of the department, Burwell pressed Gregg for the then astronomical amount of $295,000. The expressed use of the funds would be to pay Moritz’s salary until his projected retirement in 1966. Burwell hoped that by virtually guaranteeing Moritz’s financial future, he could alleviate any bad feelings he harbored about the current situation at Harvard. Of the sixteen men Moritz had trained, only five fellows held teaching appointments at other universities and were involved in legal medicine with real prospects for continued careers

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in forensic medicine. Moritz was now also actively involved in wartime research for the army. He examined the effects of physical agents, heat and radiation, on human skin and the electrical conductivity and effects of electricity on human tissues. In addition, he studied the effects of flamethrowers in combat through the correlation of the histological characteristics of burns with their predictability for healing. His trainees also activity assisted him in examining the effects of protein deprivation and starvation on the body.53 Gregg quickly replied to Burwell, indicating the Rockefeller Foundation’s willingness to fund Moritz but only for a period of five years. Three weeks later, at a meeting to discuss the future of legal medicine at Harvard, Moritz declared that he preferred to stay at Harvard but the uncertainty about the future and the inadequacy of the present budget were factors that had him contemplating the offer to take over Karsner’s job at Cleveland. Moritz left the meeting having secured an agreement to increase his funding to $20,000 per year. Scarcely two weeks later, on February 1, 1949, Moritz wrote Gregg that he had decided to leave Harvard and accept Western Reserve’s invitation to succeed Dr. Karsner. Moritz’s reasons for leaving were that he had become increasingly discontented in the role of lead “propagandist” for the development of legal medicine across the country and that, from a physical and organizational standpoint, pathology at Western Reserve was more dynamic and had a brighter future than at Harvard. Moritz wanted to lead the transformation in the field of pathology from a system based on morphology alone to one based on function, and from a methodology based on description to one based on experimentation.54 Lee regarded Moritz’s departure with some relief, but she expressed concern about the immediate future of the department. She must have sensed that with her constant intervention in departmental issues, persistent pestering, and police bias, through her constant meddling, she had also played a role in Moritz’s decision to leave. Although the separation was amicable on the surface, Moritz could hardly conceal his delight in returning to Cleveland, while Harvard and the Rockefeller Foundation tried to hide their obvious disappointment at the loss of such an original and talented person. Just before his departure, when Moritz presented a report to the Harvard Pathology Department, he received enthusiastic applause for his efforts to develop forensic medicine at Harvard over the previous ten years—an unprecedented occurrence. “I can think of few fields in American medicine,” Gregg wrote to Burwell on Moritz’s departure, “where so much depends upon the inner convictions of one man.”55

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Dr. Richard Ford, an Irish Catholic who had replaced Leary as Suffolk County medical examiner, immediately succeeded Moritz as acting head. Once again, the fate of the department rested on the shoulders of one man. In many ways, Ford was the antithesis of Moritz. Ford was unassuming in his appearance and manner, serious, and conscientious. His letter of introduction to Gregg revealed his extreme self-confidence: “I believe that I am the best trained available man in the country for the position of head of this department.”56 Ford’s life was forensic medicine. As he continued to spend mornings performing hundreds of autopsies at the Mallory Institute of Pathology; his principal interest lay in trauma pathology and the techniques of performing autopsies in order to provide accurate evidence for trials. He ignored connections with general pathology staff at the institute. Busy with the day-to-day operation of the medical examiner’s office, he did not have the luxury of a full-time academic appointment or the time and assistants to pursue research in forensic pathology. He worked incessantly, taking only one vacation in six years. His practice of displaying gruesome photographs of crimes and bodies from his collection startled and disturbed some observers and visitors. In contrast, Moritz had always maintained that research was the primary purpose of the department, fulfilling the goals of the Rockefeller trustees. In Moritz’s view, forensic pathology could not exist outside of general pathology.

Harvard Changes Course Ford proved unable to perform research and to take a wider view of forensic medicine than simply trauma, leading Harvard’s new dean and the Rockefeller Foundation to doubt his ability to develop the department of legal medicine in its broadest sense. This situation confirmed the fears of the directors of the Rockefeller GEB about the demands of a community practice for medical services “overtopping” the primary obligations of teaching, as the Rockefeller Foundation sought to carry out a policy of full-time faculty.57 Ford’s quick, fiery temper and his wait-and-see attitude also infuriated Lee, who was greatly disappointed by his lack of aggressiveness in pursuing the larger goals of the department. Reluctantly, she shared with Gregg her lack of confidence in Ford. Gregg responded by recommending that she, for her own good, curtail her active involvement in the department, both personally and financially.58 Had the medical examiner position in Baltimore not become vacant and attracted Russell Fischer, Lee almost assuredly would have reeled Fischer

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back to Harvard, which might have affected the department in many positive ways and averted its eventual decline. At the time, Lee was still actively involved in developing the political landscape for the succession of medical examiners in Boston. Although she was relieved that Moritz had finally left, she remained skeptical about the future direction of the department. Having fulfilled her initial promise of $250,000, she withheld any additional funds except for the $250,000 endowment she provided in her will, a move that doomed the future of forensic medicine at Harvard. With the departures of Moritz and Lee, the department lacked a strong leader, and the emphasis of the teaching of forensic pathology at Harvard began to shift slowly to law and ethics. Gregg’s hope that Lee would provide a large sum of money in her will faded because she had soured to the department during the Ford years. In addition, she lived longer than expected and had to draw on the principal of her estate. Ford, who had been assigned an interim position as acting head of the department, eventually failed to obtain the permanent position he sought—a problem that may have led to his excessive alcohol consumption and eventual suicide. In 1952, only three years after Moritz’s departure, the department of legal medicine was in turmoil. The new dean of the law school was enthusiastic about legal medicine but planned to emphasize the new areas of health insurance, psychiatry, and medical ethics. He decided to experiment in expanding the concept of legal medicine beyond its present emphasis on forensic pathology. As a result, the Rockefeller Foundation committed an additional $100,000 over a four-year period. A newly appointed commissioner on mental health was recruited and guided the department into the new field of Medicaid jurisprudence.59

The

Rockefeller Foundation’s support for establishing a professionally based system of death investigation had not ended with the 1928 NRC report. True to its philosophy of institutional development, the foundation provided financial support and advice to agents of American medicine in an attempt to create a legal medicine institute at Harvard based on the European model. Far from having evangelical or capitalist motives, as some historians of medicine have alleged, the foundation sought to further the American quest for justice and freedom from crime. The directors of the foundation, together with leaders of American pathology, attempted to meld law and medicine with scientifically based principles into a single discipline dedicated to justice. The experiment failed, in large part due to conflicting personalities, each with his or her own idea of what shape legal medicine should take. The

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foundation’s attempt to establish an institute of forensic medicine at Harvard was its final effort to improve American society through legal medicine, and its philanthropic contributions to forensic medicine ended. In postwar America, proponents of forensic medicine were forced to turn to medical schools and the federal government for financial and academic support. In the end, the Rockefellers failed in this mission not for lack of clear vision on their part but because of the myopia of others. Nonetheless, the Harvard effort had produced some positive results. By 1949, only nine states had made attempts, albeit without much success, to improve their death investigation laws.60 The postwar period provided two essential ingredients for further efforts to reform forensic medicine— an excess of crime and available physicians returning from war. In the first fifteen years of its existence, Harvard’s Department of Legal Medicine under Moritz had devoted its principal efforts to establishing methods in forensic pathology and training medical examiners. Moritz’s students who trained at Harvard during those years eventually became leaders in the growing field of forensic pathology By the time he left Harvard, Moritz and the Rockefeller Foundation could point to only two states, Maryland and Virginia, where through their efforts a medical examiner system had replaced the coroner system. However, Moritz and the foundation had built a strong foundation of reform in many other states, which waited only for a blueprint for legislative action—a model law for death investigation.

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A Model Law

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n the morning of July 4, 1954, the tiny city of Bay Village in suburban Cleveland awakened to the shock of a brutal murder. Marilyn Sheppard, the wife of Dr. Samuel Sheppard, lay draped over the end of her bed, her breasts exposed and her head and face macerated from multiple blows from a blunt object. Dr. Samuel Gerber, the well-known Cuyahoga County coroner, took charge of the scene investigation. He interviewed Dr. Sheppard, his lead suspect, and had the body removed to the morgue. Under Gerber’s authority and direction, Dr. Lester Adelson, a highly skilled and nationally respected forensic pathologist, performed the autopsy. Fewer than three weeks later, Gerber conducted an inquest in the sweltering heat of a local school gymnasium in order to attract and accommodate as large a crowd as possible. After a grueling examination of Sheppard, Gerber filed an inquest verdict that, surprisingly, named Sheppard as the murderer. Gerber, it was rumored, despised Sheppard and his family because abortions were performed in their hospital and because Sheppard, his father, and his brother were doctors of osteopathy.1 Gerber rode a wave of national celebrity throughout the summer and afterward as the media publicized the case. During the trial in December, Adelson, using new photographic technology for the first time in an American courtroom, projected colored slides showing the bloody body to the jury. Despite numerous inconsistencies in Gerber’s testimony and conduct, the jury found Dr. Sheppard guilty of the murder. He was sentenced to life

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in prison and sent to the state penitentiary, where he remained until 1966, when attorney F. Lee Bailey helped to exonerate him. The trial demonstrated the best and worst of forensic medicine at midcentury. Gerber was proud of the scientific crime investigation techniques employed by his laboratory, the tight-fisted control he exerted as coroner, and the highly accomplished forensic pathologists under his authority; he was the model coroner—scientifically trained and politically powerful. However, his charismatic personality and hunger for media fame adversely influenced the trial. He controlled the office, the scene investigations, and the media through his maneuvering and connections. The eventual appeal and retrial that resulted in the overturning of the conviction were tied to Gerber’s missteps during the investigation. Over the succeeding years, Gerber’s main nemesis was not F. Lee Bailey but Richard Childs, the Progressive Era reformer from New York. After his attempts at changing county government, Childs had returned to the political scene, this time to pursue and “rub out” Gerber and other elected coroners like him.2 Childs’s pursuit lasted for the next twenty-five years; and he and Gerber went to their graves with the Cuyahoga coroner’s office unchanged.

The National Municipal League Takes On Coroners In 1947, at age sixty-five, Childs had become chairman of the executive council of the National Municipal League and had undertaken a personal campaign to remove coroners from every state in the union.3 Although he was a Progressive who believed in the betterment of humans through science, Childs was also a pragmatist who rejected scientific, social and economic predestination. He believed that one could “direct the struggle” to improve municipal governments. It was Childs who had mounted a rigorous campaign against the “short ballot” in 1912 to remove coroners from the ballot in New York City, on the platform that elective offices must be visible in order to be filled democratically. He believed that it was undemocratic for an uninformed public to vote for obscure positions like coroner for which politicians hand-selected their political appointees.4 Childs was driven by his dislike of petty politicians who used the coroner’s position to reward party loyalists who drummed up votes. To win the vote, the candidate for coroner usually only had to promise to cut the office’s spending by eliminating the unnecessary expense of autopsies. Childs considered it an injustice that the obscure office of coroner, hidden from democratic voters, wielded the power to determine citizens’ cause and manner of death. He refused to accept that such an important responsibility for

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making medical decisions was relegated to minor officials who lacked medical training of any kind or, if they were physicians elected to the job, often lacked the necessary skills for or interest in the job. Childs considered America’s three thousand county governments “the Dark Continent of American politics,” overseen by an inadequate governmental structure that received little public attention or scrutiny. From 1920 to the late 1940s, he strove to improve municipal government by changing its structure, taking it out of the hands of corrupt politicians who sought only their own financial gain. What he attempted was nothing less than a return to prerevolutionary America’s tenets of morality and civic purity in a republican democracy, which had been destroyed in the nineteenth century by corrupt Tammany Hall–like political machines in every major city in America.5 He began his campaign with efforts to instill fear of crime in the public and politicians by openly attacking coroners with the claim that “more homicides go undetected as detected.”6 In February 1949, Childs met with Alan Moritz, J. W. Holloway, and Frances Glessner Lee to discuss creating a model state law for death investigations, following the same methods he had used to develop a series of model laws for state constitutions and county governments. Moritz, to Childs’s vexation, deplored physicians’ ad hominem attacks made on coroners and insisted that reform should be centered on the adoption of strong medical examiner laws. On the surface, Childs agreed with Moritz, but he could not hide his loathing of all coroners and what they represented: undemocratically elected government officials. When Holloway, the director of the AMA Bureau of Legal Medicine and Legislation and a supporter of coroner reform, suddenly became ill and Moritz left Harvard to take the pathology chair in Cleveland, Childs turned to Richard Ford, Moritz’s replacement, for help in developing a model law.7 In contrast to Moritz and in agreement with Childs, Ford despised coroners for their unscientific approaches to death investigation and political hubris. He was much better suited than Moritz to share leadership with Childs in his battle to remove coroners. Ford was extremely confident and optimistic.8 Formerly always in Moritz’s shadow, Ford now traveled extensively in his effort to establish medical examiner systems and appreciated the attention he received as a “legal expert.” In November 1949, Childs contacted a group of national medicolegal experts to attend a meeting at the National Municipal League’s Conference on Government in St. Paul, Minnesota, to develop guidelines for the new law. Childs invited Ford to chair the meeting on legal medicine and suggested the essential components of a model medical examiner law. Ford wrote the final version of the model law, with Childs’s collaboration; it essentially duplicated the recommendations made by Moritz in his 1942 report as chairman of the special

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committee of the AMA and by Chaillé before him. Ford’s and Childs’s proposal recommended that the chief medicolegal officer in each state be a physician and pathologist; established the types of death to be investigated; recommended the creation of a medicolegal committee in each state to supervise the selection and function of the chief medicolegal officer, and called for centralized toxicology laboratories.9 Although Ford shared Childs’s contempt for coroners, he stopped short of calling for them to be abolished. Both Ford and Childs agreed that “the average hospital pathologist was incapable of interpreting the effects of injury and misinterprets medical evidence.”10 They recommended that only pathologists with advanced training in forensic medicine should perform medicolegal autopsies. In 1951, when the National Municipal League published their proposal, entitled A Model State Medico-legal Investigative System, only seven states had adopted some form of medical examiner system. The model law had Childs’s fingerprints all over it. In the introduction, he subtly repeated his call to abolish the coroner system: “it seems utterly inexcusable in view of the great progress made by medicine and government during the last several hundred years, that most of the United States still depends on the typical elected county coroner as a key factor in the detection and punishment of homicide.”11 The report did not spare criticism of physicians and politicians who failed to view forensic medicine as a specialized field of medicine and to acknowledge the need for reform. It is an incontestable fact that, throughout the greater part of the United States, inquiry into the cause of violent death and death from obscure causes is the responsibility of laymen or physicians lacking the experience and technical aids necessary to state the true cause and manner of death. That such a situation be permitted to exist means there is no realization for the need of skilled investigators and no concern for the injustice and tragedy that may and does result from the misinterpretation of medical evidence.12

In the years before the release of this proposal, death investigation in the United States had received considerable attention from the popular media.13 The model law gained immediate recognition from legislators, medical and legal societies, and the media that catalyzed a new wave of muckraking journalism against the coroner system. In 1953, for example, the Minneapolis Morning Tribune detailed the deplorable state of the office of coroner in Minnesota in a series of ten articles. The Minneapolis coroner had been removed for selling narcotics out of his office. The reporters goaded the public: “if you want to get away with murder, there are several places in Minnesota where it ought to be easy.”14 This and similar publications in other major cities detailed the stories of

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numerous people whose deaths the coroner had overlooked or simply botched. For example, a coroner had certified one woman’s death as a heart attack despite witnesses having seen her husband beating her. Elsewhere, a coroner had determined that the deaths of two men found floating in a lake were due to drowning even though he had refused to leave his car to view the bodies. The Tribune decried the fact that only fifty of eightyseven Minnesota counties had physicians as coroners, whereas twenty-six had funeral directors. The Minneapolis coroner received the harshest criticism: “pathologists around here have believed for years that Heim [the coroner] was not competent.” The series concluded with the warning: “we can’t be safe without a medical examiner plan.”15 As a result of the media attention fueled by the article, the Minnesota state bar association followed up in 1954 with a comprehensive review of the coroner system and reached conclusions similar to those of the Tribune.16 In 1957, the bar association introduced a bill instituting a statewide medical examiner system, but part of the bill encountered opposition, ironically, from the state medical association. The morticians (who eventually accepted the language of the bill in 1959) opposed a compromise bill that required court authorization before an autopsy could be performed. The Tribune articles and the bar association’s effort grew out of the public’s reaction to the proposal for the model law, but the resentment that arose against coroners was not sufficient to bring about a medical examiner system in Minnesota. Minneapolis would wait another five years for the Citizens League to turn public opinion and get legislation passed to appoint a medical examiner. Concurrently, states and county legislatures throughout the country were beginning for the first time to examine their own coroner systems.17 The leadership of the National Association of Coroners (NAC) had a mixed response to the model law when they met at their 1950 annual meeting. Gerber controlled the organization; he had turned it into his own well-oiled political machine. Gerber and Willis Butler, a physician coroner and NAC president from Shreveport, Louisiana, publicly expressed appreciation for the National Municipal League’s interest in their plight and politely voted to appoint a committee to review the issue at the annual meeting. Gerber published articles calling for cooperation between supporters of the medical examiner system and defenders of the coroner system to improve death investigation. These were disingenuous delaying actions. In reality, Gerber and Butler were furious at any insinuation that coroner systems were inferior to medical examiner ones.18

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Coroners Go on the Defense Gerber soon became Childs’s primary antagonist. The legendary coroner from Cleveland was the strongest and most articulate voice for coroners and against the medical examiner system. One of eight children born to a blacksmith in Hagerstown, Maryland, Gerber had received his medical degree from the Cincinnati Eclectic Medical College in 1922. A short man of five feet five inches, Gerber claimed that he had been “more interested in law but my folks wanted me to go into medicine.” Following his internship, he briefly practiced medicine in Scoot, Ohio, a town of four hundred, where he developed his political skills while serving as mayor. In 1925 he arrived in Cleveland, where he quickly obtained an appointment with the public health department as physician in charge of the Warrensville Workhouse. He gained the attention of the Democratic bosses at the local Masonic Lodge and in 1934, at the urging of Cleveland’s mayor, he ran for coroner. Gerber’s spicy campaign rhetoric was the kind many coroners of the period used on their campaign posters: Look out for the coroner He deals with the dead, He cuts he slices A corpse for his bread. He sits and he ponders, Who killed old man Jones, Then puffs a Corona And rattles his bones. Doc Gerber is small But he knows his stuff But as long as they’re dead Oh boy! Is he tough.

Although Gerber lost his first election in 1934, he won in 1936 and remained Cleveland’s coroner for the next fifty years, until his death at age eighty-six.19 Gerber had obtained national fame almost immediately after taking office as a result of his involvement with the gruesome Kingsbury Run torso murders, the first nationally publicized serial killings. From 1934 through 1936, authorities recovered a total of twelve bodies in Cleveland’s Kingsbury Run area, a dry creek bed of wooded expanses, gullies, and ravines that bordered the city near the Cuyahoga River. All the bodies had been decapitated, and only two could be positively identified. Gerber flourished in the media attention. The murder investigation was serialized in pulp detective magazines, and he became famous as he posed for photographs at

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the scene and with bodies in the morgue. The murderer was never found, but the story captivated the nation and catapulted Gerber to national prominence; he became president of the NAC soon afterward in 1938.20 When newly elected, Gerber had taken over a cramped morgue office located in central Cleveland next to a tavern, which a visitor once remarked was well placed for people to visit both before entering and after leaving the morgue. To improve this situation, Gerber hired a young toxicologist, Mary Cowan, who converted the dilapidated office into a crime laboratory modeled after the medical examiner offices in New York, Maryland, and Virginia.21 Cowan eventually became his personal assistant, friend, and confidant. In 1944, after Gerber had responded to a gas explosion that killed 130 people in Cleveland, he wrote the first disaster-preparedness plan for evacuation of the injured and processing of the dead. Now an instant “expert” on disaster management, he was called to Toronto in 1949 to assist in investigating the explosion of the passenger ship Noronic, which killed 119 people. Gerber also became a political reformer. After obtaining his law degree at night school, he successfully urged the modernization of coroner’s laws in Ohio to require coroners to be physicians. In the late 1940s and early 1950s, Gerber was as politically strong as any coroner in America. He published editorials that encouraged improvements in coroner’s offices but strongly resisted wholesale changes that would have implemented medical examiner systems. He was a skillful politician, and his position in the NAC gave him the national platform he craved. On the surface and in the face of obvious malfeasances, the NAC reluctantly admitted “there is merit in this proposal [model law] as it refers to the improvement of legal medicine as now practiced in the jurisdictions of the several states of the United States of America.”22 The NAC president, Butler, went on record as congratulating the AMA and the National Municipal League for their part in improving death investigation and pledged to aid in implementing the law. Behind the scenes, coroners argued that there were not enough competent pathologists to fill the needs of death investigation. State coroner organizations from Alabama to Wisconsin hurried to organize their constituents, flex their political muscles, and plan their defense of their jobs. Although they were at opposite ends of the debate, for both Childs and Gerber, the issue of preserving American democracy lay at the heart of their fight over coroners. Childs saw the election of coroners as furthering a government run by unknown, inefficient political hacks. “The average voter, even as he leaves the polls, is seldom aware of the qualifications or name of the person for whom he has just voted for coroner.”23 Gerber

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maintained that popular elections guaranteed citizens representation in government: the coroner’s inquest ensured the balance of power among individual citizens, aggressive prosecutors, and moneyed insurance companies. He objected to centralized, appointed medical examiners for a number of reasons. He complained bitterly that Childs’s approach was not practical, as it did not take into account local situations of money, men, and political reality. Reproving Childs for being “politically motivated,” Gerber claimed to be the voice of practical politics that “enthusiastic, zealous and impatient idealists failed to comprehend.”24 In 1953 Childs published his study Coroners, which contained the results of his first field survey of existing medicolegal investigative services in each of the states. In light of the dismal state of death investigation he had found, Childs’s book portrayed his growing optimism of the future of death investigation. By this time he had unabashedly entered into a one-man attack on coroners. Although he exaggerated the media in claiming that the system failed to identify hundreds of murders, he simply could not ignore the fact that untrained coroners sometimes did miss them.25 The New York medical examiner’s office, once the model of an efficiently run medical examiner office, hit hard times. Years of chronic underfunding had left it poorly staffed and demoralized, with deteriorating facilities amid a crushing caseload. The deplorable state of the office caught the attention of city administrators, who now sought out Childs for his expert opinions. He reviewed the office and noted that because of lack of funding, qualified pathologists were not always used to perform autopsies. In his recommendations to the city administrator, he called for the city to improve funding and manpower. The increased funding for the office that resulted won him the lifelong gratitude of Milton Helpern, the new medical examiner.26 Encouraged by the response of legislators nationwide to Coroners, Childs sought the assistance of the National Conference of Commissioners on Uniform State Laws to condense Ford’s work into a legally worded document fit for publication. This document was published in 1954 as the Model Post-mortem Examinations Act.27 A year later, the Council of State Governments adopted the model law as recommended legislation for all states. In 1954, Childs traveled to Chicago, where he stumped to promote to the AMA this new model of death investigation for the country. He hoped the model law would encourage local medical societies and pathology associations to lead the charge in their individual cities and counties to abolish coroners and establish medical examiner systems. The AMA indeed began to push aggressively for coroner reform and encouraged state medical so-

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cieties to assist in persuading their state legislatures to adopt the model law. The AMA purchased a thousand copies of the model law for distribution, and editorials began appearing in the pages of the Journal of the American Medical Association in support of medical examiner systems.28 Coroner reform was already under way in some states. In 1949, Rhode Island had created the office of state medical examiner to supervise appointed county physician medical examiners. Two years later, Arkansas had created a state medical examiner position at the University of Arkansas School of Medicine and required elected coroners to report their cases to that office for possible autopsy. Louisiana and Georgia had created centralized crime laboratories. Texas, Florida, Michigan, Iowa, Kansas, and some counties in California had proposed legislation to create medical examiner systems. The model law’s first appearance in 1951 had stimulated a flurry of legislative action.29 In the same year, Michigan had submitted a referendum that authorized counties to abolish elective coroners and substitute qualified physician medical examiners. The bill initially lost but passed in 1954, completing a process that had begun in 1939. Arizona had established a medical examiner in Phoenix in 1952. North Carolina’s Institute of Government had published a comprehensive pamphlet, Coroners in North Carolina, which rationalized the argument against coroners by the state medical society and eventually led to the creation of a state medical examiner system.30 Elsewhere, legislation permitting medical examiners had moved forward in many states, including Iowa, Minnesota, Connecticut, Oklahoma, Illinois, Georgia, Texas, Utah, New York, Missouri, and Florida, as well as in large cities such as Phildelphia.31 In 1959, legislation would be introduced in ten states, and complete or partial reform of the coroner’s office would be in place in twenty-four states.32 Childs quickly learned that simply proposing legislation did not ensure that it would be enacted. For legislators, tinkering with state constitutions was no trivial matter. In state after state, they balked at removing the office of the coroner from the constitution. Legislation initiated in Washington state, Minnesota, South Carolina, and Illinois, to name only a few, failed to be enacted into law. Funeral directors were another significant obstacle; they feared losing control of coroner’s office and the lucrative rewards that came to funeral director coroners. They organized their substantial political clout to defeat referendum after referendum. Some funeral directors did support medical examiner systems in order to avoid the practice of self-referral by funeral directors elected as coroners; this occurred in Wisconsin. Following the 1955 publication of the model law, Wisconsin district attorneys, with the support of Wisconsin state funeral directors and the state medical society,

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submitted a bill to set up a medicolegal laboratory and physician medical examiner office in every Wisconsin county. After two attempts, the bill died after the funeral directors obtained passage of a separate bill forbidding funeral directors from being elected as coroners.33

Coroner Reform in Oregon In contrast to the obstructive role played by their counterparts in other states, two Oregon funeral directors initiated medical examiner reform. Oregon’s attempt to remove the coroner exemplified the political jockeying required to change the state constitution. In 1952, two funeral directors in Lyons County each spent more than $20,000 to run against each other for the coroner’s position. They quickly realized the economic futility of vying for an office that cost more to secure than one could ever hope to recoup in the position—though admittedly, they were running for the office only to protect themselves from future competition from the incumbent coroners. Subsequently, these two coroners called for the removal of the coroner position from the state constitution and the creation of a medical examiner system. With the support of the dean of the state medical school, the chief of the state police, and local pathologists, they succeeded in 1959 in passing a statewide referendum that abolished the office of coroner from the Oregon state constitution.34 These reformers next attempted to create a state medical examiner system based on the model law. The measure stalled in committee because a single powerful senator, Tom Mahoney, a lawyer who chaired the judiciary committee, fought it. Mahoney depended financially on intestate cases the coroner’s office steered his way (in exchange for kickbacks from him); removal of his county’s coroner would cause him considerable economic hardship. Eventually, Mahoney and the reformers reached a compromise whereby all of the counties in the state except his—Multnomah, the most populous as it includes Portland—would become part of a new state medical examiner system.35 The new system mandated that physician medical examiners were assigned to county health departments and supervised by a new chief state medical investigator; the state board of health was to administer the system. As had often happened elsewhere, the most junior pathologist, not the most experienced, on the university staff was assigned to perform the duties of the state medical examiner. The dean selected a general hospital pathologist as Oregon’s first state medical examiner. He had no training in forensic medicine, was ill prepared for the task, and hated the job. A trained

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forensic pathologist replaced him shortly thereafter, giving credibility to the new system. The final step in the evolution of Oregon’s medical examiner system was to include Multnomah County in the state system. In 1964, the medical school along with the county medical society encouraged William Brady, an idealistic young pathologist who was training in forensic pathology under Milton Helpern in New York City, to run for the office of coroner of Multnomah County. Brady had trained in pathology at the University of Oregon in Portland and had planned to return to Oregon after completing his training in New York. Local pathologists at the university devised a plan for him to run for Multnomah County coroner while he was still in New York. Homer Harris, a hospital pathologist who had worked to improve death investigation in Portland, ran Brady’s campaign. The election pitted Brady against eighty-one-year-old Vertin Earl Smith, who had won the 1960 election in a surprising upset. Smith had been a coroner in the 1930s, and Mahoney, fighting for his financial life, had financed his 1960 campaign. It was well known that the coroner’s office “ran itself.” Smith was notorious for handing out prescriptions to prostitutes who traded their services for drugs, as was evidenced by the large bed Smith kept in the morgue.36 Sensing that only a Democrat could win in Multnomah County, Brady, a lifelong conservative Republican, changed his political party affiliation in order to run for the office. He won the 1964 primary, largely due to the support of the local medical community and funeral directors. In the general election, the Republicans ran a ghost candidate, the chairman of the pathology department at the local veterans’ hospital, whose campaign slogan, “Elect Brady” endorsed his opponent. Brady, financed by pathologists and funeral directors, easily won the position of coroner in the general election. Brady’s first act, after removing the bed from the coroner’s office, was to mollify Mahoney. The two met shortly after the election. Brady and his large family could not live on the coroner’s salary of $5,000. He promised Mahoney to continue assigning him the intestate cases in return for a $6,000 increase in salary and the stipulation that no kickbacks would be paid in return to Brady or any of the employees of the office. With the deal consummated, Mahoney dropped his opposition, and Multnomah County was included in the state system. In 1969, Brady was appointed chief medical examiner of Oregon.37 In 1972, Brady and the district attorney rewrote the medical examiner law so that control of the inquest was returned to the district attorney’s office. What resulted was a tight system of 250 physician medical examiners

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centered at public health offices and working with twenty-five pathologists across the state. The evolution from coroner to medical examiner was complete. It had succeeded only through hardball politics and constant efforts of and cooperation from reform-minded funeral directors, pathologists, organized medical personnel, and pacified politicians. As with any cause, economics and politics had both enhanced and impeded medical progress.

Coroners Court the AMA Childs continually reported on the progress of the model law and the removal of coroners in states like Oregon. He regularly touted the success of coroner system reforms in the National Civic Review, the official publication of the National Municipal League. He reported annually on states that had made progress toward developing medical examiner systems and those that retained the coroner system. Following the lead of the numerous tabloid and newspaper headlines, he published an essay he entitled “Best States for a Murder,” in which he listed these states as those that resisted change and retained coroner systems. He used this monograph as a propaganda tool, sending it to state legislatures, medical societies, and bar associations in an attempt to embarrass them into action.38 Childs’s superior organizational and political skills, coupled with his relentless ideological energy, motivated pathologists and legislators to act. His method was not to remove the coroner from the constitution but to initiate legislation allowing individual counties to decide on their form of death investigation based on local “home rule” charters. Next, he argued that coroners should be physicians. He helped large metropolitan medical examiner systems expand into the smaller counties around their states, eventually forming a state medical examiner system.39 In November 1953, the San Francisco coroner, Dr. Henry W. Turkel, published an article in the Journal of the American Medical Association, entitled “Merits of the Present Coroner System,” which questioned the superiority of medical examiners over coroners. After being elected coroner in 1951, Turkel, a physician, had lost little time expanding the visibility of his office. He increased the numbers of autopsies, improved investigations, and established a group of trained lay death investigators. Using annual statistics to compare the autopsy rates of medical examiner versus coroner offices, he demonstrated that coroners ordered more autopsies and laboratory tests than did physician medical examiners, concluding that the work of coroners “surpasses in quality and amount that done in any other type

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of system on which statistics were available.” Turkel advocated that 20–25 percent of all deaths in the county be autopsied. He defended the coroner’s inquest as a system of checks and balances against a legal system dominated by the prosecution and argued that coroner’s offices were more efficient and thorough in investigating deaths than were medical examiner systems.40 The AMA, caught in a political war between two groups of constituents, backed both factions. It supported the arguments for physician coroners: “It should be obvious that the name under which the medical investigation operates, whether it be coroner or medical examiners, has nothing to do with the effectiveness with which his official duties are discharged . . . much can be done to improve the operation of the office of coroner short of replacing with a medical examiner.”41 A small but vociferous group of physician coroners ultimately defended the legitimacy of this position; they supported the coroner system while urging its improvement. Gerber and the leadership of the NAC supported their interests by showcasing physician supporters of the coroner system. At the 1951 annual meeting of the NAC in Los Angeles, R. B. H. Gradwohl, director of the crime laboratory of the St. Louis Police Department and founder of the American Academy of Forensic Sciences, touted the benefits of the coroner system. Fifty years earlier, he had attacked coroners and argued for the abolishment of the office. Over time, though, he volunteered, there had “grown a mature judgment that it is not necessary to see the abolishment this office [coroners] in order to best serve the public.” He now argued that by improving statutes, enhancing financial support, and utilizing greater numbers of scientifically trained forensic pathologists and toxicologists, the office could be operated efficiently and effectively. “It doesn’t make any difference to this speaker what you call this officer, coroner or medical examiner. I am only interested at this time in seeing to it that a high order of investigative efficiency represent the people of this country.” In a barb directed at Childs, he closed with “a plague on both your houses—carry on the work properly and that will give the reformer nothing to reform.”42

Best States for Murder Where physicians and the AMA failed to bring about coroner reform, local civic activists carried on the fight. In Miami, a series of botched death investigations triggered the move toward a medical examiner system. Justices of the peace acted as coroners throughout Florida, a holdover from Spanish legal practices. In Dade County (Miami), five elected justices func-

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tioned as coroners in a formal politically established coroner system. The position of coroner was powerful, both politically and economically, and a starting point for attaining other political offices. Prosecutors were impotent against the justices because they had to try cases in their courts. The local medical society and individual physicians had tried and failed to reform the institution of the justices of the peace. Most physicians were not politically astute and refused to play for the political stakes the move required.43 In the early 1950s, a dead man was found floating in Biscayne Bay with his hands tied and a knife in his back. When the local justice of the peace certified the death as a suicide, the citizens of Dade County became enraged.44 Claire Weintraub, a prominent Miami civic leader and urban reformer, sprang into action. She was politically savvy and had championed many other civic projects. Miami at the time was a young city, where reformers like Weintraub possessed a can-do attitude. She and a group from the Miami Women’s Club began a grassroots effort to abolish the justice of the peace–dominated coroner’s office and enacted a medical examiner system in Miami. In 1955 Weintraub’s son Albert, an attorney, drafted the proposed legislation and with the Dade County sheriff organized a campaign that contacted legislators door-to-door.45 Weintraub and the reform group, playing hardcore party politics, introduced the bill during the last two days of the legislative session so as to evade the justices’ attention. Still, the reformers met with stiff opposition from the justices’ strong lobby. Weintraub and her group finally won passage of the bill in 1955. It created the first full-time, laboratory-oriented medical examiner system in Florida. (Eventually, the state constitution was changed so that justices of the peace also lost the ability to hold inquests.) Dr. Stanley Durlacher of Louisiana State University Medical School was hired as medical examiner. A key provision in Durlacher’s acceptance was a university affiliation within the University of Miami school of medicine. After Durlacher died suddenly in 1957, Joseph Davis assumed the role of medical examiner and held the post until 1995.46 The Florida medical examiner law proved too weak. It collapsed after a lawsuit relating to an “unauthorized” autopsy failed to protect the medical examiner. The Florida Medical Association continued to push for reform. It eventually recognized the natural referral behavior of the surrounding counties and developed a regional medical examiner system based on the referral patterns. Long before, forensic pathologists had realized that Florida was too large to be controlled by a single medical examiner. With the cooperation of a number of medical, legal, and law enforcement entities, a commission was established to oversee district medical examiners. The new

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Florida law succeeded because it was written by forensic pathologists who had both rural and urban needs in mind; the basic principle was local autonomy following guidelines established by a unified statute.47 In 1963, Childs published an updated version of Coroners in which he detailed progress since the release of the National Municipal League’s model law. In thirty-three states, the coroner system had been partially or completely abolished. In seventeen of those states, the reform had started mostly in the more populous centers, leaving the rural areas unchanged. In sixteen other states, the coroner system remained. In some states, coroners had not completely been abolished but legislation had been enacted to appoint medical examiners to advise and assist local coroners in performing autopsies. A few states had passed legislation requiring coroners to be physicians. Elsewhere, district attorneys in small rural counties assumed the duties of the coroner’s office. Meanwhile, California continued to allow sheriffs to perform the coroner’s functions.48 In some states, legislators had been jolted into action by the ineptitude of the existing coroner, a local disaster, or both. The stimulus for reform in Oklahoma was a number of sensational and grossly mishandled or misinterpreted cases. In one case in 1960, a young man from a socially prominent Oklahoma City family had struck and killed a man during a barroom brawl. The coroner, using a local pathologist, certified the death as a homicide. The case attracted immense media attention. A subsequent autopsy performed by Milton Helpern, the New York City medical examiner, diagnosed the death as due to a ruptured cerebral aneurysm and not the result of trauma. The accused was eventually acquitted. The case ignited a movement to establish a medical examiner system. In 1962, Oklahoma enacted legislation that abolished coroners and established a state medical examiner system. However, because of a lack of appropriations, the system was not created until 1966.49

Chicago Moves toward a Medical Examiner In Cook County, the Institute of Medicine of Chicago, with Oscar Schultz as chairman, the Chicago Medical Society, and the Illinois State Medical Society had long urged improvements in the 1874 Coroner’s Law. In 1952, these organizations introduced a resolution in the state legislature to “bring to [the coroner’s] office the same high efficiency [as] in those cities and states which have a medical examiner system, rather than a coroner.”50 In its final form, the bill clearly defined the types of deaths that should be investigated by the coroner, limited the use of coroner’s juries to cases of

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homicide, suicide, or accidental death, and provided that medical examinations be made by licensed physicians with training in pathology whenever possible. The governor vetoed the bill, claiming that “a number of pathologists who would not ordinarily be employed by coroners would be placed on county payrolls . . . [and] destroy county control over the cost and expense of the coroner’s office.”51 The Chicago coroner came under attack, a short time later, for the large number of failed prosecutions that resulted from botched autopsies performed by poorly trained physicians under his control. The pressure increased when a Cook County deputy coroner was convicted of soliciting a $500 bribe to “fix” the inquest of an automobile collision by changing the verdict from reckless homicide to accident. In addition, because the antiquated, outdated morgue could not accommodate the growing number of bodies, police officers were transporting victims of sudden, unexpected death to local funeral homes for autopsy. The procedure was a setup for abuse. Police often extracted bribes from funeral homes vying for the business. The coroner’s physicians were all part-time nonpathologists poorly trained to perform autopsies. Inspired by Childs and the model law, a local newspaper labeled the coroner’s office “Chicago’s Medical Black Eye,” reporting that the coroner’s salary and office expenses were the same as in the nationally respected New York City medical examiner’s office, and began pushing for a medical examiner system. Sensing a losing battle, the Cook County coroner created a special “citizens’” medical advisory committee, to which he appointed a committee of seven physicians, including the deans of the five Chicago medical schools. The committee’s report advised the hiring of a full-time physician coroner trained in legal medicine and the construction of central morgue with a toxicology laboratory capable of handling the county’s caseload of bodies. Pressing his point, the coroner pointed to the success of Cleveland, where Gerber ran a model, scientifically staffed coroner’s office. The Cook County coroner survived and managed to stave off further criticism by accepting the committee’s recommendation to hire a full-time forensic pathologist to supervise the performance of autopsies.52 The attempt to pass the model law jolted Illinois state legislators as well. The Illinois state medical society had begun to work with the state bar association to propose legislation allowing for the transfer of death investigations from elected coroners to appointed physician medical examiners with pathology training. Coroners, both physicians and nonphysicians, went on the defense. “Such a system would not be practical in sparsely populated counties,” the McHenry County coroner argued. The Cook County coroner testified that “coroners do more than simply determining the cause of death, they are the people’s watchdog.” “Planners are treading on thin

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ice,” a Du Page County physician coroner added, “when they talk about eliminating coroners without offering concrete suggestions for improvement.”53 The effort to remove coroners statewide failed. In 1955, the state general assembly established a body called the Advisory Board on Necropsy Service to Coroners, which published a set of policies and procedures for coroners that encouraged the use of pathologists to examine bodies. A last ditch attempt by the members of the Illinois medical society to remove coroners from the constitution died in the legislature.54

Fight to the Death Childs and Gerber continued their ongoing battle of insults throughout the next thirty years. Childs regularly sent out a “kit” to legislators filled with state-by-state reports on the progress of the medical examiner movement. He tried to persuade Gerber and Butler to fight for “getting coroners out of partisan politics” and appealed to them to begin the process while they were still in office. “You ought to use your great influence,” he urged them. “Wouldn’t that be the best legacy you could hope to leave to Ohio, rather than risk the lapse of your unofficial influence into a decentralized and purely political system?”55 Gerber continually assured Childs that he welcomed all efforts to improve the practice of legal medicine in the United States. He took every opportunity to try to convince Childs that medical examiners were no better than coroners. He pointed to the criticism of New York City medical examiner Milton Helpern by politicians and the media over alleged mismanagement of the office. “In view of what happened to our mutual friend, Doctor Milton Helpern, I am amazed at your persistently biased attitude and apparently unshakable prejudiced faith in the infallibility of Medical Examiner ‘Systems.’ Your bigotry in this regard demonstrated to me years ago that it was impossible to carry on any meaningful dialogue with you on this subject.”56 The National Municipal League’s model law successfully stimulated widespread development of medical examiner systems across the United States. By 1963, after twelve years of reform, almost half of all the elective coroners positions in the United States had been abolished. The model law’s ability to provide momentum for change eventually stalled, however. By 1967, coroner systems remained viable in thirty-nine states, of which only fifteen had permitted the establishment of county medical examiners on a local-option basis. In only eighteen states could Childs point to a statewide medical examiner system that had been established as a direct result of the law. Although the National Conference of Commissioners on

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Unified State Laws supported the law, it was not adopted into a single state’s constitution. At various times throughout the 1960s and 1970s, the AMA attempted to jump-start the campaign, but with little success.57 Childs died in 1978 at age ninety-six without having accomplished his lifelong goal of completely removing coroners from every county in the United States. Gerber lived and worked another seven years until he died in 1985, still fiercely locked in imaginary battle with his departed foe to preserve the office of coroner. The fight to reform death investigation in the United States started as a call for modernization of an antiquated system and the use of scientific methods by coroners and medical examiners alike. On another level, it was a war of competing theories of democracy. Proponents and detractors came from varied and unlikely sources. In many instances, nonpathologist physicians and scientists supported the coroner system, while pathologists were forced into the political arena. The multifaceted reform movement to remove coroners reflected the individual agendas of funeral directors, physicians, civic reformers, the AMA, and local bar associations. Despite the political weight of the AMA, it lacked the ability and will to enter into the street fighter mentality that was needed to remove coroners. A battle had to be waged first on the local level, working with specific issues, politics, and personalities. Only local citizen groups, seeking to improve local government and political influence in a time of increasing societal complexity, can be said to have sought reform for reform’s sake. Pathologists’ next step to improve death investigation would aim at removing incompetent physicians from death investigation and establishing a subspecialty of their own.

chapter

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Creating an Identity

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n 1962, the Hennepin County (Minnesota) board turned to Dr. John I. Coe to fill the position of coroner in the wake of a damaging newspaper scandal. A paper had reported on the imprisonment of the current Minneapolis coroner for selling narcotics from his office and revelations of the previous senile coroner’s improprieties. Local pathologists had refused to assist the coroner, whom they detested for his miserly payments for performing autopsies, and they had responded by declining to testify in court. A general pathologist for almost twenty years and chairman of pathology at the local county hospital, Coe had observed the work of the coroner but had little firsthand experience of the day-to-day operation of the office or of the new specialty of forensic pathology. He accepted the job as coroner, but only after the Minnesota legislature passed a law requiring that coroners obtain coursework in medicine, which effectively forced Hennepin County to change from a coroner to a medical examiner system.1 Coe recognized that he lacked sufficient formal training in forensic medicine to run a large metropolitan medical examiner office. In 1963 there were few places where physicians could obtain training in forensic medicine. Moreover, Coe did not have the luxury of leaving his hospital pathology practice to train for a full year. As a part of his agreement with the county board, Coe arranged to visit medical examiner offices around the county to learn firsthand the work of forensic pathologists. He visited offices in Cleveland, Philadelphia, Miami, and New York, spending three weeks at each

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location. By observing practicing forensic pathologists, he learned about the field. “I had no formal training in forensic pathology; I was truly a selftaught individual,” he confided—“one of the necessities of the time.”2 In 1964, the Delaware Medical Examiner Commission recruited as state medical examiner a young Iranian pathologist, Ali Hameli, who had just completed training in neuropathology and forensic pathology in Baltimore. The state had created the position in 1955, while retaining the position of county coroner, which had been generally filled by funeral directors. Hameli was the fourth medical examiner who had been appointed to the position in less than a decade—and he soon discovered why. The office was severely underfunded. Autopsies were performed in the dingy basement room of a funeral home. Coroners had adamantly opposed the state’s creation of his position and attacked him personally with harsh ethnic slurs and allegations that he was not fit for the job. During the first six years of his tenure, Delaware’s coroners sponsored fourteen pieces of legislation in an effort to eliminate Hameli and his position for good. Nonetheless, he hung on. Eventually, he consulted with New York City medical examiner Milton Helpern, who suggested to him a strategy to eliminate the coroner’s office. By chance, Richard Childs joined the meeting between Hameli and Helpern, and the ensuing discussion eventually led to the creation of the National Association of Medical Examiners (NAME). In 1972, after Delaware’s change to a cabinet form of state government placed the medical examiner administratively under the public health department, he finally was able to abolish the office of coroner. He moved the autopsy room to a renovated garage on the county grounds. Eventually he moved the medical examiner office into the new state crime laboratory, which he helped to design, and completely modernized Delaware’s death investigation system.3 Coe, Hameli, and others like them in Miami, New Orleans, Baltimore, Detroit, Oklahoma City, Dallas, and other large American cities breathed life into the specialty of forensic pathology during the early 1960s. They personified what Childs and other visionaries had long hoped for: a medically based death investigation system devoid of petty politics and quackery and led by professional forensic pathologists. In most cases, these professionals simultaneously sought to improve the facilities in which they worked and the laws that controlled and protected their right to examine the dead. Although organized medicine applauded the replacement of coroners by physician medical examiners, there was little recognition of their need for training in forensic medicine. Unlike the work of physicians in other medical specialties, who worked exclusively in the hospital, forensic patholo-

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gists’ work took them outside the hospital, where they were forced to engage in local politics. They encountered resistance from funeral directors fearful of losing their livelihood, politicians protecting elected coroners, and law enforcement officers resistant to physicians’ intrusion into their realm. Forensic pathologists struggled for recognition within their own field, as well as “battling to secure institutional control of their own arena of practice.”4 Forensic pathology eventually achieved official professional status as a certified medical subspecialty, but not at the same pace or with the same authority as other fields of medicine.

Forensic Pathology Takes Form Pathology had emerged as a medical specialty in the late nineteenth century in response to physicians’ desire to study the causes of disease and the concurrent development of laboratory science. The field evolved from depending solely on gross and microscopic anatomy of the autopsy to encompassing a broad group of specialized clinical areas of scientific knowledge, including bacteriology, chemistry, hematology, and serology.5 By the early 1920s, academic pathologists had begun to differentiate anatomic pathology further into its subdivisions of surgical pathology, neuropathology, dermatopathology, cytology, and autopsy pathology. Eventually, pathologists formed professional associations to guide and protect their professional, economic, and political agendas. The creation of forensic pathology followed the same course.6 Although medical schools had long included some courses in medical jurisprudence, by the early twentieth century they were typically being taught by lawyers or other self-identified experts. Autopsies, if required, were often performed in rundown county morgues or in funeral homes. The recommendations of the 1910 Flexner report had relegated medical jurisprudence to a low priority. In 1925 the American Association of Medical Colleges removed it from the list of recommended classes, and medical jurisprudence disappeared from the medical curriculum.7 In 1912, Harvard physician Richard Clark Cabot published a study of three thousand autopsies in which he demonstrated that in nearly 40 percent of cases the cause of death differed substantially from the clinician’s previous diagnosis.8 A pioneer in physical diagnosis, Cabot used the study to encourage physicians to develop their diagnostic skills using evidence obtained from the autopsy. He used this data to create the teaching concept of the clinicopathological conference where physicians, after deliberating over a patient’s clinical findings, developed differential diagnoses and

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awaited the definitive diagnosis uncovered by the autopsy. Confronted with the autopsy findings, physicians could acknowledge their errors in a professional, nonthreatening setting. The conferences emphasized the importance of the autopsy in both patient care and the education of physicians. The clinicopathological conference quickly became the standard method of clinical teaching in hospitals across the country. As Cabot and other medical advocates promoted for the importance of the autopsy diagnosis, hospital-based pathologists began performing large numbers of autopsies, which expanded to over 50 percent of deaths by midcentury. Cabot’s findings of a 40 percent error rate were repeated in major autopsy studies in every decade of the twentieth century, despite advances in medical care and diagnostic technology. Discoveries made from these autopsies, as well as those performed for medicolegal purposes, improved patient care and advanced medical science. For example, a medicolegal autopsy Hektoen performed in the Cook County morgue on a Chicago cardiologist’s patient in 1913 became the seminal diagnostic case for the discovery of coronary thrombosis.9 The field of forensic pathology emerged from coroner’s offices, where appointed, untrained coroner’s physicians performed autopsies. With time, academic pathologists such as Hektoen in Chicago, Magrath in Boston, and Harrison Martland in New Jersey began to incorporate medicolegal autopsies into their hospital practices. Known variously as legal medicine, forensic medicine, medical jurisprudence, and medicolegal pathology in medical school courses, forensic pathology at the time was limited to performing autopsies, examining microscopic slides, and testifying in courts of law. Legal medicine remained essentially unchanged since Theodric Romeyn Beck had first organized the elements of medical jurisprudence one hundred years earlier.10 Medicolegal societies established in New York and Boston at the turn of the century attempted to expand the knowledge base of the field and boasted of memberships that included physicians, lawyers, and even judges. Both societies published journals—the MedicolLegal Journal in New York and the Transactions of the Medico-Legal Society of Massachusetts—that provided a platform for scholarly debates of medicolegal issues.11 By the 1920s, increasing use of courtroom testimony in cases concerning individual civil liberties, insurance claims, and criminal cases created a demand for medicolegal experts. Some hospital pathologists began to recognize the special characteristics of forensic pathology and to realize that legal medicine required more than a casual understanding of the autopsy and the law. Indeed, full-time specialists were needed.12 At elite medical in-

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stitutions, pathologists began once again to call for the inclusion of courses in legal medicine in the medical curriculum. Unlike their colleagues in Europe, where medical jurisprudence had remained a prominent part of medical education, American pathologists were confronted with lack of public awareness, poor funding, professional ambivalence—and coroners.13 In 1932, New York University created a department of forensic medicine, the first of its kind at any American university. The curriculum included undergraduate lectures, postgraduate lectures in forensic medicine, pathology, toxicology, and serology, leading to a degree in forensic medicine. Forensic pathologists and staff from New York University provided postgraduate courses in forensic medicine, intended chiefly for coroners, coroner’s physicians, medical examiners, and other physicians interested in medicolegal work. The 1933 meeting of the American Society of Clinical Pathologists (ASCP) and the 1934 meeting of the AMA featured educational symposiums dedicated to legal medicine, organized by the leading pathologists in the field.14 In Boston, the newly created department of legal medicine at Harvard provided medicolegal seminars with the use of its three-thousand-volume library.15 Pathologists’ growing interest in issues related to sudden death fueled the publication of increasing numbers of books and journal articles related to legal medicine. Legal Medicine: Pathology and Toxicology (1937), by Thomas Gonzales, chief medical examiner of New York City, and his staff pathologists became an instant classic.16 With its realistic photographs and comprehensive discussion of the practice of death investigation, the book introduced the new discipline of forensic pathology to physicians as well as the public. The first organizational journal of the American Medico-Legal Association was published in 1938 but lasted only two years.17 In 1942, in an effort to include more forensic pathology topics in leading pathology journals, Moritz contacted Hektoen, the editor of the Archives of Pathology, who had spent much of his early career as a coroner’s pathologist in Chicago. Hektoen, still eager to advance legal medicine, began to publish articles in legal medicine in his journal. Articles on forensic pathology soon appeared in other prominent pathology journals as well. To supplement the education of coroners, forensic pathologists, and coroner’s pathologists, Moritz and other forensic pathologists delivered lectures on medical jurisprudence in many urban centers. Workshops in Philadelphia, New York, and Los Angeles, sponsored and arranged by local medical societies, helped to spread the knowledge and capability of forensic pathology to police and lawyers. Transcripts of these lectures appeared in numerous journals.18

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A Call for Recognition In 1942 Moritz, chairman of the AMA’s Committee on Legal Medicine, called on the AMA to recognize legal medicine formally as a special field.19 At the time, more than half of American physicians were full- or part-time specialists. “Even casual contact with the practice of legal medicine,” Moritz said, “is sufficient to disclose the fact that many of the problems are so unique as to justify recognition of legal medicine as a special field of scientific inquiry.”20 He urged medical schools to assume the challenge of teaching legal medicine, asserting that “every physician should know at least something about the field and should be aware of its potential value to society and of the desirability of having such important work under the direction of properly qualified persons.”21 The creation of the American Academy of Forensic Sciences (AAFS) in 1948 signaled a new era in American forensic science and medicine. Scientists involved in crime detection had recognized that there was “no fixed border for any forensic science, each has more than necessity to rely on the others.” Rutherford P. H. Gradwohl, a chemist and director of the St. Louis police laboratory, became the driving force behind the AAFS, which held its first meeting at Northwestern University in 1949. The goal of the organization would be to serve as a “clearing house for new ideas and developments, to support reforms in legislatures and courts, and to study and recommend new methods of jurisprudence.”22 The organization held scientific meetings and published the Journal of Forensic Sciences. By midcentury, pathologists had come to recognize the increasing need for specialized training in legal medicine. The catalyst behind this call for improvement was an increase in malpractice and industrial workers’ compensation claims. In addition, improvements in public health, a mounting number of automobile deaths, a new interest in the ethics of euthanasia and patient experimentation, and the American public’s increasing sensitivity to rising crime spurred on reformers to once again push for the combining of medicine and law for the benefit of the country.23 In Cleveland, the Case Western University law school cooperated with the coroner’s office in providing educational seminars for police, lawyers, and physicians. In his position as chief of pathology at the Institute of Pathology at Case Western, Moritz remained active in the institutional organization of forensic medicine. His former student Dr. Lester Adelson, Dr. Samuel Gerber, and Oliver Schroeder, an assistant dean of the law school, also took an active interest in legal medicine education. In 1954, the group created Case Western’s Law and Medicine Center, now the oldest law and medicine school– based center for the study of legal medicine and health law in the United

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States. By midcentury, Cleveland had eclipsed Boston and was challenging New York City as the premiere educational center for forensic medicine.24 Forensic pathologists and physician coroners stepped up their rhetoric criticizing the reluctance of American medical schools to teach forensic medicine. Unlike European medical schools, which gave forensic medicine a prominent place in the curriculum, few American schools offered courses of any significance in the field. Frustrated forensic pathologists denounced their own profession for failing in its social responsibility. “The active teaching of the science of forensic medicine should be a responsibility and duty of our medical schools to their medical students, to postgraduate students, to coroners, and members of the legal and law enforcement professions,” one pathologist declared.25 In 1952, at Moritz’s urging, the AMA Committee on Medicolegal Problems surveyed the seventy-two American medical schools on their teaching of legal medicine. The survey revealed that only fifteen schools had departments of legal medicine and only sixteen provided instruction the committee deemed satisfactory. The committee recommended that a department or division of legal medicine be developed in every medical school. The committee went so far as to outline a twenty-hour course of study for fourthyear medical students, asserting that “no physician can avoid contact with the law and . . . no medical student should be permitted to receive his degree without instruction in his legal duties to his patients, community and government.”26 With the technological advancement of the clinical laboratory, pathologists became more specialized and more involved in technical supervision of the laboratory. As a result, they began to view the hospital autopsy as a time-consuming chore, done without additional pay, which had little scientific value and deterred them from their more lucrative laboratory practices. However, pathologists eagerly supplemented their hospital salaries with payment for performing autopsies for the coroner. Some hospital pathologists reveled in the opportunity to rub shoulders with local law enforcement and the courts, which enhanced their standing in the community. The advances that occurred in other areas of pathology, such as clinical laboratory diagnosis and cytological and surgical pathology, did not extend to the autopsy.27 Most pathologists perceived that performing a medicolegal autopsy required no additional expertise than was demanded for a hospital autopsy. Their rational allowed them to continue performing medicolegal autopsies, which only helped to delay the development of forensic pathology as an area of subspecialization. However, these pathologists remained reluctant to testify in court, fearing embarrassment at the hands of skillful defense attorneys.28

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Toward Board Certification Charles Larson, one of the most publicly visible pathologists of the time, possessed personal charm, organizational skills, and political acumen to get things done. He had political access to the president of the College of American Pathologists (CAP), eventually becoming president of the organization. He practiced pathology in Tacoma, Washington, where he had a private forensic pathology laboratory. While studying medicine at McGill University in Montreal, he had received instruction in forensic pathology in New York City under Charles Norris during his Christmas vacations. Larson had been the first Allied physician to enter the Nazi concentration camp at Dachau, where he had investigated deaths and performed autopsies as a member of the War Crimes’ Investigation Team and had attended the Nuremberg War Crime Trials. He was perhaps best known for his investigation of a 1939 murder case in Washington state; when he examined the decomposed body of a woman recovered from a deep mountain lake, he determined that her husband had strangled her.29 The two national pathology organizations, the politically motivated College of American Pathologists (CAP), formed in 1948 to improve the scientific status and prestige of pathology, and the educationally centered American Society of Clinical Pathology (ASCP), created in 1922, recognized the growing need to educate their members in the techniques of forensic pathology. In 1952, the CAP created a committee on forensic pathology; the ASCP developed a similar committee in 1956. Working in parallel with the CAP, in December 1954 the AMA Committee on Medical Legal Problems, chaired by Richard Ford, appointed a subcommittee on forensic pathology to address subspecialty certification in forensic pathology. In 1954, Larson became the first chairman of the forensic pathology committee of the CAP.30 The work of these two committees of the CAP and the AMA culminated with submission of a proposal to the American Board of Pathology (ABP) to create a separate specialty in forensic medicine. The CAP forensic pathology committee delineated the basic principles for the practice of forensic pathology. As a result, in early 1954, the ABP began incorporating forensic pathology questions in the anatomic board examination. The CAP had already begun providing regional meetings featuring topics in forensic medicine. The philosophy of the ABP and the professional organizations (ASCP and CAP) of providing only basic training in forensic pathology to general pathologists continued throughout the century and undoubtedly delayed the emergence and acceptance of forensic pathology as a separate discipline. Larson and his colleagues emphasized that adequately trained patholo-

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gists could perform forensic autopsies and argued that pathologists must control the medical components of the medical examiner’s job. Larson and the other members of the CAP committee believed that “at least for very many years to come and perhaps it is wisest that it should always remain this way, that the bulk of the forensic pathology in the United States will actually be done by the general practicing pathologist.”31 As a pathologist heading a private laboratory, Larson was a strong proponent of a fee-forservice system, maintaining that forensic pathology should be performed by pathologists in private practice and not only by government-employed pathologists. He believed that “too much of medicine had already been handed over to the government and that the private status of the forensic pathologist should be retained.”32 According to Julie Johnson, some pathologists viewed the governmentalcontrolled medical examiner system as a step backward in professional status because it brought a change from fees for services to salaried positions.33 Agreeing with Moritz’s previous stance, the committee avoided the issue of medical examiner versus coroner and maintained: “competent investigation of unexplained deaths is the prime factor in any investigative system, its name or title is unimportant.”34 A frustrated Richard Ford and other full-time forensic pathologists began to criticize their pathologist colleagues for their casual approach to the forensic autopsy. Most general pathologists look upon cases calling for litigation as time consuming, unremunerated and otherwise irksome; furthermore, many feel that through lack of training or through lack of experience, because material is by law removed from their sphere, that they are not qualified, in many instances, to give reliable opinions in the field of forensic pathology. This is of course often true . . . It has been difficult to attract and to retain in the field able and qualified people because there is no recognition of forensic pathology as an entity and as a potential career. Few outside of the field realize how intricate their interpretation of the effects of injury may be, how much experience is required for a valid opinion and how much may hang in terms of life, freedom and just plain money upon medicolegal opinion.35

Larson believed that the best way to encourage young physicians to enter the field was to provide “some type of recognition for them” through specialty board certification.36 Ford rejected the idea that such certification and simply performing medicolegal autopsies would be sufficient to develop proficiency in forensic pathology. He argued that “it (1) leads to no recognition of the pathology of trauma as an entity, (2) de-emphasises the importance of the scene of death in relation to anatomic findings, (3) fails to establish the dura-

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tion and quality of the medicolegal experience and (4) does nothing to discourage the activities of self-appointed experts.”37 Other full-time forensic pathologists shared his opinion. “I have seen several exceptionally qualified hospital pathologists,” argued Joseph Spelman, Vermont’s state pathologist, “fail to recognize the characteristics of contact-type gunshot wounds . . . and have a surprisingly poorly developed concept of the relation of injury to various diseases.”38 Despite their philosophical differences, Ford, the chief supporter of the medical examiner system and Larson, a private forensic pathologist, both agreed on the necessity for board certification. Larson’s underlying intention in providing subspecialty training in forensic pathology was, he said, to “keep this special branch of pathology within the field of general pathology and not allow it to splinter off as an independent group. This has already happened to too many other branches of pathology.”39 He continued: I do not think that it is too early for the American Board of Pathology to be considering the problem of whether there should be a sub-specialty certification in forensic pathology. It is the opinion of the Committee for Forensic Pathology of the College of American Pathology that at this time we should seriously consider the establishment of sub-specialty board certification in forensic pathology.40

Larson believed that the newly established American Board of Legal Medicine had developed enough momentum to represent forensic pathologists if the ABP and AMA did not act quickly “to combat the activities and efforts of this other organization.”41 He pushed for forensic certification for another reason as well: there was an acute shortage of trained forensic pathologists to handle the increasing workload of autopsies as the United States experienced a postwar crime wave in its major cities. The first action of the six-member CAP working group was to determine the procedures for obtaining certification and identify who would be eligible for “grandfathering,” that is, being granted certification without formal training. In the creation of every new specialty there have been founders who, in developing the specialty, have acquired enough training and experience to be certifiable. Ford rejected the idea of grandfathering. In his opinion, such a practice did not weed out the “self-appointed experts” and the “tendency for unstable people to gravitate to the field.”42 The grandfather clause eventually was allowed, and candidates were permitted to sit for the examination before January 1, 1960, without a formal fellowshiptraining year if they had been board-certified in pathology for ten years

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and had practiced forensic pathology for at least 25 percent of their professional time.43 The CAP committee next developed a definition of forensic pathology. The AMA committee defined “forensic pathology” as “that branch of pathology which utilizes principally laboratory methods in the study of human tissues, or their products in relation to death, injury, assault, or other incidents when there is possible civil litigation, industrial compensation, or criminal investigation.”44 Moritz offered a definition that was much more general and also helped to define further the medicolegal autopsy. Larson included these definitions in the formal proposal to define the new subspecialty of forensic pathology to the Advisory Board for Medical Specialists. In describing forensic pathology as a branch of pathology, the authors centered forensic pathology squarely in the practice of medicine, thereby thwarting attempts to designate it as a legal field. These definitions, when formally accepted by other groups, provided the building blocks for making forensic pathology a freestanding subspecialty with its own board and not simply a certificate program representing a special interest. With only three well-connected advocates—Larson at the CAP, Moritz at the ABP, and Ford at the AMA—forensic pathology became the newest medical subspecialty. The final step in creating the new specialty was to devise a plan for future growth of the field by means of the identification, inspection, and approval of training centers. Larson’s eight-member CAP subcommittee on forensic pathology developed policies for approving facilities in forensic pathology. The subcommittee insisted that facilities be located in a jurisdiction with strong laws that permitted a good investigative system. Language was written into the guidelines that guaranteed that only medical examiner systems need apply. A member of the ABP quickly recognized the intent to exclude coroners from developing training centers. He complained of the “idealism” and “political influence” of the document. He argued that California’s coroner system was “as good as any in the United States and could be administered to provide excellent service.”45 The ABP, after approving in principle the idea of special certification in forensic pathology, submitted the proposal to the Congress on Medical Education Advisory Board of Medical Specialties for final approval. By agreement, the board kept the definition of forensic pathology sufficiently general to allow latitude in dealing with the certification of experts in a number of fields. They decided that prior certification in anatomic pathology was the only prerequisite for forensic pathology certification. The proposal at first failed to win acceptance because of a controversy over the

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proliferation of surgical subspecialties, which had created an incendiary environment for new certification approval.46 And a key supporter, the secretary of the Advisory Board for Medical Specialties, had died in the interim. Moritz’s election as ABP trustee in 1958 allowed him to push the issue through. The Congress eventually approved the measure in February 1958.47 During a short ceremony on Sunday afternoon, April 19, 1959, in the Empress Room of the Somerset Hotel in Boston, nineteen pathologists received certification in forensic pathology without examination. The event signaled the establishment of the new subspecialty of forensic pathology. Moritz’s final major contribution to forensic medicine was a presentation he gave to the American Society of Clinical Pathologists in 1956, “Classic Mistakes in Forensic Pathology,” which defined the specialty of forensic pathology and outlined the role of the forensic pathologist. He had coined the term “forensic pathology” in the early 1940s while promoting the creation of forensic institutes.48 Now he reviewed the difficulties pathologists commonly encountered in performing forensic autopsies. Addressing such topics as avoiding decomposed bodies and mislabeling samples, Moritz warned pathologists about the pitfalls of failing to recognize the important role of the forensic autopsy. When his presentation was later published in the society’s journal, it instantly became the standard for teaching forensic medicine to students and practicing pathologists. It served the dual purpose of documenting Moritz’s contributions to the specialty and legitimizing the practice of forensic pathology for generations to come.49

The Armed Forces Institute of Pathology Prior to the movement toward subspecialty certification, forensic pathologists had approached the federal government to develop their own medicolegal death investigation system. Using the model law he formulated, Ford envisioned “adapting this state system to the Armed Forces.” Moreover, he observed that the armed forces were “in a much better position than are the states because of the availability of pathologists in military installations” to provide applicants for forensic training.50 The timing was right. As early as 1950, the director of the Armed Forces Institute of Pathology (AFIP) had expressed his own desire to create a division of legal medicine there. In 1962, following the establishment of subspecialty certification, the CAP sponsored the first board-approved fellowship in forensic pathology at the AFIP.51 A number of academic institutions had already

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been training residents in the field of forensic pathology but lacked formal recognition and support by the ABP. The AFIP had previously taught courses in forensic medicine for practicing pathologists at its headquarters in Bethesda, Maryland. Initially created in 1949 by the Army Medical Museum and the Army Institute of Pathology, the AFIP quickly became the premiere educational institution for a number of pathology specialties. The military environmental pathology division, created in 1959, contained the forensic pathology, aviation medicine, and toxicology branches. Aviation and forensic pathology eventually evolved into two separate branches. In 1958, the AFIP developed a registry in forensic pathology consisting of a collection of interesting and educational forensic cases to be used for teaching and research.52 The armed forces turned out to be a perfect match to partner with stateemployed forensic pathologists in medical examiner offices in Maryland, Virginia, and Washington; because of the growing numbers of civilian deaths, they could provide the forensic residents with bodies to use for training purposes. The creation of a separate medical examiner system for the armed forces had been initially proposed in 1968 by a group of forensic pathologists trained at the AFIP. The assassination of President John F. Kennedy had highlighted the potential for high-profile and sensitive cases with national and international ramifications to cause friction between local medical examiners and coroners and representatives of the federal government over who would lead the death investigation. Following the assassination, the federal government enacted new laws to clarify and restrict the medicolegal investigation in deaths involving governmental officials. The AFIP would be the lead agency in such investigations.53 Congress created the Office of the Armed Forces Medical Examiner in 1988 as a component of the AFIP. Located in Washington, the office conducted forensic investigations to determine the cause and manner of death of members of the armed forces on active duty and civilians who died in areas of exclusive federal jurisdiction. In addition to training all active-duty forensic pathologists, the AFIP continued to play an active role in the education of civilian pathologists, offering them a one-week course in basic forensic pathology. In addition to investigating unnatural deaths of active-service personnel, members of the AFIP also team-examined deaths related to military aircraft accidents, including the deaths of astronauts and other federal government–related fatalities. The investigation by AFIP forensic pathologists of the deaths of the three astronauts in Apollo III determined that they had remained alive for some time during the fire and had died from noxious fumes emitted by

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their burning clothing while they sat bolted into the capsule, unable to escape. As a result of these autopsies, NASA developed improved egress, explosive devices on the windshields to enable escape, and safer fabrics for astronaut clothing. This investigation and others served to demonstrate the role of forensic pathology in saving lives in a world full of technological advances.54

No Cause for Celebration In the mid-1960s, after an initial period of enthusiasm, the number of pathologists who sought advanced forensic training slowed to a trickle. Board certification candidates in forensic pathology had grown steadily in the first five years, averaging thirty-five per year. However, after the initial “grandfather” group was certified, certifications quickly declined to onethird their original rate throughout most of the 1960s. By 1968, of the 190 pathologists who had obtained certification in forensic pathology, the majority practiced only part-time and had no formal training in the field. The actual number of qualified forensic pathologists practicing full-time hovered somewhere around thirty to forty. A survey by the CAP in 1967 indicated that up to two-thirds of all forensic autopsies were still being performed by pathologists lacking the necessary education and experience. Fellowship programs remained unfilled, and many newly certified forensic pathologists abandoned the field after completing their training to obtain higher paying positions in general pathology practices. Studies indicated a need in the United States for seventy-five thousand medicolegal autopsies per year.55 Despite the numbers, subspecialty certification had not resulted in a significant increase in practicing forensic pathologists or the acceptance by medical peers that its originators had hoped and dreamed. The success of the model law in adding to the number of medical examiner jurisdictions only intensified the demand for more forensic pathologists to supply urban morgues. Rapidly increasing crime rates added to the frustrations of forensic pathologists, whose profession continued to suffer from a lack of respect among practicing physicians and medical schools’ lack of appreciation of their role in medicine and public health. American medical schools had never fully accepted legal medicine as a specialty that warranted inclusion in the curriculum. By 1977, only 7 of 111 medical schools required a course in forensic pathology. Seventeen had an elective course, and a few offered residency training in the field. Of 15,774 second-year medical students, only 10 percent had taken a course in forensic pathology.56 This changed

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abruptly in 1980, when the American Committee on Graduate Medical Education (ACGME) began to require all medical schools to provide lectures in forensic medicine. Until then, medical students had minimal exposure to the field, usually in the form of grotesque slide shows depicting mutilated victims of automobile collisions or other kinds of violent death. The medical profession’s continued ambivalence toward the medical examiner system “stymied forensic pathologists’ attempts to gain the prestige of their European brethren.”57 The training of forensic pathologists was also hurt by political interference, lack of adequate funding, and professional stagnation—when forensic pathologists became isolated from the intellectual stimulation of hospital pathology departments. In 1968, the NRC once again examined the continuing problems in forensic pathology, but this time it could come up with no meaningful practical solutions.58 In the late 1960s, law schools in Boston and Cleveland began to abandon their connections with forensic medicine departments and sought to create a new vision, citing a need to expand into other areas of legal medicine such as medical ethics, medical economics, and health law.59 In 1967, at a time of exploding crime rates and increasing demand for trained forensic pathologists, Harvard University closed its department of legal medicine and assigned its courses to the law school, prompting some pathologists to complain that Harvard had “dropped the ball deep in its own territory.”60 The Law and Medicine Institute at Case Western Reserve reorganized and deleted courses in forensic pathology as well. The anticipated creation of medical legal institutes envisioned by Schultz and modeled after those in Europe never occurred. Law schools’ shift in interest resulted in the formation of various professional associations, among them the American Academy of Physicians and Lawyers and the American Academy of Legal Medicine. Meanwhile, the ABP continued to permit grandfathering and allowed equivalent “experience” to substitute for a year of formal training in a forensic pathology fellowship. This prompted criticism by some practicing forensic pathologists, who asserted “the requirements by the American Board of Pathology Certification were far less rigorous than are those in most other fields of medical specialization and cause it to be considered as the last refuge of medical mediocrity.”61 When a forensic pathologist became chairman of the ABP, he continued to support grandfathering, stating that he had “known general pathologists who do excellent forensic pathology and at the same time forensic pathologists who are incompetent.”62 However, the ABP’s own internal research had confirmed that pathologists who qualified for board certification based on formal forensic training attained significantly higher scores on the board examination than

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those who gained entrance based on experience.63 Nonetheless, it was not until 1995 that the ABP finally discontinued grandfathering and required a year of forensic fellowship training in an accredited office to qualify for board certification. By 2000, more than forty years after forensic pathology became a subspecialty, 1,076 specialty certificates had been issued. However, one-third of all fellowship graduates never pursued forensic pathology as a full-time career. Earlier forensic pathologists had warned that 1,200–1,500 boardcertified forensic pathologists would be needed to handle the death investigations of all suspicious deaths in America.64 Many medical examiner and coroner’s offices remained underfunded and short-staffed, especially in rural areas, forcing them to curtail investigations and ignore the need to perform autopsies. Reasons for the paucity of forensic pathologists remained unchanged: a weak professional identity, low pay, fiscal constraints, political interference, and a general lack of awareness of the importance of medicolegal death investigation.65

A Professional Organization By the mid-1960s, with the increase of other forensic scientific disciplines in forensic science, forensic pathologists were displaced as the dominant specialty in the AAFS. Their loss of power resulted in petty internal squabbling among sections, notably toxicology and criminalistics. Forensic pathologists, predominately those practicing in large metropolitan medical examiner offices, sought to create a new national organization sensitive to their unique practice issues. In response, Helpern, Hameli, and Childs established the National Association of Medical Examiners (NAME) in 1966. In announcing the formation of NAME, Helpern said its purpose was “to establish greater understanding and support for the medical examiner systems among the general public, governmental officials and the medical and legal professions, and . . . assist local and state governments requesting information and advice on the best way to establish and maintain the medical examiner’s office.”66 Helpern did not believe this was possible within the larger organization of the AAFS. Instead, he wanted a professional organization devoted solely to supporting physicians who served as medical examiners. Although forensic pathologists had continued to be active in the CAP and ASCP forensic pathology committees, these organizations had progressively lost interest in the political issues forensic pathologists faced and stuck to their limited role of providing basic training in forensic pathology to their

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member pathologists in order to enable them to perform medicolegal autopsies. It was no secret that Helpern deplored coroners, and especially Gerber of Cleveland, who used his position as past president of the AAFS to push for professional acceptance for coroners in the forensic community. Childs’s motivation was simply to rid the country of coroners, whose political power and lack of scientific orientation he detested. Officially, “the prime motive for the creation of NAME was to enhance the political prestige of medical examiner, a function not conducive to an academy some of whose diverse membership could oppose policies or economic issues favorable to pathologists.”67 Despite the official language, the intent of the founders of NAME was to rid the country of coroners, and Helpern ran it like a king. Almost immediately, the new organization ran into opposition, mainly from the medical examiners it sought to represent. The AAFS’s executive committee, including some medical examiners in the AAFS administration, complained that creating a new organization would only weaken the AAFS and that pathologists would leave it, as had firearms and tool-mark examiners. Initially, Helpern envisioned an organization restricted to only chief medical examiners. But others argued that any physician working for a medical examiner or coroner should be eligible for membership. Helpern relented and accepted forensic pathologists to join the organization regardless of whether they worked for a coroner or medical examiner. Before long, the forensic pathologists in NAME, sympathetic to the needs of lay death investigators with whom they worked, changed the bylaws to permit investigators to become nonvoting members. This was a dilution of the physician-only nature of the organization that would have had Helpern turning in his grave. The new association enhanced the identity of forensic pathologists by holding a separate annual meeting and the publishing of its own journal, the American Journal of Forensic Medicine and Pathology. Medical examiners quickly realized that as a professional organization, they must develop standards of practice. Forensic pathologists, like the practitioners of other medical specialties, viewed their professionalism as a commitment to serve of their patients (the deceased) and society as well as to promote their own self-interest.68 “Standards of care of the dead must be established where they do not exist . . . where there is no uniformity or living up to standards . . . there can be no quality of professionalism,” Leslie Lukash pleaded in his 1971 presidential address. “Let us establish a new discipline in dealing with the dead. Let us dedicate ourselves today to a new ideal in dealing with the dead through standards for the care of the dead and accreditation of the respective institutions.”69 The association’s leaders

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thought that the development of a stronger professionalism would improve funding for medical examiner offices, upgrade compensation for forensic pathologists, and establish standards of practice through mandatory accreditation. Thus in 1975, NAME published the first set of standards for medicolegal systems with the express purpose of “improving the quality of medicolegal investigation of death in this country.” Acquiescing to the coroner faction, the authors added, “it would be immaterial, of course, whether the system or its director is called Medical Examiner or Coroner. The most important factor, however, is that an efficient system should require a governing law that would mandate the selection of the Chief Medicolegal Officer based on his professional qualifications and on election or political patronage.” Lukash and others sought to establish NAME as a professional organization “like the JCAHO [Joint Commission on Accreditation of Healthcare Organizations] is to hospitals.”70 In addition to setting standards, NAME established an ethics committee and developed guidelines for organ donation, certification of death, the forensic autopsy, and other areas of practice.

The Maturing of a Profession The pathologists who had established the board certification in forensic pathology had hoped that the development of specialized training programs and focused study in forensic medicine would encourage some forensic pathologists to engage in medical and experimental research. Other medical specialists, such as cardiologists, had used the recognition of specific organic disease entities and the possession of specialized technical skills to delineate their subspecialty from the larger field of medicine.71 The creation of forensic training unions fostered academic inquiry. Forensic pathologists quickly identified numerous new disease entities and forms of traumatic death using the specialized techniques of the forensic autopsy, which provided forensic pathologists with the momentum they needed to promote their specialty. Major cities with burgeoning case volumes provided rich research opportunities. In Cleveland, the chief pathologist extensively examined childhood deaths, and this led to the first formal investigations of sudden infant death syndrome (SIDS). He also published an article, “The Slaughter of the Innocents,” that revealed for the first time the magnitude and unspoken horrors of homicides resulting from child abuse.72 The Delaware medical examiner documented the debilitating effects of lead exposure in children that lead to the creation of the first county-

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based lead testing program. Across the country, forensic pathologists injected themselves into investigations of a myriad other issues, including deaths in police custody, maternal deaths, drug deaths, and automobile injuries, all with robust public health implications.73 As frontline investigators in all types of accidental death cases, forensic pathologists actively assisted in promoting public health and public safety legislation. They could point to their role in passing drunk driving legislation and their many contributions in numerous areas, including anaphylactic reactions to penicillin, anesthetic deaths, whiplash-type injuries in vehicular crashes, paternity testing, investigation of aircraft accidents, “silofillers’” lung disease, and alcohol adaptation and tolerance. Mounting evidence confirmed that forensic pathology, outside of organized medicine, was becoming a “full-fledged subspecialty,” with a growing influence in public health and safety separate from other pathology subspecialties.74 As a specialty, however, forensic pathology remained much more established in England than in America. The sheer volume of forensic cases and opportunity for consultations in American cities such as New York and Los Angeles dwarfed anything of the kind in England, serving as a catalyst for continental forensic pathologists to visit across the Atlantic. English forensic pathologists, including Bernard Camps and Keith Simpson, traveled extensively to America to teach, consult, and socialize with American forensic pathologists. These visitors testified in both American and Canadian courts. These itinerant English forensic pathologists, who had attained an elite professional status, commencing with the Drs. Monroe and through the era of Sir Bernard Spilsbury, attempted to elevate the professional status of their American colleagues. One could hardly attend the opening of a new morgue, a retirement party, or a forensic conference without encountering a visiting English expert.75 By the early 1980s, four primary schools of forensic pathology had evolved out of the unique training methods and philosophies of certain chief medical examiners, who typically determined the direction and character of their departments. New York, Cleveland, Miami, and Baltimore were the primary training centers of forensic pathology, where various philosophies of forensic pathology of the time were expounded.76 The medical examiners of most major cities were graduates of these schools. The New York school emphasized training in large series of cases with physician investigators who made scene investigations. New York pathologists viewed the certification of drug deaths, and others, such as those involving police activity, as untenable, insisting instead that they were unverifiable. Under Helpern, the New York office developed a policy of certifying drug deaths as accidents only rarely and instead left them unde-

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termined. Often political turmoil followed this practice when the medical examiner refused to make a decision on the cause of death. Helpern’s retirement in 1974 left the office without strong leadership, and it reached a nadir in the 1980s.77 Under the watchful eye of Alan Moritz, Cleveland, which had a coroner system, developed a first-rate program that correlated medicine and the law. Using the political expertise of Samuel Gerber, the academic expertise of forensic pathologist Lester Adelson, and the legal expertise of Oliver Schroeder, the coroner’s office developed the Legal Medicine Institute to teach a large number of fellows in forensic pathology. The founders of the Cleveland school, were intimately associated with this institute and the coroner’s office. They examined issues of public health importance, and published frequently, but rarely traveled out of the confines of the city. This reflected Adelson’s fear of travel. Under the direction of Joseph Davis, Miami created an office that performed autopsies on a large percentage of deaths with a law enforcement orientation. Davis aggressively pursued autopsies in criminal cases but eschewed hospital deaths, believing that they had little to do with forensic pathology. He maintained conservative practices and promoted a practical, hands-on approach to death scene investigation. Miami forensic trainees attended scene investigations under the direction of the police.78 Likewise, Baltimore became a breeding ground for chief medical examiners as Russell Fisher trained a large number of fellows who adopted his aggressive, entrepreneurial management style. A number of smaller cities also trained pathologists in forensic pathology. In Virginia, Geoffrey Mann, followed by David Wiecking—both were lawyers—developed a state system using physician investigators and published a monthly monograph that emphasized legal topics for medical examiners.79 In Minneapolis, John Coe turned the small volume of homicides in the city into a forensic training program by pooling local cases with those from counties around the state. He developed a lay death investigator program that assisted pathologists in the field. Coe’s forensic pathology trainees, like many medical trainees in other fields at the time, practiced the “see one, do one, teach one” method of training.80 Each school differed in its administrative control, philosophy of investigation and autopsy, research emphasis, and case variety. During the first two decades following board certification, forensic pathology was “a man’s territory,” and few women ventured into the field.81 This changed in the early 1980s, when more women entered medical schools and were exposed to the specialty as a result of the ACGME requirement that forensic pathology be added to the medical school curriculum. This

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resulted in increased awareness of forensic pathology on the part of both male and female medical students. One female forensic pathologist explained how her interest in forensics developed from seeing a forensic pathologist teach: “his lectures just drew me in . . . I really found I loved forensic pathology because of him.”82 Between 1970 and 1980, the percentage of women enrolled in medical schools increased threefold.83 Women appreciated the regular work hours that forensic pathology offered and, like their male colleagues, thrived on the excitement and mystery of death scenes, the courtroom, and stimulating autopsy material. Recalling the challenges of balancing the demands of child-rearing and her chosen practice of obstetrics, Elizabeth Balraj, the coroner of Cleveland, recalled that she turned to forensic pathology as “a non-clinical medical specialty that allowed her to give equal time to her family and work.”84 With few women pathologists in the field, the rare women seeking training in the field found willing mentors in the busy medical examiners who were in search of eager hands and English-speaking help.85 In forensic pathology, women suffered little of the overt discrimination they found in other medical specialties, such as surgery. However, law enforcement officers initially viewed women forensic pathologists with suspicion and often dismissed their opinions.86 Anecdotal evidence suggests that it wasn’t unusual for police officers to intentionally prevent women forensic pathologists from doing their job. “Often they don’t want to let me near the body,” admitted Sandra Conradi, the medical examiner of Charlestown, “The officers naturally do a double take, when they see a petite young women. It startles them at first, particularly since some of the bodies are decomposed.”87 However, after demonstrating their expertise, women quickly came to be accepted by law enforcement personnel and their colleagues. Milwaukee was the first major city, in 1969, to hire a female chief medical examiner.88 By the mid-1980s, women were flooding into forensic pathology training programs, and by 1995, female fellows in training outnumbered males, and women commonly held posts as chief medical examiners in many major American cities.89 Pathology as a specialty attracted a large percentage of foreign medical graduates—except in forensic pathology. The heavy reliance on laboratory work and lack of direct interaction with patients in hospital pathology suited foreign physicians, many of whom had marginal language skills. The percentage of foreign medical graduates in pathology residencies rose to 48 percent in 1968.90 Forensic pathology attracted a smaller percentage of such graduates: typically about 25 percent. The prospect of testifying in American courtrooms, and facing the torturous hypothetical

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questions of cross-examination threatened foreign medical graduates with poor English comprehension and verbal skills. Prosecutors criticized nonEnglish-speaking graduates who could not answer difficult questions on the witness stand.91

A Lack of Federal Commitment Despite all the aforementioned progress, a continuing lack of adequate numbers of forensic pathologists and continued complaints against coroners forced the federal government to begin to take notice of death investigation. In May 1985, representatives from nine national agencies attended a symposium at the Wingspread Conference Center in Racine, Wisconsin, sponsored by the National Association of Counties (NACO) and the National Institutes of Justice (NIJ), among others. The symposium, entitled “Death Investigation in the Community: Forging New Partnerships,” was intended to be the federal government’s first serious attempt in more than fifty years to evaluate the state of death investigation in America and to define the problems surrounding it. During the three-day conference, medical examiners, coroners, police, and prosecutors explored such issues as critical links to public health, improving quality through training, inadequate funding, and relationships with other agencies.92 Unfortunately, the possibility of any meaningful outcomes from the symposium faded after an accusation of sexual discrimination surfaced between the researchers. The ensuing lawsuit impeded the work of the symposium, and its final report never saw the light of day.93 With the failure of the conference, medical examiners and coroners had lost yet another chance to gain the support of the federal government—a common and recurring theme. Encouraged by leaders of the CAP and ASCP, general pathologists continued to perform medicolegal autopsies and promote themselves as forensic pathologists. The lack of acceptance of forensic pathology board specialization by general pathologists was demonstrated by the CAP’s definition of the profession. Although the CAP forensic pathology subcommittee sought to define forensic pathologists as individuals with board certification, the CAP leadership, desiring to elevate the status of its general pathologist membership, approved language that allowed any pathologist who performed medicolegal autopsies to be recognized as a forensic pathologist.94 Alternative boards of certification for physicians and pathologists aspiring to become forensic experts presented another challenge. In 1992, the American Board of Forensic Examiners (ABFE) was established to creden-

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tial experts in a number of fields. Certification generally required applicants to do no more than document their education and write a check. The board awarded “board certification” to physicians and pathologists who had not followed the more rigorous path of certification required by the ABP.95 Many general physicians now could be “board certified” by the ABFE as forensic pathology experts as well as by one of eleven other boards. Pathologists who had not been eligible for or who had not passed the more demanding requirements of the ABP in forensic pathology seized on this method of attaining “board certification.” The different requirements of certification by “diploma mills” added confusion to the title “board certified,” which confounded judges and juries across the county. Federal and state governments were unable to assist, and it was left up to NAME and other organizations to police their own professional boundaries. After almost 150 years of trying to eradicate coroners, forensic pathologists eventually came to the realization that they needed either to “kill coroners or train them—and they couldn’t kill them.”96 In the late 1990s, coroners still served 42 percent of the U.S. population. The position of coroner, covering a quarter of the American population, required no medical or investigative training.97 In 1982, following a series of articles in the Louisville Courier Journal describing the coroner system, Kentucky became the first state to mandate training for any person who conducted postmortem examinations. Elsewhere, from Alabama to Washington state, metropolitan medical examiner offices sponsored training seminars in forensic medicine for lay death investigators and coroners.98 Reacting to the divisive climate between forensic pathologists and coroners, the Indiana legislature created a Coroners Training Board and funded education with a tax of one dollar per death certificate. The board hired a professional educator to develop a formal training program and certifying examination for Indiana coroners.99 The Indiana program, with the assistance from the National Institute of Justice, evolved into the American Board of Medicolegal Death Investigators (ABMDI), an organization dedicated to the education, testing, and certification of lay death investigators.100 Serving in both medical examiner and coroner offices, these death investigators quickly grew in number and professional stature. Although NAME still rejected the fundamental idea of coroners, it enthusiastically supported the ABMDI and its efforts to professionalize death investigators, which NAME conceded was essential for the proper functioning of medical examiner offices.101 The federal government consistently underestimated how arduous a task it would be to improve death investigation. Unsatisfied with the rare success stories of improved education and practice in Kentucky and Indiana,

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medical examiners continued to argue that “coroners lacked proper training” and the system was “fraught with potential conflict of interest.”102 As Vincent DiMaio—medical examiner for San Antonio and a well-known critic of coroners—explained, “training coroners is like giving a child dynamite.” Throughout his career, DiMaio vowed to abolish the coroner system in the United States.103 Even traditional supporters of coroners acknowledged that although some of them sought the position to serve the public, the vast majority still considered it only a political stepping-stone. The overarching attitude of forensic pathologists toward coroners continued to be one of constant frustration. In March 2003, seventy-five years after the release of the 1928 NRC study The Coroner and Medical Examiner, a group of medical examiners, public health officials, and lawyers met at the National Academies Building in Washington for a two-day workshop whose official business was fourfold: to improve the criminal justice system; to facilitate the assessment of quality of medical care; to enhance surveillance of the public health system, epidemiological research, planning, and programs; and to professionalize death investigation systems and operations.104 Responding to a plea from NAME, the NIJ had requested the Institute of Medicine (IOM) to convene the workshop in order to examine the complaints of medical examiners; unofficially they hoped to develop a strategy for a final assault on the coroner system.105 For years, medical examiners had experienced rising demands for forensic pathology expertise, only to be burdened still with chronic underfunding, shortages of trained forensic pathologists, and a culture of corner-cutting by politicians that threatened their ability to reliably investigate causes of deaths in many jurisdictions across the country. In the wake of the attacks of September 11, 2001, bioterrorism monies that medical examiners and coroners hoped would help to resuscitate their specialty were diverted instead to crime laboratories, already choking on money the federal government had directed to DNA testing and to updating a neglected public health infrastructure. Frustrated by their inability to obtain even a modicum of the billions allocated to prevent bioterrorism, medical examiners turned to the IOM to plead their case. Presented with facts that demonstrated a disjointed patchwork of state laws and rules that governed medical examiners and coroners, the lack of qualifications for coroners, and the uneven quality of death investigation, Richard J. Bonnie, chairman of the IOM panel, was forced to admit: “there really is no . . . system of death investigation, in the same way there is no health care system in this country.”106 Moreover, medical examiners had failed in their responsibility to provide quality assurance to a medical system that the IOM confirmed in 1999 was

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responsible for some ninety-eight thousand accidental deaths annually.107 Although medical examiners had been positioned to provide quality assurance for hospital care after hospital pathologists had abandoned the autopsy, they failed in their quest as watchdogs of clinical practice. In his book Postmortem, sociologist Stefan Timmermans pointed out how medical examiners eschewed properly investigating hospital deaths.108 The greatest barrier to medicolegal investigation of iatrogenic deaths was not the lack of resolve of the medical examiner but the medical community’s unwillingness to notify the medical examiner of suspicious deaths. Given the overall state of affairs, medical examiners ruefully concluded that organized American medicine was incapable of surmounting the obstacles that stymied medical examiners: removing nonphysician coroners and improving death investigation. “Unless the NIJ and CDC truly adopt the medical examiner community,” one forensic pathologist warned, “the medical examiner/coroner community will continue as an orphan without a parent to care for and feed it.”109 And so it went; the federal government, which relied on data from medical examiners and coroners, never became a source of significant funding for death investigators.110

Forensic pathologists had hoped that board certification would give them a higher level of professional authority and remuneration. Neither occurred. “There is no other profession,” one education expert remarked, “in which physicians with years of specialized training perform the same task as a high school graduate.”111 Forensic pathology’s evolution as a subspecialty offers an instructive model for medical institutional development and illustrates the social, economic, and political obstacles that can affect medical specialization. The development of specialization in forensic pathology was unique among medical subspecialties. Although the field required specialized training—in an abstract body of knowledge and in public service—it lacked the technological advancements to differentiate its practitioners. And specialization did not ensure the economic advancement, prestige, or professional control that the founding forensic pathologists had sought. Accompanied by his son, a frail Alan Moritz traveled to the commemoration of the fiftieth anniversary of the ABP. Posing in the commemorative picture with the pantheon of elite pathologists, Moritz represented the model of a forensic pathologist as an authentic subspecialty and a full partner in American medicine. Within a day of returning to his home in Cleveland, Moritz died, and the best hope that forensic pathology would further advance as a medical specialty died with him. The impetus for change in death investigation would now be generated not by limited local and internal efforts but by highly visible national tragedies.

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n November 22, 1963, as the limousine carrying President John F. Kennedy turned slowly in front of the Texas School Book Depository in Dallas, a sniper shot and killed the president. After emergency surgery at nearby Parkland Hospital failed, doctors officially declared him dead. Dr. Earl Rose, a forensic pathologist and the Dallas County medical examiner, arrived to take jurisdiction over the body. As he did, members of the president’s Secret Service attachment confronted him and demanded custody of the body so they could return it to Washington. Rose angrily defended his authority, according to Texas law, to retain and examine the body. During the heated argument that followed, the local justice of the peace arrived but stood mute, incapacitated by fear and indecision. Rose stood in the doorway and used his own body to block the body’s removal as he continued to argue for possession of it. Undeterred, the Secret Service agents moved to wheel it out of the trauma room, saying to Rose, “You’d better get out of the way if you don’t want to be run over.”1 Secret Service agents and Texas Rangers glared eye to eye, with hands on their weapons, and came dangerously close to drawing their guns. Rose eventually stepped aside, reluctantly ceding jurisdiction over the president’s body. “I felt that it was unwise to do anything more to accelerate or exacerbate the tension,” Rose said years later in defense of his actions that day in Dallas. “There was nothing else I could do to keep the body in Dallas. I had no minions, no armies to enforce the will of the medical examiner.”2 So began

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the most controversial death investigation in America—the result of a series of unfortunate events, professional inexperience, and good intentions gone awry. Having just established their new subspecialty, forensic pathologists had expected to be welcomed by the legal community to investigate high-profile, sudden, and crime-related fatalities, which would include especially the assassination of a president. Forensic pathologists had significantly advanced scientific death investigation by identifying child abuse and sudden unexpected deaths and interpreting traumatic injury. They fully anticipated that their expertise would be tangible and useful and eagerly awaited acceptance by a community that valued specialized medical expertise. Instead, federal authorities ignored their expertise and authority, local law enforcement personnel intimidated them, and their medical colleagues widely criticized their efforts. In the late twentieth century, the American judicial system still equated the opinions of well-meaning but inexperienced physicians and law enforcement authorities with those of trained and experienced medical experts. Forensic pathologists could not sell their product—truth and medical expertise—to an American public that was growing increasingly suspicious of physicians and government and, simultaneously, protective of their democratic rights and political leaders.3 Only their forensic colleagues acknowledged their unique expertise, justified by specialized training.4 Unlike the European centralized system of death investigation, the American system had been founded on a system of democratic participation that by the twentieth century had become hopelessly vulnerable to the manipulations of politicians, law enforcement officials, and funeral directors. In the European “top-down” system, a single official with ultimate control could rapidly implement consistent policies, procedures, and centralized data collection systems, initiating change across an entire professional specialty. In America, by contrast, change emerged “from below,” such that reaching consensus and implementing the changes reformers sought often took long periods of time. Improvements in death investigation systems often followed embarrassing crises or bungled investigations that revealed a system’s susceptibility to influence by people with political and financial power. Whether physician medical examiners or lay coroners, death investigators for the most part remained marginalized and lacked political power sufficient to challenge law enforcement departments and politicians. Coroners and medical examiners became by necessity complacent and compliant with local law enforcement and politicians, which allowed them to preserve their political positions within the judicial system. Unchecked, le-

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gal authorities and law enforcement personnel asserted their influence over the judgment of trained forensic pathologists; yet a coroner’s or medical examiner’s ego, inexperience, or lack of judgment could jeopardize an entire investigation. It is ironic and puzzling that the American judicial system, which could potentially reap the most benefit from a system of professional death investigators, consistently presented obstacles to its establishment and suffered “the primacy of political over medical considerations.”5 The events surrounding President Kennedy’s death served as a warning to the American public of the necessity of involving medically trained forensic pathologists in high-profile death investigations. The assassination of President Kennedy was followed by his brother Robert’s death in 1968 and, less than a year later, the involvement of their younger brother, Senator Ted Kennedy, in the death of Mary Jo Kopechne at the Chappaquiddick Bridge. Each event magnified the defects of a death investigation system controlled not by trained forensic experts but by local, state, and federal law enforcement personnel and politicians, who repeatedly hampered the medical examiners and coroners who were legally responsible for determining cause and manner of death. In the turbulent period of the 1960s and 1970s, the deficiencies of the American death investigation system became increasingly evident to the public, ultimately serving as a catalyst for change. In each case, a tragic public crisis played out in full public view, led to calls for trained and experienced forensic pathologists to participate in the investigation of suspicious deaths.

Death in Dallas After leaving Dallas, the FBI escort delivered Kennedy’s body to the National Naval Medical Center in Bethesda for autopsy. Navy pathologists Lieutenant Commander James J. Humes and Commander J. Thornton Boswell received orders to perform the autopsy. The AFIP in Washington provided army Lieutenant Colonel Pierre Finck, a consulting forensic pathologist and ballistics expert, to assist them. The autopsy commenced soon after the president’s body arrived from Dallas at 8:00 p.m. and officially lasted three hours. The site, Bethesda Naval Hospital, and the navy pathologists Humes and Boswell were selected simply because of Kennedy’s prior military affiliation and the first lady’s desire that navy men perform the autopsy. The expertise of the pathologists was never considered. Neither Humes nor Boswell had formal training or experience in performing autopsies in complex gunshot-wound cases. Finck was asked to attend at the

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last minute and arrived only after the autopsy had begun. Despite his ballistic experience, he, too, had little familiarity with autopsies or homicide investigations.6 Because the site of the autopsy was a military institution, the physicians ultimately were under the authority of their commanding officers, which impeded their control over the autopsy room and influenced their actions. Numerous unnecessary personnel wandered around the autopsy area, many in a state of shock, without any defined professional role. Machine-guncarrying Secret Service agents prevented the Bethesda pathologists from consulting the surgeons in Dallas, which resulted in serious errors in the investigation. Humes later regretted not calling Parkland Hospital surgeons before commencing the autopsy, but the pathologists’ shortcomings were at a more basic level: they did not even understand their role in performing a medicolegal autopsy. Humes stated that he was ordered only to “recover the bullet.”7 The three pathologists determined that two bullets had struck the president from behind—one in the posterior skull that had exited through the right cranium, the other in the upper back. Not finding a clear wound track, Humes initially deduced that the bullet that struck the upper back had penetrated only a short distance and fallen out of the body. The president’s private physician, a navy admiral, restrained Humes from completely dissecting the wound tract. In discussing the case later, Humes defended his actions by arguing that “dissecting the neck was totally unnecessary and would have been criminal.”8 Following the autopsy, Humes gave his preliminary opinions to the FBI agents who had observed the procedure. He did not learn until the following afternoon, when he finally consulted the Dallas surgeons, of the existence of a gunshot wound in the front of Kennedy’s throat, which surgeons had altered while inserting a tracheotomy tube. In addition, the Bethesda pathologists had no knowledge of a bullet that had been recovered from a hospital cart at Parkland Hospital.9 Throughout the autopsy, Humes and Boswell were harassed by the FBI agents to hurry the examination because the first lady and members of the Kennedy family were waiting in the hospital to receive the body. Collectively, these possibly minor errors added up to a situation of confusion and misinterpretation, violating the principles of good forensic pathology practices Moritz had set forth just a few years earlier.10 Most forensic pathologists agreed on one thing: with two navy hospital pathologists operating in a confused and tense environment, it was “a wonder” the autopsy report turned out as good as it did.11 The navy pathologists wrote their reports from hastily scribbled notes

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the following day. Their superiors did not permit them to view the autopsy radiographs or pictures, nor were they able to examine the president’s clothing prior to completing their reports. The president’s brain was saved for further examination by a neuropathologist, but it disappeared, and the formal examination never took place. These exclusions of evidence violated basic principles of gunshot-wound interpretation by pathologists trained in forensic pathology. Finally, Humes admitted that he had destroyed his original autopsy notes by throwing them into the flames of his fireplace after completing his dictation on November 24. A military pathologist, loyal to his commander-in-chief, said Humes had destroyed the notes because he had gotten Kennedy’s blood on them and feared that they would become part of some future display.12 The results of the autopsy first became known to the public in 1964 during the hearings of the Warren Commission, headed by Supreme Court Chief Justice Earl Warren, which President Lyndon B. Johnson created in order to investigate the assassination. In testimony before the commission, Humes and Boswell said: “it is our opinion that the deceased died as a result of two perforating gunshot wounds inflicted by high-velocity projectiles fired by a person or persons unknown.” All three pathologists agreed that “the fatal missile entered the skull above and to the right of the external occipital protuberance, traversing the cranial cavity and partially exiting through the right side.” “The other missile,” the report continued, “entered the right superior posterior thorax above the scapula and traversed the soft tissue of the base of the right neck exiting through the anterior portion of the neck,” which Parkland surgeons had enlarged for a tracheotomy tube.13 The commission’s report, based on the testimony of Humes and Boswell, concluded that a single gunman, Lee Harvey Oswald, had committed the assassination. Throughout the course of the Warren Commission’s ten-month investigation, it consulted no trained forensic pathologist and never examined the x-rays of the gunshot wounds.14 Instead, the members of the commission, all attorneys, interpreted the medical evidence themselves. They eventually embraced the “single bullet theory,” which seemed to point to a lone gunman. The conclusions and conduct of the commission led some forensic pathologists to openly question the autopsy results. Cyril Wecht, a forensic pathologist who was the Allegheny County (Pittsburgh) coroner, was the most vocal critic of the Warren Commission’s investigation. He called the examination “one of the worst and most botched autopsies ever, the autopsy work was a piece of crap.”15 Wecht cited numerous flaws in the autopsy. The physicians who treated the president at Parkland Hospital were never consulted as to their initial

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observations and procedures. The wounds were not completely dissected. The pathologists were not permitted to examine the president’s clothing at the time of the autopsy, nor were Humes and Boswell allowed formally to examine autopsy photographs, x-rays, or Kennedy’s brain, which disappeared. Military doctors, subject to the orders and influence of their superior officers, alone performed the autopsy and prepared the final report. Humes’s superior officer edited the final autopsy protocol before its release, eliminating references to Kennedy’s adrenal glands, which cast the completeness of the report further into doubt. Humes’s destruction of autopsy sketches—contrary to elementary scientific principles—and contradictory statements in the report added to the confusion and “violated every rule of forensic pathology and medicolegal death investigation.” Finally, Wecht pointed out that Humes and Boswell were not forensic pathologists and had had no experience in interpreting gunshot wounds. Under growing public scrutiny, many pathologists who commented on the autopsy were forced to repeat the age-old aphorism that a bungled autopsy cannot be revised.16 Because of the nature of their work, forensic pathologists are trained to be precise and detailed. They receive courtroom experience during their training and practice to anticipate the questions that their examinations will prompt; they expect that their opinions will be challenged in court and in the public square as well. They require a controlled, well-lighted environment in order to study the body and its wounds. In order to establish and maintain the chain of custody as well as to document their findings, trained forensic pathologists follow procedures and describe findings that might be deemed insignificant or unnecessary by hospital pathologists. Forensic pathologists are instructed to refrain from prematurely releasing information to other investigative agencies or the media. In contrast, surgeons and pathologists, who work within the confines of hospitals and operate in chaotic life-and-death situations, have little time for precise documentation of injuries, and their decisions are rarely critiqued in public. “Everyone in that room was trying to save a life not figure out forensics,” a Parkland surgeon involved in Kennedy’s care admitted. “We were . . . not worrying about entry and exit wounds.”17 Their words were prophetic. The Parkland physicians failed to identify two of the four wounds to the president’s body. When the nine Parkland surgeons later recounted their experience in treating Kennedy’s injuries, they, too, contradicted one another’s opinions. Recent studies have confirmed that well-trained trauma surgeons working in busy emergency rooms frequently err in their interpretations of entry and exit gunshot wounds. The accuracy of their inter-

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pretations is often no better than the “flip of a coin.”18 It is not surprising that Parkland’s surgeons made erroneous statements about entrance and exit wounds that seemed to contradict those of the Bethesda pathologists. By 1976, the growing public outcry regarding the suspicion of an organized conspiracy in the assassinations of President Kennedy and Martin Luther King Jr. had reached a fever pitch with the release of the now famous Zapruder film that documented the actual shooting of Kennedy and revelations from new investigations. In response, Congress established a committee to reexamine both the Kennedy and King assassinations. Known as the House Select Committee on Assassinations (HSCA), it included nine forensic pathologists, all of whom contributed to a lengthy report issued in 1979.19 Eight of them agreed that each of the deaths was the result of shots by a single gunman; Wecht was the lone dissenter. Dr. Michael Baden, chairman of the autopsy committee, agreed with the majority but soundly criticized the findings of the original autopsy. He suggested that the conspiracy theorists were aided by a “conspiracy of ignorance” regarding forensic interpretation of gunshot wounds.20 “Despite all these errors and for the wrong reasons,” Baden admitted, “Humes came to the right conclusions—that Kennedy had been shot by two bullets from behind, one in the head and one in the back. They were in the wrong place and poorly tracked, but he got the two most important things right.”21 Charles S. Petty, another forensic pathologist member of the HSCA, expressed concern for pathologists who agreed to examine gunshot-wound victims. He recommended that pathologists undertaking a forensic autopsy have control of the time and place of the examination and that it be carried out by individuals with training and experience specific to that field. Both the detractors and supporters of the Warren Commission report admitted that proper forensic analysis of a homicide requires knowledge and experience.22 In the years since the assassination of President Kennedy, numerous official and unofficial inquiries have failed to answer satisfactorily the questions of conspiracy theorists and mystery buffs. The pathologists themselves did not cause the deception or create the secrecy. Simply by mollifying the Kennedy family, acquiescing to the orders of their superiors, and failing to adhere to accepted scientific methods of trained forensic pathologists, the navy pathologists unwittingly created an environment in which conspiracy theories flourished. The Kennedy assassination, which many Americans consider one of the great cultural and political scandals of their time, served to highlight the important role of forensic pathologists in death investigations. The Warren Commission investigation helped to bring attention to forensic patholo-

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gists, whose work had been previously hidden from the public. Hospital pathologists began to recognize and appreciate the expertise of their forensic colleagues. Humes and Boswell admitted that it had been a mistake to remove the president’s body from Dallas and that they should have consulted one of the many forensic pathologists nearby. “We didn’t need him to confirm our findings but it might have removed the doubts about military control,” a defensive Boswell later confided; “but we had no problem in determining the cause of death.”23 It became obvious to the public, politicians, and law enforcement officials that inexperienced physicians, including some hospital pathologists, were often ill prepared to manage difficult death investigations. Until that time, “most people mistakenly thought a pathologist was a pathologist.”24 Forensic pathologists had now successfully differentiated themselves and their craft from that of the general hospital pathologist. Another tangible outcome of the Kennedy assassination was the creation of a select panel of forensic pathologists to perform autopsies in instances of the death of the president or other high-ranking political officials. Congress enacted legislation that allowed the federal government to supersede state and local jurisdiction in these instances.25 The death of President Kennedy and the investigation that followed helped to explain why questions answered at the autopsy table, such as what direction the gunshot wounds came from, do not just affect the single case but may have profound societal implications. Another high-profile assassination—that of Robert Kennedy—would provide more evidence of the important role of the forensic pathologist.

Credibility in Los Angeles At 12:15 a.m. on June 5, 1968, Robert Kennedy sustained a fatal gunshot wound as he walked through a crowded kitchen-to-pantry corridor at the Ambassador Hotel in Los Angeles. He died twenty-five hours later at a local hospital. Dr. Thomas Noguchi, the recently hired Los Angeles County medical examiner–coroner, was awakened just after midnight with the news. An aggressive, take-charge, forensic pathologist, Noguchi was by his own admission professionally ambitious. As Kennedy lay dying, Noguchi resolved not to repeat the mistakes of the JFK investigation. “I said to myself, not again, remember Dallas,” Noguchi recalled.26 Noguchi began to plan his strategy even before receiving official notification of Kennedy’s death. Accompanied by Los Angeles police officers, he personally examined the scene, noting blood-splatter patterns on the ceil-

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ing and walls, as well as the overall dimensions of the area. At the recommendation of his forensic pathologist colleagues, Noguchi contacted the AFIP, discussed the case with the chief forensic pathologist there, and requested that governmental pathologists be present in the event an autopsy was performed. Soon he received congressional authorization to involve the AFIP pathologists. He then called the treating physicians and requested regular updates on Kennedy’s medical condition.27 After observing the mass of reporters gathering outside the hospital, Noguchi decided to perform the autopsy in the hospital morgue rather than create a public scene by removing the body to the medical examiner’s office. He had never before allowed this to be done in such a high-profile case. He sent his personnel to inspect, prepare, and secure the hospital autopsy room. This turned out to be a critical decision in the investigation that allowed Noguchi to maintain custody of Kennedy’s body.28 Robert Kennedy died at 11:30 p.m. on June 6, 1968. The Kennedy family had already demanded the removal of the body. At midnight, Noguchi began to carry out his plan and called Washington to request the AFIP pathologists. He did so not for professional assistance but to display political etiquette, to maintain the transparency in the investigation that had been lacking in the JFK investigation, and to avoid future accusations that the examination had not been complete. While waiting for the AFIP pathologists to arrive after their five-hour flight from Washington, Noguchi took custody of the body, obtained head-to-toe x-rays, and met with representatives of the Kennedy family and the Los Angeles district attorney. At first, the family adamantly objected to an autopsy, citing the obvious cause of death. Wishing to accommodate the family, the Los Angeles district attorney concurred, stating that in his opinion an autopsy was not necessary. Noguchi continued to plead his case. It was only after an assistant district attorney, well versed in the subtle realities of criminal law and homicide investigations, spoke in support of Noguchi and the necessity of an autopsy in such a criminal case that the family finally relented. Armed only with his solemn promise, “Trust me,” which Noguchi softly murmured to the family, he proceeded to perform the autopsy. The essential elements that allowed for a successful death investigation—control of the body, control of the space, and professional experience—were now in place. Without these precautions, the body undoubtedly would have been secretly taken to Washington, possibly leading to yet another conspiracy theory.29 By the time the three AFIP pathologists arrived, Noguchi had nearly completed the external examination and had begun the internal dissection of the body. The group from Washington included a forensic pathologist, a neuropathologist, and Colonel Finck, the forensic pathologist and wound

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ballistic expert who had consulted with Humes and Boswell at the JFK autopsy five years earlier. By 9:15 a.m., after more than six hours of painstaking examination, the autopsy was completed and the body released. For the next eighteen hours, Noguchi and the AFIP team completed the examination of tissues; reviewed the crime scene, Kennedy’s clothing, medical information, and x-rays; and correlated the findings. Noguchi confirmed that Kennedy had been shot four times. The fatal wound struck him “at very close range” behind the right ear. Noguchi determined that two other wounds, in the right axilla, were nonfatal. A fourth shot had perforated the shoulder pad of Kennedy’s suit, completely missing his body. After observing gunshot residue on the clothing, Noguchi redressed Kennedy’s body to reconstruct, beyond any doubt, Kennedy’s exact position when he was shot, thus avoiding the misinterpretations that had occurred during the JFK autopsy.30 After forty-eight hours without sleep, Noguchi and the Los Angeles coroner’s office had completed their investigation. Later, Noguchi participated in ballistic test firing of the murder weapon, using the skin of pigs’ ears to re-create the precise range of fire. Whereas the JFK autopsy had drawn criticism to forensic medicine, the investigation of Bobby Kennedy’s death marked a new standard for medicolegal death investigation. Noguchi’s meticulous attention to detail, following time-tested principles of forensic pathology, uninhibited by political oversight, had removed any possible speculation about the death in the minds of forensic pathologists. “I consider the most important thing is that my work is professional and believable . . . Just one increditable event will destroy credibility,” Noguchi preached.31 Noguchi’s sixty-two-page autopsy protocol would stand as a model for investigating high-profile cases and serve to limit the scope of the conspiracy theories that arose during the following years. After 1968, medical examiners’ offices staffed with forensically trained pathologists began to be looked on by law enforcement as the lead agencies in the scientific investigation of high-profile and suspicious deaths. Noguchi’s strong, confident, and competent approach to death investigation and his standing up to authorities promised to provide a new generation of forensic pathologists with the model they so desperately needed. However, in 1974 Noguchi himself came under attack and faced discharge by the county commissioners for “erratic behavior” and sixty-three other counts, stemming from his aggressive investigations of the deaths of Hollywood stars Natalie Wood and William Holden, which many close to him thought were the result of allegations that he had botched the Kennedy case. All allegations were eventually proven false, but not without damaging his reputation.32

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Calling his colleagues to action, Noguchi attempted to codify professional ethics and conduct for other forensic pathologists: As a forensic pathologist–medical examiner, we occupy a lead position in an emerging and increasingly important medical specialty area of forensic medicine. I, for one, believe that the medical examiner should accept the challenge, the opportunities open to him/her/us, to take the leadership role of defining, publicizing, and seeking solutions to the social, public health, and environmental problems which some among our fellow human beings are constantly mindlessly creating. We should use the knowledge gained from the information obtained by our studies of the dead to help better the lives of the living, to keep the living alive. Otherwise, our work will be an “exercise in futility” for we surely cannot bring the dead back to life.33

It would be little over a year after Bobby Kennedy’s death that forensic pathologists realized they still had a long way to go in establishing their authority in other parts of the country.

Lost Opportunity at Chappaquiddick Sometime after midnight on July 19, 1969, a car driven by Senator Edward Kennedy plunged off a narrow bridge into a tidal pond on the tiny island of Chappaquiddick, a small Massachusetts coastal town, resulting in the death of his female companion. Juggling a heavy patient load, Dukes County assistant medical examiner Dr. Donald Mills, an obstetrician and assistant medical examiner for more than twenty years, viewed the body of the woman, previously removed from the vehicle, which was submerged in six to eight feet of water. The body had been placed on the ground next to a police squad car, to protect it from onlookers during the examination. Mills made a brief inspection of the body. The woman was dressed, her clothes “fully buttoned and in place,” but she wore no underwear. Mills found no evidence of trauma, only white froth exuding from the nose and mouth, “obvious and clear” evidence of drowning.34 Before leaving the scene, Mills was informed by a bystander of the woman’s possible association with the Kennedy family. Only later, as Mills gathered information from the police, did he learn that the body was that of Mary Jo Kopechne, who previously had worked for Bobby Kennedy. Kopechne and Senator Edward Kennedy had attended a party at a secluded cottage the evening before and had been seen leaving together. Massachusetts had a medical examiner system in which each county was divided into districts. The governor appointed medical examiners and one or more associate medical examiners for seven-year terms. The associate

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medical examiners were autonomous and not answerable to the medical examiner for their actions. In essence, everyone was in charge and no one was in charge. By statute, the district attorney had to be notified of the medical examiner’s intention to perform an autopsy but still retained the authority to order autopsies independent of the medical examiner. The district attorney then contacted a medicolegal pathologist to perform the autopsy.35 As he returned to his office to wait for a multiparous patient to deliver, Mills wrestled with whether to perform an autopsy. Despite his twentyyear tenure as an associate medical examiner, he had little real experience investigating deaths, averaging only eight cases per year, the number an average investigator in a large city office would handle in a typical weekend. Regardless of the fact that the driver was unknown and the passenger unidentified, the police chief had not requested Mills to obtain an autopsy. “We almost never do autopsies in drowning cases on the island,” Mills later explained; in his opinion, autopsies in drowning cases only contributed to a “waste of taxpayers’ money.”36 As a medical examiner, Mills had the legal authority to retain the body and transport it to Boston for an autopsy, but he was reluctant to act on his own. He later recalled, “I felt the evidence of drowning was conclusive, but I’m no detective.”37 Per his routine, Mills had contacted the district attorney’s representative immediately to discuss the case and to obtain the district attorney’s opinion regarding an autopsy. Mills emphasized that the woman might be a Kennedy employee. The district attorney was unavailable, but his official state police spokesman reiterated Mills’s statement that he “was satisfied that the girl had drowned, that was it, and he saw no need for an autopsy.” “The police advised me to collect a blood sample for alcohol content,” the overwhelmed Mills said. “I felt it was too big an issue for me to handle singlehandedly.” Relying only on his superficial examination at the scene and the fact that the woman had been found in a submerged car, Mills was convinced the cause of death was drowning. However, still agonizing about his decision whether or not to order an autopsy, Mills suggested to the officer, “If it is the judgment of the district attorney or his assistant that an autopsy is indicated, then I am asking for one.”38 Finally, Mills dutifully removed a blood sample. He then released the body to be embalmed by a funeral director for burial. In the end, he relegated the decision to obtain an autopsy to another authority, the district attorney.39 After Senator Kennedy admitted that he had been the driver of the automobile and had failed to report the death for ten hours, the news media criticized the district attorney for failing to order an autopsy. When Mills was finally able to speak with the district attorney, four days later, he con-

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curred with Mills that on “purely medicolegal grounds there had been no indication for an autopsy.”40 The media attention and criticism of the district attorney escalated, hounding him to reopen the investigation of the now suspicious death. But the body was gone. When news of the district attorney’s involvement in the autopsy decision surfaced, squeezed between politics and the press, he supported the medical examiner until it became untenable to do so. Eventually, he attacked the medical examiner for failing to obtain the autopsy himself. Mills had expected the support of the district attorney but instead was made a scapegoat for the botched investigation. If the assassination of JFK was “a quagmire for historians,” then the Chappaquiddick affair was “in many ways almost as deep and treacherous a bog.”41 Eventually, public opinion forced the district attorney to petition the Pennsylvania court for an exhumation to determine the exact cause of death and rule out other contributing causes. Mary Jo Kopechne’s parents, conservative Catholics, strenuously objected to an autopsy, for religious reasons. Richard Cardinal Cushing advised the family to reject exhumation because of “their Christian duty to prevent desecration of their daughter’s body.”42 As news of the case surfaced, the press queried forensic pathologists across the country as to the necessity for an exhumation and the possibility of finding usable evidence. Dr. Richard Ford, former head of the Harvard department of legal medicine (see chapter 2) and Suffolk County medical examiner, came to the defense of Mills. However, Ford only added to the confusion by stating “if [I] had been the medical examiner on this occasion . . . under the circumstances of time, place, observations of the body and information available, [I] would have acted exactly as [Mills] did.”43 Dr. Milton Helpern, the New York medical examiner, argued that unquestionably an autopsy should have been performed and that valuable evidence could be obtained with an exhumation. “When you find a young woman in a car, whether she is submerged or not, you do an autopsy,” he insisted.44 In October, three months after the incident, Dr. Cyril Wecht testified at the court hearing arguing for an exhumation of the body of Mary Jo Kopechne: “You can have very extensive internal injuries,” Wecht argued, “without any evidence of external trauma. You can strangle a person to death and leave no visible marks.”45 Wecht openly criticized the handling of the case: If there had been a forensic pathologist trained and experienced and with knowledge of the law, an incident like Chappaquiddick would have been avoided . . . An autopsy should have been performed back then when the ac-

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cident occurred, and should be performed today for the same reasons. As a medicolegal investigator, you cannot pick and choose which cases you want to review. You either have a medicolegal investigative system that routinely, uniformly, thoroughly and adequately performs autopsies in case of sudden, violent, suspicious, unexplained, unexpected and medically unattended death, or you have something less than acceptable. The whole idea is to make certain you are not missing something. If you make a determination based on who the person is and your personal feelings about the circumstance or the people involved, then obviously the system is compromised.46

The court eventually ruled that the death was an accident and that an exhumation would not add to the investigation. “Where was the case botched?” asked Mills. “It was the holes in our medical examiner system, holes that are still there. We need a chief medical examiner for the state, someone to whom the beleaguered medical examiner can turn.”47 In the absence of an autopsy, rumors and questions continued. The confusion about an autopsy in the Kennedy-Kopechne case demonstrated to legal authorities the need for uniform and effective laws regarding autopsy. It also confirmed that professional experience, training, and sound decision-making were more important than a title. Poorly trained and inexperienced physician medical examiners were no better than their lay coroner counterparts.48 Sadly, little changed in Massachusetts.

Shoot-out in Chicago Politicians had protected the antiquated coroner system in Chicago for decades, despite the transition to medical examiner systems in other major cities. Numerous attempts had been made to abolish the office of coroner in Illinois. All that changed early in the morning on December 4, 1969, when police stormed a dilapidated apartment building in East Chicago to arrest a group of militant black activists that included Black Panther leader Fred Hampton. After the gunfire stopped, Hampton lay dead on a bed; another Panther was dead, and four others were wounded. In storming the building, the police had fired more than a hundred rounds; the Panthers had shot only once. No police were injured in the raid. The shoot-out sent shock waves through Chicago’s black community, energizing activists who threatened to involve Mayor Richard J. Daly’s political machine. The resulting crisis opened the door for widespread reform in the Cook County coroner’s office.49 The Panthers argued that the raid had been nothing more than a plot to assassinate the Panther leader. They complained that police had opened

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fire in an unprovoked attack, shooting Hampton as he lay asleep in bed with his wife. The police maintained that Hampton had been lying on his stomach, repeatedly firing at police with an automatic pistol and shotgun. According to the police, several officers had fired on Hampton but only after he had fired on them.50 A pathologist at the Cook County coroner’s office autopsied Hampton’s body. The autopsy demonstrated that Hampton had been shot four times in the head, neck, chest, and forearm. The shots had emanated from different directions, seemingly confirming the police version of the attack that said Hampton had been shot while attacking an officer. The coroner’s pathologist, a nonforensic pathologist, failed to take any photographs of the injuries during the autopsy. A second autopsy, requested by Hampton’s family, completely contradicted the findings of the earlier autopsy but also failed to explain adequately the trajectories and tracks of the wounds. The discrepancies between the two autopsies became a focus of controversy that resulted in a public outcry about a police coverup. A number of citizens’ groups called for a third autopsy to determine the circumstances of the injuries.51 The U.S. Department of Justice called on Dr. Charles Petty, an experienced forensic pathologist and the Dallas medical examiner, to perform a third autopsy on the disinterred body. Petty confirmed that Hampton had been shot four times while lying in a right lateral position. All the shots had come from the same direction, in full view of the shooter and not in a hail of bullets in a blind shoot-out, as the police had maintained. Petty’s autopsy confirmed the Panthers’ version of the attack. Police had staged an all-out assault in apprehending Hampton and, more important, had attempted to conceal and distort the evidence. Petty lamented the failed investigation and the cost to the family and the community. “The blame for incompetent or distorted autopsy reports cannot be placed entirely upon the politically motivated coroner’s office,” he said, “but can also occur when there is a lack of individual integrity and a scientifically sound approach to any examination.”52 Months later, a federal grand jury remarked: “Nor did the medical work of the Coroner’s Office seem to be of high caliber. The reversal of the entrance and exit holes and the mis-description of one of Hampton’s wounds could, in some cases, have caused serious repercussions.”53 The grand jury report concluded: “This investigation established reasonable grounds to question whether the continuation of that office [the Cook County Coroner] is desirable.”54 Recognizing the paucity of trained forensic pathologists, Petty donated his reimbursement from the Department of Justice to fund the creation of a handbook on forensic pathology. He intended the book to provide com-

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munity pathologists with the basic concepts of forensic pathology in order to avoid the types of mistakes that had been made in Chicago.55 The Black Panther shoot-out became the catalyst for abolishing the coroner’s office and replacing it with a medical examiner’s office in Chicago. Although numerous groups called for the change, it was the Chicago League of Women Voters who eventually applied the necessary political pressure to obtain a referendum to replace the coroner with a medical examiner.56 The referendum passed by a five-to-one margin. In January 1977, Cook County officially created the office of the chief medical examiner and seven years later completed construction of a modern medical examiner’s office building on the campus of the University of Illinois in Chicago.57

Attica: Killing the Messenger Law enforcement agencies sometimes exerted direct pressure on forensic pathologists to influence death investigations and undermine medicolegal authorities in order to maintain their police privilege, authority, and image. On Monday morning, September 13, 1971, what would become known as the worst prison uprising in American history occurred at the Attica Correctional Facility in upstate New York. Attica came to represent both the influence of political forces on death investigation and the professional fragility of its medical practitioners. Protesting racial discrimination and chronic poor treatment, inmates at Attica seized control of the facility. Negotiations collapsed after a guard who had been injured in the initial takeover died. Governor Nelson Rockefeller refused to negotiate with the inmates, who had taken forty-three guards and inmates hostage. After the inmates rejected a final offer, they further challenged prison officials by parading their guard hostages on the catwalk of the prison, holding knives to their necks. Governor Rockefeller then gave the order to retake the prison and end the four-day siege. Five hundred state patrol troopers, sheriffs, and police with sniper rifles and shotguns, joined by Attica prison guards, stormed the prison in a hail of tear gas and bullets that lasted just six minutes. When the shooting ceased, twenty-nine inmates and ten hostages were dead. Corrections officials, seeking to defend their actions, quickly announced that the prisoners had killed the guards by beating them and slashing their necks with knives. Rumors quickly spread that the inmates had castrated the guards and placed their genitals in their mouths.58 Dr. John F. Edland, a thirty-six-year-old forensic pathologist and medical examiner in Rochester, New York, received the bodies of eight of the

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hostages and nineteen of the inmates. As in any criminal case, police officers monitored and witnessed the autopsies, receiving evidence the pathologist recovered and taking photographs. Edland and his assistant pathologist labored through the night, starting with the guards. After completing the examinations, Edland concluded that all the guards had died of gunshot wounds, most of them shotgun wounds to the head. There was no evidence of stabbing or mutilation to support the allegations that inmates had slashed the hostages’ throats. Instead, the opposite was true: the state police, while attempting to rescue the guard hostages, had killed them all.59 By morning, the state corrections commissioner was forced to confront Edland’s autopsy results, which indicated that all nine hostages had died of gunshot wounds inflicted by the state police. In disbelief, the commissioner suggested that the shots had come from the inmates’ homemade weapons. Edland refuted this suggestion and other rumors of the inmates’ mutilation of the guards, stating: “None of the bodies was mutilated except by gunshot and stab wounds.” Edland said that the state patrol observers kept waiting for the next case to show up with signs of mutilation to prove their theory, until [they] ran out of bodies. “I’m used to not finding what people tell me to find,” a confident Edland stated.60 State corrections officials and Governor Rockefeller finally accepted the fact that the hostages had been killed by state police gunfire, not by inmates. The families of the dead hostages were stunned by the news. State troopers reacted in disbelief and angrily rejected the autopsy findings. One openly declared, “I don’t believe the Medical Examiner’s report.” Some contended that it was erroneous or had been “fixed” in a “conspiracy that they did not yet understand.” Funeral directors engaged to remove and prepare the bodies also challenged Edland’s conclusions in statements to the media. They were later proved wrong.61 Rumors began to circulate that Edland was a “radical left-winger.” Prison officials called for confirmation of his work and recruited a “top” pathologist from New York City to “check the findings of the clown up here.”62 The state police wanted to know whether Edland could differentiate a bullet wound from a stab wound. Edland stuck to his beliefs, stating “I’m my own man.”63 Although he suffered public humiliation and professional criticism, Edland never wavered. In response to the uproar, the Department of Corrections requested Dr. Michael Baden, New York City assistant medical examiner, and Dr. Henry Siegel, a medical examiner in Westchester County, New York, to reexamine the bodies and make an independent review of Edland’s findings. Over the next five days, Baden examined the bodies of all of the guards and inmates, which had already been released and dispersed to a number of fu-

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neral homes. In the end he concluded that “Edland was right. They had all died of bullet wounds, and the shots had come from a distance.”64 With the completion of the autopsies and investigation, the political pressure on Edland intensified. On being questioned by the Rockefeller Commission, created to investigate the tragedy, he maintained that law enforcement authorities had not attempted to influence his ruling. Unofficially, however, he reported to colleagues that law enforcement officials had begun systematically to harass him. Over the next few years, state patrol officers reportedly stopped his car more than forty times for speeding. Law enforcement officials, attempting to get something on Edland, questioned friends about his personal life. He received abusive mail and latenight phone calls, and endured attacks on his character. The police stopped having him perform their medicolegal autopsies. The pressure eventually became unbearable, forcing him to take an academic position in another town, away from the glare of the media.65 Edland’s appraisal of the facts, supported by other forensic pathologists, forced the events of Attica into the public arena. The autopsies and press releases by the medical examiner allowed facts of the killings to be publicly recognized; without this, the truth of Attica might never have been known. If anything good came out of Attica, it was the creation of a medical review board in 1974 to examine the deaths of prisoners in New York.66 Although initially it was only a review board, later it required autopsies on all prisoners who died while in custody and changed forever the way deaths while in custody are investigated.

Forensic Pathologists on Trial In addition to the criticism of law enforcement, politicians, and attorneys, forensic pathologists often had to weather disparagement from their own peers. In the late 1980s, forensic pathologists increasingly confronted issues that attracted intense cultural and political interest. In a high-profile civil litigation or death-penalty criminal case, the stakes were high. Tired of the inconveniences of trials or being intimidated by attorneys, most general pathologists had retreated from the courtroom. As forensic pathology gained professional authority, attorneys attempting to discredit them found it necessary to call in other consulting forensic pathologists—their colleagues—to attack their findings and opinions. In this hotly contested arena, when two Detroit police officers were charged with the murder of a black male during a routine traffic stop, criticisms from outside forensic pathologists centered on the contested cause

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of death but also included allegations of poor management of the medical examiner’s office and “shabby work which led to wrong conclusions.”67 In November 1992, just months after the assault on Rodney King by Los Angeles police, Detroit police officers stopped Malice Green, a twenty-fouryear-old black man, under suspicion of using cocaine. When paramedics arrived, they witnessed a police officer beating Green with a heavy flashlight while allegedly attempting to wrestle cocaine from his hand. Green died en route to the hospital. An autopsy performed by a junior staff medical examiner at the Wayne County medical examiner’s office determined the cause of death to be brain swelling from multiple blows to the head. After toxicology testing detected cocaine in Green’s blood, the chief medical examiner overruled the opinion of his subordinate, classifying the death as a cocaine overdose. The divergent opinions caused the local media to question the practices of the medical examiner. In the subsequent court case, five consulting forensic pathologists testified as to the cause of Green’s death. When they arrived in Detroit to testify, they, too, were blasted in the local media for their supposed professional and personal improprieties, such as mixing up bodies or declaring a person dead when he was in fact alive. So intense was the criticism that it prompted one medical examiner administrator to call for a halt to the “professional assassinations.” Three of them argued that Green’s injuries were superficial and agreed that he had died as a result of consuming cocaine and alcohol. The other two attributed the death to head injuries from the inflicted blows, challenging the veracity of the other three opinions.68 The police officers were eventually convicted of the beating death of Malice Green. The junior pathologist who first performed the autopsy won a $2.5 million dollar settlement against the county for alleged retaliation by his employer, the medical examiner. Because of the nature of high-profile deaths, forensic pathologists were often the subjects of the media spotlight. Unlike other medical specialists, they were subjected to criticism and challenges from the press, politicians, and their peers—only serving further to undercut the status of the subspecialty of forensic pathology. Despite their claims of expertise and superior knowledge, they were often unable to exercise their authority or gain a privileged status. Although they had developed a separate subspecialty, medical school recognition, and advanced training programs, they had difficulty convincing other medical, legal, and law enforcement professionals of their special expertise. On occasion, forensic pathologists attacked one another in the public courts, further tarnishing their subspecialty in the public understanding. And to bring needed change, they could only look to a public crisis to incite the citizenry to act.

chapter

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Autonomy Challenged

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n 1967, Dr. John I. Coe, the chief medical examiner of Hennepin County, Minnesota, testified in a Minneapolis courtroom, accused of misusing public funds by illegally removing pituitary glands from cadavers and selling them for his own remuneration. Beginning in 1959, several endocrinologists had approached medical examiners, requesting that they remove the pituitary glands from corpses so that human growth hormone could be extracted. The health of thousands of children affected with hypopituitary dwarfism depended on the hormone harvested from these cadaver glands. In April 1963, through the collaboration of the National Institute of Arthritis and Metabolic Diseases with the CAP, the National Pituitary Agency was created; its primary goal was to facilitate collection of pituitary glands from cadavers.1 Now Coe, a nationally renowned forensic pathologist, sat before a grand jury, accused by a muckraking Minneapolis Tribune journalist of running a black market trade in organs out of the Minneapolis medical examiner’s office. The hospital’s medical director, professionally jealous of Coe and eager to destroy his career, had contacted the reporter. Amid all the publicity, county officials had received numerous calls threatening lawsuits from the angry relatives of deceased persons. Coe admitted he had directed the removal of pituitary glands, according to the newly established CAP guidelines, and received $2 for handling and mailing each of the nineteen hundred glands that were recovered annually from the Minneapolis

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morgue. He adamantly denied taking the money for personal gain. Instead, he had used the money to purchase needed photographic film to document autopsy and death scene findings. He had kept impeccable records of the receipts and expenditures related to the pituitary fund; eventually he was able to convince the jury that the money had gone to the county, not to himself. He barely survived the incident with his career intact. The grand jury recommended that the hospital and the county improve their surveillance of the process and the medical examiner obtain written permission from families before recovering decedents’ pituitary glands. It would be three years before public confidence returned and the number of pituitary gland recoveries in Minnesota reached the levels that had existed prior to the grand jury investigation.2 Reimbursement arrangements between medical examiners and organ procurement agencies gave disgruntled employees or political adversaries an opportunity to defame medical examiners. In 1981, while involved in a turf battle with the state health commissioner, Rhode Island’s chief medical examiner was accused of maintaining a “private bank account for cremation fees and the donation of corpses’ pituitary glands without permission of families.” He admitted that he had donated some forty or fifty glands to the National Pituitary Program at Johns Hopkins University without family consent. In his defense, he also citied CAP guidelines encouraging the removal of pituitary glands. Unlike Coe, he had retained the funds for his personal use, which eventually resulted in his dismissal.3 By the mid-1960s, medical examiners had begun to establish themselves as a unique medical specialty group with training requirements, a specialized body of knowledge, and board certification. The controversy concerning the Kennedy assassination had enhanced medical examiners’ professional status in the public eye. In newspapers and medical journals across the country, forensic pathologists garnered headlines as they opined on the medical circumstances of the Kennedy deaths and other high profile crime mysteries.4 Their physician colleagues had begun to recognize the importance of forensic science as the interface between law and medicine in the increasingly litigious environment in American medicine. Fearful of the courtroom and lawyers, unable to sacrifice the necessary time, and unwilling to work for small sums of money, physicians had abdicated death investigation to forensic pathologists. Within this litigious atmosphere, forensic pathologists achieved a type of autonomy that was based not on practicing rigorous scientific inquiry, as was usual in other medical fields, but on a unique form of complexity born out of experiential medicine: a certainty based on empirical observation. Forensic pathologists voluntar-

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ily sought interaction with the legal system and willingly accepted public accountability as part of their medical practice.5 The prevailing problem of the early twentieth century—establishing the authority of the medical examiner to perform an autopsy over family objections—had now been resolved in the courtroom in favor of medical examiners and coroners. States had created laws giving these officials enhanced authority to perform autopsies, investigate deaths, and gain access to medical records.6 However, at the same time that forensic pathologists had been given the power to control their own practice, improvements in medical technology had made it possible to transplant human organs. This development necessitated a change in the definition of death that ultimately gave rise to new restrictions on the autonomy of medical examiners and coroners. The proponents of organ donation—transplant surgeons and bioethicists—represented two powerful new specialties.7 A decades-long conflict began between these specialists and medical examiners, coroners, and prosecutors over the major basis of the latter’s professional status—the possession of the body. Created in part in response to the development of organ transplantation, the 1968 Ad Hoc Harvard Committee on Irreversible Coma established that an individual could be legally pronounced dead by the physician on the basis of a constellation of clinical findings that did not include the heart ceasing to beat.8 Now, a lucrative business of organ procurement and a sentimental public relations campaign pressing for organ transplantation began to criticize medical examiners. Against aggressive organ procurement agencies, for-profit tissue recovery teams, and transplant surgeons entered the fight for desperate patients in a battle over possession of the body. Coe and his colleagues faced new challenges in having to wrestle with the sometimes conflicting goals of their obligation to investigate death and their responsibility to supply the public’s increasing demand for organs and tissues to support life. The definition of what constituted death changed from the absence of observable signs of breathing, movement, and heartbeat to more subtle definitions based on the lack of blood flow to the brain. In this environment, medical examiners and coroners came increasingly into conflict with bioethicists, who frequently pushed for withholding life support, legalization of euthanasia, and assisted suicide, often ignoring the statutory responsibilities of medical examiners and coroners. Beginning in the early twentieth century, as medical examiners expanded their role and became more involved in examining all types of sudden death, their investigations had begun to encroach on areas of medicine previously hidden from pub-

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lic scrutiny. By the end of the century, cultural and ethical realities such as: the AIDS epidemic, the failure of medicine to develop adequate end-of-life care, and the quest for the “good death” proposed by a popular media, fueled the public’s demand for physician-assisted deaths. This chapter traces the evolution of medical examiners from isolated medical professionals limited to dissecting dead bodies to members of a complex medical system that included transplanting human organs and deciding when to remove medical support.

Medical Examiners Confront Organ Procurement The success of organ transplantation necessarily broadened discussions of the definition of death. The first kidney transplants occurred in the 1950s and became common practice with the introduction, in 1964, of the immunosuppressant drug Azathioprine. In 1983 Cyclosporine, an antilymphocyte drug, came on the market and opened the floodgates for organ transplantation.9 Before these new transplants could proceed, the donor had to be declared dead. Transplantation presented physicians with new ethical dilemmas; the most important was “When is a person really dead?” Henry Beecher, as chairman of the Harvard Medical School’s Ad Hoc Committee on Irreversible Coma in 1968, developed medical brain-death criteria.10 The federal legislation that resulted from the findings of Beecher’s committee ultimately became known as the 1968 Uniform Anatomical Gift Act (UAGA). He failed to anticipate that deaths coming under the jurisdiction of medical examiners or coroners would first require investigation, followed by approval, before organ procurement could proceed. With many potential donors coming under their jurisdiction, medical examiners and coroners overnight became gatekeepers for organ transplantation. Defending their own rights to the body, prosecutors openly supported medical examiners and coroners in their attempts to restrict organ and tissue procurement, especially in homicide cases, which the prosecutors ultimately controlled. To facilitate organ transplantation, legal authorities needed both to refine the legal definition of death and to avoid destroying or altering evidence, which jeopardized the outcome of jury trials. Prior to the passage of the UAGA and the institution of informed consent, the general public was largely unaware of the extent to which the medical community used cadaver organs. Bodies in the possession of medical examiners and coroners were often the only available source of human tissues and organs for medical research. Medical examiners who assisted in allocating such materials for research did so, in effect, to gain the professional acceptance of their scientific peers, demonstrate their concern for

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humanity, and, in some cases, make money. Scientists and physicians often asked forensic pathologists to supply organs from autopsies for research; on occasion, the pathologists retained organs for their own studies. Informed consent codified that every person had the right to determine what would be done with his or her body. In the early 1950s, for example, Suffolk County (Boston) medical examiner Richard Ford publicly boasted that he had supplied a colleague with “enough aortas to keep him happy.”11 In 1990, Robert Treuting, the Jefferson Parish (Louisiana) coroner, argued that “pathologists have the legal right to do anything they want with the body if they have a legitimate research reason” and further offered that “it would be callous for the survivors to be told . . . it would only compound their anguish.”12 Medical examiners also used cadavers to test their own theories of injury and trauma, without the knowledge or consent of the families. Dr. Charles Larson, the respected forensic pathologist from Tacoma, Washington, openly commented on how he had stabbed a corpse in order to determine the wounding characteristics of a specific knife that had been used in a murder he was investigating: To prove my theory, I stabbed the next 30 bodies which I autopsied. They were all dead individuals, of course; I was going to cut them open anyway. So the fact that I stabbed them made no difference. I stabbed them with a butcher knife, which was identical with the one described in the case—same length, the same blade width, the same sharpness. I found that in more than 50 percent of the cases in which I made a single through and through stab wound in the chest, every single injury described in court by the pathologist was produced.13

Medical examiners generally believed that retaining tissues and organs for legitimate research purposes was ethically justified if the practice was not prohibited by law, would not compromise the police investigation, and did not disfigure the body. For example, medical examiners in Detroit shot corpses in an attempt to determine the range of fire of gunshot wounds in their homicide cases. A Dallas medical examiner dropped dead babies on their heads to recreate suspected abusive head injuries. In Milwaukee, a medical examiner collected testicles in order to study the effects of heroin addiction on sterility—all done without the families’ knowledge or permission.14 The media delighted in reporting these macabre stories to their readers. When unauthorized research practices rose to the level of embarrassing political authorities, medical examiners were disciplined or dismissed. The administrator in Portland, Oregon, fired the medical examiner for harvest-

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ing pituitary glands and skin and funneling the remuneration for them, some $16,000, to office improvements. In Detroit, city officials dismissed one forensic pathologist for beheading bodies in the name of research and forced the retirement of another for mutilation of bodies.15 Once alerted to the practice of recovering organs, the public challenged the authority of medical examiners and coroners to do so, and the practice quickly became unacceptable.16 Forensic pathologists continued to retain the rare brain or heart that had to be removed and examined to determine the official cause of death. Eventually, families also objected to this practice, successfully suing medical examiners and coroners over the mental anguish of burying an incomplete body.17 Legal precedents and tradition had long given medical examiners and coroners exclusive control of the body. At times, unethical medical examiners and coroners had steered bodies to preferred funeral directors in exchange for kickbacks. Often poorly paid, medical examiners and coroners now struggled with the ethical issues raised by financial inducements offered to them and their employees by organ procurement agencies in a highly competitive industry. Inducements ranged from tasteless marketing trinkets advertising organ procurement organizations to payments in the thousands of dollars. Organ and tissue procurement agencies also provided significant funding for training and education, as well as most of the financial support for professional meetings of coroners and medical examiners nationwide. As the competition among agencies for scarce organs and tissues increased, so too did the pressure on medical examiners who controlled the release of tissues. Medical examiners in Miami, St. Paul, Detroit, and other cities found publicly acceptable alternative ways to obtain payments from procurement agencies. These included the practice of funding the construction of a new morgue, with a specialized recovery room restricted to exclusive use by the organ procurement organization (OPO). Other officials charged a fee for the use of their autopsy rooms, sponsored education events, or replaced payments to individuals with payments directly to county governments in exchange for services. All participants insisted that organs were not being sold—a practice that would be illegal, of course—and insisted that the reimbursements were only for services rendered. On occasion, in order to protect evidence on the body in homicide cases, medical examiners and coroners declined to allow the harvesting of organs, often at the direction of prosecutors. In the years immediately following the passage of the UAGA, medical examiners and prosecutors worried that defense attorneys would construe the removal of life-support measures in order to procure organs as an independent, intervening cause of

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death and thus invalidate charges against accused defendants in homicide cases. This was not an unfounded fear. During an appeal of their conviction for the 1975 murder of a Milwaukee police officer, the defendants argued that the death was caused by “stoppage of the pressor drugs and the respirator after surgery to remove the victim’s kidneys” instead of gunshot wounds to the head inflicted by the defendant. The appeal failed. With time, individual states established the legal precedent that removing a respirator from a homicide victim without measurable brain activity did not relieve the defendant of responsibility for the victim’s death. Medical examiners increasingly allowed organ procurement in homicide cases.18 Defense experts continued to argue that the removal of life support had caused the death, but they were rarely successful.19 Medical examiners’ refusal to allow removal of transplantable organs when in their opinion doing so would jeopardize death investigations inevitably led to open conflicts with the OPOs. Created in 1974 through the National Organ Transplant Act, the OPO network was intended to encourage organ donation and their equitable distribution.20 Tissue recovery centers, however, for the most part remained unregulated, for-profit corporations. When confronted with a reluctant medical examiner or coroner, the OPOs and transplant surgeons would threaten to use the media to attack him or her. The OPO network initially consisted of regional systems; they eventually expanded to include the entire country. The majority of organ recoveries resulted from sudden, unexpected deaths—cases that were statutorily placed under the medical examiner’s authority. In light of severe organ shortages, OPOs and transplant surgeons accused medical examiners of indiscreetly restricting access to bodies under their jurisdiction and wasting badly needed organs. The OPOs grudgingly acknowledged that medical examiners had a legal right to possession of the bodies that came under their jurisdiction and, from a medicolegal perspective, had the right to determine whether a deceased person would be an organ donor. Medical examiners and coroners worried that procurement of organs would hinder the determination of cause and manner of death or break the chain of custody, thus threatening the judicial proceedings. An early challenge of the coroner statute occurred when Norman Shumway, the renowned cardiac surgeon at Stanford, ignored an agreement with the local coroner that organs from homicide victims would not be used for transplantation. Later, defense attorneys successfully argued that the defendant had not killed the victim because the victim had not died until his heart was removed.21 As a result, medical examiners and coroners balked at allowing donations when in their minds the organ harvesting procedure could jeopardize the outcome of a trial. To

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the public, the OPOs and transplant surgeons represented the highest altruistic power of the medical community. The rare medical examiner who questioned or resisted the strong-armed practices of transplant surgeons or OPOs usually paid a heavy political price. In Tucson in 1987, a nationally known transplant surgeon accused the medical examiner of “unjustifiably” withholding organ donations that could save the lives of his patients. “It’s my job to make sure nobody suffers an injustice,” fired back Dr. Richard Froede, the medical examiner. “If we are dealing with a criminal case where someone is falsely accused, he might get prison, or a doctor could be wrongly convicted of malpractice if the body is disturbed.” The surgeon thought it unconscionable for the medical examiner to keep bodies locked up in his “little morgue . . . just because they might need this or that organ just in case they might need to answer some questions.”22 The OPOs publicly accused medical examiners of denying organ recovery in 7.2 percent of potential donors, which they publicized as resulting in three thousand “lost lives.”23 Conflicts between medical examiners and OPOs broke out in New Jersey and Washington, which eventually led to legislation in those states that allowed OPOs to recover organs under the medical examiner’s jurisdiction without first obtaining his or her permission.24 Other states continued to require initial reporting of cases to the medical examiner, but only permitting a refusal of a donation if the medical examiner personally appeared in the operation room to contest it. Some medical examiners, on the defensive, attempted to cooperate with their local OPOs and educate their colleagues about the techniques to protect evidence in harvested bodies as well as the benefits of transplantation to society. Although they continued to deny procurement in complex homicide cases, especially childhood deaths, most medical examiners allowed transplantable organs to be harvested routinely. Although the criteria for release of organs varied among medical examiners, most enjoyed cooperative relationships with their local OPO. Lacking medical knowledge and authority in the operating room and frequently under directions from prosecutors, nonphysician coroners were twice as likely as medical examiners to deny donation. In defense of medical examiners, OPOs pointed out that the primary roadblock to organ retrieval was medical professionals’ reluctance to approach the next of kin with such requests to obtain their consent for donation, which was obtained in less than 50 percent of cases.25 A significant number of sudden deaths in large cities involved disenfranchised minorities, primarily blacks and Hispanics. These groups are often suspicious of any governmental program, especially one to recover the or-

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gans of their loved ones. They suspected that doctors intentionally withheld life-saving treatments in order to recover organs.26 Campaigns to inform the black community of the importance of organ procurement uniformly failed. The black medical examiner in Washington, D.C., Joye M. Carter, criticized the local OPO strategy of presumed consent in pursuing organs for transplantation. Dr. Carter argued, “They’re getting organs from poor people here to give to wealthy people elsewhere . . . how can you refuse when you don’t know it’s being done?” She lost her job.27 Their research data forced the Unified Network for Organ Sharing (UNOS) ultimately to admit that medical examiners’ denial of organs was not the major impediment to organ recovery; rather, the problem was the ethnic culture of the patient.28 In 1994, the Medical Examiner Coroner Donation Task Force of UNOS declared a truce with medical examiners. The liaison from NAME, who served on the UNOS board, urged his colleagues to give 100 percent consent for organ removal on their cases: “Every Organ, Every Time.” The UNOS board, for its part, acknowledged that “on occasions, there are individual cases where permission for transplant agencies to pursue organ or tissue donation may be denied.” More important, the board “strongly discouraged” legislation that would compel donation overriding the denial by the medical examiner.”29 In light of the continuing shortage of organs, OPOs turned to other strategies. In Florida, the “presumed consent” law allowed the recovery of eyes in cases where no known refusal existed, commonly without family notification or permission. The OPOs hired culturally competent caseworkers to educate black groups on the need to increase organ donation for their own benefit and invested heavily in media campaigns that encouraged the identification of donor status on driver’s licenses. Some states, Wisconsin for example, enacted legislation, without public or medical examiner comment, making it mandatory for the medical examiner or coroner to report all deaths and to give the OPO the contact information needed to approach the family for permission for donation. By the mid1990s, still frustrated with organ denials, trauma surgeons in many states pushed for legislation to either outlaw medical examiner denials or defer medical examiner jurisdiction until after the donation.30 After 2000, at the urging of their colleagues, most medical examiners became comfortable cooperating with the OPOs, and assisted in the education of their peers on improving guidelines for donation. Nonetheless, despite the efforts of the OPOs, some medical examiners continued to restrict organ procurement in cases of complex homicides and childhood deaths.31

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Medical Examiners Confront Euthanasia Conflicts between medical examiners and bioethicists reached a high point in the late 1980s and early 1990s, when the UAGA legislation attempted to remold regulations regarding end-of-life care. The legal clashes surrounding end-of-life care, it could be argued, began with the legal establishment of a patient’s right to privacy in Roe v. Wade (1972). The concept that a patient’s privacy, and thus autonomy, determined the doctor-patient relationship crystallized in the legal arguments surrounding the death of Karen Ann Quinlan (1976), a young woman in a persistent vegetative state whose parents fought to remove her respirator. The Quinlan case was followed by historical legal rulings in the deaths of Nancy Cruzan (1987) and Helga Wanglie (1991).32 For medical examiners, the conflict centered on a statutory duty to investigate homicides—and physicians’ desire to end treatment and suffering in individuals with terminal disease. The conflict culminated in the enactment of physician-assisted suicide legislation in Oregon in 1997 and with Dr. Jack Kevorkian’s conviction the next year for murder after he assisted in the suicides of 137 patients. Medical examiners clashed with physicians and bioethicists over defining appropriate end-of-life care in cases involving suspicious deaths. In a country hungry for “a good death” and with growing numbers of physicians rejecting heroic measures to sustain life, medical examiners could count on little support from the medical community or the public in performing their statutory duty of investigating potential acts of euthanasia reported by hospital staff.33 In 1989, physicians at a suburban Minneapolis hospital administered morphine to a comatose seventy-six-year-old woman patient whose death they judged to be “imminent.” Respecting the living will the woman had recently executed, and with the family’s consent, the treating physicians, after first discontinuing her mechanical ventilator, administered a sequence of large doses of morphine to prevent pain or discomfort. Over the next forty-five minutes, the physicians administered 120 milligrams of morphine, a staggering amount, until the patient was officially declared dead. Within days, hospital administrators became concerned about the amount of morphine that had been given to the patient, which was a clear violation of the institution’s death-pronouncement policies. A month later, the hospital reported the death to the Hennepin County medical examiner, Dr. Garry Peterson. Despite the absence of specimens for meaningful toxicological testing, Peterson certified the death as a homicide after reviewing the autopsy and other investigative data. He attributed the death to the physicians’ actions rather than to natural disease.34

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As a result of the media attention that followed, the medical examiner received an anonymous call concerning a death at the University of Minnesota Hospital. The patient, a twenty-nine-year-old male, suffering from non-AIDS immunodeficiency syndrome, had received a bone marrow transplant but was plagued by successive pulmonary infections requiring ventilator support. According to the medical record, the patient had obtained adequate pain control with three to five milligrams of morphine and during a family conference had requested “all measures be used to prolong his life.”35 Overnight, physicians decreased the patient’s morphine drip to two milligrams per hour, and the following morning they called another family conference. During the discussion, the patient reversed his previous decision and expressed the desire that “no heroic measures be used to prolong his life.” After the family meeting, physicians steadily increased the doses of morphine. Over the next five hours, they gave the patient 395 milligrams of morphine and 40 milligrams of a potent sedative until he stopped breathing. After investigating the death, the medical examiner changed the manner of death, initially certified as natural, to a homicide. Peterson submitted the two cases to the local district attorney to consider possible criminal charges.36 The local news media, physicians, ethicists, hospice advocates, and the patient’s family all voiced dissatisfaction with the investigation. Although the critics clearly recognized that the central issue was the lack of any medical indication for such large doses of morphine, coupled with the absence of medical symptoms to justify increasing the doses, they chose to defend the physicians’ actions by resorting to the “double effect” principle, in which controlling the pain of suffering patients may have the unanticipated but acceptable effect of causing death. “Even without knowing the facts of the cases,” argued Ronald Cranford, a neurologist and nationally prominent medical ethicist who served as an expert in the Nancy Cruzan case, “the potential for criminal indictments would have an extremely deleterious effect. It would discourage what we’re trying to encourage”—the practice of aggressive pain control. Arthur Caplan, then director of the Center for Biomedical Ethics at the University of Minnesota, joined Cranford in stating that he was worried that such cases would have “an intimidating effect on a doctor who is considering prescribing a pain-relieving narcotic.” Indeed, hospice-care advocates contended that patients were being denied adequate pain medication as a result of the investigations.37 Cranford, Caplan, and the local media vigorously disagreed with the medical examiner’s conclusion that the deaths were homicides unrelated to the underlying disease process. Caplan described the investigation as a

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scare tactic the medical examiner and county attorney had devised to intimidate doctors and nurses and deter them from performing their medical duty. Cranford, however, conceded that had the cases been reviewed by an ethics committee, “they probably wouldn’t have been handled in the same way” the physicians had chosen. Both patients’ families supported what had been done and expressed anger and resentment toward the medical examiner for initiating the investigations.38 The Minnesota Medical Association (MMA) reacted to the investigation with anger and disbelief. The association’s president issued a tersely worded response: “Any implication or suggestion of that occurrence [physicians performing active euthanasia] is an absolute affront to the more than 8,000 licensed physicians practicing in this state.” Characterizing the homicide rulings as “unwise and ill-informed,” he went on to assure the public that existing guidelines and standards already protected patients against illegal acts of physicians.39 The medical literature, however, revealed that a high percentage of physicians (40 percent) admitted assisting terminally ill patients with dying and 75 percent thought that assisted suicide should be legalized. In addition, intense pressure from the newly forming HMOs put many physicians in potential ethical conflicts with their patients, in that HMOs tied physicians’ salaries directly to the cost of patient care.40 The physicians involved in the two cases impeded the investigation by refusing to provide any documentation regarding their use of morphine and asserting their Fifth Amendment right to refuse to discuss the case or talk with investigators. Their defense attorney and local bioethicists contended that the physicians had acted appropriately and were legally protected by the “double effect principle.”41 The physicians’ indignation at medicolegal intrusion into their decisions quickly escalated to ad hominem attacks on the medical examiner and the district attorney, whose actions the physicians implied were politically motivated to garner support for his reelection. The physicians argued that the medical examiner and district attorney had “gotten in over their heads and [became] entangled in a matter that should never have reached their offices in the first place.” Other critics hinted at medical incompetence, suggesting that the medical examiner was functioning in an area outside his understanding. “Advances in technical sophistication,” one critic said, “have come at the expense of the typical medical examiner’s clinical perspective.”42 This backlash from myriad expert critics and the media put the medical examiner and district attorney on the defensive. The medical examiner countered that his actions were justified on statutory grounds because the cases were suspicious deaths. He attempted to explain to the public his rationale for certifying the death as a homicide:

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All physicians, including medical examiners, realize the necessity of controlling intractable pain in the terminally ill patient. It is presently acceptable medical practice to administer sufficient pain medicine to obtain pain control even to the point of endangering the patient. In contrast, [this patient’s] death was an act of simple active euthanasia. Medical examiners and coroners are required to investigate deaths which are thought to be sudden, unexpected, unusual, or suspicious and those resulting from homicidal or suicidal acts. Until legislative statutes reflect the evolving view of modern medical practice and philosophy and allow the practice of active euthanasia and assisted suicide in this country, the medical examiner must by law perform the duties and responsibilities of [his or her] office, investigate and certify these deaths accordingly.43

Prolife advocates from the Anti-Euthanasia Task Force came to the support of the medical examiner, arguing that it was the suffering of the family and physicians’ discomfort with dying patients, not the patient’s pain, that had been the primary indication for administering pain medication. Physicians and bioethicists, they claimed, marketed the practice of euthanasia by using “linguistic morphing”—using terms such as “death with dignity” and “end-of-life-care”—to blur the boundary between killing and caring. Neither side disagreed with the basic principle that terminally ill patients deserve adequate pain control even if the medication results in or hastens the patient’s death. The central issue was the physician’s intention, which remained shrouded in legal and bioethical linguistics: pain control or death.44 In the end, although the county attorney agreed with the medical examiner that the deaths were correctly certified, he did not believe that there was any likelihood of obtaining a conviction. Furthermore, in order to prove intent, he would have had to charge the physicians with first-degree murder. He sensed that it would be nearly impossible to convince a jury that the physicians “intentionally and premeditatedly” killed their patients.45 Thus he refused to indict the physicians. The medical examiner and county attorney took this opportunity to issue guidelines for pain control by physicians. Until then, physicians and hospitals had had no official protocols for the administration of potentially lethal doses of pain medications. These guidelines, entitled “Joint Guidelines of the Hennepin County Attorney and Medical Examiner for the Administration of Pain-relieving Drugs,” were the first medical guidelines issued by a public body.46 The authors stressed that the administration of large doses of pain medication to terminally ill patients was appropriate to relieve pain, discomfort, or distress. Physicians and hospitals were urged to adopt strict rules for pain control and, above all, to provide

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adequate documentation of the clinical symptoms and the rationale for increasing doses of medication. The prosecutor and medical examiner hoped that adherence to the guidelines would alleviate the need for similar investigations in the future. In 1994, the Minnesota legislature passed the Minnesota Intractable Pain Act in order to protect physicians from legal prosecution for administering controlled substances to alleviate pain, provided the physicians kept accurate records. Other states quickly followed with their own legislation.47

Limits of Religious Freedom As medical examiners continued to expand their surveillance of sudden deaths in a rapidly changing society, they became increasingly involved in the conflict between church and state relating to fatalities resulting from the refusal of lifesaving medical care by parents for their minor children, often in the name of spiritual healing. In the eyes of the law, the omission of medical care in these cases represented an intentional act causing the death of another person. At almost the same time as the Minnesota euthanasia cases, the Hennepin County (Minneapolis) medical examiner received notification that a twelve-year-old boy whose parents had denied him medical treatment for acute onset of juvenile diabetes had died. Instead of seeking medical care, the child’s mother and stepfather consulted only their Pentecostal pastor, who relied solely on the power of prayer to heal the boy. Near death and slowly lapsing into a coma, the child was refused medical treatment; instead he received intercessory prayer support from the family pastor and friends. At the time of death, the child’s natural father alerted authorities. The medical examiner certified the death as a homicide on the basis of the parents’ intentional omission of potentially curing medical therapy.48 The child’s father successfully sued the mother and stepfather, the religious practitioner, and the church for punitive damages in the sum of $5.3 million. The case sent a ripple of panic through the church community, which feared that if it could be held responsible and pay punitive damages for deaths resulting from their religious practices. In a similar case, an eight-year-old boy with retractable autism died during a religious exorcism. On a hot July night in Milwaukee, the child, Terrance Cottrell Jr., had been restrained during a “deliverance prayer” session administered by four adult church members and the pastor of the Faith Temple Church. While laying hands on the child and incanting religious

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prayers and commands, the pastor forcibly held the child to the floor and squeezed the neck area to “release the demons” while the other members restrained his arms and legs. These prayer sessions had become a regular occurrence in an attempt to heal the child after regular medical treatment had failed. After the two-hour ordeal, the child lay dead, soaked in his own sweat. Finding the characteristic autopsy evidence consistent with strangulation, the medical examiner certified the death as a homicide. Following a highly publicized trial, the pastor was convicted of homicide.49 Caught between a culture of religious freedom, the requirements of the criminal justice system, and at times their own personal beliefs, medical examiners struggled with the growing responsibilities of the job.

Jack Kevorkian and the Michigan Murders A medical examiner in Michigan faced another conflict that demonstrated just how ill prepared the public and physicians were for physician-assisted suicide. On June 4, 1990, Dr. Jack Kevorkian, a retired pathologist, assisted in the first of his 137 suicides in Michigan. His actions over the next eight years challenged how physicians and medical examiners viewed euthanasia. In 1989, while appearing on the Phil Donahue Show, Kevorkian had publicly demonstrated his crude “suicide machine,” a development that was covered by Newsweek. The suicide machine consisted of an intravenous line of saline that, when the patient turned a switch, allowed thiopentone sodium followed by potassium chloride to enter the bloodstream. The media attention attracted Janet Adkins, a fifty-four-year-old Portland schoolteacher who was in the early stages of Alzheimer’s disease. Within days, she died in Kevorkian’s 1968 Volkswagen van in a rural campsite in Oakland County, Michigan, after pushing a button that infused a lethal mixture of drugs into her body. At the time, Michigan had a nebulous assisted-suicide statute.50 As the interim medical examiner struggled to obtain consensus among her pathologist colleagues to certify the death, the prosecutor moved ahead and charged Kevorkian with firstdegree murder. This began an eight-year legal battle for Kevorkian and his flamboyant, publicity-seeking attorney, Jeffrey Fieger. Eventually, Adkins’s death was certified as a suicide. The judge dismissed the charges against Kevorkian, stating that Michigan had no law that specifically outlawed assisted suicide. Only eight months after his acquittal in the Adkins case, Kevorkian called 911 to report the deaths of two women in a rustic cabin in a Michi-

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gan state park. One, Marjorie Wantz, had used a machine similar to the one in the Adkins case, whereas Sherry Miller, who suffered from multiple sclerosis, had inhaled carbon monoxide through a mask. The newly appointed Oakland County medical examiner, Ljubisa Dragovic, quickly certified the deaths as homicides. An outspoken forensic pathologist of Yugoslavian descent who had special training in neuropathology, Dragovic was the perfect antagonist for Kevorkian and Fieger. In the grand jury hearing that followed, Dragovic testified that both women had been in relatively good heath, with chances for long survival, and were “no more terminal than Magic Johnson.”51 On examining Wantz, Dragovic had found no pathological evidence to support her claim of debilitating chronic pelvic pain. This confirmed earlier findings by her psychiatrists, who suggested that Wantz was “depressed . . . obsessive compulsive . . . and delusional.” She had rejected medical treatment that could have helped her.52 The judge eventually ruled that Kevorkian should stand trial for the deaths. As Oakland County citizens anxiously awaited the legal decision on the Wantz and Miller cases, Dragovic certified the death (assisted by Kevorkian) of fifty-two-year-old Lois Hawes, debilitated by multiple sclerosis, as a homicide. Kevorkian’s attorney countered by declaring “war on the prosecutor of Oakland County and the medical examiner who keeps writing ‘homicide’ on death certificates when everyone knows otherwise.”53 Fieger called the medical examiner’s ruling “laughable,” dismissing him as “a Transylvania goofball who doesn’t know the law and the facts of the case.” “Assisted suicide is a contradiction in terms,” Dragovic countered; “like being a little bit pregnant.”54 With no clearly defined law outlawing assisted suicide, politicians could not consider physician-assisted suicide and euthanasia illegal in Michigan. In December 1992, the governor of Michigan signed a temporary ban on assisted suicide. The following April the legislature enacted a twenty-onemonth waiting period on assisted suicide to allow time to study the problem. The resulting law made assisting in a suicide a felony punishable by four years in jail.55 Legal scholars and advocates of assisted suicide immediately challenged the law as unconstitutional. Encouraged by the legal quagmire he had helped to create, Kevorkian continued taking patients. After the eighth suicide, Dragovic pleaded with the prosecutor: “I think it’s time for the psychiatrists to step in . . . to determine who is sane and who’s insane. There is a pattern here.”56 Dragovic had determined that all the patients were middle-aged women, and in each case death had not been imminent. He contended that prosecutors were reluctant to have Kevorkian examined psychologically for fear that if he was found to be insane, they would not be allowed to charge him with a crime.

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As the ban’s enactment date became imminent, Kevorkian accelerated his participation in assisting suicides. His would-be patients flocked to Michigan from other states to have him consummate their deaths. In less than two months, Kevorkian had assisted in the deaths of eight more patients, bringing the total number of assisted suicides to sixteen. Although the president of the AMA and Michigan’s state medical society publicly criticized Kevorkian, he received widespread support from a number of physicians and right-to-die advocates. A group of physicians announced their support of Kevorkian in an editorial in the New England Journal of Medicine, thanking him for making available “the merciful, dignified, medically assisted termination of life.”57 Dragovic recoiled when the president of the Michigan Association of Medical Examiners criticized him for “persecuting Kevorkian” solely to seek publicity.58 Through the mid-1990s, the number of suicides in which Kevorkian assisted steadily increased. The Oakland County medical examiner ultimately investigated 70 of the 137 deaths reported. Dragovic stated that his examination of the brain tissue in the thirty-third suicide, Rebecca Badger, indicated no signs of multiple sclerosis at the time of her death on July 9, 1996. The media largely ignored this finding. During a panel discussion on the television show Charlene Gooding, Dragovic won the upper hand against Kevorkian. In a rare move, Fieger allowed Kevorkian to speak freely. For the first time, the audience saw Kevorkian as a man obsessed with death. Dragovic clearly won the debate, and in the process embarrassed Kevorkian and Fieger. In response, Kevorkian took the offensive and began a frantic pace of thirteen assisted suicides in three months throughout the summer of 1996. In a personal affront, he began delivering the bodies personally to local hospitals and to Dragovic at the medical examiner’s office.59 By 1998, Kevorkian had assisted in or presided over 130 suicides and had been acquitted by juries on three separate occasions. The new district attorney for Oakland County, shortly after his election, had sought Dragovic’s advice on the Kevorkian problem. Dragovic suggested that Kevorkian’s actions were no different from those of the typical serial killer who eventually, either intentionally or accidentally, makes a mistake that results in his capture. In Kevorkian’s case, the mistake occurred on November 22, 1998, on the CBS television show 60 Minutes. Kevorkian’s attorney, using his new-found notoriety, had run unsuccessfully for governor in 1998. Kevorkian, a lonely man who thrived on the attention of both Fieger and the public, again sought media exposure. To reclaim the spotlight, he offered to the program’s producers videotape depicting a suicide. During the interview with 60 Minutes host Mike Wallace, Kevorkian played a video that showed him injecting fifty-two-year-old Thomas Youk,

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a patient suffering from Lou Gehrig’s disease, with a lethal dose of medication. The 60 Minutes program shocked the national audience, who had viewed an actual suicide. The event triggered an immense reaction by the public. Although the police had never fully investigated Youk’s death, the Oakland County medical examiner’s office now performed an autopsy on Youk for documentation of the death. Kevorkian had been sloppy or foolish in allowing the video to be broadcast; the Oakland County prosecutor charged Kevorkian with first-degree murder. Serving as his own defense counsel, Kevorkian was convicted of second-degree murder and delivery of a controlled substance. He was sentenced to ten to twenty-five years in prison.60 By the late 1990s, Oregon had passed the Death with Dignity Act, and the issue of doctor-assisted suicide had been largely settled. The legislation allowed physicians to aid in the death of terminally ill patients by prescribing fatal doses of medication. The act became law in 1994, but its implementation was delayed until October 1997.61 Unlike Dragovic in Michigan, the Oregon state medical examiner did not attempt to investigate the deaths and only asked that the physician who was both treating the patient and supplying the prescription for lethal drugs be the one who signed the death certificate. In the opinion of the medical examiner, this stipulation saved the taxpayer the cost of an investigation and saved the family additional emotional distress. Asked whether his office would look into instances of patients dying via the “double effect” of high doses of pain medication, the Oregon medical examiner replied sarcastically, “We don’t charge into hospitals and investigate those cases.”62 The public discussion of physician-assisted suicide encouraged the publication of a number of self-help books on suicide. The Hemlock Society’s bestselling Final Exit sold two million copies. Medical examiners and coroners began to encounter open copies of Final Exit at the death scenes of suicide victims—a harbinger of things to come?63 Bioethicists and transplant surgeons successfully broadened the definition of death to include non-heart-beating donors, those patients who did not fit the strict brain-death definition, who became donors following discontinuation of life support. These practices continued to blur the boundary between active and passive euthanasia.64 In the later twentieth century, medical examiners struggled to fulfill their legal mandate to investigate deaths in a changing world of organ transplantation and right-to-die advocates. For some medical examiners this constituted a continued lack of professional autonomy and for others an incorporation into the new realities of modern health care. Medical examiners

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and coroners could no longer simply investigate obvious homicides, accidents, or suicides but were forced to extend their reach into more challenging and subtle cases that at times led them to clash with other health-care authorities. For the most part, medical examiners, coroners, and forensic pathologists accepted this challenge as they sought to uncover preventable deaths and identified with their growing public health role.

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uring a July weekend in 1995, Chicago and other cities in the upper Midwest experienced a heat wave of unprecedented severity. The Cook County medical examiner, Edmund Donoghue, reported that hundreds of citizens, most of them elderly and with severe chronic illnesses, had died as a result of the excessive temperatures. Reacting to a public outcry that city officials had failed to respond adequately to the disaster, Chicago mayor Richard Daly and local health department officials criticized the actions of the medical examiner. They accused him of erroneously attributing the cause of death to the heat and artificially inflating the number of heat-related deaths.1 Chicago’s politicians considered the event nothing more than a statistical aberration artificially manufactured by the medical examiner. Diverting growing media criticism from his own administration, Daly urged reporters not to blow the heat problem out of proportion. In responding to his critics, Donoghue conceded that “other medical examiners are reluctant to blame the heat when the deceased has a chronic medical condition— even if death occurred on a record-hot day.”2 As the Chicago Tribune systematically began to publish the names of the victims, Daly became more defensive. “You cannot claim that everyone who had died in the last eight or nine days, died of heat,” he complained. “Then everyone who dies in the summer will die of heat.”3 Despite such criticism, Donoghue stood by

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his certification of the cause of the deaths as heat related. “There is no question that this is a public health issue—a real threat,” he cautioned.4 In an attempt to disprove Donoghue’s conclusions, Daly called on federal public health officials from the CDC to conduct an independent investigation. These officials had good reason to trust Donoghue’s judgment after having worked with him in 1992, when his office had uncovered another invisible threat—cyanide-contaminated Tylenol containers. After an extensive review, CDC investigators concluded that Donoghue had used accepted criteria to estimate the impact of the heat deaths and, furthermore, agreed with him that the environmental heat had contributed to the deaths. Moreover, the CDC investigation revealed that Donoghue had erred and underestimated the number of heat-related deaths. According to CDC researchers, the three-day heat wave had caused 770 deaths, not the 540 Donoghue had reported. To the embarrassment of the mayor, the CDC applauded the actions of the medical examiner.5 Public health efforts in the nineteenth century had focused largely on sanitation and safe water, issues that had little connection with death investigation. With the eradication or reduction of the threat of infectious diseases by the early twentieth century, public health officials increasingly turned their attention to other causes of preventable deaths, such as accidents, violence, and chronic diseases, in part to expand their own dwindling influence and power.6 According to one jaundiced observer, public health officials frantically began searching for new opportunities “to secure increased appropriations.”7 To measure their progress in fighting such new conditions as heart disease, alcoholism, mental illness, occupational diseases, and cancer, public health officials employed statistical epidemiological analyses that served as the scientific basis of preventative medicine. By the end of the twentieth century, death investigation and public health had become so interdependent that public health officials sometimes considered the medical examiner an extension of the public health department. Forensic pathologists, meanwhile, had expanded their role beyond homicide investigations to include public health surveillance of infectious epidemics, occupational disease, and injury. This motivated one forensic pathologist to state that his specialty represented “the pathology of public health.”8 Whether providing the surveillance for environmentrelated deaths, contagious and infectious diseases, or the upsurge in homicidal deaths from handguns, public health officials came to depend on mortality data developed primarily by frontline medical examiners and coroners, who provided timely information on impending public health disasters, thereby contributing to improving the status of public health.

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The cataloging of deaths by public health statisticians “objectified” death data, which provided a powerful tool that public health authorities could use to communicate with other governmental agencies and enhance their own funding and professional status. According to Theodore Porter, the quantification of data “embodies and responds to a political culture requiring that as much as possible should be brought into the open.” For Porter, “objective knowledge meant public knowledge,” which in a democratic society also meant loss of professional discretion and judgment for coroners and medical examiners who supplied the raw data of public health. Making death statistics public and in a usable form forced them to conform to uniform methods of reporting and classifying deaths that would not have been possible without strong centralized public health agencies.9 To become useful, forensic medicine needed to become both “objective” and “visable” but retain its sensitivity and caring. This chapter focuses on the evolution of the relationship between the fields of death investigation and public health. The major theme is that death investigators used their increasing cooperation with powerful public health groups to enhance their professional authority. To their chagrin, they soon discovered that the public health officials appropriated their data—first at the local level and later at the federal level. They used the death information to enhance their own professional status and to acquire increasing authority and political support while often ignoring the contributions of medical examiners and coroners.

The Call to Public Health At the beginning of the twentieth century, coroners began their evolution from legal watchdogs to full participants in public health efforts. Other than investigating the occasional work-related death or rare mysterious sudden death, coroners generally had ignored public health issues. They had restricted their investigations to deaths that resulted from violence or lacked sufficient medical documentation to determine their cause. On occasion, coroners or medical examiners identified unsuspected infectious agents or industrial poisons during their investigations of sudden deaths. They sometimes identified random cases of plague, smallpox, or tuberculosis. However, they had no organized or acknowledged role in ongoing disease surveillance. The creation of medical examiner offices with full-time pathologist administrators and an increased interest by coroners in investigating accidental deaths coincided with the evolution of public health from improving sanitation to involvement in chronic diseases and violent deaths.

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Coroners’ inquests provided a public forum for proposing improvements in public health practices. In San Francisco, the coroner made recommendations on issues such as improvements in poorly ventilated gas heaters, enforcement of dog muzzle laws during rabies epidemics, and the establishment of municipal hospitals for alcoholics, drug addicts, and the insane.10 Death certificate data provided by medical examiners and coroners assisted public health officials in identifying emerging diseases. Eventually, deaths that were sudden, unexpected, and medically unexplained and generally came under the jurisdiction of the medical examiner or coroner attracted the attention and increasing involvement of public health officials.

Vital Records and Death Certification In 1900, the Bureau of the Census, in conjunction with the American Public Health Association, established the Division of Vital Statistics and developed a model law for the certification of deaths by physicians. Until that time, state registrars had estimated that fewer than half of all births and deaths were reported. In 1907, Wisconsin became the first state to require county registrars to obtain data on births and “to furnish such information as may be required by the state to certify the death.” It was not until 1933 that all states fulfilled federal requirements for the reporting of births and deaths. By 1935, birth and death certificates were standardized at a national level.11 Recognizing the importance of collecting statistically valid mortality data, public health officials began to scrutinize death certificates more closely and to challenge the validity of death certificate data relating to cancer statistics and other causes of death. Statisticians from the New York City health department, for example, complained that physicians and coroners routinely reported inaccurate data. Health officials openly criticized the work of many coroners, whom they viewed simply as corrupt politicians incapable of performing scientific work. The deputy commissioner of the New York City health department called the number of autopsies performed by coroners “ridiculously small” and their record keeping “deplorable.” The coroner’s office investigated only 13 percent of all deaths and performed autopsies on only 12 percent of those, “of which a record written at the time of the autopsy is kept only in rare instances.” The commissioner concluded: “With the possible exception of autopsied cases coming under the coroner’s notice, the thirteen percent of deaths reported through the coroner’s office represents no reliable information.”12 Moreover, local death certificate registrars accused physicians of intentionally submitting inaccurate death certificates, omitting or underreporting

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diseases such as syphilis and alcoholism that reflected poorly on the moral character of the decedent. A review of death certificates from 1931–1932 revealed that private physicians underreported syphilis deaths by 40 percent and alcoholism by 6 percent. Statisticians understood that even under the best circumstances, without an autopsy physicians could only speculate as to the cause of death. Statisticians pointed out that in performing autopsies pathologists identified a cause of death that differed from the clinical diagnosis in almost 40 percent of cases. For one scientifically astute public health official, “the only method of obtaining correct statistics is the basing of diagnosis on autopsies.”13 “How amusing,” one pathologist noted, “is the filing of vital statistics, by the Bureau of Census, for instance, on the causes of death in the United States, since in only a small percentage is a control by autopsy made.”14 The discrepancy between clinically diagnosed causes of death and the final cause determined with an autopsy remained roughly 40 percent throughout the twentieth century, despite advancements in diagnostic methods. In the first decades of the twentieth century, progressive-minded public health officials began to call for the removal of coroners, citing poor record keeping and insufficient autopsy rates as reasons to replace incompetent ones with trained physician medical examiners. The overlapping death-investigating responsibilities of coroners and public health officials eventually led to friction and accusations of incompetence on both sides. Vital records clerks often failed to appreciate the legal requirements of the coroner in completing the death certificate and resented delays of “several months to years” in the completion of certificates. The clerks also complained of numerous clerical errors and incomplete death records. Statisticians discovered measurement errors on the basis of racial differences and geographical location.15 Vital records departments, in many cases, were the first to identify deaths unreported to the coroner and sought to ensure that he or she performed proper investigations. As the importance of mortality data became increasingly evident, state public health departments moved to take the function of providing data away from the local control of coroners and county clerks. In New York, state officials pointed to the poor quality of the data as a rationale for taking over vital records departments.16

Coroners, Medical Examiners, and Public Health Reform Although political corruption remained common among coroners, not all were incompetent, and many functioned as well-meaning public servants

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who performed their limited duties well, especially when they exposed threats to public health and safety. Local records document that coroners attended death scenes, held inquests, and on many occasions made difficult and publicly unpopular decisions to disclose preventable deaths. Before the Progressive Era, when state and federal bureaus of labor began aggressively to investigate occupational injuries and disease, some coroners took it on themselves to investigate occupational deaths and castigate culpable employers.17 A multitude of industrial injuries and deaths accompanied the Industrial Revolution as it swept across America in the late nineteenth century. Rapid developments in transportation, industrial manufacturing, and the harvesting of raw materials increased the number of accidents related to hard rock and coal mining, railroads, and steel foundries, accounting for thousands of deaths per year.18 An analysis of death certificates filed early in the century highlighted the immense numbers of deaths that resulted from unsafe working conditions. In 1907, for example, coroners’ files served as the basis for publicizing excessive work-related fatalities in the steelworking district of Pittsburgh.19 Both Progressive civic reformers and union activists used these “scientific” epidemiological data in calling attention to unsafe working conditions and urban decay. Death data filed by coroners also played a large role in establishing the link between occupations and diseases. In investigating railroad deaths, coroners’ juries documented numerous preventable incidents, from coupling cars and exploding boilers to operator stupidity. “Burkett received said blow while riding in the cab of Engine No. 120 while performing his duties as fireman,” related a Denver inquest coroner’s jury, which censured the construction company for “criminal negligence.” Attempts like this to assign culpability for injury reflected the growth of occupational litigation. “Milton Lockridge came to his death in the discharge of his duty coupling cars in the Union Depot yards by being crushed between two cars,” another inquiry concluded. “No blame can be attached to the engineer.”20 Coroners called attention to growing numbers of work-related deaths “where the husband has gone joyously to his work in the morning, his mutilated remains being brought home a few hours later.” By collecting and cataloging statistics generated in their offices, coroners argued for improvements in workplace safety regulations. In an address to the American Federation of Railway Physicians, Peter Hoffman, the Cook County coroner, called attention to the growing number of occupational deaths, which reached thirty-five thousand in 1912. “Formerly the saving of human life was left to physicians and surgeons,” Hoffman observed; “then came the

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importance of sanitation, and now we are utilizing the records of the death, which formerly were laid away in the vaults of coroner’s offices to mold and decay, as lessons for the living.”21 In addition to improving awareness of work-related death and injuries, progressive-minded physicians and public health advocates sought to use death statistics to improve public health. By furnishing statistics for safety commissioners and civic bodies, coroners began to promote themselves as agents of public health, currying the political support of public safety advocates. Public health officials used methods of infectious disease surveillance to reduce deaths and document improvements in public health. Central to this effort was the establishment of a system of vital statistics. Despite the criticism of coroners, their emphasis on reporting vital statistics to public health officials allowed reform-minded and politically astute coroners to co-opt the medical practice of death certification from physicians. The coroners filled out death certificates related to the increasing numbers of motor vehicle deaths, and the resulting inquest investigations added a medical role to their existing legal responsibilities. This further legitimated their role as medical reporters and encouraged their participation in the investigation of other preventable deaths The Cook County coroner took great pride in uncovering public safety hazards such as the ammonia deaths occurring in Chicago’s stockyard refrigerators, increasing numbers of automobile collisions, and carbon monoxide deaths due to defective home heaters. “I have the honor,” Hoffman boasted, “of forming the first Public Safety Commission in the United States.”22 He received the support and accolades of numerous public health advocates for his efforts in tying the coroner’s office to public health and safety. His many supporters recognized the importance of the coroner’s investigation in a growing, modern city. “The coroner’s office is the vortex, the maelstrom in the great sea of life of Chicago into which is whirled that unfortunate part of our population whom suddenly and violently is crushed to death without warning and without recourse,” said the vice-president of the Cook County public safety commission; “it was coroner Peter M. Hoffman of Cook County who first offered concern upon his fellow citizens to ‘stop the killing and maiming of many citizens and children.’”23 In New York, criticism of death investigators by public health officials diminished once the city replaced its coroner with a medical examiner in 1918. The new physician medical examiner established a nonpolitical and medically informed system of death investigation, which reinforced the importance of proper certification of deaths and collection of vital statistics. In other cities, coroners continued to record death statistics and create an-

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nual reports to call attention to their efficiency and productivity in protecting the public health. They used these data as ammunition in reelection during their political campaigns. Data contained in coroners’ reports also provided demographic information on violent deaths not previously available to public health officials. Coroners took advantage of the political exposure of courtroom trials relating to occupational and traffic-related deaths to grandstand in full view of the public. Between 1912 and 1920, the San Francisco coroner argued for more than 150 new traffic ordinances be created to prevent traffic deaths.24 General medical practitioners, unlike the coroners, remained aloof and disinclined to become involved in public health programs. For monetary reasons, they sought to restrict the expansion of public health activities and limit them to prevention rather than treatment. William Welch, dean of public health at Johns Hopkins University, described the tension between public health officials and practicing physicians. “The fault is on both sides,” he explained. “There has been an encroachment upon the field of the private practitioner and there has often been a lack of sympathy and cooperation with health officials and with health programs on the part of practitioners.”25 In some instances, physicians refused to assist public health officials because of lack of reimbursement. Eventually, coroners and local public health officials supported each other in pressuring reluctant medical practitioners to cooperate.

The Beginnings of Industrial Hygiene Coroners also equated their new-found role in public health with a role they now sought in public safety relating to the prevention of environmental and industrial deaths. The New York City coroner, for example, appeared on center stage in the investigation of the tragic 1911 Triangle Shirt Factory fire that claimed the lives of 137 young women. The vision of young girls leaping out of flaming eighth-story windows shaped the mindset of a whole generation toward creating safe working environments and enforcing child-labor laws. After witnessing the tragedy, the coroner led the public outcry over lax building inspections and fire codes. This single disaster inspired many of the federal occupational safety laws that were enacted during the New Deal era.26 By the 1920s, pathologists at work in medical examiner and coroner offices were beginning to make significant scientific contributions to the field of public health.27 Harrison Stanford Martland, a talented general pathologist, typified this new role of the county pathologist. In 1924, while he

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was performing autopsies for the Essex County (Newark, New Jersey) coroner, a public health officer notified Martland of conditions at the U.S. Radium Corporation, a company that employed young women to paint watch dials with luminous radium. The women employed camel-hair brushes to paint the dials and had the habit of using their lips to form a fine point on the tips, a practice known as “lip pointing.” At the time, Martland had been investigating a number of women whom local dentists were treating for persistent gingivitis and jaw necrosis. As a hospital pathologist, he had assisted in the hospital diagnosis and treatment of one of the dial painters for severe anemia and jaw necrosis. He subsequently became suspicious when the woman’s sister, also a dial painter, developed similar symptoms. She died after a short illness, and when Martland performed her autopsy he documented measurable radioactivity in the tissues.28 Martland next reviewed the deaths of seven other women formerly employed at U.S. Radium. He had one of them exhumed for autopsy and performed detailed radiological studies of her tissues. He placed pieces of her necrotic jaw on x-ray film and observed that the bone gave off sufficient radiation to expose the film. Martland determined these women’s deaths had been caused by “chronic anemia of the pernicious type” and necrosis of the jaw, which he associated with radium they had ingested when they pointed their brushes.29 Martland encouraged the public health authorities to confront the problem. Being impartial in the matter and seeking to protect the radium industry and its workers, as it was an important local employer, Martland encouraged regulatory reform to govern the use of toxic agents: “I respectfully recommend the introduction of a proper provision to the Compensation Act that will include and cover the various occupational hazards likely to be encountered in the handling and use of radioactive substances, similar to that already in use covering industrial lead poisoning.”30 After Newark created a medical examiner system in 1928, Martland continued to be instrumental in investigating the effects of other industrial toxins, such as benzene, used in the leather industry; industrial aniline, used in manufacturing synthetic dyes; and cyanide, commonly encountered in manufacturing. He published the first article describing the lethal effects of beryllium. The Atomic Energy Commission later credited Martland’s work on the deleterious effects of radioactive materials and allowing atomic energy development to proceed with comparative safety.31 According to historian Claudia Crawford, Martland helped to shape the duties and obligations of the office of medical examiner because he recognized that “one of the primary functions of the Medical Examiner was to prevent the wastage of human life in industry.”32

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Pathologists working in coroner and medical examiner offices followed in Martland’s footsteps and uncovered myriad new diseases. The steady increase in the number of autopsies performed in hospitals and medical examiner and coroner offices gave pathologists the opportunity to investigate deaths resulting from silicosis, industrial poisons, trauma, and unexpected natural disease. In addition, they helped define and describe a number of diseases: coronary artery disease, cerebral aneurysms, sickle cell disease, syphilis, cancers, boxer’s dementia, and sudden death in infants, to name just a few examples.33 Pathologists also became involved in the detection of medical complications related to a number of newly developed medical procedures.34 The New York City medical examiner’s office, which investigated some sixteen thousand deaths and performed four thousand autopsies in 1938, served as a reservoir for identifying a burgeoning number of drug deaths, environmental toxins, and disease. Milton Helpern, associate medical examiner of New York City at the time, reported on a 1933 epidemic there of fatal malaria among heroin addicts. He diagnosed the problem as dissemination of malarial parasites through needle sharing among the addicts.35

Public Health at the Crossroads In the mid-1930s, the American public health system was at a crossroads. With the overwhelming success of the bacteriological revolution, which rendered many infectious diseases treatable through sanitary means, public health officials now sought engagement in other areas of medicine. With the apparent conquest of infectious diseases, as they saw their political influence and financial support dwindling, they reconsidered the extent to which the public health field represented: simply a “matter of water supplies, ventilation, sewage, clinics, drains, street cleaning, garbage, infectious diseases, public health nuisances, flies, dirt, slums and serum.” They came to view their mission as not only “controlling contagious disease, but also prolonging life and promoting physical health and efficiency.”36 Revitalized by the opportunity to gain new ground, they took on public safety as their new mission. The authors of an editorial in the American Journal of Public Health recognized that public safety was at the time “not considered within the province of health officials and vital statisticians.”37 They encouraged health officials to expand their surveillance efforts into the area of chronic diseases, such as cancer treatment and injury prevention. They challenged state registrars not to confine themselves to dry statistics but to “keep our eyes open to the leading truths portrayed by our

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data, commending the good and condemning the evils and their consequences.”38 As a result of this new vision, public health officers for the first time discovered the escalating numbers of violent deaths due to suicides, homicides, injuries to children, and traffic accidents.39 Previously these deaths had been under the purview of the criminal justice system, a vast political machine run by state and local governments to apprehend criminal suspects, adjudicate their guilt or innocence, and punish the guilty. The failure of that system to effectively control such deaths encouraged public health officials at the state and federal levels to assume that role. As these officials took over issues of public safety, they began to alter their primary health role from disease eradication to education and epidemiological surveillance. Their need for statistical data placed them in professional contact with death investigators—medical examiners and coroners—and they capitalized on this nontraditional alliance to enhance their own professional status. Coroners, for example, assisted public health officials in recognizing the growing epidemic of traffic deaths. In 1930, using the death statistics of the Milwaukee coroner, the Milwaukee health department declared that “contagious diseases have ceased to be Milwaukee’s most serious health problem and now are less dangerous than automobiles . . . More lives were lost in Milwaukee over the past five years from automobiles than all the acute contagious diseases combined.”40 Automobile deaths in Milwaukee, which also included pedestrian deaths caused by automobiles, had increased from 6 in 1910, to 81 in 1919, and 146 in 1931. As New York governor Alfred Smith commented at the 1931 meeting of the American Society of Safety Engineers, “our greatest source of danger to life and limb today is the operation of the automobile.”41 With the increase in automobile deaths, coroners began to consider the protection of the public through the prevention of traffic fatalities a primary duty. Coroners pointed to the waste of human life by calling attention to the hazards of driving and brought to the public’s notice the “records of the toll and perils incident to the rapid advances in transportation.”42

The Role of Alcohol and Driving Following World War II, the number of motor vehicle–related deaths skyrocketed, even though accident deaths from all other types of accidental trauma were declining. Coroners and medical examiners were the first to

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call attention to alcohol as the primary factor contributing to the dramatic increase in traffic fatalities. By midcentury, almost 60 percent of the forty thousand annual traffic deaths were related to alcohol. Viewing the carnage firsthand at death scenes led coroners and medical examiners to quickly recognize the association between alcohol and traffic deaths. They advocated lowering the incidence of alcohol-related traffic collisions through educating the public and testing drivers for alcohol. Initially, the public health community had ignored this alarming trend and the warning of coroners, but when confronted with the unmistakable data from death investigators’ logs, they were forced to acknowledge the cause and extent of the problem. Working with their newly expanded definition of public health, which gave them latitude to seek control over all aspects of the public’s health and welfare, public health officials now plunged into the epidemiological analysis of traffic deaths. “The enlarged concept of preventative medicine,” one Harvard University epidemiologist wrote in 1951, “has recently come to include injuries of accidental origin.”43 Epidemiologists, reviewing death certificates, had failed to recognize the association of alcohol and traffic deaths while the responsibility for investigating and reporting traffic fatalities had been under the control of fire and police departments. Now that health officers were becoming involved, it was clear that the crisis of traffic deaths could be solved only through a scientific public health approach. William Haddon, the renowned New York City public health expert, said: “it is generally appreciated that injuries, as distinguished from diseases, are equally susceptible to this approach, that accidents as a health problem of population conform to the same biological laws as do disease processes.” Haddon began to apply the same methods used in fighting infectious diseases, such as the concepts of host, vector, and agent, to the analysis of traffic accidents.44 Medical examiners and coroners, too, were directed by their leaders to seek opportunities to become involved in public health. As director of Harvard’s department of legal medicine, Dr. Allan Moritz called for enhanced cooperation between legal medicine and public health at Harvard. In emphasizing the essential role death investigation played in public health, he wrote: In their scientific aspects both Legal Medicine and Preventative Medicine are concerned with the application of medical knowledge and skill on behalf of public welfare. Legal Medicine has to do with the acquisition and interpretation of such medical evidence as may be needed in order to administer the law justly. Preventative Medicine has to do with the effective administration of

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laws relating to the protection of public health. Because in both types of practice, the principal objective is the welfare of the public rather than that of the individual, such requires a type of knowledge and skill not ordinarily needed or possessed by physicians engaged in the practice of clinical medicine.45

Coroners and medical examiners began routinely obtaining blood from traffic accident victims to document the contribution of alcohol to these accidents. Blood-alcohol testing of decedents eliminated the legal constraints on alcohol testing of the living that law enforcement authorities had encountered. The dead and their families simply had no legal standing to refuse testing. Before that time, only urine could be tested for alcohol, and then only in living persons, and this practice had been severely challenged in the courtroom. In addition to obtaining blood samples for alcohol testing, coroners and medical examiners began supplying law enforcement officers with detailed information from the death scene and the autopsy to help them to re-create the circumstances of the accident. The proactive role of coroners in traffic investigation was evident from the comments of the coroner of St. Louis, Missouri: We as coroners and medical examiners must play an important role in the investigation of vehicle fatalities to help reduce the ghastly waste of life, limbs and property. We must enter the field of investigation . . . in order to determine the cause and circumstance surrounding traffic death in order to determine the presence or absence of violations of the law. When the facts are properly analyzed and publicized, the investigation can be a means to combat apathy among all persons, institute safety recommendations and programs, aid in the planning and passage of more effective laws, create safety devices, and eventually reduce death, carnage, and property loses to a minimum.46

Law enforcement officials were quick to point out the benefits of the coroners’ program of alcohol testing; it “has served,” they said, “to accurately define and quantify the seriousness of the problem of drinking drivers involved in fatal automobile crashes” and in many cases “represent[s] the only large scale in-depth accident investigation techniques” presently in use in the nation.47 Detailed descriptions of injury patterns obtained from medical examiners’ and coroners’ investigations at the scenes of automobile collisions assisted public health advocates in their call for mandatory use of seat belts. Haddon observed in 1961, “What little research is under way is being done largely by dedicated but often poorly trained professionals whose daily work has brought them face to face with the accident problems.”48 Before the large-scale traffic injury surveillance system was

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inaugurated in 1975 by the National Highway Traffic Safety Administration (NHTSA), coroners and medical examiners were the major sources of information on traffic fatalities.

Partners in Public Health Research Accident research supported by public health departments boomed after World War II. A large portion of the credit went to the medical examiners and coroners who steered public health researchers to the health issues encountered in their daily practice of forensic medicine. The King County (Seattle) medical examiner’s office, for example, published detailed data on firearm deaths in the home and brought attention to the increasing number of suicides by firearm. The Cuyahoga County coroner in Cleveland worked closely with public health officers to examine factors relating to an escalation in the numbers of homicides, suicides, and accidental drug deaths that commenced in the mid-1960s.49 In 1971, Dr. James Luke, the recently appointed chief medical examiner of Washington D.C., implemented a data retrieval system that he had developed previously while serving as medical examiner for Oklahoma. Using his updated computerized data, he immediately noted a clustering of drug–related deaths. Initially, the most common drug he detected was heroin; however, within the first six months he observed that it was no longer heroin but methadone that predominated. Hastily sketching the results on a series of sheets of graph paper, he constructed a primitive graph of a growing epidemic of drug-related deaths and conveyed the data to the director of the epidemiological programs at the CDC in Washington. The director agreed with Luke that the excessive number of methadone deaths constituted an epidemic and assigned an epidemiological intelligence officer and a psychiatrist interested in drug abuse to work with Luke in the office of the medical examiner.50 Over the next four years, Luke’s multidisciplinary team of public health epidemiologists and forensic pathologists correlated fatalities with levels of street heroin and methadone use. Their results indicated that heroin deaths were directly correlated to the concentration of heroin and the lack of tolerance of the user. Later studies also implicated the injection of large amounts of quinine, which drug pushers mixed with the heroin as an adulterant, and the user’s own blood alcohol concentration as comorbidities contributing to the large number of overdose deaths. The group also studied the effects of treating heroin addiction with methadone and documented a high number of deaths related to take-home methadone treatment pro-

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grams. Their work effectively terminated the use of take-home methadone and led to use of liquid methadone taken orally under direct supervision at special methadone treatment clinics. These epidemiological investigations of narcotic use undertaken in 1972 were the CDC’s first venture beyond the realm of microbiological studies of infectious disease.51

The Enigma of Sudden Infant Death Syndrome Another example of the benefits of collaboration between public health researchers and death investigators was the challenge of Sudden Infant Death Syndrome (SIDS). Forensic pathologists were the first to recognize the extent of sudden unexpected deaths in infancy.52 The annual deaths of eight thousand seemingly healthy children while they were sleeping had gone on for decades under the radar of public health authorities. Public health officials in the 1950s and 1960s had ignored the problem of SIDS, focusing their attention instead on polio vaccination, birth defects, and infectious diseases. In 1971, under pressure from the newly created National Foundation for Sudden Infant Death, Congress published a study on SIDS that revealed that the federal government had indeed neglected SIDSrelated research.53 The National Foundation for Sudden Infant Death provided the political pressure to force public health officials finally to act. Medical examiners and coroners were the front-line participants in the investigation of sudden child deaths. At midcentury, these officials had paid little attention to sudden deaths in infants and had attributed them mostly to childhood infections and failure to thrive. In the early 1960s, medical examiners drew attention to the problem of fatal child abuse.54 But law enforcement officials, unaccustomed to investigating child deaths and the emotional circumstances surrounding them, frequently interrogated parents and caregivers as criminal suspects. Parents received little support in understanding the deaths of their children or their own grieving process. In many cases, medical examiners and coroners refused to perform autopsies and seldom investigated the deaths adequately. In some states, a SIDS death was not even considered reportable to the medical examiner or coroner. Meanwhile, the public health community remained silent. Under pressure from the SIDS lobby, the federal government eventually sponsored legislation to provide for family support, research, and mandatory reporting to the medical examiner and coroner, and required autopsies in all cases of suspected SIDS deaths. Regional networks of SIDS counseling centers sprang up throughout the United States, creating

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a bureaucracy of their own. Within a short time, medical examiners and public health departments were working side by side to provide research, investigation, and family counseling.55 By the end of the century, public health officials from the CDC had thoroughly engaged in examining child deaths. They had proposed mandatory national standards for infant death scene investigation and reporting. Following the successful “back to sleep” campaign, public health officials gained confidence in their advocate role as the number of SIDS cases plummeted. Medical examiners and coroners working with public health officials identified yet another silent killer of babies—accidental suffocation by “overlying” while co-sleeping with adults. In the twenty years from 1984 to 2004, the number of infant deaths attributed to accidental suffocation in bed by medical examiners and coroners had quadrupled. Public health officials, supported by death certificate data, called for separate sleeping surfaces for adults and infants to prevent unnecessary deaths.56 In addition to SIDS deaths, pediatricians, medical examiners, and coroners continued to struggle to investigate growing numbers of child abuse deaths. Child advocates decried the incomplete investigations that law enforcement personnel and death investigators, unaccustomed to the subtleties of child death investigations, too often performed. In 1978, a Los Angeles pediatrician initiated the creation of “child death review teams” (CDRTs), multidisciplinary teams that brought together representatives from medical examiners and coroners, law enforcement personnel, prosecutors, public health officials, product liability experts, pediatric specialists, and child development experts to examine the risk factors involved in sudden and unexpected deaths of children, previously ignored. Public health workers quickly accepted the concept, and child advocates and CDRTs eventually were mandated in many states.57 The creation of the CDRT was in itself an indictment of the fragmented and inadequate state of the investigation of child deaths, highlighting the need for cooperation among medical examiners, coroners, and child health advocates. Some prosecutors and death investigators, in attempting to maintain control over suspicious deaths, fought the establishment of the mandatory CDRTs and threatened to withhold their support. Eventually the CDRT concept gained wide public and political support, and it became politically unwise for them to resist the process. The multidisciplinary cooperation of the CDRT provided a format through which public health advocates were able to extend their reach into the investigation of all violent injuries.

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Guns, Drugs, and Homicides By the mid-1980s, American cities were experiencing a growing epidemic of homicides, fueled by large numbers of urban poor juveniles and an explosion in the cocaine trade. Homicides became the twelfth leading cause of death in the United States. Concentrated predominantly in large metropolitan centers and the southern United States, they accounted for more than thirty-five thousand deaths annually. By 1985, the number of homicide deaths had eclipsed traffic deaths in most medical examiner jurisdictions. Public health officials had struggled to define their role in the prevention of homicides in a system controlled by the criminal justice agencies. They now seized the opportunity the escalation in homicides gave them to enter into a new field they invented: violent injury prevention. “Responsibility for the prevention of violence in our society does not lie solely in the hands of law enforcement personnel,” CDC researchers argued. “Public health and other human service agencies should assist in preventing primary violence as they have helped prevent other major causes of morbidity and mortality.”58 Public health officials argued that they should address the homicide problem, give it a high priority, and use proven, scientifically based, public health approaches to mitigate the causes of these preventable deaths. Central to the increase in homicides, public health officials argued, was the marked increase in the use of handguns. Between 1960 and 1980, firearmrelated homicides increased 160 percent, compared to an increase of 86 percent in other types. Public health officials called for a scientific review of handgun injuries in the United States.59 Under the auspices of the CDC, the federal government created the National Center for Environmental Health and Injury Control in the early 1980s. By the mid-1990s, the National Center for Injury Prevention and Control began to actively support the development of firearm surveillance centers at the local level. The centers were patterned after Haddon’s injury model—analyzing host (victim), agent (weapon), and environment—that NHTSA had successfully used twenty years earlier to help reduce traffic accidents. By 1995, ten such centers existed, spread around the country. Eventually the centers were incorporated into a national violent injury reporting system, which encompassed a public health approach to the investigations into all types of injuries. Firearm trauma researchers depended on the data collected by medical examiners and coroners as front-line data reporters. Death records and other demographic data recovered from homicidal shootings provided valuable support to the public health approach to firearm research.60 Here again, although medical examiners and coroners were willing participants in the study of firearm deaths, the public health firearm researchers began

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to scrutinize their work and were quick to criticize their methods. These researchers complained about incomplete or lost records, errors in filing death certificates, lack of standardization of investigations, the absence of a scientific approach to death investigation, and inconsistency of death certification. For example, these researchers disagreed with medical examiners’ typical certification of certain types of death, such as homicides or Russian roulette–type, self-inflicted shootings, as suicides. They argued that these deaths should be classified as accidents, in keeping with accepted public health terminology—if the gun had not been available, the death would have been prevented.61

The Lack of Uniformity on Death Certificates Throughout the twentieth century, death certificates remained the single most important basis for measuring the health of the nation. Medical examiners and coroners provided mortality data on 20 percent of all deaths, especially those consideered sudden and unexpected.62 The death certificate data obtained from medical examiners and coroners provided public health officials with a “treasure trove” of information; injury researchers exploited it to detect clusters of unusual deaths, discern risk factors, identify new and emerging diseases, document impending epidemics, and conduct bioterrorism surveillance. When death investigation data conclusively demonstrated that excessive numbers of children were getting trapped in car trunks, for example, it quickly resulted in the installment of safety latches. Health officials could now take on other potential public health challenges such as the identification of an epidemic of the Hanta virus in New Mexico, the increasing incidence of domestic violence, drug-related deaths, and maternal deaths.62 Studies showed that data received directly from medical examiners and coroners was more valid than physiciangenerated death certificates in reporting certain types of deaths such as injuries, suicides, and occupational-related deaths.64 For over a hundred years, public health officials had appealed to death investigators to provide reliable death data. Their heavy reliance on such data had required that they continually assess their validity. Beginning in the 1920s, over one hundred publications confirmed discrepancies between clinical diagnosis and autopsy findings, estimated from 20 to 40 percent, raising serious questions about the veracity of mortality statistics.65 Most physicians received little or no training in the completion of death certificates in medical school and as a result had little interest in completing them properly. According to one observer, the most important public health function of medical examiners was to instruct other physicians in

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the proper completion of death certificates. Public health officials had hoped to develop a nationwide surveillance system capable of tracking deaths due to injury, disease, and infection. Although they valued the data recovered from medical examiners and coroners, there were major impediments to the development of such a system. Wide variability existed in the quality of medical examiners’ and coroners’ data, their investigative techniques, their reporting requirements, and their cooperation with federal agencies and among themselves. In many instances, death certificates did not provide either accurate or detailed documentation of the true cause of death or the circumstances surrounding it.66 In 1986, the CDC established the Medical Examiner and Coroner Information System (MECIS) to assist in the dissemination of mortality data, citing a “lack of uniformity in death investigation policies and the need for more widespread distribution of death investigation data.”67 Similar initiatives grew out of the need to capture different variables of death data. The Consumer Product Safety Commission developed the Medical Examiner Coroner Alert Project (MECAP) for the reporting of product-related fatalities. The Drug Alert Warning Network, a national system of medical examiners, coroners, and hospital emergency room personnel, reported the incidence of fatal and nonfatal drug use.68 As a result of regular interaction, medical examiners and coroners began to work cooperatively with public health officials. This relationship helped to protect all parties from charges of inactivity and incompetence leveled by politicians and the justice system, as in the case of Chicago’s heat-related deaths, and gradually aided in the generation of quality public health data. The sharing of information and cooperation between agencies greatly facilitated the investigation of a host of public health problems, including AIDS, toxic shock syndrome, and the sudden deaths in Southeast Asian refugees.69 At the end of the century, federal public officials expanded the firearm reporting system into a national violent injury reporting system and sought to widen its scope of surveillance to include all fatal injuries. In doing so, they continued to criticize the focus of public safety agencies. “One reason it has taken so long to develop such a system,” officials pointed out, “is that law enforcement agencies and medical examiners are, by the nature of their work, more focused on investigating the causes of individual events than on establishing broad social patterns.”70 Despite its reliance on mortality data supplied by medical examiners and coroners, the federal government did little, if anything, to assist in death investigation. Federal money poured into research on DNA and bioterrorism, to the exclusion of other forensic science initiatives. Funding for DNA research choked crime laboratories with money while the federal govern-

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ment continued to ignore medical examiners and coroners in desperate need of funding for personnel and infrastructure. In 2003 the CDC’s $7 billion annual budget, total funding for death investigation programs remained insignificant.71 Most medical examiners and coroners had limited time and motivation to seek independent research grants, epidemiologists’ support, and research partnerships. They could do little more than function as suppliers of raw data to public health agencies. Lacking a broad, national political organization, research methodology, and technical support, medical examiners and coroners remained outside of public health medicine, their medical authority and expertise ignored and marginalized. Public health officials, willing partners in death investigation since their “discovery” of infant deaths and handgun violence, usurped the public health role on which medical examiners and coroners had long prided themselves. Dependent on vital statistics reported by medical examiners and coroners, public heath officials could not point to any overall improvement in death certificate information. Public health officials proved incapable of mounting a successful campaign to improve its only measure of success—death certification. At the same time, public health officials continued to call on medical examiners to drill into the “treasure trove” of public health data hidden in medical examiners’ and coroners’ offices and to use that data to advance their own agendas.

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he South Carolina coroner system remained below the national media’s radar until August 1993, when Tim Brown, a construction contractor and the part-time coroner of Marlboro County, cremated the body of an unidentified black male. The badly beaten and visibly unidentifiable, severely decomposed corpse had been discarded just off a local highway. Brown claimed that his lack of an available refrigeration facility for body storage had made it necessary for him to dispose of the body quickly. Six days after cremating it, he received a tip on a possible missing person and consulted local dental experts for assistance. Using teeth he had retained by removing the jaws from the body, Brown identified the body as that of Lester Jordan, the father of basketball star Michael Jordan. For a brief instant, this embarrassing case brought the South Carolina coroner’s system, long criticized by physicians in the state, under the intense scrutiny of the national media. “I guess I’ve done for the coroners’ association what Tonya Harding did for figure skating,” a dejected Brown remarked.1 In reality, the deficiencies of South Carolina’s coroner system varied little from those in most other states. The public, the media, and local politicians quickly forgot the Jordan episode, and death investigation in South Carolina soon returned to normal—unchanged by this brief flicker of notoriety. The careless and ill-considered cremation of Lester Jordan’s body is a good example of the widespread unreliability of death investigation that has plagued America for roughly two centuries, despite the

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many scientific advances in the field.2 This chapter explores some ways the nation’s centuries-long strife over this recalcitrant issue has taken a new turn in recent years with the development of a new cultural trend: demedicalization, or the transferring of medical authority from physicians to nonmedical agents. In recent years, medical historians have focused less on the lives of prominent physicians and more on ordinary ones, their patients, and the social, political, and cultural influences that have shaped modern medicine. Central to this theme of social medical history is the phenomenon of medicalization, whereby medical authority and influence are extended into areas of society outside the boundaries previously controlled by physicians. Some medical historians and sociologists, such as Paul Starr, have characterized the process of medicalization throughout the twentieth century as an unrelenting, unidirectional process that has emanated from the cultural authority of scientific and technological medical progress.3 Once established, medicalization could only be reversed by powerful political, corporate, or social forces or by a violation of the public trust. That reversal, which Renee Fox describes as demedicalization, entails the rejection of the authority of physicians as agents of scientific medicine in favor of nonmedical authority. Ivan Illich has further characterized the demedicalization process more as a reflection of deprofessionalization, whereby society simply rejects the myth of medical expertise and authority.4 To a certain extent, the field of death investigation in the late twentieth century has undergone a process of demedicalization. The conflicts among physicians, legal professionals, law enforcement personnel, and nonphysician health-care workers can clearly be seen as representing a rejection of medical authority, as they have all struggled to win political, professional, and economic control of death investigation. Rather than a simple unidirectional progression, the process of demedicalization of the American death investigation system is more comparable to that of a burning candle as it simultaneously melts and resolidifies. In this same way these systems have transformed from one form into another. In this chapter, the process of medicalization can be seen in the sporadic replacement of coroner systems by physician medical examiners. Demedicalization, in contrast, is evident in the reversion of physician-led medical examiner systems to appointed coroner systems, the demise of the autopsy as a standard of medical practice, the increase in legal restrictions on pathologists performing autopsies, and the ascendancy of nonphysician health-care professionals in the field of death investigation. These phenomena illustrate the complex relationships that exist among the many cultural, social and political entities that vie for control of death investigation in America.

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The Fight for Medical Examiners in South Carolina Nowhere has politics influenced death investigation more directly than in South Carolina. Prior to the fiasco over the death of Lester Jordan, numerous South Carolina physicians had attempted to improve death investigation by creating a state medical examiner’s system led by forensic pathologists. Under the 1895 South Carolina constitution, coroners and sheriffs were elected for four-year terms. State law mandated only that a coroner be a resident of South Carolina and eligible to vote. Qualifications for the position did not include medical training or experience, and it attracted few physicians. An attempt in 1955 by the South Carolina medical society to create a medical examiner system failed when the South Carolina Coroner’s Association lobbied against the legislation and effectively buried it for almost twenty years. At the time of the Jordan homicide, only three of South Carolina’s forty-six coroners were physicians. South Carolina’s system suffered from the same financial and political problems that prevailed in many other states—mainly, poorly trained, underfunded, and unqualified nonphysician coroners attempting to make increasingly complex medical decisions under the close scrutiny of an informed public. In 1966, at its annual convention, the South Carolina Medical Society had appointed a four-man committee to propose a system that would meet the requirements of the state constitution and also “employ qualified forensic pathologists to be coroners and direct a statewide program . . . for the medical investigation of violent or unexpected deaths.”5 By 1970, the committee had proposed a bill to create a state medical examiner system. The legislation received the support of a joint committee of the state’s bar and medical associations. Ironically, the only physician coroner in the state opposed the bill. The authors of the legislation did not intend to abolish the coroner system but only desired to provide the medical expertise of forensic pathologists to every coroner in the state. The bill would have set up an eight-person body, the South Carolina Medical Examiners Commission, to oversee the system. For the first time, physician medical examiners would have the authority to determine when an autopsy should be performed and would go to the scene with the coroner in cases of violent and unexpected deaths. The proposal restricted the coroner from holding an inquest before receiving autopsy results and investigative reports performed by the medical examiner. Prosecutors had long complained that coroners held inquests on insufficient evidence, which autopsy reports from the pathologist later

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might contradict. Under the bill, the other duties of the coroner would remain essentially the same. The only impediment to implementing a statewide medical examiner system was money. Forensic pathologists in the state estimated the cost of a medical examiner system in South Carolina at $300,000–500,000 per year and an additional $75,000 for Charleston County, which tripled the $24,000 budgeted for the Charlestown coroner at the time.6 After fierce opposition by the South Carolina Coroner’s Association, the bill died in House debate. Legislators rationalized that the state could not afford a statewide system at the time. The obvious motive for the coroners’ opposition was the fear that a statewide medical examiner system would eventually result in the elimination of their jobs. The creation of a state medical examiner system had become the lifetime goal of Dr. Gordon R. Henniger, a pathologist and chairman of the department of pathology at South Carolina Medical University in Charlestown. After the defeat of the bill, Henniger proposed a modified one that would affect only counties with populations over 250,000. At the time, this included only Charleston and Greenville counties. Greenville County had already implemented its own medical examiner system in 1968. Henniger argued to state legislators that “death is not being evaluated properly in more than sixty per cent of the suspicious deaths that occur in our state.”7 Henniger and his key legislative supporter, Senator Arnold Goodstein, knew that changing the coroner system would not be easy and pointed out that coroners in the state had amassed significant political power over the years. In arguing for the necessity of a state medical examiner system, Henniger attempted to stir up legislators’ and their constituents’ fear of crime. He claimed that many murders went undetected and—borrowing from the rhetoric of Richard Childs of the National Municipal League, with whom Henniger kept in close contact—warned: “South Carolina is a good place for murder.”8 Henniger’s adversary in this effort was the powerful president of the South Carolina Coroners Association, who called the legislation “superfluous and expensive and claimed that it would not add to the efficiency of the present system.”9 Coroners argued that Henniger just wanted bodies for autopsies for teaching medical students and that the public health department wanted to control the filing of death certificates simply for epidemiological purposes. Coroners rightfully pointed out that physicians were too busy to perform death investigations and in most instances it was impossible even to get a physician to pronounce death at the scene. The coroner system was tightly woven into the fabric of the local political life

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in South Carolina, in part due to its designation as a constitutional office within county government. In the fight against the medical examiner system, coroners successfully enlisted the assistance of local county sheriffs, who were constitutional county officials similar to the coroners and loyally supported them.10 To deter Henniger, the Charlestown coroner asked that the state attorney general issue an opinion on the procedure of death pronouncements, which currently required the physical presence of a physician. In a clear victory for the coroners, the attorney general agreed that a physician need not be present when a coroner pronounced a person dead.11 This action further eroded pathologists’ claims of medical authority. Finally, coroners pointed to what they called the excessive cost of a medical examiner system, compared to the “efficiencies” of the coroner system. The Charleston coroner boasted that the current coroner’s annual budget was only $40,000, whereas under Henniger’s proposal, the new medical examiner system for the county was projected to cost $150,000. The director of the Charlestown board of health eventually weighed in and became a strong advocate for a medical examiner system. He charged that death certificates in Charleston County were “unusable” because of errors and confused terminology. The coroner countered by accusing the director of being the propaganda voice of the chairman of pathology.12 For his part, Henniger remained behind the headlines, allowing other pathologists at the university and public health officials to carry out the public fight with the coroner. To prove that coroners were inferior death investigators, Henniger attempted to gather concrete documentation that they often missed suspicious deaths and signed out ridiculous death certificates. A 1971 study covering three years found that fewer than half of the homicides and only a third of the suicides had been autopsied.13 “We went back seven years and reviewed death certificates of people in South Carolina between the ages of three and thirty,” a Henniger protégé, Dr. Joel Sexton, stated; “We discovered in sixty-two cases, death certificates had been signed out as undetermined and with no autopsy.”14 In September 1971, Senator Goodstein reintroduced his bill to create a statewide medical examiner system. “We can no longer afford to have the horse and buggy days of the coroner layman who decides whether life exists or the cause of death. The problem is too intricate,” Goodstein said.15 In the days just prior to the introduction of the bill, explosive media stories highlighted the deficiencies in the coroner system. The Pickens County coroner was charged with grand larceny after stealing several cases of canned goods from the local armory.16 The Charleston city council casti-

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gated its county’s coroner for alleged absenteeism and poor record keeping; as a result of the media attention, the incumbent coroner indicated he would not seek reelection. For Henniger and the university, these issues only highlighted the poor quality of coroners. The bill to create a statewide medical examiner system passed both houses of the legislature but was immediately vetoed by the governor, who was an open supporter of the coroner’s association. His veto had the smell of politics when he said that the new law was unconstitutional because it had been created in a special legislative session. In a political move to salvage the bill, Henniger proposed that only counties with populations over 250,000 be included. This received the unanimous support of the Charleston County Medical Society. In March 1972, Charleston’s representatives in the state legislature convinced their colleagues to consider Henniger’s bill to allow the creation of a medical examiner system restricted to Charleston. To enact the new law, the South Carolina legislature overrode the governor’s veto for the first time in over twenty years. The new law required that the medical examiner be a forensic pathologist and accountable to the eight-member County Medical Examiner Commission, to be appointed by the governor. The creation of a medical examiner system for Charleston County only aggravated the conflict between medical examiners and coroners. The duplicate system of county coroner and medical examiner created more problems than it solved. The Charleston coroner accused the medical examiner of parading numerous medical students to death scenes to view the dead and taking photos for supposed educational purposes. The coroner and medical examiner clashed over who would determine the cause and manner of death, the performance of unnecessary autopsies when the cause of death was obvious, who was in charge at the death scene, and delays in autopsy reports. The coroner complained that the medical examiner was “quick with the knife but extremely slow dictating the results.”17 The coroner insisted that he was still the official certifier of death and used the medical examiner’s autopsy reports only as ancillary evidence to make his decisions. He threatened to arrest any medical students he encountered at death scenes. In challenging the medical examiner’s allegations that the coroner had failed to identify homicide cases, the coroner pointed out that during the twenty-one months since the creation of the medical examiner system, not one case of “undetected homicide” had been found in Charleston County. In fact, he had issued a death certificate indicating that a woman had died from internal injuries sustained in a motor vehicle accident when the autopsy had not supported this conclusion. Adding fuel to the fire, in Janu-

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ary 1973, he was accused of stealing from a corpse and indicted for grand larceny. To Henniger’s bitter disappointment, he was later acquitted. Henniger, from his position as a department head in the medical school, continued to call for the abolition of all state coroners. “My position would be that it’s no secret that we are heading for another referendum taking the coroner out of his constitutional office and then abolishing the SOB’s,” he said.18 Henniger and Sexton, the new Charleston medical examiner, gave speeches across the state and wrote in local newspapers and medical journals advocating a state medical examiner system. Editorials supporting such a system continued to spread fear among the public with stories of undetected crime, botched investigations, and insurance fraud. One editorial even suggested that if a victim’s “greedy family member decided to hasten his departure by suffocation or by poisoning who would be the wiser?”19 Editorial after editorial contended that the benefits of a state medical examiner system would include placing medical expertise at the scene of the investigation, increasing autopsies, investigating not only unnatural but natural deaths affecting the public health, and ensuring that all death certificates would be signed by a physician. In 1976, Senator Goldstein submitted yet another bill providing for a state medical examiner system; like the others, it met with overwhelming rejection by the coroner’s association. In 1979, after another major lobbying effort by Henniger and others, legislation calling for a state medical examiner system finally reached the floor of the House but was returned to committee the next day. Goldstein, frustrated, complained, “Nobody’s really interested in the coroners except a few doctors.”20 The coroners had won the day. In strongly opposing the medical examiner bills they warned of the cost, duplication of services, the creation of more bureaucracy, delays in the release of bodies and evidence, complications of having another investigative agency, and reduced elective official authority. They felt the current system of elected coroners was adequate with proper funding and recommended that any monies that might have been spent on a state medical examiner system be distributed to themselves instead, to enhance their effectiveness. Nonetheless, Henniger might have carried the day, but he made the mistake of displaying his characteristic unbridled arrogance and disrespect for coroners. “The typical coroner,” he told a state legislative committee, “has the intelligence of a sucked egg.” This remark angered legislators who even though they supported a more professional medical examiner system identified with the coroners as elected officials. Henniger’s blunder sealed the fate of the bill, negating hundreds of hours of lobbying.21 Attempts to introduce similar bills in succeeding years were torpedoed again and again by the coroners.

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For over thirty years, Henniger had introduced a variety of bills through the South Carolina house and senate committees. Each time, his bill was killed before it reached the floor for debate or vetoed by the governor. Despite the fact that the bills received the unanimous support of the legal and medical professions as well as endorsement by the media, they repeatedly fell victim to intense lobbying by the South Carolina Coroners Association. “I just don’t think we need this bill,” stated the coroner’s association president, Theron “Ted” Durham, a hair stylist and the Oconee County coroner, warning of the increase in governmental bureaucracy that he said the creation of a state medical examiner system would bring.22 Henniger finally gave up the fight in 1981 when the Coroners Association again threatened to oppose his bill. “I throw down the gauntlet, I throw in the towel,” he said in weary frustration.23 Eventually, even Henniger lost favor with the media when he supported the coroner’s actions in a botched death investigation. The Greenville coroner, a newly elected nonphysician, had reported that the police chief of Fountain Inn, South Carolina, had accidentally killed himself while removing his service revolver from his holster so he could play safely with a fellow officer’s children. No autopsy was ordered or performed by the coroner, and the body was quickly buried. Days later, the coroner reluctantly reported that the police chief had killed himself playing Russian roulette in a fit of grief and depression. The coroner confided that out of respect for the chief and his family and friends he had intentionally altered the initial report and falsified investigative findings. He stated that he was still convinced the death was accidental and not suicidal because Russian roulette was “just a gamble.”24 Just when the revelation of the political bias of the coroner had strongly demonstrated to the public the need for unbiased medical experts, Henniger, surprisingly, supported the coroner’s withholding of information, falsifying of an investigation, and lying to the media. Henniger asserted that the coroner had been right to withhold information. “That’s not the business of the public,” Henniger said. “It is not the place of the medical examiner or coroner to get into intimate personal details of a person’s illness that killed him or an accident that killed him. The death should be classified as an accident and left at that.”25 The local newspaper editors were furious. Ironically, the president of the Coroners Association blasted the coroner and Henniger for creating a double standard—“calling a death an accident if its an ‘upper-crust’ case and calling it a suicide in some other cases.”26 Following this episode, the support of the media for a state medical examiner’s system slackened. Continued pressure by the state’s forensic pathologists at the Medical School of South Carolina did result finally in

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the passage of legislation in 1984 that allowed seven more counties, with populations of 100,0000–240,000, to elect medical examiners. None did.27 The fight between physician medical examiners and coroners did not end with Henniger’s resignation in 1986. Sandra Conradi, one of a growing number of female medical examiners and a former student of Henniger, came to represent what South Carolina coroners feared most. Tenacious and articulate, Conradi constantly preached that trained medical professionals could investigate suspicious deaths better than coroners. She alienated coroners even more when she openly challenged a coroner’s ruling involving a local business executive who had died by a single gunshot wound to his chest just days before the start of his trial on bribery charges. The coroner had ruled the death an accident; Conradi and the investigating police contended it was a suicide. As a result, the coroner refused to allow Conradi to perform any future autopsies for his county.28 Conradi also clashed with the new Charleston coroner, a trained nurse and skilled politician, over control of death scenes and death certification. The coroner questioned Conradi’s autopsy practices, for example her removal of a child’s eyes to look for trauma. Conradi further irritated the politicians when she refused to perform autopsies for the Charleston coroner, stating that her office only examined suspicious deaths, not natural deaths. In an attempt to remove Conradi, the South Carolina legislature allowed the Charleston city council, which supported the elected coroner, to eliminate the county medical examiner commission that had hired Conradi.29 Local newspaper editorials warned the Charleston County officials that abolishing the medical examiner commission would be detrimental to the community and reminded their readers that the medical examiner was intended to be a watchdog over the elected coroner. The council justified its actions using home rule statutes. The state’s coroners supported the Charleston coroner by boycotting Conradi and refusing to send cases to the medical school for autopsy. The boycott and its economic fallout eventually forced the school’s pathology department to remove Conradi from the position of medical examiner. With Conradi gone, the council was required by law to appoint a new medical examiner commission—but somehow they never found the time.30 Conradi’s successor, also a forensic pathologist, fared no better; siding with the coroner, the council stripped her and her office of staff and investigative authority. In 1996, after disagreements broke out once again between Charleston’s coroner and medical examiner, the council changed the law and confiscated the medical examiner’s equipment. In choosing the path of least resistance, the politicians followed the advice of the coroner: “You can’t fire

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me. You can fire her.”31 The events surrounding death investigation in Charleston illustrate how difficult it is for medical experts to change constitutional government and how tenuous medical authority is in controlling politicians. The fight between the medical examiner and coroner had more to do with power and control and less with how the public was best served. Political ties trumped medical authority and the public’s fear of crime. In the span of forty years, the medical examiner system in Charleston came full circle, from coroner to medical examiner and back again.32

Lay Medical Examiners Come to Wisconsin Many politicians considered physicians not more proficient but merely more expensive than laypersons for the positions of coroner and medical examiner. In 1981 after a bitterly contested referendum, Racine County, Wisconsin, became the first county jurisdiction in the United States to appoint a nonphysician to the position of medical examiner. Despite a stormy protest from Citizens Against Crime, a thinly disguised coroners’ support group, the Racine County board of supervisors stood firm on its appointment of John Essayian, a medical technologist by training, as the first nonphysician medical examiner. Protesters filled the county board chambers to protest the appointment, waving placards with such slogans as “People Voted for a Medical Examiner, Not a Name Change” and “Medical Examiner Should be a Physician.” The board narrowly refused to rescind its earlier action and appointed Essayian to the position by a single vote.33 Until this time, medical examiners in Wisconsin had always been physicians, unlike elected coroners, who were mostly nonphysicians. Essayian, the incumbent coroner, ironically, had honored an earlier election promise to abolish the “archaic” office of the coroner and replace it with a modern medical examiner system, presumably to be led by physicians. Wisconsin attorney general Bronson LaFollette had previously ruled: “the office of medical examiner should be occupied by an expert [in the field of medicine] but not necessarily a physician.”34 To the surprise of many observers, county officials had appointed the popular Essayian to the position of medical examiner over a board-certified forensic pathologist. Disconcerting as the appointment was to many observers, it received overwhelming support from local physicians and the Racine County Medical Society. The president-elect of the State Medical Society of Wisconsin, a forensic pathologist and medical examiner for Milwaukee County, had served on the committee that selected the popular Essayian and had acquiesced to intense local political pressure. According to the Racine County

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executive, this was the most controversial issue of his career.35 County officials preferred to work with a layperson possessing ancillary medical training than with Essayian’s opponent, a trained forensic pathologist notorious for her quarrels with politicians, funeral directors, and physicians.36 These events in Racine prompted an outcry from both elected coroners and many physicians throughout the state. They saw the situation as yet another twist in a century-old conflict between physicians and coroners over control of death investigation in Wisconsin. The Racine County executive’s appointment of a nonphysician to the position of medical examiner led to a realignment of the county’s death investigative system. The intent behind the legislation, according to the attorney general, was that licensed physicians certified in pathology could best fulfill the duties of medical examiner. However, when confronted with political pressure and personalities, appointing authorities favored a nonphysician over a more highly qualified forensic pathologist. Following Essayian’s appointment, the coroners who had opposed the introduction of nonphysician medical examiners for fear that their own positions would be eliminated filed a complaint with the Wisconsin Court of Appeals to overturn the decision. In its final opinion issued in 1982, the court ruled that the Racine County ordinance was correct in allowing the appointment of a nonphysician medical examiner.37 Both lay coroners and physician-medical examiners in Wisconsin anticipated the perils of appointing a lay medical examiner. Nonphysician coroners could now avoid the inconveniences of open elections and receive lifelong appointments to county jobs. The Racine appointment, however, deconstructed the long-held argument that the coroners, because they were elected by the people, were not beholden to any political or elected official and could supposedly function independently, whereas medical examiners were biased because their appointments rested in the hands of politically motivated officials. Earlier, Wisconsin, like a handful of other states, had ruled that funeral directors were not allowed to be coroners because of their conflict of interest in handling bodies in coroners’ cases. Now, laypersons with essentially no prerequisite training or experience could become medical examiners and obtain guaranteed lifelong employment—a privilege previously reserved for big-city medical examiners to avoid political influence. It was not long before nonphysicians replaced physicians as medical examiners in seven additional Wisconsin counties. In 1998 the Brown County (Green Bay) medical examiner, a forensic pathologist, was forced to resign after a long-running feud with the county executive. It was the

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second bad experience with a physician medical examiner the county executive had endured. Rather than select another pathologist or physician, the county executive appointed the chief investigator of the office, a nonphysician, to the post. On his removal, another nonphysician, a paramedic, took the position as medical examiner.38

The Decline of the Autopsy Politics and personality may have undermined medical examiners’ authority in some places, but nothing contributed more than the decline of the autopsy to symbolize the erosion of medical authority in death investigation. In the latter part of the twentieth century, the rejection of the autopsy by physicians both as a teaching tool and the gold standard by which medical professionals investigated death provided further evidence of how far medical expertise had fallen in death investigation. As early as the Middle Ages, the autopsy had gained acceptance as a method of determining the cause of death in suspicious cases.39 During the eighteenth and nineteenth centuries, the autopsy gained in popularity with physicians as a method of medical inquiry, study of anatomy by dissection, and investigation of the causes of disease. American physicians followed the lead of the Germans, who urged the incorporation of autopsy pathology into the medical curriculum. Autopsy rates markedly increased during the early twentieth century in parallel with the ascendancy of American medicine. Dr. Richard Cabot, a Boston clinician, established the clinicopathological conference as the ultimate teaching experience, in which clinicians viewed their vulnerability through the revelations of the autopsy. Cabot documented erroneous clinical diagnoses in up to 40 percent of patients following the autopsy.40 Pathologists helped to reshaped American medicine by their insistence on the importance of the role of the autopsy in the study of disease and injury. As a result, by World War II, the autopsy was generally viewed as a confirmation of the physician’s medical diagnosis and a mechanism of quality control for the hospital medical staff. By midcentury, autopsy rates had climbed to over 60 percent of all deaths.41 With the development of new diagnostic methods in radiology and the expansion of laboratory testing in the 1960s, physicians began to turn away from autopsies. Hospital-based automated laboratory testing exponentially increased the number of laboratory tests performed and provided hospital pathologists with lucrative hospital contracts. Pathologists even-

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tually came to view the autopsy as a time-consuming procedure that, they thought, seldom revealed any new information. In 1971, the Joint Commission on Accreditation of Healthcare Organization (JCAHO) withdrew its requirement of autopsies for hospital accreditation.42 Pathologists constantly complained that they were not paid adequately for performing autopsies and that it took them away from more important and reimbursable laboratory tasks.43 More important, in the early 1980s the Health Care Financing Agency (HCFA) ruled that autopsies were not the practice of medicine and therefore not reimbursable by insurance companies. With autopsies no longer required as a quality assurance tool, the number of hospital autopsies plummeted to less than 5 percent by 1995— despite the fact that autopsies continued to identify major errors in clinical diagnosis. Autopsy studies comprising large numbers of cases undertaken in every decade of the twentieth century confirmed incorrect clinical diagnoses in an average of 20 to 40 percent of deaths, even with the advances of diagnostic medical technology.44 Still, health policy leaders ignored the calls of a small group of academic pathologists for reinstatement of the autopsy as the gold standard of quality assurance. In contrast to hospital autopsies, medicolegal autopsies—typically cases for the medical examiner and coroner—remained an important aid in the identification and diagnosis of sudden and unexpected deaths. Forensic pathologists working in large metropolitan morgues became the major resource of autopsy-based medical knowledge. Being the sole provider of the autopsy elevated the status of forensic pathologists with the public but not with their physician colleagues or politicians, who frequently continued to criticize autopsies as a waste of time and manpower. No standard procedures existed for conducting medicolegal autopsies, and more important, no uniform policies to guide the ordering of autopsies in suspicious deaths. Coroners and medical examiners both pointed to the lack of sufficient numbers of trained forensic pathologists as a rationale to defer or restrict autopsies.45 Hospital pathologists, they claimed, simply did not possess the additional skills required for criminal death investigation. Some forensic pathologists argued that the reemergence of capital punishment was a reason to increase of the number of forensic pathologists. “Unfortunately, most scene investigations and autopsies dealing with unnatural death are done by people who are not trained to do either,” argued Michael Baden, a New York City medical examiner. “I believe the return to capital punishment has put pathologists on notice that we must improve this aspect of our profession.”46 The public and politicians rationalized that the advent of DNA testing had further diminished the need to perform medicolegal autopsies. The perception that prosecutors needed only a single drop of

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blood to catch a killer, and that a meticulous autopsy dissection and evidence analysis by a forensic pathologist was a waste of time and money.

Opposition to the Autopsy Beginning in the era of grave-robbing medical students, legal statutes had restricted the ability of physicians to perform autopsies. By the late nineteenth century, courts had recognized the quasi-property rights of the next of kin to provide for proper disposal of the corpses of a relative.47 Any physician performing a hospital autopsy had to have the permission of the family or other legal guardian. By the early twentieth century, coroners and medical examiners had won the authority to perform medicolegal autopsies under statutory protection, with or without family consent. Legal authority to perform autopsies could also be obtained through workman’s compensation statutes or as a requirement in securing life insurance policies. Some state statutes restricted coroners or medical examiners to performing autopsies only in deaths related to a suspected criminal act or by order of an inquest.48 Many states required coroners or medical examiners to obtain the permission of the prosecutor to perform an autopsy, further restricting the authority of the coroner and medical examiner. By the latter part of the twentieth century, the courts had expanded the authority of coroners and medical examiners to order autopsies in cases where death was “suspicious” or “without preexisting medical disease.” The occasional challenges to the autopsy authority were easily dismissed in the courtroom, and medical examiners and coroners were generally protected from liability in such cases. However, beginning in the 1960s, the public’s growing public disillusionment with organized medicine rekindled the issue of the family’s right to object to autopsies.49 In some jurisdictions, the law required pathologists to obtain autopsy permission through their governing statutes or legal authority, and failure to do so exposed a pathologist to litigation. In Broward County, Florida, an assistant medical examiner—a contracted nonemployee of the county— performed an autopsy on the body of an eighty-two-year-old woman who had fallen from her hospital bed and sustained a hip fracture suspected in her death. In 1969, Broward was one of only two counties in Florida with a medical examiner system. The medical examiner performed an autopsy to determine whether the death could have been directly related to the accidental fall. The family sued the medical examiner for tort damages for performing the autopsy after they had denied permission for the hospital to do so. The medical examiner believed that he had the authority under

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state law to order an autopsy. The court interpreted the Florida statute to require that two conditions be met: that the death be violent or unusual and that the prosecuting attorneys order the autopsy. The court found for the family. In response, the medical examiner and his assistants resigned, essentially dismantling the Broward County medical examiner system.50 The case raised awareness in the medical examiner community of the exposure to professional liability that performing autopsies represented. The case catalyzed the subsequent formation of a statewide medical examiner system advocated by the Florida Medical Society.51 Coroners, too, experienced legal challenges of their right to perform autopsies. A North Carolina court found a coroner and physician who had performed an autopsy guilty of a crime; the coroner in the case failed to convince the court that before ordering the autopsy he had sufficient reason to believe that the deceased had died as the result of a crime. Coroners felt stymied. On the one hand, they were accused of poor performance and inappropriate behavior, like when not ordering an autopsy; on the other hand, legal authorities, frequently derailed by the appearance of coroners in the courtroom or their incomprehensible death certifications, sought to restrict their authority.52 Religious opposition to autopsies had been a long-standing issue, but in the environment of the 1970s, it became even more contentious. Individual states—most notably those with large Jewish populations that strongly opposed autopsies except when another person’s life was threatened— were forced to enact cumbersome legislation.53 In New Jersey, for example, if a religious objection existed in a case in which an autopsy was deemed mandatory by the state, a forty-eight-hour waiting period enabled the next of kin to apply to the court for an order to stop the autopsy, whereas for secular objections the waiting period was twenty-four hours. Ohio law mandated that in the event of an objection based on religious beliefs, the coroner could not perform an autopsy unless there was a compelling necessity. Under those circumstances, only the common pleas judge could determine a “compelling necessity” and order an autopsy. In Wisconsin and Minnesota, Christian Scientists also won the right to limit autopsies in patients under their care.54 Coroners and medical examiners also met with increased family opposition to the practice of retaining whole organs for further examination.55 Forensic pathologists routinely retained such organs, typically the heart or brain, in cases that required additional examination by a medical specialist. The practice allowed the burial to proceed unimpeded. The tissues and organs were then disposed of through methods of cremation or burial. On

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occasion, families who became aware that organs had been retained without their permission attempted to sue the medical examiner or coroner. By law, families had a quasi-property right to obtain an intact corpse for burial. A few states created laws to protect the medical examiner or coroner from lawsuits. Such suits were uncommon, until investigations in Britain revealed the widespread practice of retaining brains—twenty-one thousand over a twenty-year period—for research. Medical examiners and coroners soon experienced increasing scrutiny of their practices, even though some had formal policies to inform the families in such cases.56 Across the country, as a result of the passage of the Freedom of Information Act, open records statutes were enacted, allowing increased public access to medical examiner files, reports, and photographs. In some states, the autopsy report was considered an official medical record and subject to privacy laws, while other states allowed the autopsy reports to be treated as an open public record. In the latter, known as open records states, statutes required the medical examiner or coroner to release the reports on request. This often added to the legal complexities of medical examiners’ and coroners’ responsibilities.57 In 2003, the Congress enacted the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to establish new standards for the protection of private health information. The act had a number of unintended consequences, including an excessive restriction of access to patients’ medical records. However, medical examiners and coroners, acting in their official capacities, had unrestricted access to patients’ reports and photographs for investigative as well as educational purposes.58 As public officials, medical examiners and coroners were required to maintain and release investigative reports, sometimes including autopsy photographs, to law enforcement, prosecutors, and, at times, the media. Both protecting the decedent’s medical records and releasing his or her autopsy reports containing medical information to the media blurred the boundary between medical privacy and the public’s right to know. Occasionally medical examiners and coroners displayed graphic autopsy photographs to audiences for teaching purposes, and sometimes for shock value in order to enhance their professional stature. The death of Dale Earnhardt, a car-racing cult hero, at the 2001 Daytona 500 competition brought the issue of open records to the forefront of the American public’s attention. Earnhardt died when the car he was racing struck a wall at Daytona with a seemingly minor impact. Investigators identified a broken seatbelt and possibly other safety violations as contributing causes of his death. The Orlando Sentinel requested copies of the autopsy photos to view, not publish, in order to substantiate claims that

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the injuries could have been prevented. Earnhart’s wife sought to block the release of any autopsy photographs by the medical examiner. She later successfully lobbied the Florida legislature to enact a law making it illegal for medical examiners to display autopsy photos. As a result of an appeal, the Florida Supreme Court enacted a law that became known as the Earnhardt Bill. Medical examiners around the country reacted to defend their right to obtain photographs through legislation, while other states moved to implement their versions of the law.59 The death of Vincent Foster, deputy White House counsel and close family friend of President Bill Clinton and Hillary Clinton, set a highwater mark regarding permission for release of information by medical examiners and coroners. In 2000, Foster shot himself in his car in a federal park. His family, citing “painful and unwarranted harm” to their privacy, objected to the release of photos of the body and scene. Prior to the Foster case, English common law had held that the decedent’s rights to privacy ended at death. In 2004, the U.S. Supreme Court, overruling a lower court, ruled for the extension of a decedent’s family’s own rights to include protecting their personal privacy by prohibiting the release of any photographs.60 With the development of increased controls on governmental reimbursement and the implementation of so-called scientifically based management practices, medical examiners in large metropolitan offices came under increased scrutiny and criticism of their management practices by local politicians. Few forensic pathologists escaped some type of investigation, largely because, while balancing huge caseloads, they typically lacked the managerial skills and time to run large government offices in politically charged environments. Medical examiners could no longer practice in the relative obscurity of the autopsy room. Attacks came from both within and without their offices. Forensic pathologists who failed to appreciate the new governmental scrutiny paid dearly.61

Allied Health-care Workers In the 1970s, physician shortages encouraged the training of nonphysicians to take over the routine, nonprofessional, and undesirable duties of physicians. These physician-extenders included nurses, physician assistants, and other technical personnel with specialized training. In other areas of medicine, nonphysician personnel now performed many of the same tasks done by physicians. However, physician assistants were distinguished from physicians by their relative lack of autonomy, responsibility, authority, and prestige.62

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To provide for the demand of medicolegal autopsies and the rare hospital case, programs were developed to train nonphysician pathologist assistants to perform autopsies under supervision of the pathologist. The first pathologist assistant training program started in the late 1970s at Duke University. These technicians assisted pathologists in labor-intensive tasks such as surgical pathology, specimen preparation, and hospital autopsies. By the mid-1990s, with the support of hospital pathologists’ organizations such as the CAP, pathologist assistants were performing medicolegal autopsies in large medical examiner offices, sometimes with minimum supervision, because of strapped budgets and the inability to recruit forensic pathologists at low salaries. These nonphysicians threatened territory once reserved for forensic pathologists and other physicians. With the support of pathology organizations, NAME prepared position papers in an unsuccessful attempt to limit a pathologist assistant’s ability to work independently.63 The general reluctance of physicians to become involved in the examination of rape victims opened the door to development in the 1970s of the new specialty of forensic nursing. Because courtroom appearances paid little and disrupted their regular workload, physicians tried to avoid examining rape victims in the emergency room. In their place, nurses trained as sexual assault nurse examiners collected evidence, documented injuries, and maintained the chain of custody of evidence. After establishing their role in the emergency room assisting in rape examinations, forensic nurses extended their field to include participation in the medicolegal death investigation. “Forensic nurses provide a complementary associate to forensic pathologists,” argued Virginia Lynch, founding president of the International Association of Forensic Nurses. “Forensic nurses now have the same distinct status in the nursing profession as our forensic physician partners hold in medicine.”64 Forensic nurses often emphasized their humane qualities in contrast to the alleged coldness of physician medical experts. Forensic nurses prided themselves on their ability to empathize with the victims in contrast to the “get-the-guy” attitude of law enforcement. “Unlike law enforcement who look at the deceased and want to know ‘Who killed you?’” explained a forensic nurse, “Nurses look at a dead body and ask, ‘Why are you dead?’”65 This prompted one medical examiner to reply, “Caring and empathy are not particularly big deals in this environment. Collaring dirtballs is.”66 By the mid-1990s as the concept of forensic nursing was sweeping the country, forensic nurses began to encourage one another to run for election to the office of coroner. Many successfully obtained coroner positions, threatening the traditional political network that ran for the office. Medical examiners saw the benefits of trained nurses and began actively hiring

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forensic nurses, often those who were tired of the routine of hospital work, as death investigators. Forensic nurses, confident of the advances they had made, sought equality of power, prestige, and remuneration with physicians. “My vision of the future,” one forensic nurse said, “is that of a forensic pathologist or a forensic nurse who practices with a holistic approach, is paid an equitable salary, and is provided with adequate funds to accomplish the mission of the office.”67

Throughout the early republic, most American physicians remained uninterested in death investigation because of the lack of financial and professional incentives. They served as coroners for civil and republican motives, reflecting an ethic of community service. However, by the early twentieth century, various progressive medical reformers, public health officials, legal authorities and civic leaders were urging physicians, particularly pathologists, to assume control of death investigation. Most physicians, however, lacked the political savvy and sufficient time away from their busy practices to change centuries-old constitutional legislation, which supported a culture of nonphysician coroners. Furthermore, physicians frequently were unable to convince politicians of the superiority of trained physician medical examiners over lay coroners. Despite the the lay coroners’ corruption and deficiencies, medical examiners could not point to their own improved performance in areas such as the certification of death, investigation of the death scene, and infrequency of botched investigations. Physician-led medical examiner systems did not guarantee the “absence of mistakes, controversy, or calamity, nor did they significantly elevate professional conduct.”68 As part of the decline of medical authority in the late twentieth century the public began to challenge the authority of the physician medical examiner. Advanced scientific training was incapable of elevating the expertise of physicians beyond that of lay coroners and nurses. A physicians’ medical training did not necessary result in improved performance over lay coroners in areas such as investigation, certification of death, or in the courtroom. Physician-led medical examiner systems did not guarantee a high level of public service, nor did they significantly elevate professional conduct. Religious leaders and families challenged the medical examiner’s authority to order autopsies and won. Politically empowered family members gained the power to restrict the release of autopsy reports, investigative information and photographs. The evolution of medical authority, so frequently portrayed as an inevitable course of scientific and technological advancement, is instead a complex process of negotiation among conflicting agents, each contending

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to advance its own cause. In some areas, such as improving medical education, obtaining medical licensure, and defeating universal health insurance, physicians have unquestionably demonstrated their power and medical influence. In other areas, especially that of suppressing competition from other health professionals, they failed dismally and were unable to establish a decisive monopoly. The same can be said of death investigation. Although forensic pathologists have fought to control medicolegal death investigations, they have often lacked the needed support from the larger medical profession, the legal profession, and their own peers, all of whom have chosen to ignore the special requirements of forensic pathology. Due to the absence of a united front and the excess of territorial conflicts among local political participants, a completely medicalized death investigative has remained an elusive dream of forensic pioneers. Once again, forensic pathologists have had to look to the popular media to rescue their tarnished professional image.

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ore than two hundred forensic pathologists sat enthralled as Dr. Julianna Cox, the fictional medical examiner of the popular television series Homicide: Life on the Streets addressed the 1997 Baltimore meeting of NAME. As television cameras recorded the staged event for inclusion in an episode of the popular series, the youthful and attractive Dr. Cox, portrayed by actress Michele Forbes, accepted the Medical Examiner of the Year award from NAME’s president. Medical examiners applauded as they projected their professional image to the public through the metaphorical Dr. Cox. In an American culture simultaneously intrigued and repulsed by their craft, forensic pathologists instinctively turned to the media to help them get across to the public a favorable image of their profession, albeit part reality, part fiction.1 Until the late twentieth century, forensic pathologists were long portrayed in American society as legalized butchers, drunkards, or mad scientists; creepy characters who witnessed gruesome death scenes and performed unthinkable dissections that further divorced them from membership in regular medicine. Owing to their claims of unbiased objectivity in the adversarial American legal system and the sensitivity of their work, medical examiners remained reticent about applauding their own expert status and extolling their social worth. They had little alternative but to tolerate the unsympathetic, inaccurate public portrayal of their profession. It was better than anonymity.

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In the mid–nineteenth century, death investigators were nothing more than police officers, untrained coroners, or physicians hungry for work. Legal medicine remained marginalized in the backwaters of organized medicine. By the late twentieth century, while segments of American society were openly challenging the elite status of medical practitioners, forensic pathologists had become increasingly accepted by their medical peers. Popular representations of the benefits of scientifically trained medical experts on television and in detective novels improved the public’s perception of forensic medicine and also raised its expectations. The image of forensic pathologists was now enhanced by favorable depictions in the media, as well as urbanites’ increased sensitization to crime. As the transformation of American culture and the promise of science enhanced the role of forensic scientists, more sympathetic portrayals of them in magazines, films, and television programs advanced the medicalization of death investigation and furthered the professionalization of forensic pathology. Popular representations of American medicolegal death investigation can be divided into four periods: the detective period (1840–1929), the scientific period (1929–1963), the medical expert period (1963–1990), and the heroic period (beginning in 1990). During these periods, the medicolegal death investigator, initially a simple empirical adjunct to the crime detective evolved in the public’s perception to become first an embodiment of the promise of science, next the model of the scientific medical expert, and finally a hero.2

The Detective Period (1840–1929) Crime and disease surged during the mid–nineteenth century as immigrants squeezed into crowded American urban centers. In response to Americans’ growing awareness of crime, urban leaders developed a new class of criminal experts to maintain order and investigate suspicious deaths: police detectives.3 Edgar Allen Poe chronicled their rise in his early novels. In “The Murders of the Rue Morgue” (1841), the first detective novel, he captured Americans’ twin fears of crime and immigration.4 In this deductive mystery, the protagonist, Detective C. August Dupin, is an inquisitive investigator who studies the crime scene with the aid of his meticulous deductive powers. His keen ability to deduce crime scene clues became the model for modern American detectives who followed. In Poe’s crime novels, physicians respond to the crime scene at the request of police authorities to identify the victim, inspect of the body for injuries, and estimate the time of death. In “Rue Morgue,” Poe depicts the physician’s legal duties during the mid–nineteenth century:

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Paul Dumas, physician, deposes that he was called to view the bodies about daybreak. The corpse of the young lady was much bruised and excoriated . . . there were several deep scratches just below the chin, together with a series of livid spots which were evidently the impression of fingers . . . Alexander Etienne, surgeon, was called with M. Dumas to view the bodies [sic]. Corroborated the testimony, and the opinion of M. Dumas.5

Poe does not directly describe dissections or medical procedures but tells of the physician’s detailed clinical description. The paucity of medical references in Poe’s stories reflects the extent of medical expertise possessed by criminal investigators at the time. The police detective “sees” vital evidence lurking in clinical clues, unknown to the physician, that allows the detective to determine not only physical signs but also truth.6 Beginning around 1860, American dime novels began to play a significant role in creating a popular image of death investigators. The best known of the dime detectives was Nick Carter (1891). Carter, the creation of a cadre of writers, represented the American detective of the late nineteenth century. His fictional exploits were modeled on those of Allen Pinkerton, who founded the first American detective agency. The Nick Carter novels moved the detective from rural areas into the urban environment. According to Pinkerton, by 1900 the American detective had undergone “a complete metamorphosis.” He concluded that the work of the detective “has become a profession, and himself an intelligent, keen sighted, and accomplished gentleman, relying on his own high moral character, his superior intelligence, and his indefatigable energy for the success which he has attained.” In Pinkerton’s view, there was no room for nosy physicians poking around crime scenes.7 The popularity of English writers such as Arthur Conan Doyle and R. Austin Freeman, both trained physicians, temporarily stymied the further literary development of the American medical detective. Doyle modeled his famous detective, Sherlock Holmes, after Poe’s Dupin. Doyle’s inclusion of Holmes’s assistant Dr. Watson, a physician, and the constant tension between them represented the conflict of medicine and the law in the developing relationship between the criminal detective and the physician. In Holmes, Doyle created a newer form of police detective who practiced a methodology informed by “the voice of science.”8 R. Austin Freeman used his physician characters, Dr. John Evelyn Thorndyck and his brilliant laboratory assistant, Jervis, to depict scientific investigation techniques years ahead of their actual applications in the emerging field of criminology. He frequently provided detailed sketches of scientific principles of crime detection, including the examination of blood, preservation of footprints, and analysis of dust. Freeman reportedly mod-

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eled the image of Dr. Thorndyck after Dr. Bernard Spilsbury, the leading forensic pathologist in Britain at the time. As was typical of the period, Dr. Thorndyke’s expertise, despite his medical skill, lay in crime scene investigation, not the medical aspects of the job. Freeman invented the “inverted detective story,” in which the reader first sees the criminal commit the crime and then follows the detective through the clues. Because of the influence of Sherlock Holmes and Dr. Thorndyke, as well as the stability of the British coroner system, the popular glorification of British forensic pathologists began almost fifty years earlier than in the United States.9 In the nineteenth and early twentieth centuries, the physician death investigator remained tied to the investigative role of the police detective or a private investigator who followed clues to solve the crime. During the Progressive Era, the popularity of detective fiction grew simultaneously with American society’s development of police forces, governmental bureaucracy, and reliance on scientific experts. Reformers called for more scientific solutions to crime detection, which increased the recognition of the physician pathologist.

The Scientific Period (1929–1963) During the interwar period, American urban centers experienced an influx of southern blacks, immigrants, and organized crime. Between 1923 and 1926 in Chicago alone, gangsters killed more than 215 of their rivals, and the police killed another 160 suspected criminals. According to legal historian Kermit Hall, this period became known as the “crime-control decades.” The Sacco and Vanzetti murder trial (1927), the St. Valentine’s Day massacre in Chicago (1929), and the kidnapping and murder of the son of Charles Lindbergh (1932) shocked Americans, stirring up fears of radical immigrants, organized crime, and predatory kidnappers. People turned to crime magazines and books that allowed them to view crime in a more rational way in an attempt to relieve the tension and stress of daily modern urban life. Popular crime novels, reflecting the involvement of sociological reformers, began to struggle more and more “not with whodunit” but why.10 It was in these decades that reform-minded American pathologists first began to call for improved death investigations based on solid scientific principles. Physicians condemned the deplorable state of the American death investigation system in their medical journals and later turned to popular medical journals with wider public distribution. These articles educated both the general public and physicians about the benefits of obtain-

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ing autopsies, the role of pathologists in medicolegal death investigation, and the need to replace antiquated coroner systems with scientifically trained medical examiners.11 The increased awareness of crime and the desire to use scientific methods for its detection paralleled the development of crime “pulp fiction” by writers such as Dashiell Hammett, Erle Stanley Gardner, and Raymond Chandler. The new “hard-boiled” crime fiction reflected the concerns of urban Americans about political corruption, sex, and immigration. Hammett’s Maltese Falcon (1929), arguably the first hard-boiled American detective novel, introduced detective Sam Spade. Chandler followed with his own detective, Philip Marlowe. Both characters personified the impersonal criminal investigator who used “circumstantial evidence” and distrusted the individualistic “scientific detecting” of the nineteenth century. Marlow and Spade changed popular perceptions of police detectives.12 By 1945, crime pulp fiction accounted for 50 percent of the American publishing market. In the late 1930s, forensic pathologists with crime-solving expertise began to appear in films, novels, and popular magazines. Life published a pictorial essay on the New York City chief medical examiner Dr. Thomas A. Gonzales. In recounting the role science played in the work of his office, the article portrayed the medical examiner as an unassuming hero of the people: “He trails no fugitives and makes no arrests, and is independent of the Police Department, but it is one of the most effective law enforcement agencies in the city.” In delineating the personal and professional qualities of the medical examiner, the article emphasized the scientific nature of the position both in print and large glossy photographs. “The job calls for the application of specialized technical knowledge,” the author asserted; “he must have a thorough understanding of forensic medicine—that area of elision between medicine and the law—and he perforce develops into an expert courtroom witness.”13 The article exposed in full public view for the first time, in a major publication, a real-life medical examiner and the inner workings of his office. Thus did medical examiners begin to rise above their grizzly images in pulp fiction magazines and in newspapers and begin to appear as scientific and technically skilled experts in mainstream magazines. The AMA continued to publicize the desirability of employing scientifically trained medicolegal experts to investigate suspicious deaths. For example, a large sign above the association’s diorama at the 1933 Chicago World’s Fair, proclaimed, “Death Demands Scientific Investigation.”14 The AMA’s not-very-subtle propagandist intentions were not lost on the American public. Crime novels began to expose the shortcomings in the coroner

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system. The introduction to Percival Wilde’s mystery novel Inquest (1940), entitled “The Night of the Two Coroners,” was one of the first openly critical portrayals of the abuses of lay coroners in modern popular American culture. Wilde depicts them as expensive and uneducated scofflaws. “In his own domain the coroner was a czar,” he noted, “empowered not only to conduct his inquest in any manner that suited him, but able to draw a blank check upon the funds of the county without fear of reproof from higher authority, to make his inquests as costly as he pleased.”15 In contrast to the lay coroner, the physician coroner represented the professional demeanor of science. The film industry began to portray physician criminal experts. In The Big Sleep (1946), the physician coroner responds to the scene of the crime and after a brief but analytical assessment, gives his verdict: “This man has a laceration and was struck with a blunt instrument.” The professionalism and precise medical terminology of the scientifically trained physician coroner contrasted with preexisting images of the lay coroner. Similarly, the film Anatomy of a Murder (1959) identified pathologists as criminal experts. In the film, during questioning, the defense attorney (played by Jimmy Stewart) challenges the psychologist who performed a sexual assault examination on the victim. Stewart asks why the psychologist did not wait for a trained pathologist before commencing the semen analysis, in view of the important criminal nature of the test, and whether he “knew the scientific methods of performing such a test.”16 By now the media had begun to differentiate the special laboratory expertise of the pathologist from the capabilities of the regular physician. In the late 1940s, the Harvard Department of Legal Medicine cooperated with Metro-Goldwyn-Mayer in creating the film Mystery Street, a thriller that featured a close-up view of the inner workings of the department. The AMA also worked closely with the William S. Merrell Company to develop a series of nine films on medicolegal topics for health professionals. The series featured topics such as interpretations of autopsy findings, laboratory testing to establish courtroom “proof” of drunken driving, traumatic neurosis, and medication errors. One film, A Matter of Fact, related the story of a man nearly indicted for a murder he did not commit, illustrating the necessity of having a “qualified physician” perform the investigation. According to the film, whether the qualified physician is a medical examiner or coroner makes little difference.17 Erle Stanley Gardner, originator of the fictional lawyer Perry Mason and the most prolific writer of American detective stories, applauded the efforts of pioneering medical examiners in the introductions to many of his books. He acknowledged the scientific acumen and personal sacrifices of these new medical experts.

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Dr. Condon is one of a tight little group of highly trained scientific men who are providing a new order of investigative efficiency in matters of sudden death. These men deserve every recognition and praise we can bestow upon them . . . The forensic pathologist needs to have the skill of a hospital pathologist and in addition an encyclopedic knowledge of crime. For the most part, his pay is far less than that of a hospital pathologist and he never knows at what moment he will be dragged from bed and find himself running through midnight streets to the scene of a crime.18

Gardner published 141 books, including eighty Perry Mason stories and another twenty-nine stories under the pseudonym A. A. Fair. His books sold 171 million copies in the United States alone and an equal number abroad. Gardner, a trained lawyer, did not stop at simply writing about crime; he used his celebrity to convene a panel of experts to examine a myriad of unsolved cases.19 The popular print media represented the Department of Legal Medicine at Harvard University as the model of a scientific laboratory directed by pathologists trained in medicolegal death investigation. Articles in the Saturday Evening Post and Popular Mechanics contained photographs of pathologists in white laboratory coats peering into microscopes, examining bullet wounds with a hand lens, or demonstrating injuries on a human skull to mesmerized police officers. The laboratory, an endowment of Francis Glesser Lee, also contained the “Nutshell Studies of Unexplained Deaths.” Lee had created this collection of miniature, handmade dioramas to reconstruct actual crime scenes, in order to teach investigative techniques to law enforcement officers. The laboratory technicians and police detectives who attended the many conferences at Harvard, financed by Lee attested to the fact that the dioramas were “helpful” in inculcating the need for detail in death investigations. They quickly became a favorite subject of the print media. She encouraged law enforcement officers to visit the laboratory for no other reason than to examine these miniature crime scene dioramas instead of—bodies, the real reason for the laboratory’s existence. However, the pathologists did not fail to push their agenda in support of forensic medicine to the visiting reporters: “Throughout most of our country legal medicine is used less effectively in administering justice than in any comparable country in the world.”20 Throughout the 1950s, images of pathologists with expertise in criminal investigation gradually emerged in the pages of books and magazines. Journalists’ increased ability to report in real time further enhanced the media exposure of forensic pathologists. Moreover, the event of the assassination of President Kennedy stimulated widespread popular interest in the field of forensic pathology and the work of medical examiners. Gradu-

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ally, the popular media succeeded in coaxing forensic pathologists out of the shadows of anonymity.

The Medical Expert Period (1963–1990) The period of the medical expert began with what pulp fiction author Woody Haut called the “ultimate pulp-fiction novel”: the Warren Commission’s investigation into the 1963 assassination of President John F. Kennedy. Forensic pathologists took advantage of criticism of the handling of the assassination to demonstrate to the public the professional differences between board-certified forensic pathologists and other pathologists with only an amateur interest in forensics and a craving for the limelight. Forensic pathologists, led by Dr. Cyril Wecht, a physician coroner from Pittsburgh and a forensic pathologist, ignited allegations of a conspiracy by criticizing the Warren Commission’s results. Wecht gave popular mystery writers and their readers a first-hand view of the difference in interpretative skills between hospital-based and forensic-trained pathologists, and enough material to fuel an entire industry of conspiracy books on the assassination.21 The graphic images of the Kennedy assassination captured on the Zapruder film and printed in Life displayed the ultimate crime to an American public that craved realism. Shortly thereafter, Truman Capote created a new crime genre, the nonfiction novel, with In Cold Blood (1965), which changed Americans’ perception of crime. Capote described the real-life murder of a rural Iowa family by two drifters and their subsequent apprehension, conviction, and execution. Serialized in the Atlantic Monthly, the book made everyday, midwestern, God-fearing Americans feel vulnerable to the most heinous crimes. Numerous other authors quickly followed with scores of nonfiction crime novels. Practicing the new realism, authors began to portray real-life forensic pathologists. In Helter Skelter, an account of the Manson Family murders, Vincent Bugliosi and Curt Gentry depicted Los Angeles coroner and forensic pathologist Thomas Noguchi as a calculating, media-hungry medical professional who spoke the sterile, restrictive language of the medical scientist.22 Herter Lieberman’s novel City of the Dead (1976) showed the growing cooperation of practicing forensic pathologists with journalists in providing detailed portrayals of the lives of forensic pathologists. Lieberman explicitly acknowledged the contributions of the New York City deputy chief medical examiner on the opening page of his novel, which traced the work of the fictional New York medical examiner Konig from gruesome crime

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scenes to medical school lectures. The book graphically described the daily practice of a busy metropolitan medical examiner. A great din and hum of human enterprise animates this autopsy room . . . the cadavers, twelve of them lined up on steel tables—the objects of the quest . . . a black man, throat slashed from ear to ear . . . an ancient wizened little lady. She’d been hammered to death and robbed of sixty cents in a welfare hotel room the night before. There are few things that can be hidden from the pathologist. But at that point there’s no longer any need to hide. The only questions that remain are academic. The pathologist stands before the flayed and naked corpse like an old shaman reading auguries in the viscera of sacrificial sheep.23

In addition to providing realistic descriptions of dismembered and battered bodies, Lieberman included realistic autopsy protocols, courtroom testimony, and toxicology reports, which further enhanced readers’ experience. Lieberman modeled his fictional medical examiner after New York City’s well-respected chief medical examiner, Milton Helpern. City of the Dead depicted the real-life personal and public frustrations of medical examiners in a way only an insider could have done. This new-found publicity encouraged more forensic pathologists to write about their professional accomplishments and frustrations in their own words. The first such work written by an American forensic pathologist was Autopsy (1977), by Milton Helpern, the dean of American forensic pathologists. Commenting on real-life forensic cases in New York City, Helpern attempted to elevate his profession by describing the history of forensic medicine and the role of the medical examiner in protecting public health, identifying criminals, and advancing forensic medicine. “The medical examiner often serves the community in the capacity of a public health officer,” he wrote. “He may be the first to detect and warn of deaths signaling the onset of epidemics from food, disease, or other types of poisoning that are of direct concern to the public health authorities and the community.”24 Other books written by medical examiners and coroners detailing their exploits rapidly followed. The controversial Thomas Noguchi wrote Coroner (1983), which detailed the deaths of movie stars and well-known government officials such as Marilyn Monroe, William Holden, Sharon Tate, Natalie Wood, Robert Kennedy, and others. Noguchi stated that he intended “not only to shed light on many troublesome questions that remain, but to describe the techniques and goals of the little-known profession of forensic medicine itself.”25 In addition to documenting the deaths of famous people, the book revealed the intense political and social scrutiny and criticism that goes with the job of investigating high-profile deaths.

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Noguchi had been criticized by the Los Angeles County board of supervisors and Hollywood elites for releasing damaging information related to the role of alcohol in some of the celebrity deaths. Noguchi’s dismissal over allegations that he unnecessarily exposed the secret lives of the Hollywood stars led to another book, Coroner at Large. Now freed from bureaucratic headaches and restraint, Noguchi examined many controversial and contested deaths in both the remote and recent past. Coroner at Large allowed Noguchi to demonstrate how the sophisticated techniques of modern forensic science could provide new information about controversial historical cases and furnished a glimpse of forensic science in action. Television eventually became involved in the popular dissemination of information about forensic pathology to the public. In the popular television show Quincy: M.E. (1977–1984), actor Jack Klugman portrayed a socially conscious forensic pathologist who had given up a lucrative private pathology practice to work for the Los Angeles coroner. Quincy, with his loyal laboratory assistant, Sam, demonstrated weekly that many deaths initially thought to be natural were actually homicides. Each episode opened with the now familiar line “Gentlemen you are about to enter the most fascinating sphere of police science, that of forensic medicine.” The power of laboratory science in the hands of criminally trained medical experts was a recurring theme of the show. Quincy portrayed the forensic pathologist as a dedicated, hardworking, underpaid public servant, in contrast to the larger community of physicians, who were depicted as greedy, lazy, and dishonest. Quincy depicted the forensic pathologist as the policeman of the medical profession and as an essential, if often disbelieved, member of the crime prevention team. Many of the Quincy cases came directly from the files of the Los Angeles County coroner’s office, where the scientific technical director for the show had previously been employed. Quincy’s producers also retained a local pathologist to consult on forensic pathology. On several occasions Klugman visited the Los Angeles coroner’s office to witness autopsies, inspect wounds, and get a general feeling of the work and atmosphere of a forensic laboratory.26 Quincy strove “for an ideal . . . the best you could hope for in forensic medicine.”27 This heroic characterization contributed to what forensic pathologists called “unrealistic expectations” of forensic pathology—the impression that the forensic pathologist could solve any crime and correct all of society’s ills in forty-five minutes plus commercials. The show also depicted the lay coroner as a bureaucratic administrator, restricted by a dated political system, whose medical ignorance often obstructed, rather than assisted, the application of forensic science. This theme later took on a more serious tone in the genre of nonfiction crime.

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Many forensic pathologists and medical examiners enjoyed the show because it presented a “positive impression of the life of a medical examiner.” More than any other popular representation, Quincy established the forensic pathologist as a well-trained, compassionate, and intelligent professional in a demanding and socially important role—pathologist as socially conscious crusader. The show opened the door for other television representations of forensic pathologists, which, for the most part, continued the trend of portraying them in a positive light.28 However, not all popular appearances of forensic pathologists were positive. In addition to Noguchi, other medical examiners and coroners used the media to voice unappealing complaints about the judicial system, political influence, and public criticism that dogged every high-level death investigator. Similarly, Hill Street Blues, a popular police detective television show of the 1980s, featured a physician coroner who was a bungling, burned-out alcoholic who had lost his professional objectivity from years of dealing with the urban political machine. When initially queried about a racially motivated death in police custody, for example, Coroner Nydorf instinctively offered to tailor his findings for the benefit of the chief of police: “How do you want this one, Frank?”29 In the novels and the tell-all books about medical examiners, medical technical jargon captured the tension between the living and the dead, and the visual image of the autopsy table represented the “science” of the forensic pathologist. Initially, photographs of forensic pathologists commonly depicted them poised behind gleaming silver autopsy tables, replacing, for this subspecialty, the microscope as the icon of scientific expertise. Eventually, as public tastes craved more realistic images, portions of bodies were cropped into the frame. With time, editors cajoled forensic pathologists to pose behind entire dissected bodies, delivering the stark realism that readers craved but seldom understood.30 The dissemination of the popular figure of the forensic pathologist that began in the lowbrow pulp magazines of the turn of the century eventually evolved to provide the highbrow cultural elite with a window into the progress of forensic science. Following World War II, pulp magazines were replaced in the lowbrow market by pocket-sized (paperback) crime novels that described paranoia, sex, and violence in postwar America.31 Mystery writing provided Americans with “stray bits of information to teach the reader about role-specific behavior . . . affirming or challenging the legitimacy of the particular behaviors, attitudes, and practices depicted.”32 But Americans eventually grew tired of hard-boiled crime writing, and mysteries dropped from 50 percent of the market in 1945 to 13 percent by 1955. At the end of the twentieth century, the popularity of mystery novels in-

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creased again, accounting for one-quarter of all publications. Elevated educational status became the distinguishing feature of mystery readers. Seventyeight percent of college-educated readers admitted reading mysteries. With their vast market appeal and wide circulation, mystery novels provided a platform to educate and inform the public about the importance of scientifically trained forensic pathologists.

The Heroic Period (Beginning in 1990) To a mystery-craving American public, novelist Patricia Cornwell provided the ultimate image of the forensic pathologist: as hero. In 1990, Cornwell published Postmortem, the first of a series novels about a Richmond, Virginia, medical examiner named Kay Scarpetta. Cornwell had learned the intricacies of forensic medicine while employed as a computer operator in the Richmond medical examiner’s office. She had formed a close relationship with then assistant Virginia medical examiner Marcella Fierro, who had provided her with an inside view of autopsies, evidence collection, and the intricacies of scientific death investigation.33 She soon became the most popular and successful mystery writer in America. Cornwell was able to use her experience in the medical examiner’s office to describe the little-known policies and procedures typical in forensic medicine. It is not uncommon for forensic pathologists to fix brains in a 10 percent solution of formaldehyde called formalin. The chemical process preserves and firms tissue. It makes further studies possible, especially in cases involving trauma to this most incredible and least understood of all human organs.34

Cornwell’s insight into the world of forensic pathology also allowed her to educate her readers about the details of the science of forensic pathology as well as the difficulties that pathologists encounter in diagnosing diseases and injuries that are incomprehensible to the lay public. What are you getting at? Munchausen’s by proxy. Kay, no one will want to believe that. I don’t think I want to believe that. It is an almost unbelievable syndrome in which primary care givers—usually mothers—secretly and cleverly abuse their children to get attention. They cut their flesh and break their bones, poison and smother them almost to death. Then these women rush to doctors’ offices . . . She gets so much attention. She becomes a master at manipulating the medical professionals and her child may eventually die.35

Cornwell’s experience of the daily rituals of the medical examiner’s office also gave her insight into the personal frustrations of forensic pathologists. As Cornwell’s access widened to include other agencies, she

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enlarged her platform of professional legitimacy. Her books offered a sympathetic and heroic portrayal of real life forensic pathologists and other forensic specialists. “I had smelled bodies before but this was the worst. I looked at Marcella and said that I really didn’t know how she could stand this. She looked at me and said she just tried to remember who he was.”36 Kay Scarpetta personified the enhanced role of women in forensic medicine.37 Cornwell’s books contain a plethora of feminist discourse about the difficulties that women have faced in the medicine field and, more specifically, their acceptance into forensic pathology. Numerous other authors attempted to copy this new genre of female medical examiner. As a result, within five years there were no fewer than six serial mysteries that featured female forensic pathologists as protagonists.38 Television also responded to the women medical examiner phenomenon with popular shows such as X-Files, Homicide: Life on the Streets, and Crossing Jordan. Each depicted female forensic pathologists as lead actors with honed scientific objectivity and stoic professionalism. The programs attracted almost thirty million viewers weekly, further extending the polished, professional image of forensic pathology.39 Cornwell’s portrayals of scientifically based death investigations likewise helped to ignite a surge of television crime shows centered on the scientific crime solving laboratory. Here the forensic pathologist did not stand alone but joined a team of scientific crime fighters. CSI: Crime Scene Investigations became the prototype for this type of show and spawned a whole new television investigation genre. In 2006, CSI and its spin-offs accounted for eight of the top twenty television shows. “Forensic science is sexy, fast, and remarkably certain, a combination that has propelled the three-show franchise to top ratings, attracting nearly 60 million views a week.”40 However, these crime shows distorted the public’s view of forensic pathologists and their ability to solve crime. Too often, real-life cases in the courtroom did not live up to the excitement and certainty depicted on CSI. The expectation that medical examiners could solve every crime using upto-date technology certainly had its origin with Quincy. In Chicago, the Cook County medical examiner complained: “There is a disease around known as Quincyism. People watch the show, and they get strange ideas about how the medical examiner’s office works. They think one case at a time is all we work on, and that we can solve every murder.”41 Jurors in real court cases began to have unrealistic expectations that forensic pathology would provide the answer through technical wizardry and cuttingedge science. Jurors expected courtroom science to be a lot more interesting and a lot more dynamic, and when it’s not, they don’t convict.42 The “CSI

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Effect” began to frustrate prosecutors, forensic pathologists, and criminalists, who were often forced to admit that the methods used in analyzing evidence on the television show were unproven or unreliable. In the style of Truman Capote, nonfiction investigative crime stories continued to improve the status and expertise of the forensic pathologist in the public’s perception. A recurring theme continued to be the portrayal of trained forensic pathologist medical examiners in contrast to frequently inept coroners. In A Death in Whitebear Lake (1996), a medical examiner probes the death of a young child in 1965. With the disinterment and reautopsy of the child, the horrific death is uncovered by the current medical examiner. The story expresses society’s growing disgust with incompetent investigation by untrained coroners. “I was waiting for the county attorney and police to do further investigation,” the coroner offers as an excuse. “The coroner’s job was part-time then and I was a general practitioner.”43 By the mid-1990s, forensic pathologists had advanced the understanding of many of the causes of unexplained childhood deaths, including battered child syndrome, SIDS, and shaken infant syndrome. The expectations of society had changed radically since 1960, and the public had come to rely on medical expertise and the laboratory science of forensic pathology to solve crimes and protect the innocent—no excuses. The Death of Innocents examines the deaths of five infants in Syracuse, New York, that were certified as due to SIDS. The book criticizes the use of lay coroners but also pits well-trained forensic pathologists against academic medical researchers out of touch with front-line death investigators. “The notion of SIDS as a camouflage for murder . . . was gaining considerable notice from a small corner of medicine where pathology, pediatrics, and forensics crossed paths which explored the unrecognized or ignored aspects of child abuse.”44 The book indicted the legal and medical professions for murder; despite facts that pointed directly to child abuse, the Syracuse deaths had remained unrecognized or ignored because of the physician’s naïve conclusions. In the book, forensic pathologists are portrayed as different from pathologists isolated in hospital basements, as when a prosecutor says, “She was not just a pathologist, but a ‘death investigator.’”45 The Death of Innocents exposed the inner workings of death investigators exploring the role and expertise of the forensic pathologist. The book is an exposé of physicians who cannot come to grips with society’s dark side. In contrast to academic physicians, forensic pathologists are characterized as ever-searching, dedicated professionals waiting for society to request their services. For mystery readers, the Cornwell period established forensic pathologists, especially

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women, as the leading death scene detectives, who exuded confidence based on years of scientific training. Real-life medical examiners also began to be featured in the pages of monthly magazines and on television. In 1997, Redbook published a story on Dr. Jan Garavaglia, a forensic pathologist in the San Antonio medical examiner’s office by day and dedicated wife and mother by night.46 Garavaglia’s compassionate approach to families and scientific inquisitiveness, coupled with her good looks, soon landed her a starring role on a reality television show on the Discovery Health Channel, Dr. G: Medical Examiner.47 Dr. Cox from Homicide: Life on the Street was a fictional reflection of the real-life Garavaglia—an image that forensic pathologists could gladly accept. More recently, forensic pathologists have used their new-found celebrity to expand into other areas of medical, spiritual, and cultural authority. In her book I Speak of the Dead, forensic pathologist Joye M. Carter offers readers a realistic view of the medical examiner along with her personal faith and encouragement. “Based on my religious beliefs, I have never had any need to fear the dead. I have never been reluctant to use the word death, but I realize that it cannot be used in every situation, largely because so many people fear the concept.”48 The goal of Carter’s book is not suspense but spiritual comforting of families, whom she encourages to contact her website. Encroaching on another spiritual realm, forensic pathologist Janice Amatuzio, commercially known as the “compassionate coroner,” uses her forum as a forensic pathologist to help families connect with their deceased loved ones. Her book Forever Ours (2003) tells of her spiritual and otherworldly experiences in connecting with the decedents she autopsies, in order to offer hope to their families.49

Initially hidden by the shadows of police detectives in the public’s perception, forensic pathologists eventually came to represent the highest capability of medical science. In the nineteenth and early twentieth centuries, physicians involved in death investigations were represented as simple empirical observers, with deductive reasoning left to the police detective. It was a long way from the simple observers of fact depicted by Poe to the aggressive female protagonists depicted by Cornwell. These new pathologist heroines were defenders of truth who often excoriated meek or incompetent police detectives and cowardly district attorneys for their inexcusable mistakes and blind support of law enforcement. As medical science advanced and the public became increasingly sensitized to crime, physicians and writers of popular detective stories called for the establishment of scientific death investigation systems. As the public

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began to recognize the importance of forensic pathologists in the investigation of unexpected high-profile deaths, pathologists themselves began to write their own stories and further educate the public about the necessity of involving trained forensic pathologist in the investigation of all types of unnatural deaths. Popular representations proved a double-edged sword, however, because they established unrealistic expectations among the public, law enforcement, and politicians. Ultimately Quincy and the novels of Cornwell, while they helped the American public understand forensic pathology, overidealized forensic pathologists as unfailingly compassionate, unrealistically perfect medical heroes. Forensic pathologists, as they attempted to reform the American system of death investigation, embraced the popular media. The media helped in that they criticized lay coroners and tended to project a favorable image of physician medical examiners. Eventually, the popularization of American forensic pathology in a wide range of entertainment media contributed to the medicalization of forensic medicine, by explaining the nature of forensic pathologists’ work and recasting them as heroes. Unfortunately, the popularity and credibility forensic pathologists gained in the media could not be translated to real life, where they failed in their efforts to remove coroners and establish themselves as the gold standard in death investigation.

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In Search of Reasonable Medical Certainty

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n a 1985 series of newspaper articles, the New York Times accused Eliot Gross, chief medical examiner of New York City, of a coverup involving the certification of the deaths of a number of police-related deaths. The Times argued that Gross had tainted the outcome of the investigation of these deaths by refusing to certify the manner of death and instead leaving it “undetermined.” The five-stage comprehensive investigation that followed suggested that Gross’s excessive conservatism and cautiousness in the certification of deaths was “so excessive as to undermine credibility rather than enhance it.”1 Gross demanded, the report suggested, “the kind of medical certainty characteristic of an academic scientist in a field, forensic pathology, where that kind of certainty is almost unattainable.”2 In reality, Gross was continuing the practice of his predecessors in the New York office, who withheld certification on a number of different types of deaths, including traffic-related, drug-related, anesthetic-related, and police-custody deaths where the certification required a diminished level of confidence.3 The result of the investigation of Gross exposed the variability in the standards of proof required by medical examiners to certify a death. In the adversarial fishbowl of the American court system, it opened up the wider question of the veracity of expert testimony of medical examiners and coroners in all types of sudden death investigations. Gross’s unwillingness to provide opinions on certain cases also reflected the growing

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reluctance of some physicians to make decisions on the basis of imperfect medical information. This chapter discusses the evolution of the legal environment medical examiners and coroners encountered in the late twentieth century. The evolution of the expert witness, variations in standards of proof, and the legal community’s efforts to attack “junk science” involved inconsistencies between medicine and the law that challenged the professional status of forensic pathologists and medical examiners, fueled an adversarial legal system, and encouraged legal advocates to call for a complete overhaul of the rules guiding the admission of expert medical testimony.

Science and the Law Physicians have long contended that the practice of medicine represents both science and art and thus is based not on any measurable mathematical certainty but instead on the empirical knowledge and experience of the practitioner. Medicine and law differ in their investigative approaches to determining cause and effect and the admissibility of evidence and proof. Medicolegal scholars have long argued that while medicine seeks truth, the law seeks justice. The methodology and practice of the law could not easily be adapted to the scientific method. Physicians employed objective scientific methods and the distillation of facts to arrive at clinical judgments on which to base their opinions, whereas lawyers traditionally relied on subjective value judgments of human conduct. As Sheila Jasanoff has pointed out, “science emphasizes progress and the law emphasizes process.”4 English common law and medicine also differ in their methods of developing and proposing opinions. Medicine often relied on determining factual causation, whereas common law has incorporated interpretations of intent and permissive factors into the decision-making process.5 “There is a cloud of uncertainty,” one legal scholar wrote, “an obscuration of terms, a lack of sharp definition which tend to invest vital aspects of law-science correlations with a curious mystery.”6 Struggling with growing industrialization and urbanization in the early twentieth century, Americans looked to science and technology to assist juries in determining increasingly difficult and complex civil and criminal cases. The insurance industry in particular was “in need of standardized, dependable means of determining causes of death and [ways to] clearly differentiate among accident, suicide, and homicide.”7 The determination of the cause and manner of death had profound consequences for the family, for insurance claims, and in both civil and criminal court proceedings. This

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determination, however, was not solely a medical one but depended on other factors: circumstances at the death scene, police investigation, and legal traditions. The practice of making the determination was often “shrouded in ignorance, division of opinions, legal uncertainty and emotion.”8 The meaning and definition of the manner of death were also subjective, permitting widely differing interpretations among both medical and legal experts. The “standard of proof” is the level of certainty or belief on which the medical expert has based his or her opinion. In the marketplace of legal opinion, attorneys have fully appreciated that the standard of proof, an expert’s level of certainty, is subject to considerable variation, depending on the individual case, the experience of one expert relative to another, and the expert’s ethics and the circumstances. The standard of proof also depends on the subject matter, whether a case is criminal versus civil, and, for some, the level of punishment at issue.9 The standard of proof increases with both the quantity and quality of the evidence available. When arriving at a standard of proof, medical experts have relied on their judgment, formed by both experience and scientific inquiry. More recently, medical, legal, and social science scholars have conceded that a scientific practice possesses both a subjective quality and a mathematical probability.10 Much of the literature on the standard of proof explores the jury’s role in the determination of “beyond a reasonable doubt,” the standard necessary to convict a defendant in a criminal trial. Relatively little literature exists on the standard of proof medical experts use to arrive at their determinations of reasonable medical certainty. Practicing lawyers eschew assigning numerical probabilities to various standards of proof, though legal scholars continually have attempted to do so.11 Eventually, the issue of subjectivity has called into question the whole basis of scientific testimony in the courts. The question of whether medical certainty rests in the individual expert or within a consensus of the profession also has challenged the American court system throughout the twentieth century. In the world of medicine, which has grown increasingly dependent on objective methods of evidence-based practice, the medical examiner and coroner may represent the last bastion of a subjective medical practice based on personal experience and practical application.12

Creating the Medical Expert The legal system has acknowledged the importance of expert testimony when the jury lacks sufficient knowledge of the disputed facts to draw an

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informed decision. Juries eventually replaced the irrational medieval proofs of guilt and innocence by ordeal. Juries initially were self-informing and self-regulating, frequently examining evidence firsthand.13 The Enlightenment marked a transition from a generalized view of nature formed by natural philosophers through simple observation to a more rational, theoretical view based on a combination of physical observation, mathematical proof, and moral evidence. In 1554 an English judge, recognizing the importance of the growing scientific community, stated: “If matters arise in our law which concern other sciences or faculties we commonly apply for the aid of that science or faculty, which it concerns.”14 In 1670, France codified the right of all injured parties to impartial examinations by court-appointed medical experts. These experts possessed both legal authority and an inferred expertise conferred through their appointment by the court.15 In the early eighteenth century, science gained authority in legal courts as well as the scientific academies and came to be defined as “any product of long experience and systemic observation.”16 As jurists began to acknowledge their own inability to render opinions in matters of science, judges called on others to assist them. “In matters of science the reasoning of men of science can only be answered by men of science.”17 Early Anglo-American coroners used the inquest as a fact-finding operation to obtain information to answer questions relating to cause and manner of death. They relied on the foundations of English common law, based on case law precedent already fixed by the beginning of the fourteenth century. The standard of proof thought sufficient for early colonial coroners’ inquest proceedings centered on whether the jury believed the eyewitness testimony of the crime, the hearsay of other witnesses, and its own eyewitness investigations.18 Under the coroner’s inquest, the legal responsibility for the determination of the cause and manner of death rested solely with the jury. “Although the opinions of experts are generally regarded as entitled to more weight and consideration than those of other witnesses . . . the jury are to give them only such weight, in the deciding the cases as they were fairly entitled to have.”19 Beginning in the late seventeenth century, juries routinely summoned physicians to act as experts, often against their will. Legislation had been enacted in 1563 that compelled witnesses to testify, and perjury became a punishable crime.20 By the 1730s, defense counsel had begun to participate in regular criminal proceedings but were not allowed to address the jury, only question witnesses. During the early nineteenth century, American juries did pretty much as they pleased. The jury generally lacked instruction on matters of science, and lawyers forced doctors to testify without pay under pretense of public service. By the late nineteenth century, under pres-

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sure from lawyers and a growing business community, judges began to call for a more predictable and rationally guided jury decision. According to the famed jurist Learned Hand, expert knowledge came into use in Anglo-American court proceedings by one of three methods. The oldest was the empanelling of a special jury comprised of jurors possessing special experience to render decisions—for example, the ancient practice of employing a jury of matrons to examine a woman suspected of concealing a pregnancy.21 Another method was to summon the advice of skilled persons to aid the court as consultants. Attorneys representing either side of the case frequently called physicians and surgeons, as well as midwives, to answer questions relating to injury, pregnancy, and autopsy findings. For example, as early as a 1678 case, attorneys for both prosecution and defense called physicians to discuss “certain symptoms observed upon an autopsy they had seen . . . as to whether a man can die of wounds without a fever.” In a case in 1699, surgeons testified “they had examined the body and found no water in it, so that it must have been dead when it entered the water.”22 Finally, jurists developed the current method: calling skilled persons before the jury as witnesses. The earliest description of the English court’s acceptance of expert testimony occurred in 1782 in Folkes v. Chadd, when Lord Mansfield described an expert as a person “professionally acquainted with the science or practice in question.”23 Legal scholars generally accept this occasion as the beginning of the development of partisan expert testimony in the modern Anglo-American legal system, because experts now rather than being simply assistants of the court testified as witnesses directly to the jury. Lawyers paraded a cadre of newly emboldened expert witnesses in the courtroom to solidify their clients’ cases. A new legal “market theory” arose that made the only measure of an expert’s veracity the lawyer’s willingness to pay his fee. In America, the first medical expert witnesses took the stand in 1840; they quickly became common in courtrooms, especially in cases of insanity pleas in murder trials and in cases of malpractice.24 Unsurprisingly, malpractice suits against physicians exploded during 1840–1860.25 The expert was no longer an impartial witness with specialized knowledge of the facts at hand but a quasi advocate used by lawyers to establish new facts to support their case.26 At the same time, the laws of evidence had evolved slowly and erratically during the eighteenth century; in the midnineteenth century they became firmly established in American law. The distinctness of the modern expert witness sprang not from the license to testify to a fact, which was still shared with lay witnesses, but

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from the expert’s exclusive privileges to pronounce an opinion whether he had observed the facts of the case directly or not.27 The entrance of an expert into the courtroom thus had the effect of invading the province of the jury to decide factual evidence. By the conventions of the gentleman’s code of honor of the day, the courts generally considered an expert’s opinion unbiased and trustworthy. The proliferation of proprietary medical schools and growing distrust of professionals in the early nineteenth century resulted in a general deterioration of medical practitioners. As more poorly trained and ambitious physicians entered courtrooms to provide medical testimony in pursuit of fame and fortune, the mere fact an expert was a physician did not render him an expert in the eyes of the court.28 Over time, physicians became notorious for presenting biased testimony of an “unsatisfactory character.”29 The public display of “mad doctors” testifying at insanity trials frequently created a theatrical farce. The exoneration of violent criminals by obviously biased testimony contributed significantly to the deterioration of the value of scientific testimony in the eyes of both the public and the legal profession and eventually denigrated all medical expert testimony.30 Physicians complained that expert medical testimony was often delegated to those who are least qualified . . . Lads whose knowledge of the medical sciences can be little more than a name . . . The testimony of really competent witnesses, remarks an eminent authority on mental unsoundness, may be contradicted by that of others utterly guiltless of any knowledge on the subject, on which they tender their opinions with arrogant confidence— for ignorance is always confident—and the jury is seldom the proper tribunal for distinguishing the true from the false.31

In the adversarial American judicial system, medical opinions in the more subjective areas of medicine, such as psychiatry and forensic medicine, could more easily be challenged by opportunistic experts. In 1843, the English House of Lords established the McNaughton rules to provide guidance to the jury in regards to medical testimony in cases of criminal acts based on mental irresponsibility.32 This was not the case in America, where the courts waited until the end of the century for such aid. In the book The Trial of the Assassin Guiteau, Charles Rosenberg explored American neurologists’ controversial views of legal insanity at the turn of the century. Charles Guiteau, the assassin of President Garfield, had been found sane by a panel of expert neurologists despite his obvious mental incapacity. The trial featured a clash between medical proponents of hereditary criminal “biological determinism” and advocates of the opposing

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theory of a socially acquired “moral insanity.” The Guiteau trial exposed the “embarrassing contrast in medical reasoning, the awkward clash of personalities, the seemingly unavoidable conflict between medical diagnosis and rules of law.”33

The Burden of Proof The legal concepts of “beyond reasonable doubt” and “probable cause,” according to sociologist Barbara Shapiro, evolved out of twin sources of proof: the English tradition of moral certainty and the mathematical proofs of the scientific revolution that established rational scientific proof by evidence. Mathematical probability originated with Pascal’s principles of probability and absolute certainty. Over the centuries, epistemological evolution resulted in the development of intermediate levels of knowledge between absolute certainty, moral evidence, and that which only exceeded mere opinion. Moral evidence, Shapiro explains, consisted of proofs not observed and thus liable to humans’ interpretation and fallible judgment. Moral evidence contrasted with demonstrative proof, which could lead to absolute certainty. Moral evidence involved degrees of assent, ranging from “suspicion to moral certainty . . . The degree depended on the degree of evidence.”34 By the late seventeenth century, following the systemization of knowledge by John Locke, probability or opinion could be evaluated through “a graduated scale that extended from unlikely though probable to a still higher category called ‘rational belief’ or the ‘satisfied conscious.’” The satisfied conscious eventually became synonymous with rational belief or belief beyond reasonable doubt. However, the concept of probability continued to lack an acceptable terminology that experts and lawyers could use to clearly communicate the meaning of probability to the jury.35 Did reasonable probability mean something was likely, there was a preponderance of evidence for it, or it was beyond a reasonable doubt? The burden of proof, a long-established element in legal proceedings, refers to the degree of belief a fact finder must reach to deem a fact true. The level of belief can fall on a continuum anywhere from impossible to beyond any doubt. Burden of proof “beyond a reasonable doubt” was first employed in American courts at the Boston Massacre trials of 1770.36 Legal scholars theoretically attempted to assign numerical percentages of risk to the burden of proof to assist lay triers of fact. Preponderance of the evidence, for example, was considered to refer to a quantum of over 50 percent: “more probable than not.” However in practice, lawyers declined to

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attach percentages of certainty to any burden of proof but instead used abstracts from the probability theory of risk.37 “Beneath the legal concept of probability,” one legal scholar admitted, “lay the mathematical theory of probability which only rarely breaks the surface.”38 Most scientific commentators agreed that what produced disagreement of experts in the courtroom was not uncertainty within the body of scientific knowledge itself but the improper way the legal system processed scientific knowledge. “Natural law, like the law of the land, is susceptible to more than one interpretation,” one legal scholar offered as a explanation.39 However, there were limits to an expert’s opinion. There is much room for honest difference of opinion and for varying clinical judgments on open subjects. No one would hold all witnesses to subscribe to a single view in cases where good men may differ. But at last we come to outer limits of these justifiable differences, and no man is entitled to palm off as certainty what medical science itself knows to be purely conjectural and as yet without adequate proof, experimental or clinical . . . All we can expect to have is the benefit of the best evidence that the science of a given time can supply.40

In the same line of reasoning, judges and lawyers confirmed juries’ desire to accept variable measures of proof depending on the type of crime. In criminal cases the charge must be proven beyond reasonable doubt, but there may be degrees of proof within that standard . . . many other great judges have said, “in proportion as the crime is enormous, so ought the proof be clear.” So also in civil cases, these cases may be proved by a preponderance of probability, but there may be degrees of probability within that standard.41

Reasonable Medical Certainty The legal process required that the physician testify at a level of confidence of a reasonable degree of medical certainty. During the act of specifying a standard of proof, the medical expert must choose a personal level of confidence. Despite the requirement of a proof to a reasonable medical certainty, few forensic pathologists—who spend much of their professional careers testifying in courtrooms—could define the concept that would convey to others the confidence they have in expressing causality. The negotiation between experts and lawyers on the increasing standards of proof—from the impossible to beyond a reasonable doubt—according to Sheila Jasanoff, lay at the core of the centuries-old contested boundary between science and the law.42 Underlying much of the debate over the standard of reason-

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able medical certainty was that the courts avoided mathematical definitions. When first asked to express an opinion based upon reasonable medical certainty whether the accident was the competent producing cause of the plaintiff’s hernia Dr. Nisen answered, “it could be. I couldn’t say.” Pressed further, all he would say was that “it would be about 90 per cent chance that it was cause by (the accident) and 10 per cent it wasn’t.” However favorable such odds may seem in some game of chance, a trial is not such a game.43

The concept of reasonable medical certainty was a relatively new one that became necessary only with the appearance of the medical expert in the mid-nineteenth century, because it meant the ability to testify on medical as well as criminal evidence now resided in a single individual. The well-known 1847 trial of John Webster, accused of murdering his colleague, Harvard physician Dr. George Parkman, included one of the earliest attempts to define the reasonable medical certainty standard. “It is in fact a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it because if the law would require absolute certainty, it would exclude all circumstantial evidence.”44 Individual state courts began the long process of defining reasonable certainty. Wisconsin courts first defined the term “reasonable medical certainty” in 1895, when a court recognized that a doctor’s statement regarding an injury attributed to an electric shock “could have caused the plaintiff’s injury was—in light of other testimony—to a reasonable medical certainty.”45 The term remained a problematic concept, difficult to define and clarify to the jury. Much of the problem revolved around physicians’ choice of words to express their level of confidence. Wisconsin and other states, for instance, held that an expert’s opinion “expressed in terms of possibility or conjecture is insufficient . . . might or could is not sufficient and does not reach the certitude a standard is not expressly so stated . . . However, an opinion expressed in terms of ‘I feel’ or ‘I believe’ has been held to be sufficient. The words ‘liable,’ ‘likely,’ and ‘probable’ have been accepted as words connoting reasonable probability as opposed to possibility.”46 Physicians struggled over the term “reasonable medical certainty.” While many held it did not mean absolute certainty, they considered it higher than simply “more likely than not.” “Everything in medicine is speculative,” a physician under cross-examination argued; “there is nothing that is not speculative.”47 Medicine, physicians argued, was based not on an absolute or metaphysical certainty but rather on empirical medical

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knowledge and experience that was in the area of cause and effect and thus was more accurately described as medical probability. The term “medical probability” more accurately expresses the standard. The standard requires a conviction of the mind or that degree of positiveness that the doctor has in his opinion, which is based upon his knowledge of medicine and the case facts, that his belief is correct to a reasonable medical probability. Other doctors may differ, but whether his opinion corresponds with that of another member of the medical profession does not go to the admissibility of his opinion but to the weight the trier of facts should give to the opinion.48

As late as 1982, Virginia courts argued for a higher standard of medical expert testimony. In Fitzgerald v. Manning, the court stated: Moreover, in order to qualify on causation, the opinion testimony of a medical expert may not be stated in general terms, but must be stated in terms of “reasonable degree of medical certainty.” Only if the opinion evidence on causation as offered by the plaintiff, rises to the level of “reasonable degree of medical certainty” that it was more likely that the defendant’s negligence was the cause than any other cause, is there sufficient evidence on causation to permit jury submission of causation.49

In contrast to Virginia, some states do not require medical experts to state the magic words “with reasonable medical certainty” in order to express their expert medical opinions. However, attorneys strongly recommend the practice to avoid any confusion of the jury.50 Reasonable medical certainty and reasonably medical probability have come to be considered synonymous and used interchangeably. An expert’s judgment in deciding death is based not solely on his or her examination of the body but also on his or her experiences, witness statements, hospital records, the circumstances of the death scene, and just plain personal intuition. It is not surprising, then, that the opinions of medical examiners and forensic experts may differ and clash during courtroom testimony. Depending on the outcome of trials, lawyers continued to question how two medical experts who possess similar training and experience could make diametrically opposed statements. “Increasing experience may merely allow the same mistake to be made with increasing confidence,” argued one forensic pathologist commenting on an opposing opinion. “The plural of anecdote is not data, and the sum of ‘vast clinical experience’ is not science.”51 The standard of reasonable medical certainty lacked a simple definition. Despite the requirement of a proof to a reasonable medical certainty, few forensic pathologists could define the concept. For some it has represented

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the “satisfied conscious.” “No one ever told me what it was,” James Luke, an experienced forensic pathologist, has said.“For me it was an emotional feeling of knowing you had done the right thing, a confidence—common sense.”52 For others, the conventional standard of many medical examiners appeared to be based on a preponderance of the evidence, a mathematical standard of 51 percent. Another forensic pathologist has explained: “A couple of times I have been asked on the stand how I define ‘reasonable medical certainty.’ My answer has usually been that I do not know how I would define the term and refuse to put a numerical percentage on my certainty. When I provide an opinion as a medical examiner, I am as sure as I can be that my opinion is accurate and medically sound.”53 Still other medical examiners have believed that the burden of proof is more akin to beyond a reasonable doubt. “Dr. Baden testified that he requires certainty of more than 99 percent to classify a case as a homicide.”54 Physicians had often asked, “how far the expert in forming his opinions should rely on the authority of others, and how much upon his personal experience.”55 “I’ve never heard a universally accepted definition,” of reasonable medical certainty, confided New York City medical examiner, Charles Hirsh, who attempted to further describe the concept: Certainty beyond reasonable doubt is the degree of certainty that you have when there is no good reason to believe otherwise. At a higher level of certainty is beyond a reasonable doubt, which could be defined as not mere possible doubt; because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. This stands in contrast to certainty beyond a possible doubt, which maintains that every other contingency in the universe is impossible . . . The degree of [reasonable medical] certainty that I have is the product of my experience which I learned from reading and talking with other people as well as what I have learned from personal experience. To ask me to dissect out what proportion of my opinion is from personal experience and what portion is derived from general knowledge of the field and from what other people have told me is impossible.56

A prosecuting lawyer locked in a heated legal contest, when queried by a forensic pathologist on the definition of reasonable medical probability, responded bluntly, “It is whatever you the doctor say it is!”57 The minimum degree of certainty with which a medical expert must testify has varied according to the subject matter and the jurisdiction. In civil lawsuits, for example, courts have accepted a standard of proof at the level of preponderance of evidence. Generally, medical opinions on cause, diagnosis, and treatment have required less probability than opinions concerning future consequence of injuries, while in criminal cases the standard

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has risen to “a reasonable degree of medical certainty.”58 Lawyers have warned physicians to avoid assigning percentages of agreement or probability that might suggest varying levels of certainty.59 In only a few cases has testimony based on statistics been allowed in court, even though “in fact statistics are behind all medical testimony.”60 Differences in physicians’ interpretation regarding standards of proof such as preponderance of evidence or of reasonable medical probability have often led to differences in medical experts’ opinions, which has permitted lawyers, opposing expert witnesses, and the public to question the competency of medical experts, especially forensic pathologists, who depend on their medical opinions for their livelihood. The subjectivity of the forensic pathologist’s final certification of death often leads to conflict. “The general public likes to assume that pathology is an exact science and everything is objective,” Dr. John Sinard, director of the autopsy service at Yale University School of Medicine, responded to critics of the opinion of Dr. Charles Hirsch in denying a causal link between the death of a firefighter from lung disease to his exposure to dust at Ground Zero. In doing so, Hirsch had used the term “with certainty beyond doubt” as his standard of proof. Politicians, rallying around the survivors, questioned how the medical examiner would have the power to decide whether deaths were linked to 9/11 and with absolute certainty. “The reality is that everything is subjective.” Sinard concluded.61

Admissibility of Expert Evidence Until the early twentieth century, courts had relied on the uniquely American concept of the “commercial market test.” Expertise was assessed on the basis of whether a commercial market existed for the proffered knowledge. An attorney called on a physician to testify whom the lawyer believed would support his case. He simply hired the expert, who presented his opinion to the jury—the ultimate trier of fact. If the expert was able to making a living through espousing the relevant knowledge, he was deemed an expert. In the early nineteenth century, as willing physicians rushed into the courtroom, elite physicians complained that unscrupulous “charlatans” testified to outrageous opinions, unsupported by medical science, only for money. This behavior, they said, demeaned the medical profession. The creation of the AMA was in part catalyzed by physicians’ frustration with biased expert witnesses. From its inception in 1847, the AMA imposed only two rules with respect to expert testimony: that the expert not present himself as an advocate for a particular side and not receive compensation on a contingency-fee basis.62

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In 1923, the Frye test replaced the commercial market test as the determinant of the admissibility of medical evidence into the courtroom. The court in the appeals of Frye v. United States, regarding testimony on the use of a lie detector or polygraph, held that to be admitted in court, an expert’s theories, methodologies, tests, and techniques had to have gained “general acceptance” in the particular field to which they belonged.63 The underlying theory of Frye is that a courtroom is not a laboratory, not the place for scientists to conduct scientific experiments to hypothesize about new or marginally accepted theories. The court insisted that when the scientific community itself decided a procedure or process was unreliable for its own purposes, that procedure should be considered less reliable for courtroom purposes.64 Although simple in concept, Frye proved too vague for general applicability in a growing number of cases dependent on scientific evidence. In addition, Frye did not apply to an expert’s personal experience, training, or opinions but only to the scientific theory supporting the evidence. This left open verification of the relevance of the evidence to the case. Frye had the effect of substituting an intellectual marketplace for a commercial one.65 Critics argued that by requiring general acceptance in the field, Frye proved too restrictive for some courts, inhibiting the jury from hearing meaningful evidence.66 In 1975 the U.S. Congress updated the Federal Rules of Evidence in order to allow qualified experts to assist courts in understanding scientific and technical evidence.67 Individual states could determine their own evidentiary standards and were not under any obligation to enact the federal rules. The basis of the federal rules was the principle that evidence need only be relevant to assist the trier of fact and not necessarily reliable (the Frye standard). Instead the federal rules relied on the process of adversarial cross-examination to test the reliably of the witness. The U.S. Supreme Court ruled that sections 702 and 703 of the Federal Rules of Evidence superseded the Frye test in the federal courts. According to one physician expert, the Frye test required scientific testimony to be expressed in terms of reasonable medical certainty (95 percent) to achieve general acceptance. The replacement of Frye, with its general acceptance standard, liberated general acceptance of expert testimony on medical probability from the 95 percent implied in Frye to “preponderance of evidence” (51 percent).68 In the early 1990s, the Supreme Court reacted to concerns about expert testimony by requiring lower courts to tighten the standards of admissibility of evidence. In United States v. Two Bulls and People v. Castro (1989), the Court changed the rules of evidence on the admissibility of DNA evidence using the Frye standards. The Supreme Court ruled on a triad of

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cases, best known as the Daubert Trilogy (after the initial case, Daubert v. Merrell Dow Pharmaceuticals, 1993). All three addressed the admissibility of expert testimony in the courtroom. The federal court, in an attempt to rid the courts of junk science using the Daubert Trilogy of cases, provided four factors in order to consider evidence admissible: Can the theory be tested? Has the theory been subjected to peer review? Is there known potential error rate? Has it been generally accepted by the relevant community? In the second case, General Electric v. Joiner (1997), the Supreme Court clarified the appropriate standard of review for appellate courts to apply on scientific evidence. In the final case, Kuhmo Tire v. Carmichael (1999), the Court ruled that a judge’s gatekeeping function in Daubert applied to all expert testimony. In 2000 Congress modified the Federal Rules of Evidence to effectively codify section 702 to cover evidence from all experts, not just those from the “hard sciences,” and to define the court as gatekeeper based on criteria of reliable methodology. The intent was to keep what some call “junk science,” or theories based on suspect methods, out of the courtroom.69 In a related action, the Supreme Court enacted stricter rules of pretrial discovery of medical experts by enacting Federal Rule of Civil Procedure 26, requiring experts testifying in federal courts to provide additional information summarizing their opinions and the evidence to support them, the data they have considered in forming their opinions, past cases in which they have provided testimony, and their current compensation. In essence, the rule holds the expert to a higher standard than previously. Although the federal government can maintain uniform evidentiary standards within its own courts, dissimilarities in the application of standards of expert witnesses have predominated in the states. As of 2005, twentyfour states had moved to Daubert, nineteen states and the District of Columbia continued to use Frye, and the remaining continued with some form of the previous federal rules.70 While Frye and Daubert had the effect of preventing the introduction of “junk science” into the courtroom, opponents, mostly plaintiff’s attorneys, have complained that the stricter rules have kept potentially important evidence from the jury. “It was pitiful how people with few credentials, who made a career out of courtroom testimony, were hired to be expert witnesses. That’s much rarer now,” one scientific observer stated. Plaintiff’s attorneys and physicians both agree that the court now demands stricter standards than physicians exercise in the laboratory or when treating patients. “In medicine, we make judgments about cause and effect on all kinds of evidence—biological plausibility, physiology, animal studies

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and case reports,” a physician researcher explained; “There are many valid ways to assess casualty; this kind of information ought to go to the jury.”71 Initially, forensic pathologists remained out of the Daubert-Frye controversy, as the standard was infrequently used in criminal trials, because most defendants lacked the funds to mount a Daubert defense. “Instead of worrying about the hired gun phenomenon, as in civil litigation, the criminal defense lawyer often lacks money for any gun.”72 Some lawyers argued that forensic pathology evidence should be exempted from Daubert standards because of its unique opined evidentiary value, while others pointed to the lack of objectivity of forensic pathology testimony, which could not survive the Daubert scrutiny. At any rate, with time, forensic pathologists in criminal trials came under the Daubert attack.73 In early February 1997, prosecutors convicted Louise Woodward, a nineteen-year-old au pair, of second-degree manslaughter in the death of Matthew Eappan, an eight-month-old infant she was babysitting. The jury found Woodward guilty of violently shaking and slamming the baby, causing massive head injuries and eventual death five days later. Medical witnesses testifying for the prosecution argued that child had died from massive head injuries caused by violent shaking and slamming of the baby. They argued that the shaken infant syndrome was a well-recognized medical condition that caused three hundred deaths per year and thousands of injuries resulting in devastating neurological damage. The syndrome was the topic of hundreds of publications and nationally promoted meetings of leading pediatric scientists and lay child protection advocates.74 Defense experts adamantly denied the prosecution’s theory of injury. They proposed a theory that a minor injury sustained by the child months earlier had “rebled.” They insisted that the shaken infant syndrome could not be scientifically proven, could not pass the scrutiny of the Daubert test, and simply did not exist.75 Following this contentious trial that featured contradicting medical testimony, the jury found Woodward guilty of second-degree murder. The judge, however, under extreme political pressure, reduced the sentence to time served. In a demonstration of violent disgust with the judge’s actions, fifty medical experts from around the country signed a letter declaring that “the prosecution put forward well-established medical evidence that overwhelmingly supports a violent shaking/impact episode on the day in question.”76 Not long afterward, a successful Daubert defense rocked the forensic pathology community. In late 2003, a Greenup County, circuit court judge barred the prosecution’s expert witness from testifying that shaking had injured a baby. The syndrome “can’t be proved in controlled experiments be-

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cause researchers can’t shake real babies” a frustrated professor of pediatrics explained, but “said the diagnosis has been borne out by thousands of parents who have bought children to a hospitals and told what they did.”77 Surprisingly, it was a forensic pathologist who initiated the Daubert defense when he changed the opinions he had given on the etiology of pediatric head injuries in his previous cases and agreed to assist the defense. “I guarantee there are people in prison who shouldn’t be there,” he said. It was his testimony that the judge used to rule that the trauma didn’t “prove the child had been shaken, and that a correlation doesn’t prove cause and effect.”78 A witness is said to have been “Dauberted” when excluded from testifying on the grounds of insufficient scientific evidence. Daubert supposedly put the “fear of God” into forensic experts; in reality, critics argued, it did little to affect expert testimony itself. “There is virtually no expert testimony so threadbare that will not be admitted if it comes to a criminal proceeding under the banner of forensic science.”79

Evidenced-based Medicine and Expert Testimony In the late 1990s, the AMA adopted a policy that a doctor’s testimony as expert witness should be considered the practice of medicine and subject to peer review, and discipline if false.80 In response, lawyers and physicians argued that these standards would “constitute an interference with the administration of justice.”81 “Experience is not science,” argued a frustrated lawyer for the Innocence Project. “How can two board-certified forensic pathologists come up with totally opposite opinions on the same case?”82 The statement dealt squarely with the issue over which lawyers and physicians had quarrelled for centuries. Individual states developed their own standards as to what constituted the practice of medicine. Some states consider medical testimony to be the practice of medicine; others do not. Meanwhile, physicians continue to criticize one another for the lack of standards for expert medical testimony in tort (civil) cases. The question of whether medicine is a science or an art has resurfaced with the advent of clinical practice guidelines, or evidencebased medical practice, which directs the practice of the physician. Physicians intent on reforming the legal system have called on the AMA to require use of the principles of evidenced-based medicine in examining the veracity of expert testimony. Evidence-based medicine was developed initially by physicians working with health insurers in the late 1970s, using best practices based on pub-

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lished studies and epidemiological analysis, not simply relying on a physician’s experience or a single case report. Practice guidelines are systemically developed to assist health care providers, consumers, payers and policy makers in making decisions on how specific health conditions could be most effectively and appropriately prevented, treated and managed.83 These guidelines were meant to provide a rational structure for medical decision-making. Due to their prominent role in the courtroom, forensic pathologists have eschewed attempts to develop specific guidelines or practice guidelines that might be used against them in future testimony. Proponents of evidence-based medicine have insisted that it would improve the quality of patient care, reduce the number of disputes over insurance coverage, and decrease the burden of malpractice litigation. On paper, evidenced-based medicine and the Daubert Trilogy monitoring of expert testimony seem made for each other. However, neither has reached its potential, because judges have avoided deciding the scientific veracity of medical evidence, while physicians have held on to their independent decision-making—neither fully accepting the population-based medicine model. As legal and political advocates have called for increased precision and accuracy in cases, they have called for measurements of accuracy in all areas of court procedures.84 In response, some professions, such as forensic dentistry, began to attempt to quantify their decision-making methods so as to be able to answer Daubert examinations. Proponents of evidencebased medicine have presented their opinions as being working hypotheses intended for treatment and subject to revision instead of being simply a reasonable degree of medical certainty standard.

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most of the twentieth century, the legal system validated medical professionals’ belief in the authority of clinical judgment derived from personally acquired disciplinary expertise.85 It was said that the relationship between law and medicine was like “a hammer (medicine) striking an anvil (law) and the sparks that fly attest[ed] to the tension between the two professions.”86 Medicine was founded on the dual principals of science and art. Daubert, according to sociologist Kelly Pyrek, views science as “an unchanging, static body of objective knowledge reflecting certainty, while science is a process and anything but static; scientific knowledge does not reflect certainty but is uncertain and contingent.”87 In the search for truth and justice, scientists rely on the transmission of information and knowledge within a socially constructed judicial system. Daubert has had the effect of elevating judges to a gatekeeping role, ruling over the medical expert’s opinion. Forensic pathologists have experienced growing scrutiny during courtroom debates over the admissibility of scien-

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tific evidence and their own level of certainty during testimony. The legal system, however, has rejected such medical certainty when it has conflicted with their desired outcome. The forensic pathologist has stood at the interface between these two socially constructed systems—one in search of certainty, the other in search of justice. The laws governing scientific evidence, it turns out, are no more uniform or consistent than the patchwork of coroner and medical examiner systems that covers the country.

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n February 18, 2009, eighty years after the release of the 1928 NRC report, leaders of the Consortium of Forensic Science Organizations (CFSO), huddled around a computer screen at the American Academy of Forensic Sciences in Denver to view the release of the a second major NRC report on the state of forensic science in America. The congressionally mandated report entitled Strengthening Forensic Science in the United States: A Path Forward found serious defects in the forensic science system. With the notable exception of DNA evidence, the report claimed that fingerprint, ballastic, bite mark and other forensic evidence had “little or no basis in science.” “This is a major turning point in the history of forensic science in America,” said Barry Scheck, co-founder of the Innocence Project, an organization dedicated to exonerating the wrongfully convicted, “if this report does not result in change, when will it ever happen?” The Report called for a complete overhaul of the crime lab system through the creation of mandatory certification of forensic science professionals, crime labs independent of law enforcement, a new federal agency to fund scientific research and develop basic standards, and a requirement that all expert witnesses be certified by the new federal agency. The report contained little more than what the research had shown over the past century that death investigation was heavily weighted toward prosecutors and law enforcement with few standards to guide its practice.1

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Early American coroner systems mimicked the English system of class and privilege. The development of a colonial philosophy of republican virtue encouraged everyday citizens like Paul Revere to participate in public service, many as coroners. Coroners functioned well in this colonial, agrarian society. Following the Revolution, the democratic form of government of the new republic, based on political parties and established primarily in the Ordinance of 1787, carried with it the contagion of political spoils. With democracy came a distrust of professions and authority as well as manipulations of the ballot box, tainting the founders’ original democratic intent. Governmental officials such as coroners often received their positions on the basis of political influence and spoils, not expertise or experience. During the nineteenth century, physicians tried and failed to institute a European model of death investigation consisting of trained medical police assisting courts and lawyers. Progressive reform, coupled with urban civic groups’ growing frustration, eventually led to the removal of coroners, corrupted by power and money, from their positions. Richard Childs perceived corruption of democracy first in the use of the long ballot and later in the manipulations of the inquest court by coroners and their political supporters. Progressives who believed in the promise of science and technology were horrified by stories of corrupt, inefficient coroners. They desired scientifically based medical examiner systems directed by professional death investigators. The result was the establishment of medical examiner offices in major centers such as Boston, New York, Newark, and Maryland. The directors of the Rockefeller Foundation saw crime as a major detriment to the democratic way of American life. Following a plan similar to the Flexner plan that had been used to improve medical education, they tried to reform death investigation on the basis of the foundation’s philosophy of developing a full-time academic teaching plan. The system was an initial success at Harvard under the direction of Alan Moritz but collapsed when financing from the foundation ended and the support of Harvard’s law school was not forthcoming. The development of a model law for death investigation seemed to promise a uniform system of professional death investigation. Childs pushed the plan and lobbied state legislatures to abolish coroner systems in exchange for physician medical examiners. He was challenged by Dr. Samuel Gerber, who saw the coroner system as one of the pinnacles of democracy and a watchdog over a corrupt political system. Although no states formally enacted the model law, by the late twentieth century, 60 percent of the American population was under some type of medical examiner system.

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A hard-fought effort to develop a forensic pathology subspecialty failed in part because pathologists saw forensic pathology as a governmental form of medicine due to the continued obstructions of politicians and coroners. The creation of a subspecialty in forensic pathology did not result in adequate numbers of practitioners. Medical examiners created a professional group to improve their profession by establishing standards and guidelines of practice. Still, while many medical examiners struggled under staggering workloads to elevate the field to legal and law enforcement communities, others fell prey to financial enticements and conflicting loyalties. The media continued to publish accounts of scandals involving forensic pathologists’ poor judgments and misunderstood practices, which drew attention as well to their inability to manage their offices or their involvements in financial embarrassments. Medical examiners and coroners had only themselves to blame for these exposures of incompetence or corruption. The result was a stagnation of the field such that new recruits were medical students “accidentally” attracted to the field. Medical examiners continued to fight a losing battle to retain their authority and autonomy in a changing medical environment in which they had to compete with bioethicists and transplant surgeons. They lost control in other areas of their work, such as organ procurement, professional autonomy, and the retention of organs for study. In the courtroom, forensic pathologists could appear incompetent or arrogant as they explained the scientific subjectivity of their work in front of judges and lawyers who attempted to fit medical practice into the confines of legal theory. This contributed to the 1993 U.S. Supreme Court ruling in the Daubert Trilogy limiting the authority of scientific testimony. Concerns over “junk science” and the inadequacies of crime laboratories also tainted the forensic pathologists’ reputation in the eyes of the public.2 As their authority came under increasing scrutiny, juries began to expect more scientific proof in order to reach a conviction. Partly because of the “CSI effect,” jurors increasingly expected forensic evidence in every case and expected it to be conclusive.3 Public health officials, willing partners in death investigation since their “discovery” of infant deaths and handgun violence, co-opted the public health role on which medical examiners had long prided themselves. Nevertheless, the public health system proved incapable of mounting a successful campaign to improve its only source of measurement of its success: death certification. Dependent on vital statistics from medical examiners and coroners, public heath officials could point only to cursory improve-

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ment in death certificate information. At the same time, they continued to call on medical examiners to provide them with the “treasure trove” of public health data hidden in medical examiner and coroner offices, which health epidemiologists went on to use to advance their own agendas. The federal government, though it relied on data from medical examiners and coroners, provided little if any significant funding to them.4 The evolution of medical examiner and coroner offices in a few large cities mirrors that of death investigation across the county. The first medical examiner system, in Boston, faced challenges to its authority because of a poorly worded statute. Once Harvard abandoned the office, it came under the control of the state police agency that left it a poorly funded, ineffective arm of law enforcement. Despite numerous attempts to return it to its previous status, as envisioned by Mortiz, it never did. The New York office by its sheer size led the nation. Despite almost continuous crises and internal conflict, by the end of the century, under the skilled direction of its medical examiner, it remained a model death investigative office, noted by pathologists at the NRC eighty years earlier. Chicago, with its big-city politics, retained the office of coroner throughout most of the twentieth century, despite repeated allegations of its coroners’ political corruption and incompetence. Only the repercussions of the Black Panther shootout were enough to sway public opinion to abolish the coroner system. The medical examiner system created in 1972 remained a high-quality one until the end of the century, when it died a slow death from a thousand budget cuts. Only Cleveland retained a coroner system. Despite the coming of medical examiner offices to other Ohio cities, the sound death investigative practices laid down by coroner Samuel Gerber and his successor ensured the voting public of quality service, coroner or not. In the first decade of the twenty-first century, the authority of medical examiners has faced renewed challenges. Forensic pathologists have been ordered by the courts to amend their autopsy reports when they have implicated use of Tazer devices in police-related deaths. They have been sued by families over the retention of organs and tissues. In the courtroom, justice advocates have blamed medical examiners for the growing numbers of convictions that have been exonerated by DNA technology. These events have demonstrated at times the strength of medical examiners’ presence in the courtroom and at other times the weakness of their professional authority.5 Faced with a disjointed patchwork of state laws and rules that govern medical examiners and coroners, the lack of qualification requirements for

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coroners, and the varying quality of death investigation throughout America, medical examiners have ruefully concluded that the authority of American medicine is incapable of surmounting the obstacles that have stymied them. “Unless the NIJ and CDC truly adopt the medical examiner community,” one forensic pathologist has warned, “the medical examiner/coroner community will continue as an orphan without a parent to care for and feed it.”6 Throughout the century the NRC underestimated how arduous a task it would be to improve death investigation. Despite the rare success stories of coroners’ improved education and practice in Kentucky and Indiana, the medical examiners argued that “coroners lacked proper training,” and that the system was “fraught with potential conflict of interest.”7 Medical examiners directed the brunt of their criticism at the federal government. Although it depends on medical examiners’ and coroners’ data and often criticizes the work of coroners, the federal government has not displayed support for a medical examiner system. But at the federal level the forensic community is not truly owned by law enforcement, public health, or traditional medicine. Policy makers and administrators often equate funding of forensic pathology as wasting money on the dead, and they fail to recognize that the community exists for the living . . . The message seems to be that the federal government has no interest in forensic pathologists or medical examiners. One might conclude that crimes resulting in death are not given a high priority in federal investigations. Certainly, dead victims will not bring lawsuits, complain to newspapers, or testify before Congress.8

The advance of forensic medicine in America has been not a progressive, inevitable process but a slow one with frequent setbacks and reversals. The diminishing the medical manpower supply threatens the future viability physician-based medical examiner systems, at a time of increasing questioning of scientific methods in the courtroom. With divided loyalties, organized medicine has been incapable of establishing lasting improvements. Unable to demonstrate tangible advantages of physician-led death investigation systems, medical examiners have been unable to eradicate completely either the coroner system or their own missteps. Thirty years since Quincy first appeared to sing the praises of forensic pathologists, little has changed. The 2009 NRC study issued a wakeup call to the forensic science community. The federal government had itself finally awakened to the call for reform and scientific standards in forensic sciences. The report finally endorsed medical examiner systems directing that:

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Congress should authorize and appropriate incentive funds to states and jurisdictions to establish medical examiner systems, with goal of replacing and eventually eliminating existing coroner systems.9

Supported by the report, medical examiners finally felt vindicated in their criticism of the coroner system and looked forward to its demise. Only time will tell.

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Notes Select Bibliography Acknowledgments Index

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Notes

Introduction 1. Steven C. Clark and Jeffrey M. Jentzen, “Medicolegal Death Investigator Training and Certification,” American Journal of Forensic Medicine and Pathology 17 (1996): 112–116. 2. James Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenthcentury America (New York: Oxford University Press, 1993). 3. Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982). Starr described a similar theory of progressive medicalization and professional authority for medicine in general. 4. Thomas F. Gieryn, Cultural Boundaries of Science: Credibility on the Line (Chicago: University of Chicago Press, 1999). Gieryn analyzed cultural boundaries of scientific authority. 5. Catherine Crawford and Helen Brock, “Forensic Medicine in Early Colonial Maryland, 1633–1683,” in Legal Medicine in History, ed. Michael Clark and Catherine Crawford (Cambridge: Cambridge University Press, 1994), 25–44. 6. Julie Johnson,”Coroners, Corruption and the Politics of Death: Forensic Pathology in the United States,” in Clark and Crawford, Legal Medicine in History, 268–293. 7. Stefan Timmermans, Postmortem: How Medical Examiners Explain Suspicious Deaths (Chicago: University of Chicago Press, 2006). 8. Rosemary Stevens, “The Challenge of Specialism in the 1900s,” in The American Medical Ethics Revolution, ed. Robert B. Baker, Arthur L. Caplan, Linda L. Emanuel and Stephen R. Latham (Baltimore: Johns Hopkins University Press, 1999), 85.

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1. Good and Lawful Men 1. Timothy Leary, “Early American Experience under the Coroner Laws,” New England Journal of Medicine 200 (1929): 760. 2. See Thomas Roger Forbes, “Crowner’s Quest,” Transactions of the American Philosophical Society 68 (1978): 5. 3. The duties of the coroner adapted for the United States can be found in James Parker, Conductor Generalis (New York: John Patterson, 1788). The evolution of English coroner duties can be found in R. F. Hunnisett, The Medieval Coroner (Cambridge: Cambridge University Press, 1961), and Ian A. Burney, Bodies of Evidence: Medicine and the Politics of the English Inquest, 1830–1926 (Baltimore: Johns Hopkins University Press, 2000). 4. See Thomas Forbes, “Crowner’s Quest”; J. D. J. Havard, The Detection of Secret Homicide; David Harley, “The Scope of Legal Medicine in Lancaster and Cheshire, 1660–1760,” in Legal Medicine in History, ed. Michael Clark and Catherine Crawford (Cambridge: Cambridge University Press, 1994); Thomas Forbes, “Life and Death in Shakespeare’s London,” American Scientist 58 (1970): 511–520. For nineteenth-century English coroners, see Thomas R. Forbes, Surgeons at the Bailey: English Forensic Medicine to 1878 (New Haven: Yale University Press, 1985), and Burney, Bodies of Evidence. 5. Daniel J. Boorstin, The Americans: The Colonial Experience (New York: Random House, 1958), 22. 6. See Havard, Detection of Secret Homicide, 28–36. 7. Leary, “Early American Experience,” 760. 8. W. Keith Kavenaugh, ed., Foundations of Colonial America: A Documentary History, 3 vols. (New York: Chelsea House, 1973), 2:1014. 9. This practice continued through the confederation period but quickly ceased with the new American Constitution in 1788. For example: “Inquisition taken at Roy Township and in the County afforsaid on the 11 Day of May in the year of our Lord one Thousand Seven Hundred and Seventy one and in the Eleventh Year of the Reign of Our Sovereign Lord George the Third by the Grace of God King of Great Britain France & Ireland Defender of the Faith & Before Mr. William Denny Coroner for our Sovereign Lord. The King,” in Cumberland County Coroner Records: 1799–2000, Cumberland County Historical Society, Carlisle, Pennsylvania, microfilm, roll no. 775, 142. 10. For example: “Upon your oaths, gentlemen, you are to declare of the death of this person, whether he died of felony or mischance, or accident, and if by felony, who were the principals, and who were the accessories, with what instrument he was struck or wounded, and so of all prevailing circumstances which may come by presumption; and if by mischance or accident, whether by the act of man, and whether by hurt, fall, stroke, drowning, or otherwise you are to inquire of the persons that were present, the finders of the body, his relations to neighbors, whether he was elsewhere, by whom and how he was brought from there and of all other circumstances, And if he died of his own felony [suicide] then you are to inquire of the manner, means or instrument, and of all circumstances concerning it.” Paul Revere Daily Journal: 1796–

Notes to Pages 11–13

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1801, page no. 3, Revere Papers, Massachusetts Historical Society (MHS), Boston. Laws Passed by the General Assembly of His Majesty’s Colony of Rhode Island and Providence Plantation in New England, Newport, August 1747, copy in Rhode Island State Archives, Providence. Peter Charles Hoffer, ed., Criminal Proceedings in Colonial Virginia, Richmond County (Athens: University of Georgia Press, 1984). Parker, Conductor Generalis, 129. Leary, “Early American Experience,” 759. Richard S. Dunn and Mary Maples Dunn, Papers of William Penn, 3 vols. (Philadelphia: University of Pennsylvania Press, 1982), 2:219. For additional information on the development of Pennsylvanian coroners, see Dorothy I. Lansing, “The Coroner System and Some of Its Coroners in Early Pennsylvania,” Transactions of the College of Physicians of Philadelphia 44 (1977): 135–139, and Russell F. Fischer and Edward O. Wilson, “The Medical Examiner System in Maryland—An Ideal System,” Maryland Medicine 17 (1968): 54. A complete description of the duties of Maryland coroners was not fully codified until John Robinson was appointed the first coroner in 1640. By 1666, coroners had been appointed for every county in Maryland. Massachusetts Province Laws, 1770. The duties of coroners in Massachusetts were delineated for the first time in the “Acts and Resolve of the Province of Massachusetts Bay Laws of 1770/01,” which allowed several coroners to be directly appointed by the governor. Parker, Conductor Generalis, 133. Inquest in the deaths of Thomas Fullerton and Thomas Farfith, Coroner Inquests, Collection of the Cumberland County Historical Society, Container 11–1–3. See Andrew Wear, Knowledge and Practice in Early English Medicine, 1550–1680 (Cambridge: Cambridge University Press, 2000), 115. The boundaries between educated and popular medical knowledge were “highly permeable” during this period. Until the late seventeenth century, ordinary people were expected to possess practical knowledge of medicine, including diagnosis and treatment of many illnesses. I am indebted to Dr. Carol Loar for this reference and insight. See Barbara Shapiro, Beyond Reasonable Doubt and Probable Cause (Berkeley: University of California Press, 1991), 4. According to historian Barabara Shapiro, the jury was “self-informing and acted as direct witnesses of fact”; in their hands rested both supply of testimony and the discerning and credit of testimony wholly to the juries’ consciences and understanding. This expansive role of the jury was made possible by their viewing of the body at the scene, their direct questioning of witnesses, and their examination of evidence at the scene. In a sense, the jury became the witnesses—frequently the only witnesses at the inquest. “An Act Relating unto the Office and Duty of the Coroner,” 1706, in Statutes at Large of South Carolina, ed. Thomas Cooper (Charleston: A.S. Overman, 1836).

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22. See Mark Jackson, “Suspicious Infant Deaths,” in Clark and Crewford, Legal Medicine in History, 76–77. According to Havard, William Harvey had rediscovered the test, first described by Galen fourteen hundred years earlier. The test probably was first used in the modern courtroom in 1682 on the continent and dates from the early eighteenth century in England. By 1777 the validity of the test came under question. See Havard, Detection of Secret Homicide, 7. 23. “Minutes of the Coroner Proceedings 1747–1758,” Rare Book and Manuscript Library, Butler Library, Columbia University, New York. For a review of infant death investigation in seventeenth-century England, see Jackson, “Suspicious Infant Deaths,” 65–115. For more American examples, see Abraham Blinderman, “The Coroner Describes the Manner of Dying in New York City, 1784–1816,” American Journal of Medicine 61 (1976): 103–110. 24. Eric Christianson, “Medicine in New England,” in Sickness and Health in America, ed. Judith Walzer Leavitt and Ronald L. Numbers, 3rd ed. (Madison: University of Wisconsin Press, 1997), 120. This is similar to the American doctor-to-patient ratio in 2000 of 1:1,000. 25. Helen Brock and Catherine Crawford, “Forensic Medicine in Early Colonial Maryland,” in Clark and Crawford, Legal Medicine in History, 25–44. In his study of Massachusetts’s coroners from 1654 to 1694, Paul Mellen found no evidence that Massachusetts’s physicians served as coroners or performed autopsies. See Paul Mellen, “Coroner’s Inquests in Massachusetts,” Journal of the History of Medicine and Allied Sciences 40 (1985): 462–472. 26. J. Worth Estes, “The Practice of Medicine in Eighteenth-Century Massachusetts,” New England Journal of Medicine 305 (1981): 1042. 27. Brock and Crawford, “Forensic Medicine in Early Colonial Maryland,” 33–34. See also Forbes, “Crowner’s Quest,” 42–48. In the view of Forbes, England and America lagged centuries behind continential Europe in using physicians to provide regular medical testimony and perform autopsies. 28. Michael Sappol, A Traffic of Dead Bodies (Princeton: Princeton University Press, 2002), 100–101. For a view of English practices, see Ruth Richardson, Death, Dissection, and the Destitute (London: Penguin, 1989). See also Mellen, “Coroners’ Inquests,” 464. 29. English courts abolished deodands in 1846, when the issue arose declaring deodand a railway train that had run over a man; Timothy Leary, “The Medical Examiner System,” Journal of the American Medical Association 89 (1927): 579. See also Parker, Conductor Generalis, 140–141. For a description of the rise and fall of the English medieval inquest see Havard, Detection of Secret Homicide, 11–36. 30. Puritan concepts of crime and punishment can be found in Karen Halttunen, “The Murder as Common Sinner,” in Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, Mass.: Harvard University Press, 1998), 7–32. 31. Cumberland County Coroner Records: 1793–2000, Office of the Coroner, Mechanicsburg, Pennsylvania, 334. Cumberland County became the sixth Pennsylvania county in 1751, created “on grounds of remoteness from Lancaster where the courts were held and public offices were kept at some dis-

Notes to Pages 15–17

32. 33.

34. 35. 36. 37. 38.

39.

40.

41.

42.

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tance.” William Denny, Cumberland County coroner in 1768–1770, was the first coroner west of the Susquehanna River. The county region had a population of 6,000 in 1729, which grew to 25,386 by 1800. For a listing of coroners from 1765 to 1780, see Conway R. Wing, History of Cumberland County, Pennsylvania (Philadelphia: James O. Scott, 1879), 90. “The sheriffs and Coroners were chosen at the same time with the representatives at the county elections, two being chosen for each office, from whom the Governor selected one who might be elected three years successively, but not more, until he had been out of office three years” (18). Mellen, “Coroners’ Inquests,” 464. James Cassedy, “Church Record-keeping and Public Health in Early New England,” in Medicine in Colonial Massachusetts 1620–1820, ed. Fredric S. Allis, Jr. (Boston: Colonial Society of Massachusetts, 1980), 57: 257. During the colonial period the clergy, not the coroner or civil government, monitored public health by maintaining the vital records of the community, including bills of mortality and death records. Cassedy documented how the seventeenthand eighteenth-century clergy emerged as the de facto health monitors of the entire community by providing valuable ledgers of vital records. Coroner’s inquest records, typically scant in detail, added only circumstantial information to limited numbers of unnatural deaths. Brock and Crawford, “Forensic Medicine in Early Colonial Maryland,” 34–35. Inquest into the Death of Cesar, 16 April 1800, Cumberland County Coroner Records, roll 1. Paul Revere, “Coroner’s Inquests 1796–1801,” Revere Papers, MHS, vol. 51, pt. 1, p. 7. Ibid., “Inquest of Jesse Porter,” 8. Benjamin Rush, Sixteen Introductory Lectures to Courses of Lectures upon the Institutes and Practice of Medicine (Philadelphia: Bradford and Innsharp, 1811). For a discussion of Rush’s thoughts on the connection between jurisprudence and medical ethics, see Chester R. Burns, “Setting the Stage: Moral Philosophy, Benjamin Rush and Medical Ethics in the United States before 1846,” in The American Medical Ethics Revolution, ed. Robert Baker, Arthur Caplan, Linda Emanuel, and Stephen Latham (Baltimore: Johns Hopkins University Press, 1999), 3–15. Brenda White, “Training Medical Policemen: Forensic Medicine and Public Health in Nineteenth-century Scotland,” in Clark and Crawford, Legal Medicine, 145–147. Chester R. Burns, “Medical Ethics and Jurisprudence,” in The Education of American Physicians, ed. Ronald L. Numbers (Berkeley: University of California Press, 1980), 275–277. Frank L. Kozelka, “Legal Medicine in the United States,” in Ciba Symposia 11 (1950): 1305–1311. Also see Burns, “Medical Ethics and Jurisprudence,” 273–275. James C. Mohr, Doctors and the Law (New York: Oxford University Press, 1993), 29–41.

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43. Rules regarding medical ethics were not established until the AMA Code of Ethics in 1847. Before that time, physicians had to demonstrate their ethical integrity by their actions and presence; thus the emphasis on developing courtroom presence. See Chester R. Burns, “Setting the Stage: Moral Philosophy, Benjamin Rush, and Medical Ethics in the United States before 1846,” in Baker et al., American Medical Ethics Revolution, 3–6. 44. Mohr, Doctors and the Law, 84; quoted from T. R. Beck’s 1828 presidential address to the New York Medical Society. 45. Refer to Robert L. Potts, “The Unique Alabama System for Investigation of ‘Public Interest’ Deaths—A Description, an Evaluation and a Suggestion for Change” (master of law thesis, Harvard Law School, 1971), 12–15, and Kentucky Law Journal 52 (1963–1964): 40–41. The first session of the Alabama legislature in 1819, for example, passed a law providing for the appointment of coroners for three-year terms. States imposed no qualifications for those holding the office of coroner. Elections of coroners in Alabama occurred only after 1878. Conversely, the coroner was an elected officer in each county under Kentucky’s first constitution in 1792. The position was an appointment by the governor under the second constitution but was made elective again under the constitution of 1850. In New York, the state constitution of 1777 allowed the governor and four senators to select coroners for individual counties. 46. Mohr, Doctors and the Law, 86. 47. Cumberland County Coroner’s Records, 3 Jan 1818, roll 1. 48. Mohr, Doctors and the Law, 103. 49. Ibid., 86. 50. Editorial, Boston Medical and Surgical Journal 33 (1846): 66. 51. David Humphreys Storer, An Address on Medical Jurisprudence Delivered before the Fellows of the Massachusetts Medical Society (Boston: John Wilson, 1851), 33. 52. Editorial, Boston Medical and Surgical Journal 35 (1846): 350–355. England, like America, waged a campaign to medicalize the coroner’s inquest. English medical reformer Thomas Wakley argued for medical coronerships in 1830, eventually becoming a coroner himself in 1839. His efforts revolutionized the English coroner system and brought about the 1860 Coroners Act. See Burney, Bodies of Evidence, 1–15. 53. For a detailed review of the AMA’s early involvement and medical jurisprudence, see Mohr, Doctors and the Law, 226–236. 54. Morris Fishbein, The History of the American Medical Association (Philadelphia: W. B. Saunders, 1947), 1011, 1017. 55. Stanford Chaillé, “Origin and Progress of Medical Jurisprudence, 1776–1876: A Centennial Address” (Philadelphia, 1876), Journal of Criminal Law and Criminology 40 (1949): 407. 56. Ibid. James Mohr remarked that the sour tone of the address signaled that physicians no longer considered the medicalization of the coroner a “winnable fight.” 57. Boston Daily Globe, 16 March 1877, 1; Boston Medical and Surgical Journal 96 (1877): 243–248; Boston Advertiser, 8 April 1877.

Notes to Pages 21–23

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58. “How Coroners Are Appointed,” editorial, Boston Medical and Surgical Journal 93 (1875): 337–338. 59. Editorial, Boston Medical and Surgical Journal 95 (1876): 767–768. 60. Theodore H. Tyndale, “The Law of Coroners,” Boston Medical and Surgical Journal 154 (1877): 246–247. “You have in the coroner an officer armed practically with the utmost powers of the law. He decides in the first place upon his discretion, whether an inquest be necessary or not; it is obvious how large are the opportunities for corruption in this direction: that for a man whose cupidity or possible culpability and fear are stronger than his honor or integrity, it would not be difficult to thwart justice and close the door to all judicial investigation of a crime by corruptly declaring an inquest unnecessary, and even aiding in the removal of suspicion and the concealment of the evidence and trace by authorizing a speedy burial. But if he may on the one hand shield the guilty and endanger the public safety, on the other, the opportunities for a man prompted by malice and vindictiveness to the desire for cheap notoriety are enough, truly, to make us tremble. With full judicial powers of examination and commitment, with his chosen constable selecting his own jury, with supreme control of the investigation, which with the consent of his jury he may make secret, with the selection of his medical witness and the power to summon and hear or omit and exclude whomsoever he will, uncontrolled by superior authority and responsible practically to no one for his action, he may bring ruin upon a life, or forever cloud and embitter it, throwing suspicion upon the character of the living and blackening the memory of the dead; he may oppress and harass a stricken household with cause and without justification—in a word he may make an inquest in the worst sense of the term an Inquisition.” See also Timothy Leary, “The Medical Examiners System,” Journal of the American Medical Association 89 (1927): 579–583. 61. “Reform of the Coroner System,” editorial, Boston Medical and Surgical Journal 95 (1876): 767–76; “Reform of the Coroner Laws,” Boston Medical and Surgical Journal 96 (1877): 204–205; and “The Coroner Bill,” Boston Medical and Surgical Journal 96 (1877): 443–444. 62. “The Coroners Must Go,” editorial, Boston Medical and Surgical Journal 109 (1880): 280. 63. Tyndale, “Law of Coroners,” 252. 64. “Constitution of the Massachusetts Medico-Legal Society,” in Timothy Leary, The Massachusetts Medico-Legal Society: A Biographical Directory 1877– 1937 (Boston: Massachusetts Medico-Legal Society, 1937): 15. See also Timothy Leary, “The Massachusetts Medico-Legal Society,” Medicolegal Journal 6 (1929): 52–64, and Luke G. Tedeschi, “The Massachusetts Medico-Legal Society,” American Journal of Forensic Medicine and Pathology 2 (1981): 257–260. Associate members of the society included Supreme Court Justice Oliver Wendell Holmes Jr., leaders of the medical community, and of the faculty of Harvard Medical School, including Henry Bowditch, and Thomas Dwight. New York City had a similar Medico-Legal Society, but it did not have the success of the Boston group. 65. Commonwealth of Massachusetts, 1877, House Bill no. 341, sec. 7. See also

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Notes to Pages 23–25

66.

67.

68.

69. 70.

71.

72.

73. 74.

 224

J. A. Mead, “What Cases Shall the Medical Examiner View?” Boston Medical and Surgical Journal 131 (1894): 362. Hosea M. Knowlton, “On the Duties of a Medical Examiner,” Transactions of the Massachusetts Medico-Legal Society 13 (1897): 317–327. Knowlton, the attorney general of Massachusetts, argued in favor of extending the jurisdiction of medical examiner to include nonviolent deaths. Richard S. Childs, “The National Municipal League: What Is It?” [draft copy] 29 October 1971, Richard S. Childs Papers, Rare Book and Manuscript Library, Butler Library, Columbia University. The league began in 1894 in Philadelphia and initially focused its efforts on municipal government reform. In 1920 the league produced a model state constitution and in 1956 a model county charter. The league worked closely with governmental reform organizations such as the League of Women Voters, the City Club, Citizens Union, and others. See Glenda Elizabeth Gilmore, Who Were the Progressives? (Boston: St. Martin’s Press, 2002). For a review of judicial and criminal reform during the Progressive period, see Raymond Fosdick, The American Police System (New York: Rockefeller Foundation, 1924), and Eric H. Monkkonen, Murder in New York City (Berkeley: University of California Press, 2001). Monkkonen explored the fallacies about murder in cities. With regard to New York City, he found that prior to 1958 New York had a lower homicide rate than the rest of the country. As the city became more populous, it became safer. When the criminal justice system was most corrupt, homicide rates were lowest. Finally, poverty and veterans returning from war were not responsible for homicides. In short, increases and decreases in the homicide rate cannot be predicted or explained. Samuel Baker, “A Strange Case: The Physician Licensure Campaign in Massachusetts in 1880,” Journal of History of Medicine 40 (1985): 286–308. R. H. Gradwohl, “The Office of Coroner: Its Past, Its Present, and the Advisability of Its Abolishment in the Commonwealth of Missouri,” Journal of the American Medical Association 54 (1910): 842–846. Gradwohl in time reversed his opinion in calling for the removal of coroners. In his 1953 book, he called for improvements in death investigations, stating that there were not bad coroners, just bad investigators. “An Act Relating to Medical Examiners and Coroners,” editorial, Boston Medical and Surgical Journal 111 (1884): 300. See also Alan Moritz, “The Medical Examiner System in Rhode Island,” Rhode Island Medical Journal 25 (1942): 205. For a review of the coroner system at the turn of the century, see S. W. Abbott, “The Coroner System in the United States at the Close of the Nineteenth Century,” Boston Medical and Surgical Journal 68 (1900): 418–420. George P. LeBrun, It’s Time to Tell; As Told to Edward D. Radin (New York: Morrow, 1962), 144. See his chapter “Coroners for Sale,” and William G. Eckert, “Medicolegal Investigation in New York City,” American Journal of Forensic Medicine and Pathology 4 (1983): 33–54. “Coroners and Physicians, Medical Examiners Suggested to the Medical Society,” editorial, New York Times, 23 December 1902, 9. “The Passing of the Coroner,” Journal of the American Medical Association

Notes to Pages 25–29

75.

76. 77.

78. 79.

80.

81.

82. 83.

84. 85. 86.

 225

291 (2004): 2026, and “The Veto of the Anti-coroner’s Bill in New York,” Journal of the American Medical Association 291 (2004): 2264. The political power of the mayor often impeded state law. Bernard Hirschhorn, Democracy Reformed: Richard Spencer Childs and His Fight for Better Government (Westport, Conn.: Greenwood Press, 1985). Childs believed the three main defects in corrupted municipal government were the long ballot; an unwieldy, uninformed constituency; and diffuse power (22). He sought to decrease the number of elected officials and by doing so to create an efficient, appointed form of government under the control of a central elected official responsible to the electorate. For Childs, the short ballot represented real representative government. William Eckert, “Medicolegal Investigation in New York City: History and Activities 1918–1978,” Journal of Forensic Medicine and Pathology 4 (1983): 36. The Abolition of the Office of Coroner in New York City (New York: New York Short Ballot Organization, 1914). See also Bernard Hirschhorn, “Richard Spencer Childs (1882–1978): His Role in Modernization of Medicolegal Investigation in America,” American Journal of Forensic Medicine and Pathology 4 (1983): 245–254. Although life insurance companies began to appear in the colonial period, a series of events—including insurance reform, as a result of the Armstrong Committee hearings, creation of group policies, and inexpensive industrial policies—restored public confidence in life insurance, which helped fuel the insurance boom of the early twentieth century. See Sharon Ann Murphy, “Life Insurance in the United States through World War I,” in EH Net Encyclopedia, ed. Robert Whaples (2006). Eckert, “Medicolegal Death Investigation in New York City,” 37. Leonard Michael Wallstein, Report on Special Examination of the Accounts and Methods of the Office of Coroner in New York City (New York: Office of the Commissioner of Accounts, 1915): 82. “An Act to Amend the Greater New York Charter Creating the Offices of Chief Medical Examiner, Deputy Chief Medical Examiner and Assistant Medical Examiners, Prescribing Their Powers and Duties, Abolishing the Office of Coroner and Repelling Certain Sections of Chapter Four Hundred and Ten of the Law of Eighteen Hundred and Eighty-two in Relation to Coroners,” State of New York, Assembly Bill 905 (1914). Charles M. Higgins, “Restore the Coroners: Check Dangerous Medical Domination and Protect Public Right and Safety,” open letter to Legislature of New York (1918), New York Public Library Archives. S. A. Levinson, “The History and Progress of the Scientific Work of the Cook County Coroner’s Office,” Archives of Pathology 29 (1940): 145–146. Chicago Bureau of Public Efficiency, Administration of the Office of Coroner of Cook County, Illinois, Report Prepared for the Judges of the Circuit Court by the Chicago Bureau of Public Efficiency (Chicago: 1911), 1, 14. For a review of an early law on autopsies see Woods v. Graham et al., (Minn.) 167 N. W. R. 113. Medical News, Journal of the American Medical Association 91 (1928): 503. Edwin F. Hirsch, “The Growth of Forensic Pathology in Illinois,” Proceedings of the Institute of Medicine of Chicago 26 (1967): 315. All of the pathologists

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Bundesen appointed were on staff at major medical schools. “Staff of New Coroner,” Journal of the American Medical Association 91 (1928): 1811. 87. The Coroner’s Office: Report of the Investigation Made by the Coroner’s Committee of the Municipal Association in the Interest of Economy and Efficiency. Efficiency series report no. 2 (Cleveland: Municipal Association of Cleveland, 1912). For a review of the origins of municipal reform in Cleveland, see Shelton Stromquist, “The Crucible of Class: Cleveland Politics and the Origins of Municipal Reform in the Progressive Era,” in Gilmore, Who Were the Progressives, 157–161. 88. See Oscar T. Schultz, “The Coroner’s Office,” Annals of Academic Polices and Social Sciences (May 1913). 89. Herman M. Adler, “Crime Detection by the Coroner’s Office,” pt. 5 of “Medical Science and Criminal Justice,” in Criminal Justice in Cleveland: Reports of the Cleveland Foundation Survey of the Administration of Criminal Justice in Cleveland, Ohio, ed. Roscoe Pound and Felix Frankfurter (Cleveland: 1924), 472. The reviewers included Dean Roscoe Pound and Professor Felix Frankfurter of Harvard Law School, who served under the direction of Raymond Fosdick of the Rockefeller Foundation. In 1915 Fosdick had studied the European police system, and in 1924 he had investigated the problems of criminal investigation in America. Fosdick’s final report on crime in Cleveland recommended that the office of coroner be abolished and that a new law be created similar to those in New York and Massachusetts establishing a medical examiner system.

2. Rockefeller Philanthropy and the Harvard Dream 1. J. Louis Jouchiam and Edmund M. Morgan, The Legacy of Sacco and Vanzetti (New York: Harcourt Brace, 1932). See also Bruce Watson, Sacco & Vanzetti: The Men, the Murders, and the Judgment of Mankind (New York: Viking Penguin, 2007) and Jurgen Thorwald, The Century of the Detective (New York: Harcourt, Brace, 1964), 435–450. George Burgess Magrath, the medical examiner from the southern district of Boston, performed the autopsy on the fatally wounded guard. He testified that he had scratched three lines in the base of the fatal bullet he recovered from the guard. The markings allegedly did not match those on the bullet examined by the court, which created a suspicion that the police had tampered with the evidence. 2. Calvin Goddard, “The St. Valentine’s Day Massacre: A Study in AmmunitionTracing,” American Journal of Police Science 1 (March–April 1930): 60–79; Thorwald, Century of the Detective, 448–452. 3. The Sacco and Vanzetti Case, Transcript of the Record of the Trial of Nicolo Sacco and Bartolomeo Vanzetti in the Courts of Massachusetts and Subsequent Proceedings,1920–1927, 5 vols. (New York: Holt, 1928). 4. Ron Chernow, Titan: The Life of John D. Rockefeller, Sr. (New York: Vintage Books, 1999), 493. See also E. Richard Brown, Rockefeller Medicine Men (Berkeley: University of California Press, 1979). 5. In 1927 the Rockefeller Foundation, at the urging of Abraham Flexner, granted Karsner and Western Reserve University in Cleveland $700,000 to build a de-

Notes to Pages 33–35

6.

7.

8.

9.

10. 11.

12.

 227

partment of pathology along the lines of the European pathology institutes. The new institute represented both the symbolic and the practical aspects of the new American medical science—service, research, and teaching. The institute would be only the second such department in the United States—the first being Johns Hopkins under the direction of William Welch, also funded by the foundation— that combined departments of pathology, bacteriology, chemistry, and immunology under one roof. Howard T. Karsner, “The New Institute of Pathology,” Dittrick Medical History Center app. A of President’s Annual Report, Medical School Section, Western Reserve University (1928–1928): 137–141. In addition to Norris, the committee consisted of William G. MaCaullum, professor of pathology at Johns Hopkins University; George Burgess Magrath, medical examiner for southern Boston; Dr. Douglas Symmers, director of laboratories at Bellevue Hospital in New York City; Dr. Edwin R. LeCount of Rush Memorial Hospital in Chicago; and Dr. James Ewing of Cornell Medical College. For a review of the creation of the National Research Council, see A. Hunter Dupree, Science in the Federal Government (Baltimore: Johns Hopkins University Press, 1986), 309–315. The numerous letters discussing the plan by this initial group to perform a nationwide survey are contained in Medicolegal Survey 1922–32, box 50, ser. 1.5, Rockefeller Foundation Archives. Norris’s criticism of American death investigation can be found in Charles Norris, “The Office of Chief Medical Examiner: Its Relation to the Public, the District Attorney’s Office and the Medical Profession, New York State Journal of Medicine 19 (1919): 189–195. For information on the Rockefeller and Carnegie foundations, see also Brown, Rockefeller Medicine Men. Abraham Flexner moved to the board of the Rockefeller Foundation as an at-large member in 1913. His demanding and arrogant style eventually resulted in his removal in 1928. See Thomas Neville Bonner, Iconoclast: Abraham Flexner and a Life of Learning (Baltimore: Johns Hopkins University Press, 2002). Ludvig Hektoen to Adolph Meyer, 4 October 1922, Committee on Medicolegal Problems, Division of Medicine, Archives of the National Academy of SciencesNational Research Council (hereafter cited as NAS-NRC). Ludvig Hektoen to Charles Norris, 4 October 1922, Medico-Legal Survey, box 50, ser. 1.5, Rockefeller Foundation Archives. For more information on Hektoen see Morris Fishbein, “Ludvig Hektoen: A Biography and Appreciation,” Archives of Pathology 26 (1938): 1–31; John G. Gruhun and Fredrick Steigman, “Ludvig Hektoen, 1863–1951: Founding Editor of the Archives of Pathology and Laboratory Medicine,” Archives of Pathology 1 (1993): 748–753; and Ludvig Hektoen, “Biologic Tests for Medicolegal Purposes,” New England Journal of Medicine 199 (1928): 120–126. Ludvig Hektoen, memorandum, National Research Council, 24 April 1928, NAS-NRC. Ludvig Hektoen, “Proposal for a Survey of the Provisions and Facilities for Postmortem and Other Examinations for Medicolegal Purposes,” 28 May 1925, Medico-Legal Survey, box 50, ser. 1, Rockefeller Foundation Archives. Victor Vaughan to Roscoe Pound, 14 December 1925, NAS-NRC.

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13. Meeting Minutes, Committee on Medicolegal Problems, National Research Council Division of Medical Sciences, 16 January 1925 and 13 February 1926, Medico-Legal Survey, box 50, ser. 1.5, Rockefeller Foundation Archives. 14. Oscar T. Schultz and E. M. Morgan, “The Coroner and the Medical Examiner,” Bulletin of the National Research Council 64 (1928). 15. Ibid., 30. This comment and others indicating “the present incumbent had no experience especially fitting him for the work,” as well as the conclusion, “New Orleans presents an example of the coroner’s system in its most inadequate form,” resulted in a threatened lawsuit by the New Orleans coroner. Eventually, the NRC provided an insert to the original report indicating that the coroner had attended the schools he indicated. See Coroner and Medical Examiner Criticisms and Supplementary Note, file, NAS-NRC. 16. Schultz and Morgan, 75. 17. “The Reformation of the Coroner’s Office,” editorial, Journal of the American Medical Association 91 (1928): 96. The 1926 Coroners (Amendment) Act modernized the British coroner system of inquests by “uncoupling the body from the inquest” and requiring coroners to be physicians. Ian A. Burney, Bodies of Evidence (Baltimore: Johns Hopkins University Press, 2000), 166. 18. George H. Weinmann, “The Law of Dead Human Bodies,” National Research Council Bulletin 68, (1929) and Compendium of State Laws of Coroners and Medical Examiners, United States, file, NAS-NRC. 19. Oscar T. Schultz, “Possibilities and Need for Development of Legal Medicine in the United States,” Bulletin of the National Research Council 87 (1932). 20. Ibid., 5. Schultz wrote profusely on the topic; see also his “Present Status and Future Development of Legal Medicine in the United States, Archives of Pathology 15 (1933): 542–566; “A Physician Examines the Coroner,” National Municipal Review 25 (1936): 577–584; and “Reform in County Government and the Coroners’ Office, American Journal of Clinical Pathology 5 (1935): 316. 21. Schultz, “Possibilities and Need,” 48. 22. Oscar T. Schultz to Ludvig Hektoen, 21 April 1930, NAS-NRC. 23. Oscar T. Schultz to Ludvig Hektoen, 24 October 1929, NAS-NRC. In 1932, the Department of Forensic Medicine, the first such department in the United States, was established at the New York University School of Medicine. See Milton Helpern, “Development of Department of Forensic Medicine at New York University School of Medicine,” New York State Journal of Medicine (April 1972): 831–833. 24. Harvey S. Thatcher, “Medico-legal Pathology,” Southern Pathological Conference Reports, 13 February 1933, Harvard University Legal Medicine, ser. 200, box 87, folder 1051, Rockefeller Foundation Archives. 25. Oscar T. Schultz to Ludvig Hektoen, 24 October 1929, NAS-NRC. 26. Claire Bond Potter, War on Crime: Bandits, G-men, and the Politics of Mass Culture (New Brunswick, N.J.: Rutgers University Press, 1998). 27. Oscar T. Schultz, “Our Antiquated Coroner System, Hygiena (October 1930): 912. Schultz also began writing in medical and political journals to encourage physicians to become more politically active; see his “Present Status and Fu-

Notes to Pages 39–45

28.

29. 30.

31.

32.

33. 34. 35.

36. 37. 38. 39. 40. 41.

42.

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ture Development,” “Why the Medical Examiner, Instead of the Coroner?” California and Western Medicine 43 (1935): 275, and “Physician Examines the Coroner.” Eben J. Carey, “Medical Exhibits at a Century of Progress International Exposition,” Journal of the American Medical Association 19 (May 1934). See also Century of Progress Archives, University of Illinois, Chicago, Special Collections. Editorial, Archives of Pathology 17 (1934): 775–797. Alan Gregg, Officer’s Diary, 14 March 1935, Diaries, Record Group 1.1 Series 200 Box 87, Rockefeller Foundation Archives. For more on George Burgess Magrath, see Luke T. Tedeschi, “George Burgess Magrath: Tribute to a Resting Lion,” American Journal of Forensic Medicine and Pathology 1 (1980): 169–172. “Minutes of the first meeting of the Committee to Consider the Future of Legal Medicine at Harvard University,” 13 April 1936, Harvard University Legal Medicine, box 87, folder 1051, ser. 200, Rockefeller Foundation Archives. For a discussion of the Rockefeller General Education Board’s full-time plan, see Brown, Rockefeller Medicine Men, 157–167, and Bruce Fye, “The Origin of the Full-time Faculty System,” Journal of American Medical Association 265 (1991): 1555–1562. Resolution 39029, 19, Harvard University Legal Medicine, box 87, ser. 200, Rockefeller Foundation Archives. Alan R. Moritz, interviewed by Mary Daley, 18 November 1983, Moritz file, Rare Book Collection, Case Western Reserve University. R. A. Lambert to Alan Gregg, 8 December 1940, Harvard University Legal Medicine, box 87, folder 1052, ser. 200, Rockefeller Foundation Archives. See Alan R. Moritz, “Legal Medicine in Europe,” American Journal of Medical Jurisprudence 2 (1939): 73. Lee’s collection is described in Richard F. Dempewolff, “Mysterious Death Their Business,” Popular Mechanics 100 (1953): 67–69, 238, 245. Alan Moritz to A. S. Giordano, 8 May 1941, Harvard University Legal Medicine, box 87, folder 1053, ser. 200, Rockefeller Foundation Archives. Alan Richards Moritz, The Pathology of Trauma (Philadelphia: Lea and Febiger, 1942). Alan R. Moritz to Alan Gregg, 23 May 1947, Harvard University Legal Medicine, box 87, folder 1055, ser. 200, Rockefeller Foundation Archives. Alan Moritz to Olin West, 19 June 1941, Harvard University Legal Medicine, box 87, folder 1052, ser. 200, Rockefeller Foundation Archives. “Report of the Committee of the American Medical Association to Study the Relationship of Medicine and Law,” Journal of the American Medical Association 125 (1944): 577–583. The Maryland was the first state to develop a centrally directed state medical examiners system in 1939. All counties became part of this system except Cecil County, whose state senator could “see no reason why we must hand over to the medical profession the affairs of the state.” The Postmortem Examiner’s Law eventually included Cecil County in 1941. See Edward F. Wilson and Russell S. Fischer, “The Medical Examiner System in Maryland—An Ideal

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Notes to Pages 45–49

43. 44.

45.

46. 47. 48.

49. 50. 51.

52. 53.

54. 55.

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System,” Maryland Medical Journal (December 1968): 51–62. This successful effort is described by K. E. Lande and S. R. Wells, “Experiences under the Medical Examiner System, Journal of the American Medical Association 125 (1956): 897–900. See also “The Maryland Medical Examiner Act,” Journal of the American Medical Association 113 (1939): 961–962; “The Maryland Medical Examiner Act,” Journal of the American Medical Association 113 (1939): 324. Moritz, “Report of the Committee,” 2. See Samuel R. Gerber, “Advantages of the Coroner System Over of That of the Medical Examiner System,” Journal of the American Medical Association (1942): and “Adequate Medical Examination in Unexpected and Violent Deaths,” Journal of the American Medical Association 138 (1948): 1190–1191. Journal of the American Medical Association 130 (1946): 6. For another editorial supporting the medical examiner system see “Medical Science and the Administration of Justice,” Journal of the American Medical Association 138 (1948): 751–752. Alan Gregg, Diary, 2 February 1942, Harvard University Legal Medicine, box 87, folder 1054, ser. 200, Rockefeller Foundation Archives. Alan Gregg, Officer’s Diary, 23 March 1943, Harvard University Legal Medicine, box 88, folder 1054, ser. 200, Rockefeller Foundation Archives. For a review of the Virginia process see “Coroner and Medical Examiner Systems,” Journal of the American Medical Association 137 (1948): 170–171. After only two years Virginia abolished its commission and placed the medical examiner under the department of public health. R. A. Lambert, 31 March 1943, Harvard University Legal Medicine, box 88, file 1054, ser. 200, Rockefeller Foundation Archives. Alan Gregg, Diary, 16 April 1947, Harvard University Legal Medicine, box 88, folder 1054, ser. 200, Rockefeller Archives. See Joseph D. Schwendeman, “Crack State Pathologist Always Set for Crime Call,” New Bedford (MA), Standard-Times 4 August 1946. The story captured the interest of the Boston area in 1946 and was front-page news in the Boston Globe throughout August. Alan R. Moritz to Alan Gregg, 23 May 1947, Harvard University Legal Medicine, box 88, folder 1055, ser. 200, Rockefeller Foundation Archives. Moritz’s wartime research included several studies on the effects of extremes of heat and cold on the body. See for example Alan Moritz and F. C. Henriques, “The Effects of Inhaled Heat on the Air Passages and Lungs,” American Journal of Pathology 125 (1945): 577; Alan Moritz and N. Zamcheck, “Sudden and Unexpected Deaths in Young Soldiers,” Archives of Pathology 42 (1946): 459; and Alan Moritz and F. C. Henriques, “Studies of Thermal Injury,” pt. 2, “The Relative Importance of Time and Surface Temperature in the Causation of Cutaneous Burns,” American Journal of Pathology 43 (1947): 466. See additional references in Publications of Alan Richards Moritz file, Moritz file, Rare Book Collection, Case Western Reserve University. Alan R. Moritz to Alan Gregg, 1 February 1948, Harvard University Legal Medicine, box 00, folder 00, ser. 00, Rockefeller Foundation Archives. Alan Gregg to Sidney Burell, 21 December 1948, Harvard University Legal Medicine, box 88, folder 1057, ser. 200A, Rockefeller Archives.

Notes to Pages 49–55

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56. Richard Ford to Allan Gregg, 14 September 1949, Harvard University Legal Medicine, box 88, folder 1057, ser. 200, Rockefeller Foundation Archives. 57. Alan Gregg, Officer’s Diary, 22 June 1952, Rockefeller Foundation Archives. 58. Frances Glessner Lee to Alan Gregg, 31 January 1951, box 88, folder 1058, ser. 200, Rockefeller Archives. Lee had wanted to send a copy of the letter to Ford, which undoubtedly would have dejected him and the department, however, with Gregg’s cajoling, Lee resisted the temptation. See Alan Gregg to Frances Glessner Lee, 16 February 1951, box 88, folder 1058, ser. 200A, Rockefeller Archives. 59. Alan Gregg Diary, 19 March 1952, Harvard University Legal Medicine, box 88, folder 1058, ser. 200A, Rockefeller Archives. 60. States and cities that developed medical examiner systems included Maryland, Virginia, and Milwaukee. In 1927, Newark, New Jersey, established its medical examiner system, predating the NRC report. The following states had attempted to eradicate the coroner but failed: Colorado, Delaware, Iowa, Kansas, Michigan, Ohio, Oklahoma, Oregon, Vermont, and Washington.

3. A Model Law 1. Gerber’s involvement in the trial was described by James Neff, The Wrong Man: The Final Verdict of the Dr. Sam Sheppard Murder Case (New York: Random House, 2001). The case spawned the successful ABC television series The Fugitive (1963–1967), which was based on the details of the case against Dr. Sam Sheppard. See Cleveland Plain Dealer, 28 March 1956. 2. Richard S. Childs, “Rubbing Out Coroners,” National Municipal Review 39 (1950): 494–496. 3. Richard S. Childs, “The National Municipal League—What Is It?” [draft] 29 October 1971, Richard Spencer Childs Papers, box 8, Rare Book and Manuscript Collection, Butler Library, Columbia University (hereafter cited as RSC Papers). See also Frank M. Stewart, A Half Century of Municipal Reform: The History of the National Municipal League (Berkeley: University of California Press, 1950). 4. Bernard Hirschhorn, Democracy Reformed: Richard Spencer Childs and His Fight for Better Government (Westport, Conn.: Greenwood Press, 1997), 149–151. 5. Quoted in part from Richard Hofstadter, The Age of Reform (New York: Vantage Books, 1956), 5–6. Quotation from H. S. Gibertson, The County: “The Dark Continent” of American Politics (New York: National Short Ballot Association, 1917). 6. Bernard Hirschhorn, “Richard Spencer Childs (1882–1978),” American Journal of Forensic Medicine and Pathology 4 (1983): 248. Childs knew the information was incorrect but thought the statement would mobilize legislators and the public to espouse his cause. 7. Ibid., 247. 8. Richard Ford to Allan Gregg, 14 September 1949, Harvard University Legal Medicine, box 88, folder 1057, ser. 200, Rockefeller Foundation Archives, Rockefeller Archives Center.

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9. A Model State Medico-legal Investigative System (New York: National Municipal League, 1951). 10. Hirschhorn, Democracy Reformed, 152. 11. Ibid., 4. 12. Ibid., 7. 13. See Pete Martin, “How Murderers Beat the Law,” Saturday Evening Post, 10 December 1949. Thomas C. Desmond, “The Coroner Racket: A National Scandal,” Coronet, May 1950; Lawrence Galton, “Murder by Courtesy of the Coroner, Cosmopolitan, November 1950. 14. Victor Cohn and Charles W. Bailey, “Hidden Murder,” Minneapolis Morning Tribune, reprint, February 1953. Similar series were carried in other cities. See Dave Feldman, “You Can Get Away with Murder,” Tucson Daily Citizen, 1957, reprint. Copy in Richard S. Childs Papers, Rare Book and Manuscript Library, Columbia University, New York. 15. Ibid., 8. 16. Laws of Minnesota, chap. 390 (1965): 273. 17. John I. Coe, interview by author, 28 February 2003, Minneapolis. See also Hirschhorn, Democracy Reformed, 155. 18. Samuel R. Gerber, “The Status of the National Association of Coroners and the Coroner,” Proceedings of National Association of Coroners, Chicago, 15–17 November 1950, and “The Necessity for a Model Medico-legal Investigative System,” Proceedings of the National Association of Coroners 1951 Annual Convention, Los Angeles, California, 23–25 August 1951, 1–10. See R. B. H. Gradwohl, “Should the Office of Coroner Be Continued?” Annals of Western Medicine and Surgery (1950): 491–494. 19. Michael Bennett, “Gerber a Pioneer as County Coroner,” Cleveland Plain Dealer, 20 August 1978. The poem was part of a 1936 campaign poster, Gerber Files, Office of the Cuyahoga County Coroner, Cleveland. 20. True Detective 29 (1938): 28–31. For a published study of the murders see, Samuel R. Gerber, The Scope and the Problems of the Coroner (Cleveland: Office of the Coroner, 1950): 56–93. Copy contained in the Gerber File, Office of the Cuyahoga County Coroner’s Office, Cleveland, Ohio. 21. Lester Adelson, “Cuyahoga County Coroner’s Office,” Bulletin (Western Reserve University School of Medicine) (fourth quarter 1961): 7–10. Cayahoga County Coroner’s Office, Archive, Cleveland. 22. “Coroners Pledge Aid on Model Law,” editorial, National Municipal Review 40 (1951). “The Case of the Unspoken Medical Examiner: An Exclusive Interview with Russel S. Fischer, Maryland State Medical Examiner,” Maryland State Medical Journal 26: 59–77. 23. Model State Medico-legal Investigative System (New York: National Municipal League, 1961), 6. 24. Samuel R. Gerber to Richard Childs, 30 August 1966, RSC Papers. See also Hirschhorn, “Richard Spencer Childs,” 248. 25. Hirschhorn, Democracy Reformed, 159. 26. Richard S. Childs, “A Management Survey of the Organization and Operations of the Office of Chief Medical Examiner” (New York: Office of Administration, 1954), copy in RSC Papers.

Notes to Pages 60–64

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27. Annual Conference, National Conference of Commissioners on Uniform State Laws, Model Post-Mortem Examinations Act (Chicago: 1954). See Hirschhorn, Richard Spencer Childs, 248. To date, no state has instituted the model law into legislation. 28. Richard Ford, “Medicolegal Investigation of Violent and Unexplained Deaths,” Journal of the American Medical Association 145 (1945): 1027– 1030; “Medical Examiner versus Coroner System,” Journal of the American Medical Association 162 (1956): 40; “Medical Examiner System,” Journal of the American Medical Association (1957): 2088, “Counties Having the Coroner Function under Medical Control,” Journal of the American Medical Association 163 (1957): 289; Alan Moritz, “Medical Examiner versus Coroner,” Journal of the American Medical Association 170 (1959): 812. State medical societies began publishing recommendations to abolish coroners and create medical examiners in their state journals, for example, “Coroner System in Pennsylvania,” Pennsylvania Medical Journal October (1955): 1117–1118, and Stanley H. Durlacher, “Advantages of a State System for Medicolegal Investigation,” Journal of the Louisiana Medical Society 106 (1953): 280–286. 29. Richard S. Childs, “Medico-legal System Advances,” National Municipal Review 44 (1955): 430. 30. See Coroners in North Carolina: A Discussion of Their Problems (Chapel Hill: University of North Carolina Institute of Government, 1953), and K. M. Brinkhouse, “The New Medical Examiner Act of North Carolina,” North Carolina Medical Journal 17 (1956): 253–259. 31. West Virginia successfully created a medical examiner system in 1960; see M. L. Hobbs, “The Medical Examiner’s System,” West Virginia Medical Journal 56 (1960): 494–496. For a review of coroner reform in Philadelphia see Julie Johnson, “William Scott Wadsworth” (Ph.D. diss., University of Pennsylvania, 1995). 32. Richard S. Childs, Chronology of Progress of Model Medico-legal System, 1950–1971 (New York: National Municipal League, 1972) (mimeograph). 33. In 1954 Wisconsin made a similar attempt to abolish the coroner system and replace it with a medical examiner system. The attempt failed when legislators cited the excessive cost ($25,000) of implementing the change. See Jeffrey M. Jentzen, “Contested Territory: The Struggle over the Medicalization of Medicolegal Death Investigation in Wisconsin” (M.A. paper, University of Wisconsin–Madison, 1997). 34. William Brady, interview by author, 4 October 2001. Multnomah County contracted with the Pathology Department of the University of Oregon Medical School for fourteen years to perform all coroners’ autopsies. 35. Ibid. 36. Homer Harris, interview by author, 4 October 2001. Portland, OR. 37. William Brady, interview by author, 4 October 2001. Portland, OR. 38. Richard Childs, Best States for a Murder (1953, 1963 and 1972), and Chronology of Progress of Model Medico-legal System 1950–1970 (New York: National Municipal League), (mimeograph). 39. Home rule charters are a delegation of power from the state to other government subunits including counties and municipalities. Home rule enhances the

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Notes to Pages 65–67

40.

41. 42.

43.

44.

45. 46. 47.

48.

49.

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powers of individual governmental agencies by providing limited autonomy in determining aspects of governmental authority. Home rule differs from federalism in that the delegated powers are temporary and ultimately reside in the central government. In time, Childs realized that state systems were too large to manage and that groups of smaller counties arranged in districts headed by forensic pathologists would be the best way to bring medical expertise to smaller, rural counties, despite the paucity of forensic pathologists at the time. See Henry W. Turkel, “Merits of the Present Coroner System: Statistical Comparison with the Medical Examiner System,” Journal of the American Medical Association 153 (1953): 1086–1092. See also Terrance Beckington Allen, San Francisco Coroner’s Office: A History 1850–1980, 3rd ed. (San Francisco: Redactors Press, 1999): 62–66, and Kurt E. Landé, “Medicolegal Experiences Under the Ohio Coroner’s System,” Journal of American Medical Association, 153 (1953): 179–182. “Coroner versus Medical Examiner,” editorial, Journal of the American Medical Association 153 (1953): 1100. R. B. H. Gradwohl, “Official Medico-legal Investigations,” Proceedings of the National Association of Coroners, Los Angeles, California, 26 August 1951: 12–17. See Alan R. Moritz, “Coroner’s Responsibility in Legal Medicine,” Proceedings of the National Association of Coroners, (1953): 62–70. Childs was known as the reformer of political reformers. The quotation can be found in the introduction to Hirschhorn, Democracy Reformed. For a history of Florida’s legal systems, see James M. Denham, “From a Territorial to a State Judiciary Florida’s Antebellum Courts and Judiciary,” Florida Historical Review 73 (1995): 443. Albert Weintraub, interview by author, 26 April 2003. In the early 1950s the dean of the newly created University of Miami School of Medicine invited a group of concerned citizens to discuss the advantages of having a medical examiner for Dade County. Included in the group were Dr. Robert Poppitti, Dr. Ben J. Sheppard, and Sheriff Thomas J. Kelly. Mrs. Clare Weintraub and members of the Miami Women’s Club aided the group. Albert Weintraub, interview by author, 26 April 2003. Joseph Davis, interview by author, 7 December 2001. Joseph H. Davis, “A Statewide Medical Examiner System,” Journal of the Medical Association of Georgia (April 1978): 282–282. See also Joseph H. Davis to Richard S. Childs, 20 March 1974, RSC Correspondence, RSC Papers, box 2. See Medical Examiner Commission Rules, Chap. 11G-1, Florida Administrative Code. Richard Childs, Chronology of Progress; see also Coroner Reform Bibliography (New York: National Municipal League, 19), copy in RSC Correspondence, RSC Papers, box 8. James Luke, “Creating a Rural Medical Examiner Office in a Medical School Setting,” Journal of Forensic Sciences 14 (1969): 147–156. In other states reform took a different route. In 1961, Iowa created a state medical examiner system by abruptly ousting its ninety-nine county coroners and replacing them with physician medical examiners but did not institute a new system of central supervision. Refer to Dale A. Harding, “Iowa Medical Examiner System, As-

Notes to Pages 67–72

50. 51.

52.

53. 54.

55. 56.

57.

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sets and Liabilities,” Proceedings of the National Association of Coroners Annual Seminar (1969): 321–329. With Childs’s encouragement, physicians in the state of Washington attempted to create a state medical examiner system. The attempt failed in the legislature due to cost and concern about assigning coroner duties, such as care of property and notification of next of kin, to noninterested physicians. Seattle eventually developed a medical examiner system only after enacting home rule in 1968. see Donald T. Reay, “The Development of Rational Medicolegal Death Investigation in the United States: A Historical Review” (M.A. paper, Seattle University, 1978), 41–56. Edwin F. Hirsch, “The Growth of Forensic Pathology in Illinois,” Proceedings of the Institute of Medicine of Chicago 26 (1967): 314. “Governor Vetoes Proposed Revision of the Coroner’s Act of 1874 (Senate Bill 247),” editorial, Proceedings of the Institute of Medicine of Chicago 20 (1955): 360. See “Inquest Shakedown True Bills Reported,” Chicago Daily News, 3 July 1957, “Medical Examiner Better?” editorial, Chicago American, 25 March 1958, “Chicago’s Medical Black Eye,” Chicago Daily Sun-Times, 26 March 1958, and “Plan to Improve Coroner’s Office Should Be Adopted,” Chicago Daily News, 26 March 1958. John Kay Adams, “Abolish Office? County Coroners Defend Need for System,” Chicago Sun-Times, 17 February 1958, 17. “An Institute of Forensic Pathology for the Coroner of Cook,” editorial, Proceedings of the Institute of Medicine of Chicago 22 (1959): 334–336, and Illinois Department of Public Health, Advisory Board on Necropsy Service to Coroners, A Manual for Coroners 1959. For details of coroner reform in Illinois, see Hirschhorn, Democracy Reformed, 155, and Reay, “Development of Rational Medicolegal Death Investigation,” 32–34. Richard S. Childs to Samuel Gerber, 1 March 1974, RSC Papers. Samuel Gerber to Richard S. Childs, 15 March 1974, RSC Papers. A 1967 report by the New York Academy of Medicine criticized Helpern for delays in performing autopsies and recommended decentralizing the office. See “Helpern Hits Criticism of Autopsy Procedure,” New York Post, 30 January 1967; “Unfounded Criticism,” Boston Herald, 3 February 1967; and “NYC MD Examiner Opposed Decentralizing Office,” Medical Tribune 8, no. 21 (1967). Milton Helpern, “Official Medicolegal Investigation in the United States,” New York State Journal of Medicine 65 (1965): 1261–1268, “Medical Science in Crime Detection: Report of the Committee on Medicolegal Problems,” Journal of the American Medical Association 200 (1967): 165–170, and “Campaign against Lay Coroners,” Medical World News 5 (1964), 199.

4. Creating an Identity 1. John I. Coe, interview by the author, 28 February 2003. 2. Ibid. 3. Bill Frank, “He Had Two Strikes against Him at Start,” Wilmington (DE) News Journal, 4 March 1979: F4. Ali Hameli, interview by the author, 3 June 2005. Wilmington, DE

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4. Julie Johnson, “Speaking for the Dead: Forensic Scientists and American Justice in the Twentieth Century” (Ph.D. diss., University of Pennsylvania, 1992), 109. 5. Juan Rosai, Guiding the Surgeon’s Hand: The History of American Surgical Pathology (Washington, D.C.: American Registry of Pathology, 1997): 17–20. On the development of nineteenth-century American laboratory medicine see John Harley Warner, “The Fall and Rise of Professional Mystery,” in The Laboratory Revolution in Medicine, ed. Andrew Cunningham and Perry Williams (Cambridge: Cambridge University Press, 1992), 110–142. The best general history of American pathology remains Esmond R. Long, A History of American Pathology (Springfield Illinois: Charles C. Thomas, 1962). William G. Rothstein, “Pathology: The Evolution of a Specialty in American Medicine,” Readings in American Health Care, ed. William G. Rothstein (Madison: University of Wisconsin Press, 1995): 177–189. William McKee German, Doctors Anonymous: The Story of Laboratory Medicine (New York: Duell, Sloan and Pearce, 1941); and Russell C. Maulitz, “Pathology,” 122–142, and Chester R. Burns, “Medical Ethics and Jurisprudence,”273–289, in The Education of American Physicians, ed. Ronald L. Numbers (Berkeley: University of California Press, 1980). 6. In 1933 the Association of Medical Colleges, the American Hospital Association, the National Board of Medical Examiners, the Federation of State Medical Boards, and the AMA Council on Medical Education and Hospitals urged the creation of medical boards. The American Board of Pathology was created in 1936. It was the fifth specialty board to be created. Board certification of various pathology specialties occurred continuously, beginning in 1948 with neuropathology and followed by medical microbiology (1950), chemical pathology (1951), hematology (1955), forensic pathology (1959), blood banking (1973), dermatopathology (1974), radioisotope pathology (1974), and immunopathology (1983). See Murray Abell and Norma M. Kirby, “The American Board of Pathology: 50 Years of Service,” Archives of Pathology and Laboratory Medicine 110 (1986): 1107. For an early review of clinical pathology see Oscar B. Hunter, “Frontiers of Clinical Pathology,” Southern Medical Journal 45 (1950): 1–7. 7. Burns, “Medical Ethics and Jurisprudence,” 283. See Abraham Flexner, Medical Education in the United States and Canada (New York: Carnegie Foundation, 1910). 8. Richard Cabot, “Diagnostic Pitfalls Identified during a Study of Three Thousand Autopsies,” Journal of the American Medical Association 59 (1912): 2295–2298. See also Christopher Crenner, Private Practice: The Early Twentiethcentury Medical Office of Richard Cabot (Baltimore: Johns Hopkins University Press, 2005), 76–81, and Harrison S. Martland, “Advantages of the Autopsy and Other Pathologic Anatomic Examinations,” Journal of the Medical Society of New Jersey (1911): 1–17. In every decade of the twentieth century, a major autopsy study confirmed that in almost 40 percent of cases, the clinician’s initial diagnosis was incorrect. For a discussion of this phenomenon see Lester S. King, “A History of the Autopsy,” American Journal of Pathology 73 (1973): 540; Marjorie J. Williams, moderator, “The Autopsy: A Beginning, Not an End,” American Journal of Clinical Pathology 69 (1978):

Notes to Pages 74–76

9.

10.

11.

12. 13.

14. 15. 16.

17. 18.

19.

 237

215–253; and Kaveh G. Shojania et al., “Changes in Rate of Autopsy-detected Diagnostic Error over Time,” Journal of the American Medical Association 289 (2003): 2849–2855. William K. Beatty, “Ludvig Hektoen: Scientist and Counselor,” Proceedings of the Institute of Medicine 35 (1983): 7–9. See also Howard T. Karsner, “The Autopsy,” Journal of the American Medical Association 88 (1927): 1367– 1373, and Harrison S. Martland, “Advantages of the Autopsy and Other Pathologic Anatomic Examinations,” Journal of the Medical Society of New Jersey (1911): 1–13. George Magrath, “Legal Medicine,” Boston Medical and Surgical Journal 173 (1915): 925–927. For a review of Beck’s contributions refer to James C. Mohr, Doctors and the Law (New York: Oxford University Press, 1993):15–28. Timothy Leary, The Massachusetts Medico-legal Society: A Biographical Directory 1877–1937 (Boston: Printed for the Scoiety, 1937); Luke Tedeschi, “The Massachusetts Medico-legal Society: The Early Years,” American Journal of Forensic Medicine and Pathology 2 (1981): 257–260. See Kermit L. Hall, The Magic Mirror (New York: Oxford University Press, 1989), 309–310. Zera E. Bolin, “The Relation of Pathology to Legal Medicine,” California and Western Medicine 35 (1931): 195–198, and “The Teaching of Legal Medicine in the United States,” editorial, Journal of the American Medical Association 93 (1929): 226–227. Academic pathologists such as Howard Karsner at Western Reserve University in Cleveland, Ludvig Hektoen in Chicago, Wiley Forbus at Duke University in North Carolina, Jesse L. Carr in San Francisco, and James Ewing in New York led the push for forensic medicine education in medical schools. Oscar Schultz argued for reform of the coroner’s office at a special session on forensic medicine at the 1934 annual meeting of the AMA in Cleveland, chaired by Hektoen. Schultz debated the advantages of the medical examiner system over the coroner’s system with H. R. Fishback, the Cook County (Chicago) coroner. The program featured educational talks by medical examiners from Boston, Newark, and New York as well as coroner’s physicians from Chicago. The papers of the ASCP symposium were published in American Journal of Clinical Pathology 4 (1934). Frances Glessner Lee, “Legal Medicine at Harvard University,” Journal of Criminology and Police 42 (1952): 674–678. Thomas A. Gonzales et al., eds., Legal Medicine Pathology and Toxicology (New York: Appleton-Century, 1937). See also Milton Helpern, “Development of the Department of Forensic Medicine at New York University School of Medicine,” New York State Journal of Medicine (April 1972): 831–833. “Salutation,” American Journal of Medical Jurisprudence 1 (1938). I am indebted to Julie Johnson for providing this reference. For example, see Journal of the American Medical Association 124 (1944): 1277; Journal of the American Medical Association 124 (1944): 312; and Journal of the American Medical Association 124 (1944): 115. The AMA maintained legal committees to observe federal legislation relating to medicine and public health. The Bureau of Legislation was established in

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Notes to Pages 76–77

20. 21. 22.

23. 24.

25.

26.

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1907 and a Medicolegal Bureau in 1913 to index court decisions relating to the practice of medicine. These were combined in 1922 as the Bureau of Legal Medicine and Legislation. To assist state societies concerning medical legislation, the Committee on Medicolegal Problems was created in 1950 and later evolved into the AMA’s legal department. Alan R. Moritz, “Need of Forensic Pathology for Academic Sponsorship,” Archives of Pathology 33 (1942): 382. Ibid., 386. Kenneth S. Field, History of the American Academy of Forensic Sciences 1948–1998 (West Conshohocken, Pa.: American Society of Testing and Materials, 1998), 15. Russell S. Fisher, “The Changing Perspective in Medicolegal Practice,” Proceedings of Institute of Medicine of Chicago 19 (1952–1953): 48–57. Oliver Schroeder, “A Proposal: The Law-Medicine Center Western Reserve University,” 6 January 1954, Oliver Schroeder Papers, Case Western University Archives. See also “Law-Medicine Center Celebrates 30th Anniversary,” In Brief: Law Alumni News Bulletin, Oliver Schroeder Papers, Archives, Case Western University, Cleveland, March 1984. As chairman of the Institute of Pathology, Moritz was pulled away by his administrative duties from actively pursuing forensic pathology. His office’s proximity to the new morgue, completed in 1952, however, ensured that students and staff constantly consulted him for his opinions on medicolegal autopsies. On his return to Cleveland, Moritz joined with Oliver Schroeder, a member of the Western Reserve Law School faculty, and Gerber to create the LawMedicine Center. Schroeder, who had first encountered Moritz while attending forensic pathology his lectures as a second-year law student at Harvard, could appreciate the educational potential of combining forensic medicine and the law. The trio began offering special courses in law and medicine at the center in 1952, at the same time construction was begun on the new morgue. The center officially opened in 1954, with Schroeder teaching law courses to law students and continuing education classes on a ser. of medicolegal topics. Adelson took over the medical teaching and began offering formal pathology seminars in basic police training for Cuyahoga County’s fifty-nine police units. The Law-Medicine Center combined the best teaching in legal medicine at the time and continued well into the late 1960s, when the state bar association began creating institutes that offered courses in legal medicine that made the center unnecessary. As with the transformation of the Harvard Law School curriculum, the emphasis of the center then turned to legal ethics, psychiatric testimony, and health care law. With the creation of the Law-Medicine Center, through the work of Adelson, Schroeder, Gerber, and Moritz, Cleveland sat squarely in the center of forensic medicine from the 1950s through the 1960s, surpassing Boston and New York as a cradle for young forensic pathologists. William B. Hall, “A Proposal to Introduce Forensic Science in the University Curriculum,” in S. R. Gerber, “Adequate Medical Examination in Unexpected and Violent Deaths,” Journal of the American Medical Association 138 (1948): 1190–1191. Louis Regan, “Report of Committee on Medicolegal Problems: A Suggested

Notes to Pages 77–80

27.

28.

29.

30.

31.

32.

33. 34. 35.

36.

37. 38. 39. 40. 41.

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Course in Legal Medicine for Medical Schools,” Journal of the American Medical Association 150 (1952): 716. See also Alan R. Moritz, “Scientific Medicolegal Investigation in the Undergraduate Medical Curriculum,” Journal of the American Medical Association 158 (1955): 243–244. The Committee on Medicolegal Problems was a subcommittee of the AMA Bureau of Legal Medicine and Legislation created in 1950 to be a standing committee to study medicolegal problems. Formerly chairman of the Committee to Survey the Relationship of Medicine and Law, Moritz was appointed chairman of the new committee. Pathologists eventually reacted against the intrusion of technology into the laboratory. See Joe W. Grisham, “The Pathologist-Scientist and the PathologistTechnologist: The Need for Scientific Attitudes toward Professional Goals and Responsibilities,” Human Pathology 15 (1984): 802–805. Julie Johnson, “Coroners, Corruption and the Politics of Death,” in Legal Medicine in History, ed. Michael Clark and Catherine Crawford (Cambridge: Cambridge University Press, 1994), 275–276. John D. McCallum, Crime Doctor: Dr. Charles P. Larson, World’s Foremost Medical-detective, Reports from His Crime File (Mercer Island, Wash.: Writing Works, 1978), 31–44. Ibid., iv–vi. Larson was active in a number of national pathology organizations. He was a founding member of the American Academy of Forensic Science (1948) and the National Association of Medical Examiners (1966). An avid sports fan, Larson was also president of the National Boxing Association (1960) and the first president of the World Boxing Association (1962). Charles P. Larson to William Wartman, 20 October 1954, ABP, file V-17, Special Fields, Forensic Pathology 1954–1969, Archives of the American Board of Pathology, Tampa, Florida (hereafter cited as ABP). Charles P. Larson, “History of the CAP Forensic Pathology Committee,” Pathologist (January 1976): 24. The committee recommended thirteen principles they felt should guide forensic pathology practice in America. Johnson, “Speaking for the Dead,” 116. Ibid., 23. Richard Ford to James W. Kernohan, 29 March 1955, Harvard University Legal Medicine, box 88, folder 1060, ser. 200, Rockefeller Foundation Archives, Rockefeller Archives Center. Charles P. Larson to B. R. Kirklin, 5 March 1957, ABP. Institutions providing training in forensic pathology included Providence, R.I., Burlington, Vt., Boston, New York, Cleveland, Baltimore, Richmond, New Orleans, Little Rock, Miami, Tacoma, and Los Angles. It is no surprise that Moritz’s trainees were stationed in these cities. Richard Ford to Lester Adelson, 8 December 1954, Certification, Department of Legal Medicine, Harvard Medical School Archives. Joseph Spelman to Richard Ford, 13 December, Certification, Department of Legal Medicine, Harvard Medical School Archives. Charles P. Larson to James B. McNaught, 5 April 1955, ABP. Ibid. Larson to Wartman, 20 October 1954. “Unless the Advisory Board for Medical Specialties establishes a Board for forensic pathology within the frame-

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Notes to Pages 80–83

42.

43. 44.

45. 46.

47.

48.

49. 50.

51.

52.

53.

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work of the American Board of Pathology, I am fearful that the so-called American Board of Legal Medicine will continue to grow in strength and will represent the forensic pathologist rather that the American Medical Association and organized medicine.” Larson to Kirklin, 5 March 1957. See Johnson, ‘Speaking for the Dead,” 124; quotation is from Richard Ford’s notes for the American Board of Pathology meeting, 5 October 1955, in Certification, Department of Legal Medicine, Harvard Medical School Archives. I am indebted to Julie Johnson for providing the Richard Ford Archives. Minutes of meeting of Charles Larson, Richard Ford, and Alan Moritz, 5 October 1955, ABP. Alan R. Moritz to Edward B. Smith, (26 October 1956), ABP. At times Moritz’s status allowed him to move forward independently of “committee action,” and at times he needed to be reeled in by the committee chairman. “Forensic pathology consists of those aspects of pathological anatomy and clinical pathology, knowledge of which is required frequently or exclusively for the elucidation of medicolegal problems.” Moritz defined the medicolegal autopsy as “one which is performed for the purpose of acquiring evidence needed for the administration of justice.” John R. Schenken to Edward S. Smith, 6 August 1956, ABP. By the late 1950s, board certification had increased to the point of severely fracturing the medical field. See I. Galdston, “The Birth and Death of Specialties,” Journal of the American Medical Association 167 (1958): 2056, and “The Natural History of Specialism in Medicine,” Journal of the American Medical Association 170 (1959): 294. “Report of Informal Sessions and Meeting of Certain Members of the American Board of Pathology during the Congress on Medical Education,” 9–10 February 1957, ABP. Moritz appears to have first coined the term “forensic pathologist” in a letter to the AMA; see Alan Moritz, “Report of the Committee of the American Medical Association to Study the Relationship of Medicine and Law,” Journal of the American Medical Association 125 (1944): 577–583. Alan R. Moritz, “Classic Mistakes in Forensic Pathology,” American Journal of Clinical Pathology 26 (1956): 1383–1397. Richard Ford to Colonel Elbert DeCourcy, 22 December 1950, Harvard University Legal Medicine, box 88, folder 1058, ser. 200 Rockefeller Foundation Archives, 3. Journal of the American Medical Association 169 (1963): 1088. The AFIP through a contribution from the CAP developed the first fellowship in forensic pathology approved by the ABP in June 1962. See also U.S. Navy Medicine 61 (1972): 20–26. Charles J. Stahl, “The Registry of Forensic Pathology,” American Journal of Forensic Sciences 13 (1968): 151–161. The AFIP forensic pathology unit’s patch, “Aces over Eights,” represented the legendary “dead-man’s hand,” the poker hand Wild Bill Hickok was supposedly holding when he was shot in the back while playing poker in Deadwood, South Dakota. 18 U.S. Code 1751 (1965). In cases of presidential assassination, kidnapping,

Notes to Pages 84–87

54.

55.

56.

57. 58.

59. 60. 61.

62. 63. 64. 65. 66.

67.

 241

and assault, jurisdiction by state or local authorities under any applicable state or local laws, is suspended until federal action is terminated. See Jerry D. Spencer, “Medical Examiner/Coroner Jurisdiction in Cases Involving Federal Interest,” Journal of Forensic Science 27 (1982): 408–411, and Robert S. Henry, The Armed Forces Institute of Pathology: Its First Century 1862–1962 (Washington, D.C.: Office of the Surgeon General, Department of the Army, 1964). Charles J. Stahl, interview by Charles Stuart Kennedy, 15 June 1994, transcript, Armed Forces Institute of Pathology Oral History Program, Otis Historical Archives, National Museum of Health and Medicine, Washington, D.C., 31–32. See also Erlend A. Kennan, Mission to the Moon: A Critical Examination of NASA and the Space Program (New York: Morrow, 1969). James J. Luke, “The Dying Detective,” New England Journal of Medicine 278 (1968): 1178. See also James J. Luke, “The Status of Forensic Pathology in the United States,” Forensic Science Gazette 1 (1970): 3–8. Joel S. Sexton, “Forensic Pathology–The Hidden Specialty: A Survey of Forensic Pathology Training Available to Medical Students and Residents, Journal of Forensic Sciences 200 (1979). Johnson, “Speaking for the Dead,” 128. Robert S. Jason, “A Progress Report on Forensic Pathology,” Committee on Pathology, Division of Medical Sciences, National Research Council, National Academy of Sciences, 8 April 1968, and James L. Luke et al., “Training and Education in Forensic Pathology,” Ad Hoc Committee on Forensic Pathology, Committee on Pathology of the Division of Medical Sciences, National Research Council, National Academy of Sciences, 1 November 1968. “Medicine and the Law,” editorial, New England Journal of Medicine 270 (1964): 531. Gilbert Corrigan, “Realm of Forensic Pathology,” New England Journal of Medicine 279 (1968): 48. James Luke, “Medical Examiner’s Research Institute of Forensic Pathology Sought,” Washington Post, 14 February 1972. For a review of the development of the Utah system see James T. Weston, “A Modern Medicolegal Investigative System within the Framework of a State Division of Health—Experience in Utah,” Journal of Forensic Sciences 15, no. 4 (1970): 461–475. Charles Hirsch, correspondence with the author, 15 September 1988. Robert B. Jennings to Charles S. Hirsch, 4 August 1986, ABP. Jason, “Progress Report on Forensic Pathology.” Margaret Levine, Issues and Practices in Medicolegal Death Investigations (Washington, D.C.: National Institutes of Justice, 5 October 1987), 9–10. National Association of Medical Examiners, New England Journal of Medicine (1967): 1094. See Randy Hanzlick, “History of the National Association of Medical Examiners and Its Meetings, 1966–93,” American Journal of Forensic Medicine and Pathology 16 (1995): 278–313. Ali Hameli, “History of N.A.M.E,” mimeograph. Archives National Association of Medical Examiners, St. Louis, MO. Joseph A. Davis, “The Future of the Medical Examiner System,” American Journal of Forensic Medicine and Pathology 16 (1995): 265.

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68. See Matthew K. Wynia et al., “Medical Professionalism in Society,” New England Journal of Medicine 341 (1999): 1612–1615. 69. Leslie Lukash, “Standards for the Care of the Dead,” Newsletter (National Association of Medical Examiners, 30 April 1971), 1–3. 70. Checklist for Inspection and Accreditation of a Modern Medicolegal Investigative System (St. Louis: National Association of Medical Examiners, 1975). As Friedson noted, “When the leaders of the profession invoke ethics and the values of professionalization, [the] critics declare it a self-serving ideology that masks the reality of naked self-interest.” See Eliot Freidson, Professionalism Reborn, Theory, Prophecy, and Polity (Chicago: University of Chicago Press, 1994). 71. Christopher Lawrence, “Definite and Material: Coronary Thrombosis and Cardiologists in the 1920s,” in Framing Disease, ed. Charles E. Rosenberg and Janet Golden (New Brunswick, N.J.: Rutgers University Press, 1992), 74. See also Bruce Fye, American Cardiology: The History of a Specialty and Its College (Baltimore: Johns Hopkins University Press, 1996). 72. Lester Adelson, “Slaughter of the Innocents: A Study of 46 Homicides in which the Victims Were Children,” New England Journal of Medicine 264 (1961): 1345–1349. See also Lester Adelson, “Recent Progress in Forensic Pathology,” Journal of Forensic Sciences 4 (1959): 250–263. 73. Russell S. Fisher, “Recent Developments in Forensic Pathology,” Journal of American Medical Association 179 (1960): 896–901. 74. Ibid. 75. Elisabeth A. Cawthon, “English Medical Expertise and Foreign Courtrooms, 1910–1985,” Abstracts American Association of History of Medicine, Annual Meeting, Birmingham, Ala., 10 April 2005. 76. Joseph A. Davis, interview by author, 7 December 2003. 77. See Arthur L. Liman, Lawyer: A Life of Counsel and Controversy (New York: Public Affairs, 1998): 220–228. 78. Joseph H. Davis, “A Statewide Medical Examiner System,” Journal of the Medical Association of Georgia (April 1978): 282–284. 79. Medico-legal Bulletin, published by the Chief Medical Examiner, Virginia, 1950–1985. 80. John I. Coe, interview with author, 28 February 2003. 81. Marcella Fierro, personal communication, 13 March 2007. 82. “Alumni Spotlight: Dr. Jan Garavaglia,” Universitas (St. Louis University) 32 (2006): 25. 83. Janet Bickel, “Women in Medical Education,” Journal of the American Medical Association 319 (1988). The percentage of women enrolled in medical schools increased from 9.4 to 28.4 percent from 1970 to 1980. See also Janet Bickel, Women Physicians in Practice (Chicago: American Medical Association, 1991), 1–9. 84. Les Roberts, “Death Becomes Her,” Northern Ohio Live (April 1998): 17. For a view of women in forensic medicine, see Amy Engeler, “You Won’t Believe What Her Job Is,” Redbook, April 1997, 116–119, 142–144. 85. Marcella Fierro, personal communication, 13 March 2007. 86. Jan Garavaglia, personal communication, 20 March 2007.

Notes to Pages 91–93

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87. Barbara S. Williams, “Dr. Conradi Often Draws Double Take,” Charlestown (SC) News and Courier, 26 August 1973. 88. Edward Blackwell, “Doctors’ Doctor Chalks Up Milwaukee First: Dr. Helen Young Assumes Duties as County Medical Examiner,” Milwaukee Journal, 15 September 1966, sec. 2, 7. 89. Data extracted from the Education Issues of the Journal of the American Medical Association. The development of designated reimbursement grades (DRG) in 1983 directly limited the number of pathology positions in the United States, which funneled larger numbers of pathology residents into the forensic field. Dr. Francis F. Kenyon was the first female medical examiner in America. The governor of Rhode Island appointed her in 1927. Her appointment caused a furor when the state legislators warned that they would “not admit a women to what was regarded as one of the toughest jobs in the medical profession.” “Dr. Kenyon, 88, First Women Medical Examiner Dies,” Providence Journal, 16 February 1959, 1. The first female forensic pathologist, Anne D. Hooper, became board certified in 1960, just one year after certification began. 90. Rosemary Stevens, American Medicine and the Public Interest (Berkeley: University of California Press, 1998; rev. ed. (New Haven: Yale University Press, 1971): 398. 91. William Frank “He Had Two Strikes against Him at Start,” Wilmington (DE) Sunday News Journal, 4 March 1979, F4. 92. “Death Investigation in the Community: Forging New Partnerships,” conference sponsored by National Association of Counties Research Foundation and others, Racine, Wisconsin, 19–21 May 1985. 93. Joseph Davis, personal communication, 7 December 2003. 94. Bradley B. Randell, Marcella F. Fierro, Richard C. Froede, “Practice Guideline for Forensic Pathology,” Archives of Pathology and Laboratory Medicine 122 (1998): 1056–1064. 95. Mark Hansen, “Experts to Go,” ABA Journal (February 2000): 44–52. 96. Steven C. Clark, interview by the author, January 7 1995. 97. Randy Hanzlick, “Coroner Training Needs: A Numeric and Geographic Analysis,” Journal of the American Medical Association 276 (1996): 1776–1778. According to Hanzlick, twenty-nine states had coroners in some or all counties. Four states—Louisiana, Kansas, North Dakota, and Ohio— required coroners to be physicians. Seven states—Georgia, Illinois, Kentucky, Mississippi, Montana, Pennsylvania, and Wyoming—had mandated training requirements. 98. Levine, “Issues and Practices,” 11–23. 99. Because constitutionally elected coroners could not be required to meet educational standards, the board could only require testing of deputy coroners. The Indiana Coroner’s Training Board was created by the governor in 1995 after a local coroner, involved in handling a plane crash killing that killed eighty-six passengers, was refused assistance by local forensic pathologists. Phil O’Shaunnsey, interview by author, Reno, Nevada, 24 February, 2000. 100. Steven Clark, “A History of the National Guidelines for Medicolegal Death Investigation,” NAME News 7 (1999): 4.

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101. Barbara Chapman, “New Death Investigation Tools the Best since DNA,” CAP Today (July 1999): 99–108. 102. Richard J. Bonnie, “Closing Remarks,” Institute of Medicine, Medicolegal Death Investigation System: Workshop Summary (2003): 63. 103. Vincent DiMaio, Institute of Medicine, Medicolegal Death Investigation, 24 March 2003. See also Vicent DiMaio, “Medical Examiners, Forensic Pathologists, and Coroners,” Journal of the American Medical Association 277 (1997): 531. 104. Richard J. Bonnie, “Opening Remarks,” Institute of Medicine, Medicolegal Death Investigation System: Workshop Summary (2003): 3–5. 105. “One key outcome of this workshop could be a national endorsement of the abolition of the coroner system and endorsement of the establishment of greater professionalism through a medical examiner system”; Ellen Clark, Institute of Medicine, Medicolegal Death Investigation System, 27. 106. Richard J. Bonnie, “Opening Remarks,” in Medicolegal Death Investigation System: Workshop Summary, Washington, D.C., Nation Academies Press, 2003. 107. Linda T. Kohn, Janet M. Corrigan, and Molly S. Donaldson, eds., To Err Is Human: Building a Safer Health System, (Washington, D.C.: National Academy Press, 2000). 108. Stefan Timmermans, Postmortem: How Medical Examiners Explain Suspicious Deaths (Chicago: University of Chicago Press, 2006), 172–181. 109. Victor Weedn, “The Potential Role of the Federal Government in Death Investigation,” Institute of Medicine, Medicolegal Death Investigation System: Workshop Summary (2003): 60. 110. Dan Sosin, “Medicolegal Death Investigation, Public Health, and Health Care,” Medicolegal Death Investigation System: Workshop Summary Nation Academies Press (2003): 38–43. 111. Steven C. Clark, personal communication, 10 January 2007.

5. In Search of Authority 1. Robert S. Groden, The Killing of a President (New York: Penguin Books, 1993), 71. 2. Dennis L. Breo, “JFK’s Death,” pt. 2, “Dallas MDs Recall Their Memories,” Journal of the American Medical Association 267 (1992): 2806–2807. See also Gerald Posner, Case Closed: Lee Harvey Oswald and the Assassination of JFK (New York: Random House, 1993), 295–316; Marilyn Miller Baker, The History of Pathology in Texas (Dallas: Texas Society of Pathologists, 1996), 226–230; and Edward Jay Epstein, Inquest: The Warren Commission and the Establishment of Truth (New York: Viking Press, 1966). 3. The patient’s suspicions are illustrated by the increase in malpractice claims and the “power shift” among physicians, government and insurance companies that occurred in the early 1960s. See Eli Ginzberg, The Medical Triangle (Cambridge, Mass.: Harvard University Press, 1990), 25–29. 4. See Lester Adelson, “Some Medicolegal Observations on Infanticide,” Journal of Forensic Sciences 4 (1959): 60–71, and Lester Adelson, “The Slaugh-

Notes to Pages 98–102

5. 6. 7. 8. 9. 10. 11. 12.

13.

14. 15. 16.

17. 18.

19.

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ter of the Innocents,” New England Journal of Medicine 264 (1961): 1345–1349. Michael Baden, Unnatural Death: Confessions of a Medical Examiner (New York: Random House, 1989), 201. Cyril Wecht, Cause of Death (New York: Penguin Books, 1994), 27. Baden, Unnatural Death, 7–22. Breo, “JFK’s Death: The Plain Truth from the MDs Who Did the Autopsy,” Journal American Medical Association 267 (1992) 2799. Epstein, Inquest, 42–62. See also Posner, Case Closed, 304–307. Alan R. Moritz, “Classic Mistakes in Forensic Pathology,” American Journal of Clinical Pathology 26 (1956): 1383–1397. Charles Wilber, Medicolegal Investigation of the President John F. Kennedy Murder (Springfield, Illinois: Charles C. Thomas, 1978), 102. Posner, Case Closed, 308. Humes’s actions baffled trained forensic pathologists such as John Coe, who called the burning of original documents in a criminal investigation “incredibly stupid” (personal communication, 28 February 2003). Humes said: “The original note, which were stained with the blood of our late President, I felt, were inappropriate to retain.” Quoted in Groden, Killing of a President, 74. The Warren Commission Hearings (Washington, D.C.: US Government Printing Office, 1964). Bullets entering the posterior neck region have been known to exit through an opened mouth. Forensic pathologists under optimum conditions would not terminate an autopsy on a gunshot-wound victim without first documenting all the evidence. Mark Lane, Rush to Judgment (New York: Holt, Rinehart, and Winston, 1966), 60. Posner, Case Closed, 303. Wecht, Cause of Death, 24–27. See also Wecht’s report to the American Academy of Forensic Sciences, “A Critique of the Medical Aspects of the Investigations into the Assassination of President Kennedy,” Journal of Forensic Sciences 11 (1966): 300–317. Breo, “JFK’s Death,” pt. 2, “Dallas MDs Recall Their Memories,” 2804. “Clinicians’ Forensic Interpretations of Fatal Gunshot Wounds Often Miss the Mark,” editorial, Journal of the American Medical Association 29 (1993): 2058–2059. The House Select Committee on Assassinations (Washington D.C.: U.S. Government Printing Office, 1979). See the following inquiries into the assassination summarized in: The Warren Commission (1964); Ramsey Clark, Panel Review of Photographs, X-ray Films, Documents and Other Evidence Pertaining to the Fatal Wounding of President John F. Kennedy on November 22, 1963, in Dallas, Texas (Washington, D.C.: Government Printing Office, 1969); the Rockefeller Commission (1974); The House Select Committee on Assassinations (1978). Other unofficial inquiries include the Oliver Stone film JFK (1991) and a Journal of the American Medical Association series of articles by Dennis Breo in 1992. For a discussion of the investigation, especially the Ramsey Clark Commission, see Blaine Taylor, “The Case of the Outspoken Medical Examiner or An Exclusive Journal Interview with Russell S.

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Notes to Pages 102–108

20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

31. 32. 33. 34.

35. 36. 37.

38. 39. 40. 41. 42. 43. 44. 45.

 246

Fisher, MD, Chief Medical Examiner of the State of Maryland,” Maryland State Journal 26 (1977): 59–77. Michael Baden, editorial, Journal of the American Medical Association 269 (1992): 2058. Baden, Unnatural Death, 16. Charles Petty, “JFK—An Allonge,” Journal of the American Medical Association 269 (1992): 1552–1553. Breo, “JFK’s Death,” 2803. Posner, Case Closed, 303. 18 U.S. Code 1751 (1965). Dan E. Moldea, The Killing of Robert Kennedy: An Investigation of Motive, Means and Opportunity (New York: Norton, 1995), 84. See Thomas Noguchi, Coroner and Coroner at Large, Journal of Forensic Science 32 (1987) 829–835. See also Wecht, Cause of Death, 78–90. Thomas Noguchi, interview by the author, 7 December 2004, Los Angeles. Ibid. Dr. Charles J. Stahl, interview by Charles Stuart Kennedy, 15 June 1994, transcript, Armed Forces Institute of Pathology Oral History Program, Otis Historical Archives, National Institute of Health and Medicine, Washington D.C., 33–35. Noguchi, interview. Ibid. Thomas T. Noguchi, “Conflicts and Challenges for the Medical Examiner,” Journal of Forensic Science 32 (1987): 829–835. Donald R. Mills, “The Kennedy-Kopechne Case: Medicolegal Considerations,” Proceedings of the 1970 Annual Seminar, International Association of Coroners and Medical Examiners, Minneapolis, 96. See Massachusetts Laws Annotated, Chap. 38, sec. 6, and U.S. Constitution, art. 9, pt. 2. Mills, “Kennedy-Kopechne Case,” 92–100. Leo Damore, Senatorial Privilege (Washington, D.C.: Regnery Gateway, 1988), 19; Dennis L. Breo, “Holes in System Led to Case Mishandling, Says Vineyard MD,” American Medical News, 23 November 1979, 7. Most forensic pathologists consider drowning a diagnosis of exclusion used only after complete autopsy including toxicological testing. Damore, Senatorial Privilege, 19. Mills, “Kennedy-Kopechne Case,” 98. Ibid., 99. John H. Davis, The Kennedys (New York: McGraw Hill, 1984), 380. Ibid., 58. Mills, “Kennedy-Kopechne Case,” 100. Michael Desmond, “Medical Expert Tells NH Meeting Kopechne Autopsy Would Be Valid,” New York Times, 24 August 1969. Wecht, Cause of Death, 101. For a review of the inquest proceedings, see Kopechne: Petition for Exhumation and Autopsy, In the Court of Common Pleas of Lucerne County, Case No. 1114, 1969.

Notes to Pages 109–112

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46. Ibid., 100–101. 47. Breo, “Holes in System Led to Case Mishandling,” 8. 48. See Howard A. Rusk, “Nation’s Autopsy Laws: Confusion in KennedyKopechne Case Illustrates Need for Uniform Laws,” New York Times, 24 August 1969. See also Jerry E. Bishop, “Final Examination: Medical Experts Urge Wider Use of Autopsies to Confirm Diagnosis,” Wall Street Journal, 22 November 1971. 49. Position Paper on Replacement of the Coroner’s System of Medico-legal Investigation, Proceedings of the Institute of Medicine of Chicago 28 (1970): 43–45. The attempt to remove the coroner from the Illinois state constitution 24 June 1970 failed in part due to strong lobbying from the Illinois Coroners’ Association and a fear that abolition of the coroners would interfere with local government. See Richard P. Fahay and Deborah J. Palmer, An Inquest on the Cook County Coroner (photocopy) (Chicago: Law Enforcement Study Group, 1971), 1–7. 50. David M. Spain, Postmortem (Garden City, N.Y.: Doubleday, 1974), 46. 51. Ibid. 52. Ibid., 67. 53. Report of January 1970 Federal Grand Jury into Death of Fred Hampton, 116. 54. Spain, Postmortem, 67. 55. Russell S. Fisher and Charles S. Petty, eds., Forensic Pathology: A Handbook for Pathologists (Washington, D.C.: National Institute of Law Enforcement and Criminal Justice, U.S. Department of Justice, 1977). 56. Roy Dames, personal communication, 21 January 2005. See Edmund J. Rooney and Phillip J. O’Conner, “Shakeup Urged by Panther Jury,” Chicago Daily News, 15 May 1970, 1, and Bill Braashler, “The Cook County Morgue,” Chicago Sun-Times, 11 March 1983. 57. Conelia Honchar, “Both Candidates for Coroner Want Position Ended,” Chicago Tribune, 5 November 1972, and “Voters End County Post of Coroner,” Chicago Tribune, 9 November 1972, sec. 1, 7. See also Victor Levine, “Medical Examiner Replaces Coroner in Cook County,” Proceedings of the Institute of Medicine of Chicago 31 (1977): 188–189: “On December 6, 1976, the elected office of Coroner of Cook County was abolished and replaced by an appointed office of Medical Examiner. This was mandated by the voters of Cook County who voted 4 to 1 in favor of the appointed office of Medical Examiner in a referendum in 1972.” 58. Baden, Unnatural Death, 194–202. Deputy commissioner Walter Dunbar made this statement, which may have resulted from reports of horrific facial mutilation, only later proven to be the effect of gunshot wounds. See Paulette Cooper, Medical Detectives: How Modern Science Helps the Dead to Speak (New York: David McKay, 1973), 217. 59. Malcolm Bell, The Turkey Shoot: Tracing the Attica Cover-Up (New York: Grove Press), 354–356. 60. Fred Ferreti, “Autopsies Show Shots Killed 9 Attica Hostages, Not Knives; State Official Admits Mistake,” New York Times, 15 September 1971, 1, 32. 61. Francis X. Clines, “Troopers Assert They Chose Their Targets: Many Disbe-

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Notes to Pages 112–116

62.

63. 64. 65. 66.

67. 68.

 248

lieve Reports on Deaths from Gunfire,” New York Times, 15 September 1971, 48. See also Joseph Lelyveld, “Findings Shock Families of Hostages,” New York Times, 15 September 1971, 1. Attica: The Official Report on the Special New York State Special Commission to Study Attica (New York: Praeger, 1974), 475. See also Baden, Unnatural Death, 198. New York Times, 16 September 1971, 1. Ibid. Bell, Turkey Shoot, 360. Baden, Unnatural Causes, 201. In other states, embarrassing media exposure of state correctional polices and procedures resulting in deaths have served as a catalyst for the development of similar commissions. In 2001, for example, the state of Wisconsin established the Committee on Youth and Inmate Deaths in response to the sudden death of an inmate, Genevieve Greer, of an asthma attack without medical intervention. “Expert Paints Doubts about Green autopsy,” Detroit Free Press, 23 July 1993. Ann Sweeney, “2nd Expert Says Green Didn’t Die from Blows,” Detroit News, 29 July 1993: 2B. See also Larry Nevers, Good Cops, Bad Verdict: How Racial Politics Convicted Us of Murder (LAN Publications, 2007), 225–276. See also www.goodcopsbadverdict.com.

6. Autonomy Challenged 1. Henry S. Sauls, “Human Pituitary Gland Collection: An International Effort to Salvage Pituitary Hormones for Medical Use,” in Proceedings of Annual Seminar of National Association of Coroners, ed. Samuel Gerber (Cleveland: Office of the Coroner, 1970): 104–116. Selig Greenberg, “Dwarfs Gain Height by Growth Hormone,” Providence Journal, 29 March 1958, 1. In the article, there were no comments concerning family permission in retaining pituitary glands. 2. Jonathan Friendly, “Pituitaries Taken from Corpses during Hennepin Autopsies,” Minneapolis Tribune, 23 November 1966: 1, and Sauls, “Human Pituitary Gland Collection,” 104–116. See also John I. Coe, “The Pituitary Problem (1966),” in “Some Personal Recollections,” 1998 (unpublished manuscript). In 1966, the year following the Hennepin County grand jury investigation, the number of pituitary glands recovered dropped from 1,900 922; it returned to 1,788 in 1969. Nationwide, in 1963, 11,057 pituitary glands were recovered; the number peaked at 70,000 in 1969 and, with the decline in the number of autopsies, dropped to 60,000 in 1980. 3. C. Eugene Emery, “Medical Examiner Is Suspended,” Providence Journal, 21 May 1991, A1. 4. For example, “In 1975 [James] Weston gained national attention when he was called to study the evidence and official reports dealing with the pathological findings in the death of President John Kennedy.” James Abarr, “The Medical Detectives,” Impact Albuquerque Journal Magazine, 24 October 1978, 8. See also Barbara S. Williams, “Doctor Questions JFK Death Facts,” Charlestown, (SC) News and Courier, 12 November 1975, 1–2A; Martha Weinman Lear, “Not Whodunit, but Whatdidit? New York Times Magazine, 4 December

Notes to Pages 117–120

5. 6.

7.

8. 9. 10.

11.

12.

13.

14.

15.

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1966, 45–47; Bill Barry, “A Dead Man’s Best Friend,” Miami Herald Tropic, 7 September 1969; Coe, Some Personal Recollections. See Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982). For early state codes allowing autopsies see Percival E. Jackson, The Law of Cadavers and of Burial and Burial Practices (New York: Prentice Hall, 1936): 164–165. For a discussion on the development of bioethics see John H. Evans, Playing God: Human Genetic Engineering and Rationalization of the Public Bioethics Debate (Chicago: University of Chicago Press, 2002); Albert R. Jonsen, The Birth of Bioethics (New York: Oxford University Press, 1998); and M. L. Tina Evans, Bioethics in America: Origins and Cultural Politics (Baltimore: Johns Hopkins University Press, 2000). Henry Beecher, “A Definition of Irreversible Coma,” Journal of the American Medical Association 205 (1968): 337–340. For a review of the history of organ transplantation see David J. Rothman, Strangers at the Bedside (New York: Basic Books, 1991), 148–167. Beecher, “Definition of Irreversible Coma,” The criteria included “absence of response to pain or other stimuli, pupillary reflexes, corneal, pharyngeal and other reflexes, blood pressure, spontaneous respirations, as well as ‘flat’ or isoelectric electroencephalograms and the like, with all tests repeated ‘at least 24 hours later with no change.’” For a forensic pathologist’s perspective of death, see John I. Coe and William J. Curran, “Definition and Time of Death,” in Modern Legal Medicine Psychiatry and Forensic Science, ed. William J. Curran, A. Louis McGarry, and Charles S. Petty (Philadelphia: E. A. Davis, 1980), 141–164. Richard Ford to Alan Gregg, Harvard Legal Medicine, box 87, folder 1052, ser. 200, Rockefeller Foundation Archives, Rockefeller Archives Center. See also Michael York, “Ex-D.C. Medical Examiner Accused of Giving Body Parts to Researchers,” Washington Post, 6 June 1992. “Coroners Testify They Experimented with Corpses,” Associated Press, 18 July 1990. See Cantebury v. Spence, 464 F .2d 772 (D.C. 1972). See Amaud v. Odom, 870 F.2d 304 (1989). John D. McCallum, Crime Doctor: Dr. Charles P. Larson, World’s Foremost Medical-detective, Reports from His Crime File (Mercer Island, Wash.: Writing Works, 1978), 16–17. Amaud v. Odom, 870 F.2d 304 (1989). The medical examiner was found liable for money damages for performing an experiment on a dead baby. He had dropped babies on their heads to determine if short-distance falls could cause skull fractures. The court ruled that the experiment exceeded the scope of a reasonable postmortem examination. See “Tales of the Crypt,” Detroit News, 31 October 2000. Don Tschirhart, “9 Human Heads Discovered,” Detroit News, 15 May 1970, 3; see also “Tales of the Crypt,” Detroit News, 31 October 2000. The pathologist won a wrongful discharge suit. Sandy McClure and Gregory Skwira, “$1.8 Million Award for Fired Pathologist,” Detroit Free Press, 10 March 1981, 1A. In Oregon, the state medical examiner was also locked in a power struggle with his supervisor, the state health commissioner. The medical exam-

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Notes to Pages 120–122

16. 17.

18.

19.

20.

21.

22. 23.

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iner had retained the funds from tissue procurement for his own use. Removed after a vicious public battle, he was unable to save his job. See “The Organ Grinder: Dr. William Brady,” Willamette Week, 10 November 2004. M. H. Klaiman, “Whose Brain Is It Anyway?” Journal of Legal Medicine 26 (2005): 475–490. See Hainey v. Parrot (2005 WL 2397704), which involved the retention of a whole brain, and Brotherton v. Cleveland (923 F.2d 477), which resulted from the harvesting of corneal tissue under implied consent without expressed consent of the next of kin. Don Jason, “The Role of the Medical Examiner/Coroner in Organ and Tissue Procurement for Transplantation,” American Journal of Forensic Medicine and Pathology 15 (1994): 192–202. State of Wisconsin v. Prihoda, Cranmore, and Rogers, I-5005, Milwaukee County Circuit Court, 1986. Prosecutors dealt with the issue of time of death and transplantation in every state; see “The Concept of Death,” Ohio State Law Journal 30 32 (1969): 32, and Emile Zola Berman, “The Legal Problems of Organ Transplantation,” Villanova Law Review 13 (1968): 751. Gene A. Pierce and John C. McDonald, “UNOS History,” in UNOS Organ Procurement, Preservation and Distribution in Transplantation, 2nd ed. (Richmond, Va.: UNOS, 1996), 1–7. Close to 70 percent of organs for transplant came from deceased persons under the jurisdiction of the medical examiner or coroner. In the years just after the Harvard redefinition of death, medical examiners expressed legitimate concerns over the effect on criminal cases when they allowed organ harvesting. In May 1968 Joseph A. Jachimczyk, medical examiner for Harris County (Houston) expressed concern that the death of Clarence Nicks could not be certified as a homicide if his heart was removed by Denton A. Cooley, the famous heart surgeon, and warned of ramifications if the legal definition of homicide could not be established. Despite his concerns, he promised that he would not pursue legal charges against the surgeons for interfering with an autopsy. “That’s all I needed to hear,” Cooley remarked. “Redefining Death,” Newsweek, 20 May 1968, 68. For additional information on the Shumway case see Evans, Bioethics in America, 88. Nadine Epstein, “Surgeon: Arizona Medical Examiner Holds Back Organs,” American Medical News, 2 March 1987, 14. Theresa J. Shafer et al., “Ethical Analysis of Organ Recovery Denials by Medical Examiner, Coroners, and Justices of the Peace,” Journal of Transplant Coordination 9 (1999): 232–249. See also Teresa Shafer et al., “Impact of Medical Examiner/Coroner Practices in Organ Recovery in the United States,” Journal of the American Medical Association 272 (1994):1607–1613, and Christopher L. Jaynes and James W. Springer, “Decreasing the Organ Donor Shortage by Increasing Communication between Coroners, Medical Examiners and Organ Procurement Organizations,” American Journal of Forensic Medicine and Pathology 15 (1994): 156–159. Taking into account that the family consent rate was less than 50 percent, the real loss of organs was closer to 3–4 percent, as medical examiners had previously contended.

Notes to Pages 122–125

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24. Sally Squires, “Transplant Tug-of-War,” Washington Post, 23 November 1993. 25. Thomas H. Murray, “Organ Vendors, Families, and the Gift of Life,” in Organ Transplantation: Meanings and Realities, ed. Stuart J. Younger, Renee C. Fox, and Laurence J. O’Connell (Madison: University of Wisconsin Press, 1996), 118. 26. Ibid., 111. 27. Frank J. Murry, “Doctor Controls Access to D.C. Dead-body Parts,” Washington Times, 6 November 1995. See also Joye Carter, I Speak for the Dead (Biblical Dogs, 2003), 19. 28. See G. Caleb Alexander and Ashwini R. Sehgal, “Barriers to Cadaveric Renal Transplantation among Blacks, Women, and the Poor,” Journal of the American Medical Association 280 (1998): 1148–1152. Despite uniform practices in Wisconsin for almost twenty years, for example, the family consent rate remained stable at only 47 percent. 29. “Policy Statement to Facilitate Organ and Tissue Recovery in Medical Examiner and Coroner Cases,” submitted by Jim Springer to Members of Medical Examiner/Coroner Donation Task Force, Association of Organ Procurement Organizations, 12 July 1994. 30. See Wisconsin Statute AB 830 (2006). 31. L. Wick et al., “Pediatric Organ Donation: Impact of Medical Examiner Refusal,” Transplant Proceedings 27 (1995): 2539–2544. The authors found that medical examiners refused organ donation in 15 percent of cases of infants in a pediatric intensive care unit over the two-year study period. Families refused donation in 49 percent of the donors sought. The federal government attempted to increase donations by educating medical examiners, coroners, and transplant recovery personnel. See U.S. Department of Health and Human Services, Division of Transplantation, Death Investigation and Organ and Tissue Donation Washington, D.C.: Government Printing Office, 2003. 32. For a review of theses cases see Lawrence O. Gostin, “Deciding Life and Death in the Courtroom,” Journal of the American Medical Association 278 (1997):1523–1528. 33. Physicians debated the issue of euthanasia well before Quinlan; see Lauren A. Schnaper et al., “Euthanasia: An Overview,” Maryland Medical Journal 17 (1977): 42–48. 34. Thomas L. Johnson, “‘Good Death’ Can Have a Bad Ending,” Hennepin Lawyer (January–February 1991): 10. 35. Jeffrey M. Jentzen, “The Medical Examiner and Euthanasia,” St. Paul Pioneer Press Dispatch, 30 May 1990. Concerned over the possibility of a conflict of interest through his medical staff affiliation with the university, Peterson referred the case to another forensic pathologist (the author) for investigation and a final determination of the cause and manner of death. 36. See also Thomas L. Johnson and Garry Peterson, “Factual Summary in Regard to Deaths of Nancy Jack and Brian Mahoney,” press release, Hennepin County Attorney, 24 April 1990. 37. Michele Cook and Walter Parker, “Second Morphine Death Probed: St. Paul

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Notes to Pages 126–128

38.

39.

40. 41.

42. 43. 44.

45. 46. 47.

48.

 252

Man’s Death in Hospital Ruled Homicide,” St. Paul Pioneer Press Dispatch, 30 August 1989, 1A. Arthur Caplan, “Nazi Analogy Is Inaccurate and Offensive,” St. Paul Pioneer Press, 30 April 1990; “Don’t Let Painkiller Rules Chill Final Care,” editorial, St. Paul Pioneer Press, 30 April 1990. J. Paul Carlson, “Response to the Joint Guidelines of the Hennepin County Attorney and the Hennepin County Medical Examiner,” Minnesota Medicine 73 (1990): 35–36. John E. Ruark, “Initiating and Withdrawing Life Support,” New England Journal of Medicine, 318 (1988): 25–30. The principal of double effect is believed to have originated with Thomas Aquinas’s notion of praeter intentionem and consists of the following attributes: (1) the action from which evil results is good or inherent in itself; it is not morally evil; (2) the intention of the agent is upright—i.e. the evil effect is sincerely no interested; (3) the evil effect must be equally immediate causally with the good effect, for otherwise it would be a means to the good effect and would be intended; (4) there must be proportionately grave reason for allowing evil to occur. Phebe Haugen, “Pain Relief for the Dying: The Unwelcome Interventions of the Criminal Law,” unpublished manuscript, William Mitchell College of Law, presents an exhaustive legal overview of the issue of palliative care for dying patients; this study is an expanded version of her previous work as defense counsel for the physicians at University of Minnesota Hospital. She presents the strong defense argument for “double effect” and physicians’ exaggerated fears of criminal liability; i.e., no court has ever successfully convicted a physician treating terminally ill patients. See also Phebe Saunders Haugen, “Terminal Decisions: Landmark Cases in the Path toward Ethical End-of-life Care,” and Phebe Haugen, “Pain Relief: Legal Aspects of Pain Relief of the Dying,” Minnesota Medicine 80 (1997): 15–18. Dale E. Hammerschmidt, “Making It Harder to Care for Terminally Ill Patients, Minneapolis Star and Tribune, 26 May 1990, 10. Jentzen, “Medical Examiner and Euthanasia.” Mary Senander to Jeffrey Jentzen, 22 May 1990, and Mary Senander, “Antieuthanasia Group Says Minneapolis Morphine Homicides Leave Too Many Questions,” Communication of the Anti-Euthanasia Task Force, Minnesota Office, University of Steubenville, 24 April 1990. Johnson, “‘Good Death’ Can Have a Bad Ending,” 11. Paul Carlson, “Managing Pain and Suffering in the Dying Patient,” Minnesota Medicine 73 (1990): 35–36. Minnesota Statute 1 152.125, Intractable Pain Act (1997). Within six years of the case, five states (California, Florida, Minnesota, Texas, and Washington) had enacted similar legislation. Numerous state medical boards developed guidelines for the administration of pain medications to terminally ill patients. State v. McKown, 461 N. W. 2d 720 (Minnesota Court of Appeals), and Margaret Cronin Fisk, “Christian Scientists Held Liable in Death,” National Law Journal, 20 September 1993, 9. See also Paul T. McCain, “The Penalty for Wrong Ideas,” First Things 50 (1995): 42–44. Another high-profile case involved the 1995 starvation death of a Florida woman in the Church of Scien-

Notes to Pages 129–134

49. 50.

51.

52. 53. 54. 55. 56. 57.

58. 59. 60. 61. 62. 63. 64.

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tology. See Lisa McPherson v. Church of Scientology, Sixth Circuit Court, Pinellas County, Florida (2001), 00-5682-c1. Shawn F. Peters, When Prayer Fails: Faith Healing, Children, and the Law (Oxford: Oxford University Press, 2008), 203–214. See People v. Roberts, Michigan Supreme Court, 1990. The AMA responded to the Kevorkian-Adkins case in an editorial that rekindled a debate on the topic. See “Morals and Moralism in the Debate over Euthanasia and Assisted Suicide,” New England Journal of Medicine 323 (1990): 750–752. “Examiner: Deaths Were Homicides,” Detroit News, 16 February 1992, C1. See also Roger S. Magnusum, Angles of Death (New Haven: Yale University Press, 2002), 28–32. Joel Thurtell, “Prober’s Theory: Woman Imagined Pain,” Detroit Free Press, 26 October 1991, 7. Bob Gritzinger, “Assisted Death Ruled Homicide,” Detroit News, 6 June 1992, A1. Editorial, Oakland Press, 29 September 1992. Detroit Free Press, 16 December 1999. Darrel Pressley and Diana Dillaber Murry, “Law Makes No Difference,” Detroit Free Press, 16 December 1992, A1. Jerald G. Bachman et al., “Attitudes of Michigan Physicians and the Public toward Legalizing Physicians-assisted Suicide and Voluntary Euthanasia,” New England Journal of Medicine 334 (1996): 303, 306–307. Dr. Ljubivic Dragovic, interview by author, 14 October 2003. Pontiac, MI Ibid. Oregon Death with Dignity Act, Statutes of Oregon 127.800–897 (1996). Ibid. Derek Humphrey and Mary Clement, Freedom to Die: People, Politics and the Right-to-die Movement (New York: St. Martin’s Press, 1998), 247. Derek Humphrey, Final Exit (New York: Dell, 1991). See Ruth Richardson, “Fearful Symmetry: Corpses for Anatomy, Organs for Transplantation,” in Organ Transplantation Meaning and Realities, ed. Stuart J. Younger, Renee C. Fox, and Laurence J. O’Connell (Madison: University of Wisconsin Press, 1996), 80–81. See also Renee C. Fox, “‘An Ignoble Form of Cannibalism’: Reflections on the Pittsburgh Protocol for Procuring Organs from Non-heart-beating Cadavers,” Kennedy Institute of Ethics Journal (1993): 231–239, and Alan J. Weisbard, “A Polemic on Principles: Reflections on the Pittsburgh Protocol,” Kennedy Institute of Ethics Journal 3 (1993): 217–230.

7. Beyond Vital Statistics 1. Barbara Chapman, “When Is Death Heat-Related?” CAP Today (October 1995): 56–61. The meteorological data and federal strategic review of the disaster is detailed in “Natural Disaster Survey Report: July 1995 Heat Wave,” U.S. Department of Commerce (Silver Spring, Md.: National Weather Service, 1995), and 11 (August 1995): 11. 2. Chicago Tribune, 18 July 1995, 1.

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3. Chicago Tribune, 20 July 1995, 10. Donoghue received early confirmation of the excessive number of heat-related deaths from Laurence Kalkstein, a geography professor at the University of Delaware. Kalkstein verbalized the concept of “excessive mortality” during a heat wave, thus confirming Donoghue’s premise that the deaths were heat-related even in older victims with chronic disease. 4. AMA News 21 (August 1995): 11. 5. Eric Klinenberg, Heat Wave: A Social Autopsy of Disaster in Chicago (Chicago: University of Chicago Press, 2002), 1–36. Klinenberg maintains that the cause of the disaster rested on the fragmentation of city services and political responsibility. Chicago authorities were ill prepared for the heat, despite numerous similar events in the recent past. A major heat wave occurred in the upper Midwest in 1936, killing thousands, and throughout the century; see Austin Henshed et al., “An Analysis of the Heat Deaths in St. Louis during July, 1966,” American Journal of Public Health 59 (1968): 2232–2242, and New York Times, 9 July 1936, and Milwaukee Journal, 8 July 1936, 1. Donoghue’s experience motivated NAME to develop professional guidelines for diagnosing heat-related deaths, in Edmund Donoghue et al., “NAME Position Paper on Health-Related Deaths,” American Journal of Forensic Medicine and Pathology 18 (1997): 11–14. 6. See David Rosner, Hives of Sickness (New Brunswick, N.J.: Rutgers University Press, 1995), 17. Barbara Rosenkrantz, “Cart before the Horse: Theory, Practice and Professional Image of American Public Health, 1810–1920,” Journal of the History of Medicine and Allied Sciences 29 (1974): 55–74. Public health officials openly criticized the practices of medical practitioners. Public health officials in the nineteenth century were part-time elected citizens; by 1910, public health consisted of newly professionalized, municipally funded health departments staffed by medically trained experts. Bulletin of the History of Medicine 64 (1990): 163–186; Bulletin of the History of Medicine 29 (1974): 55–73; and Bulletin of the History of Medicine 49 (1975): 169–75. See also Henry V. Vaughan, “The Health Department and the Practicing Physician,” American Journal of Public Health 17 (1927): 203–207; Daniel M. Fox, “Health Policy and Changing Epidemiology in the United States: Chronic Disease in the Twentieth Century,” chap. 2 of Health Politic, Health Polices: The Experience of Britain and America 1911–65, ed. Daniel M. Fox (Princeton: Princeton University Press, 1986). 7. Francis Schneider, “A Survey of the Activities of Municipal Health Departments in the United States,” American Journal of Public Health 4 (1916): 1. Examples of this “New Public Health” include Ernst S. Bishop, “Narcotic Drug Addiction: A Public Heath Problem,” American Journal of Public Health 9 (1919): 481–486; Edward S. Godfrey Jr., “Role of the Health Department in the Prevention of Accidents,” American Journal of Public Health 27 (1937): 152–155; Henry H. Kessler, “Medico-legal Aspects of Occupational Disease,” American Journal of Public Health 10 (1928): 269–279; Daniel M. Fox, “Health Policy and Changing Epidemiology.” 8. Gilbert E. Corrigan, “Realm of Forensic Pathology,” New England Journal of Medicine 279 (1968): 48. “Forensic pathology, then, is the study of the ecol-

Notes to Pages 136–139

9.

10. 11.

12. 13.

14.

15. 16. 17.

18.

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ogy and nature of human death,” Corrigan wrote. “It is the study of public deaths and those of concern to the public at large. It is meant to aid the living. The scientific challenge of forensic pathology lies in the supplementation of its rich storehouse of observational and descriptive data with meaningful objective and scientific facts.” Theodore M. Porter, Trust in Numbers (Princeton: Princeton University Press, 1998): 97–98, 113. “Every body of scientists, every elite grouping,” according to Porter, “is subjected to strong pressure leading to the confinement of privilege in the form of mechanical and impersonal standards” (225). Terance Beckington Allen, San Francisco Coroner’s Office (San Francisco: Redactos Press, 2002), 51–55. George A. Dundson, “Recording Birth and Death,” Milwaukee Medical Times 10 (1937): 27, and Halbert Dunn, “Development of Vital Statistics in the Bureau of Census,” American Journal of Public Health 25 (1935): 1321–1325. Haven Emerson, “The Reliability of Certain Classes of Death Certificates,” American Journal of Public Health 5 (1915): 701. Matthias Nicole and Marjorie Bellows, “Effect of a Confidential Inquiry on the Recorded Mortality from Syphilis and Alcoholics,” American Journal of Public Health 24 (1934): 813–820. See also Francis Carter Wood, “Need for Cancer Mortality Statistics,” American Journal of Public Health 20 (1930): 11; Fredrick Hoffman, “The Accuracy of American Cancer Mortality Statistics,” American Journal of Public Health 5 (1915): 526–536; Ruth Puffer, “Measurement of Error of Death Rates in the Colored Race,” American Journal of Public Health 17 (1937): 603–608; Kurt Pohlen and Haven Emerson, “Errors in Clinical Statements of Causes of Death,” American Journal of Public Health 32 (1943): 251–260. Harrison Martland, “Advantage of the Autopsy and Other Pathologic Anatomic Examinations,” Journal of the Medical Society of New Jersey (1911): 2–3. For surveys of clinical and autopsy diagnosis of the period see Richard C. Cabot, “Diagnostic Pitfalls Identified during a Study of Three Thousand Autopsies,” Journal of the American Medical Association 59 (1912): 2295–2298; Louis B. Wilson, “The Necropsy as a Public Service,” Journal of the American Medical Association (1915): 1560–1563; Howard Karsner and Leonard Rothschild, “Clinical Diagnosis as Compared with Necropsy Finding in Six Hundred Cases,” Journal of the American Medical Association 73 (1919): 666–669. Puffer, “Measurement of Error,” 603–608. Eugene H. Porter, “The New Vital Statistic Law of New York State, American Journal of Public Health 41 (1914): 125–127. For a review of the Progressive development of environmental health see Christopher Sellers, Hazards of the Job (Chapel Hill: University of North Carolina Press, 1977) and George G. Lebrun, “Two Faces of Justice,” in It’s Time to Tell; As Told To Edward D. Radin (New York: Morrow, 1962,), 22–46. For details of mining injuries of the period see Alan Derickson, “To Be His Own Benefactor: The Founding of the Coeur d’Alene Miner’s Union Hospital, 1891,” in Dying for Work, ed. David Rosner and Gerald Markowitz (Bloom-

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Notes to Pages 139–142

19. 20. 21. 22. 23. 24. 25.

26.

27.

28.

29.

30.

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ington: Indiana University Press, 1987); for railroad deaths see Mark Aldrich, Death Rode the Rails: American Railroad Accidents and Safety, 1828–1965 (Baltimore: The Johns Hopkins University Press, 2009). Crystal Eastman, Work-related Accidents and the Law (New York: Charities Publication Committee, 1910), 3–7. Denver Coroner Records, 26 October 1876 and 21 April 1884, Denver Public Library, 278. Peter M. Hoffman, We Are a Careless People; An Address to the Federation of Railway Physician and Surgeons (Chicago: 1915), 3–4. Ibid. Taylor Graham, “The Coroner’s Office and Public Safety,” in Biennial Report, Cook County Coroner, 1912–1913, 28. Allen, San Francisco Coroner’s Office, 53. William Welch, Public Health in Theory and Practice (New Haven: Yale University Press, 1925), 49. See also Samuel Gerber, “Relation of the Coroner’s Office to the Bureau of Vital Statistics,” American Journal of Public Health 29 (1939): 889–893, and Henry Hemenway, “Birth and Death Certificates as Legal Evidence,” American Journal of Public Health 11 (1921): 1–5. For a description of physician opposition to public heath, see Judith Walzer Leavitt, The Healthiest City (Princeton: Princeton University Press, 1982; Madison: University of Wisconsin Press, 1986), 200–202. Leon Stein, The Triangle Fire (Ithaca, N.Y.: Cornell University Press, 1962), 134–146. Frances Perkins, who later became Franklin Roosevelt’s secretary of labor, said that the New Deal legislation started with the Triangle fire. See Bonnie Mitelman, “Rose Schneiderman and the Triangle fire,” American History Illustrated 16 (1981): 38–47. Francis D. Donoghue, “The Medical Examiner and the Relation of His Work to the Workman’s Compensation Act,” New England Journal of Medicine 204 (1931): 11–15. Harrison S. Martland to Andrew F. McBride, 28 August 1925, Harrison S. Martland Papers, PC/1, 5–3, Special Collections, University Libraries, University of Medicine and Dentistry of New Jersey, (hereafter cited as Martland Papers). See Claudia Clark, Radium Girls: Women and Industrial Health Reform, 1910–1935 (Chapel Hill: University of North Carolina Press, 1997); Samuel Berg, Harrison Standford Martland, M.D.: The Story of a Physician, a Hospital, an Era ( New York: Vantage Press, 1978); “Poisoned!—As They Chatted Merrily at Their Work,” American Weekly, 28 February 1928. Harrison S. Martland to Hon. Andrew F. McBride, Martland Papers. See also H. Martland, P. Conlon, and J. Knef, “Dangers of Radioactive Substances, Especially Radium and Mesothorium, in Reticulo-endothelial System,” Journal of the American Medical Association 85 (1925): 1769–1776. In 1917 Essex County changed its coroner system and renamed it the Office of the County Physician. Martland joined the office in 1920 as an assistant, performing autopsies; he became county physician in 1925. He wanted to modernize the statutes regulating the office to make them similar to those of New York City. In 1927 Essex County became the third major city to appoint a medical examiner; Martland held the position for twenty-five years. See Essex County

Notes to Pages 142–146

31. 32. 33.

34. 35.

36.

37. 38. 39. 40. 41. 42. 43. 44.

45.

46. 47.

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Resolution no. 7038. See also Angela Nugent, “The Power to Define a New Disease: Epidemiological Politics and Radium Poisoning,” in Dying for Work: Workers’ Safety and Health in Twentieth-Century America, eds. David Rosner and Gerald Markowitz (Bloomington: Indiana University Press, 1987): 177–191. Harrison S. Martland to Dr. Alice Hamilton, 24 April 1930, Martland Papers. Crawford, Radium Girls, 177. For examples see Timothy Leary, “The Genesis of Atherosclerosis,” Archives of Pathology 32 (1941): 507; Alan R. Moritz and Joseph Atkins, “Cardiac Contusion,” Archives of Pathology 23 (1938); Timothy Leary, “Subdural or Intradural Hemorrhages?” Archives of Pathology 28 (1939): 808; Harrison Martland, “Punch Drunk,” Journal of the American Medical Association 91 (1928): 1103–1107. Donoghue, “Medical Examiner and the Relation of His Work to the Workman’s Compensation Act,” 11–15. Milton Helpern, “Epidemic of Fatal Estivoautumnal Malaria among Drug Addicts in New York City,” American Journal of Surgery 26 (1934): 111. The finding that injecting heroin resulted in the transmission of malaria led heroin addicts to “cut” or dilute their heroin with quinine. Quinine was a known therapy for malaria but also caused significant cardiac side effects. H. W. Hill, “What Is Public Health?” American Journal of Public Health 25 (1935): 1134. See also C. E. A. Winslow, “Public Health at the Crossroads,” American Journal of Public Health 16 (1926): 1076–1085. E. A. Winslow, quoted in Hanlon and Pickett, Public Health Administration and Practice (St. Louis: Times Mirror, 1984) R. N. Whitefield, “The Homicide Situation in the United States,” American Journal of Public Health 27 (1937): 981. Warren Stearns, “Suicide,” New England Journal of Medicine 204 (1931): 9–11. Editorial, Milwaukee Journal, 11 January 1931. Safety, 18. Editorial, Journal of the American Medical Association 89 (1927): 581–582. John E. Gordon, “Accident Prevention through Epidemiological Analysis,” Journal of the Michigan State Medical Society 11 (1951): 1239–1243. William Haddon, Accident Research, 4. Haddon was first to describe the relationship the public health model between host, vector, and environment that bears his name. For a more contemporary view of public health’s role in accident prevention see: “Public Health Surveillance of 1990 Injury Control Objectives for the Nation,” MMWR 37 (1990): supp. 1. Alan R. Moritz, “A Memorandum Concerning the Desirability of Closer Curricular Integration of Legal Medicine and Preventive Medicine,” 26 January 1944, Harvard University Legal Medicine, box 88, folder 1054, ser. 200, Rockefeller Foundation Archives, Rockefeller Archives Center. R. F. Borkenstein, “The Role of Alcohol in the Traffic Safety Problem,” Proceedings from the 1957 National Association of Coroners, Louisville, Kentucky. Loren Kalal, “Coroner’s Testing Program: A Highway Safety First,” Proceedings of the 1970 Meeting of the International Association of Coroners held in Minneapolis, September 1970, National Association of Coroners, 33–34. For

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Notes to Pages 146–148

48.

49.

50.

51.

52.

53.

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a detailed chronology of the development of the legal standard of intoxication, see Robert B. Forney, “Alcohol Impaired Driving,” Proceedings of the California Association of Toxicologists 28 (2000): 47–73. Haddon, Accident Research, 4. Physicians also called on their colleagues to become more involved in preventing motor vehicle deaths; see “On Accident Prevention,” editorial, New England Journal of Medicine 265 (1961): 551. For an example of a coroner’s work on alcohol-related deaths see Julian A. Waller and Henry W. Turkel, “Alcoholism and Traffic Deaths,” New England Journal of Medicine 275 (1966): 532–536. Representative public health articles by medical examiners include Dwight Boyer, “Cuyahoga—The Bloody County,” Cleveland Plain Dealer Magazine, 14 July 1974; Charles S. Hirsch et al., “Homicide and Suicide in a Metropolitan County: Changing Patterns in Homicide,” New England Journal of Medicine 297 (1977): 531–538; Kenneth Tardiff and Elliot Gross, “Homicide in New York City,” Bulletin of the. New York Academy of Medicine 62 (1986): 413–425; Arthur Kellerman and Donald Reay, “Protection or Peril? An Analysis of Firearm-related Deaths in the Home,” New England Journal of Medicine 3 (1986): 1557–1560; Arthur Kellerman, Donald Reay, et al., “Handgun Regulation, Crime Assaults, and Homicide: A Tale of Two Cities,” New England Journal of Medicine 319 (1988): 1256–1262. James Luke, personal communication, 5 February 2001. Methadone had only recently been approved as a component of treatment for heroin addiction. Its initial use was controversial and implied treating one disease with another addiction. For a historical review of the use of methadone, see Vincent P. Dole and Marie Nyswander, “The Medical Treatment of Diacetylmorphine (Heroin) Addiction: A Clinical Trial with Methadone Hydrochloride,” Journal of the American Medical Association 193 (1965): 645–650. James Luke, interview by the author, 5 February 2001. Mark H. Greene, James L. Luke, and Robert L. DuPont, “Opiate ‘Overdose’ Deaths in the District of Columbia,” pt. 1, Heroin-related Fatalities,” Medical Annuals of District of Columbia 43 (1974): 175–181; Mark H. Greene, James L. Luke, and Robert L. DuPont, “Opiate ‘Overdose’ Deaths in the District of Columbia: Methadone-related Fatalities,” Journal of Forensic Sciences 19 (1974): 575–584; A. James Ruttenber and James L. Luke, “Heroin-related Deaths: New Epidemiologic Insights,” Science 226 (1984): 14–20. See Lester Adelson and E. H. Kinney, “Sudden and Unexpected Deaths in Infancy and Childhood,” Pediatrics 17 (1956): 663–699, and Lester Adelson and M. A. Valdes-Dapena, “Sudden and Unexpected Deaths in Infants,” Pediatric Clinics of North America 10 (1963): 693–704. At the Second International Conference on SIDS in 1978, it was defined as the sudden and unexpected death of a child less than one year old in which there is no identification of the cause of death after a complete investigation including autopsy and a review of the medical history. U.S. Senate, Subcommittee on Children and Youth, Examination of the Sudden Infant Death Syndrome: Hearing before the Subcommittee on Children and Youth, 92nd Cong. (Washington, D.C.: Government Printing Office, 1972). See Senate Joint Resolution no. 206 (1972). See also William J. Curran,

Notes to Pages 148–150

54. 55.

56.

57.

58. 59.

60.

 259

“An Enigma Wrapped in Swaddling Clothes: Congress and ‘Crib Death,’” New England Journal of Medicine 287 (1972): 235–237. Lester Adelson, “The Slaughter of Innocents,” New England Journal of Medicine 264 (1961): 1345–1349. In New York City, the Department of Health and the medical examiner office cosponsored a family counseling program housed in the medical examiner’s office. In some states, autopsies could be deferred in SIDS cases if the family objected in writing, even though the definition of SIDS required an autopsy be performed. See Wisconsin Statute 979.03. Rates of sudden infant death syndrome declined 30 to 60 percent in countries where health care workers counseled parents and caregivers to put infants on their backs to sleep to avoid asphyxiation. Kay M. Tomeshek, Carrie Shapiro-Mendoza, Jennifer Wingo, and Terry W. Davis, “National Standard for Death-Scene Investigation of Sudden, Unexpected Infant Deaths in the United States,” Pediatrics 115 (2005): 823, and Carrie K. Shapiro-Mendoza, Melissa Kimball, Kay Tomashek, Robert Anderson, and Sarah Blanding “US Infant Mortality Trends Attributed to Accidental Suffocation and Strangulation in Bed from 1984 Through 2004: Are Rates Increasing?” Pediatrics 123 (2007): 533–539. Michael J. Durfee et al., “Origins and Clinical Relevance of Child Death Review Teams,” Journal of the American Medical Association 267 (1992): 3172–3175. The basic goal of the review teams is to develop an understanding of the causes and circumstances surrounding a child’s death and identify policies, procedures, and ideas for legislative action that could reduce the number of preventable deaths. Sloan, New England Journal of Medicine 319 (1983): 1256–1262. James A. Mercy and Vernon N. Houk, “Firearm Injuries: A Call for Science,” New England Journal of Medicine 319 (1988): 1283–1284. “Injury from firearms is a public health problem whose toll is unacceptable. The time has come for us to address this problem in a manner in which we have addressed and dealt successfully with other threats to the public health. We have made great strides in reducing the risks of injury from other environmental hazards. For instance, the rate of motor vehicle injuries has been reduced because of changes in highway construction and vehicle design and the increased use of seat belts and child-restraint devices. Only through the applications of sound scientific principles were these advances wrought, however, and only by applying such principles are we able to acquire the information needed to identify successful strategies to prevent firearm injuries.” James A. Mercy et al., “Firearm-related Injury Surveillance: An Overview of Progress and the Challenges Ahead,” American Journal of Preventive Medicine 15, 3S (1998): 6–16; Stephen P. Teret, “Firearms and the Public Health,” Journal of Public Health Policy 1 (1980): 224–229; Garen Wintemute, “Firearms as a Cause of Death in the United States, 1920–1980,” Journal of Trauma 2 (1987): 532–536. For a review of the creation of firearm surveillance programs see American Journal of Preventive Medicine 15, supp. (1998): 1–125, which surveys the status of ten firearm surveillance programs, providing a rational for the development and continuation of the program.

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61. L. Pratt, “Public Health Strategies: To Reduce Firearm Injuries and Deaths in Milwaukee County—Executive Summary,” Wisconsin Medical Journal 94 (1995): 572–584. 62. Harold Davis, “The Accuracy of Industry Data from Death Certificates for Workplace Homicide Victims,” American Journal of Public Health 78 (1988): 1579–1581. See also Jay H. Glasser, “The Quality and Utility of Death Certificate Data,” American Journal of Public Health 71 (1981): 231–233; “The Quality of Cause-of-death Statistics,” American Journal of Public Health 77 (1987): 137–139; Iwao M. Moriyama et al., “Inquiry Is Not Diagnostic Evidence Supporting Medical Certification of Death,” American Journal of Public Health 48 (1958): 1376–1387; Committee in the Medical Certification of Causes of Death, “Problems in the Medical Certification of Causes of Death,” American Journal of Public Health (January 1958), 70–80. 63. Dan Sosin, “The Use of Medical Examiner and Coroner Data for Public Health Surveillance,” in Medicolegal Death Investigation System: Workshop Summary (Washington, D.C.: Institute of Medicine, National Academy of Sciences, 2003), 38–40. Autopsy surveillance is a better method than death certificates for disease surveillance. Forensic pathologists have detected outbreaks in plague, malaria, and West Nile virus. In 1990, the New York City medical examiner obtained the legal authority to perform HIV testing on autopsy cases for epidemiological purposes, resulting in the identification of 100–150 cases annually of unsuspected positive cases. See Charles S. Hirsch, Forensic Pathology and Public Health: The Maude Abbott Lecture, Unites States and Canadian Academy of Pathology, Orlando, Florida, 4 March 1997. See also Randy Hanzlick and R. Gibson Parrish, “The Role of Medical Examiners and Coroners in Public Health Surveillance and Epidemiological Research,” Annual Review in Public Health 17 (1996): 383–409. 64. C. Conroy and J. C. Russell, “Medical Examiner/Coroner Records: Uses and Limitations in Occupational Injury Epidemiological Research,” Journal of Forensic Sciences 35 (1990): 932–937. 65. “The Problematic Death Certificate,” editorial, New England Journal of Medicine 313 (1985): 1285. See Tobias Kircher, “The Autopsy as a Measure of Accuracy of the Death Certificate,” New England Journal of Medicine 313 (1985): 1263–1269. 66. Sosin, “Use of Medical Examiner and Coroner Data,” 38–40. 67. Hanzlick and Parrish, “Role of Medical Examiners and Coroners,” 392–395. 68. Ibid. 69. George Furst, “Sudden, Unexpected, Nocturnal Deaths among Southeast Asian Refugees,” American Journal of Forensic Medicine and Pathology 3 (1982): 277–279. 70. David Tuller, “Combining the Scattered Data from Violent Deaths,” New York Times, 14 January 2003. 71. Victor Weedn, “The Potential Federal Role in the Death Investigative System,” in Medicolegal Death Investigation System: Workshop Summary (Washington D.C.: Institute of Medicine, National Academy of Sciences, 2003), 56–60.

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8. The Road to Demedicalization 1. Douglas Pardue and Jeff Miller, “Burying Our Mistakes,” Columbia (SC) State, 22 May 1994, 2. The State published a four-part ser. documenting the “haphazard” South Carolina coroner system. Debbie Cenziper and Ted Mellnik, “Grave Secrets: Breakdown in N.C. Death Investigations,” Charlotte Observer, 11–14 February 2001, a similar exposé, documented the North Carolina medical examiner system. 2. Randy Hanzlick, “Medical Examiner and Coroner Systems: History and Trends,” Journal of the American Medical Association 298 (1998): 280–284. 3. Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982). Perhaps the best example of the medicalization process can be found in Judith Walzer Leavitt, Brought to Bed: Childrearing in America 1750 to 1950 (New York: Oxford University Press, 1986). Leavitt describes the radical change in the practice of childbirth in the early twentieth century as the result of the medicalization culture of the American hospital. 4. Ivan Illich, Medical Nemesis: The Expropriation of Health (New York: Random House, 1976). According to Illich, “deprofessionalization of medicine means the unmasking of the myth according to which technical progress demands the solution of human problems by the application of scientific principles, the myth of benefit through an increase in specialization of labor, the multiplication of arcane manipulations” (256). 5. Editorial, “No Justification for Opposition,” Greenville (SC) News, 11 February 1970, 4. 6. Ron Brinson, “The Coroner System: Ancient Job Presents New Problems,” Charleston Evening Post, 26 August 1969. This five-part series discusses the coroner system in an attempt to initiate a new medical examiner system. 7. Editorial, “S.C. Needs Medical Examiners, Physicians Believe” Greenville, (SC) News, 11 January 1971. 8. Rob Wood, “S.C.: A Good Place to Commit Murder?” Charleston News and Courier, 9 April 1972. The slogan was Richard S. Childs’s propaganda tool, used to scare legislators into taking action to abolish the coroner. 9. Editorial, “Medical Examiner Plan Scored,” The State [Columbia, S.C.] 13 January 1971. 10. Cliff LeBlanc, “Sheriffs Suspicious of Medical Examiner,” Columbia Record, 25 January 1979. 11. “Doctor’s Presence Not Required When Death Pronounced” Charleston Evening Post, 25 August 1971, 2A. The ruling followed the practice in other states where nonphysician coroners were permitted to pronounce death at a scene, whereas in a hospital or when a coroner is not present, only a physician can pronounce death. 12. Margaret W. Garrett, “Health Department Chief Hits Reports on Coroner,” Charlestown Evening Post, 27 July 1971. 13. Lynn Langley, “Pros, Cons Seen in Medical Examiner Bill,” Charlestown PostCourier, 3 March 1982, F1. Sheriffs reversed their opposition to the bill two years later, when forensic pathologists for the medical school threatened to stop

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14. 15. 16. 17. 18.

19. 20.

21. 22.

23. 24. 25.

26. 27.

28. 29.

30.

31.

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assisting coroners in solving difficult cases. See Cliff LeBlanc, “Sheriffs Endorse Medical Examiner System Measure,” Columbia Record, 23 January 1980. Jane Laureau, “Medico Examiner in South Carolina: A Losing Battle,” Newscope (Medical University of South Carolina), March 1981, 3. Barbara S. Williams, “Legislator Proposes Bill to Alter Coroner System,” Charleston News and Courier, 10 September 1971. Editorial, Greenville (SC) News, 15 February 1972. Kenneth Chu to Joseph C. Coleman, 21 October 1974. Charleston County Medical Examiner Archives, Medical University of South Carolina, Charlston. Gordon R. Henniger to Lawrence C. Richter, 19 October 1975. Charleston County Medical Examiner Archives, Medical University of South Carolina, Charlston. “Undetected Murders,” editorial, Charleston Evening Post, 30 August 1983. Arnold Goldstein to Gordon R. Henniger, Medical Examiner’s System Bill [H 2086] April 1979. Charleston County Medical Examiner Archives, Medical University of South Carolina, Charlston. Robert Brisse, interview with the author, 13 September 2004. Charleston, S.C. Jonathan Oates, “Medical Examiners: A Real Need or Just More Bureaucracy, Columbia (SC) State, 1 August 1982, 1C. See also “Time to Exhume Examiner Plan,” editorial, Spartanburg (NC) Herald-Journal, 3 February 1980, A4. “I’m Weary, State Medical Examiner Backer Gives Up,” editorial, Columbia (SC) State, 7 May 1981. Fountain Inn Police Chief Dies Playing Russian Roulette,” (Charleston, S.C.) Times and Courier, 13 December 1983, B1. Columbia (SC) State, 14 December 1983. See also “Coroner System Needs Replacing,” editorial, Greenville (SC) News, 13 December 1983, and “Coroner Demonstrates Shortcomings of Office,” Greenville (SC) News, 13 December 1983. “Coroner’s Errors Can Be Instructive,” editorial, Columbia (SC) State, 20 December 1983, 14A. Steve Smith, “Should the Coroner System Be Overhauled?” Rock Hill (SC) Evening Herald, 12–14 April 1984; Paul Marin, “Coroner or Medical Examiner the South Carolina Option,” Greenville (SC) New Greenville Piedmont, 3–6 September 1984; and Pardue and Miller “Burying Our Mistakes.” Arlie Porter, “Medical Examiner Gets Flak from State Coroners,” Charleston, S.C. Post and Courier, 17 August 1997, 1A, 19A. Elsa McDonnell, “Job Requires Scientist Not Politician,” Charleston, S.C. Post and Courier, 20 November 1997, and “Why We Need a Good Medical Examiner,” Charleston, S.C. Post and Courier, 9 August 1998. Brian Hicks, “Panel May Be Abolished,” Charlston, (S.C.) Post and Courier, 10 December 1997, and “Council Should Be Cautious on Medical Examiner Changes,” editorial, Charleston, S.C. Post and Courier, 11 December 1997, 12A. Arlie Porter, “Anatomy of a Feud,” Charleston, S.C. Post and Courier, September 1997, A1. See also Brian Hicks, “Panel May Be Abolished,” Charleston, S.C. Post and Courier, 10 December 1997, “Council Should Be Cautious on Medical Examiner Changes,” editorial, Charleston, S.C. Post and Courier, 11 December 1997.

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32. Numerous other states experienced similar conflicts between forensic pathologists, medical examiners, coroners, and politicians. In 1974, the Mississippi state legislature, for example, created an independent medical examiner system under the auspicies of a three-person commission, but the office of medical examiner remained unfunded by the legislature until 1980. When a well-qualified forensic pathologist was selected, the state personnel board withheld her salary, citing lack of funds. She had unknowingly become entangled in a political conflict between the state and county governments over who would control county functions. Some politicians simply did not wish to see a medical examiner system free of political control. In seeking funding for the office, she attempted to educate the politicians and public on the need for a statewide medical examiner system and lobbied her forensic colleagues across the country for their support. Politicians expressed “surprise and shock” when she resigned her position after working for a year without a salary. Lacking any alternative, coroners in Mississippi returned to their duties under the control of the political establishment. See “Resigning State Medical Examiner Says Budget Couldn’t Be Drawn Up,” Jackson Daily News, 12 July 1983, 3, and “Step Backward: Medical Examiner System Stranded,” editorial, Jackson (MS) Clarion Ledger, 13 July 1983. 33. Editorial, Racine, (WI) Journal Times, 14 January 1981. In other states, other county officials, such as district attorneys (Nebraska and Washington), sheriffs (California), justices of the peace (Texas and Florida), and county judges, could serve as coroner. However, this was the first time that a nonphysician was deliberately selected for the position over a board-certified forensic pathologist. By 2002 there were sixteen nonphysician medical examiners in Wisconsin. In 2000, thirty-nine out of forty states required medical examiners to be physicians while only four of the twenty-eight states with coroners required that they be physicians (Ohio, Louisiana). Of the twenty-nine states with coroners, they are elected in twenty-five and appointed in the other four, (Alaska, Hawaii, Kansas, and North Dakota). Randy Hanzlick, “Death Investigation in the United States, 1990: A Survey of Statutes, Systems and Education Requirements,” Journal of Forensic Science (1993): 628–632. 34. State of Wisconsin, Opinions of the Attorney General, OAG13-80, 12 March 1980. 35. “Report of the County Executive on the Appointment of the Medical Examiner, Report No. 107, 9 December 1980, submitted by Gilbert Berthelson to the Racine County Board of Supervisors, 19 December 1980. Racine, Wisconsin. 36. John Essayian, interview by the author, 19 December 1996; Racine, Wisconsin. Gary Langendorf to Racine County Board of Supervisors, 15 December 1980, Archives of Racine County Medical Examiner, Racine, Wisconsin. 37. State of Wisconsin Court of Appeals, District 2, Helen C. Young and Quentin Lloyd v. Gilbert Bertelsen and the Racine County Board of Supervisors, 23 February 1982. 38. The lay medical examiner’s expertise was challenged when he made a hasty determination of suicide in the death of the son of a Green Bay Packers coach. See Meg Jones and Jesse Garza, “Green Bay Teen’s Death Ruled Suicide,” Milwaukee Journal Sentinel, 20 May 2003, 2C.

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39. Ynez Viole O’Neil, “Innocent III and the Evolution of Anatomy,” Medical History 2 (1976): 429–432. Katharine Park asserts that physicians commonly performed autopsies and dissections in medieval and Renaissance Europe: “The Criminal and the Saintly Body: Autopsy and Dissection in Renaissance Italy,” Renaissance Quarterly 47 (1994): 1–33. 40. Lester S. King and Marjorie C. Meehan, “A History of the Autopsy,” American Journal of Pathology 73 (1973): 540. D. Hoyert, The Autopsy, Medicine, and Mortality Statistics, National Center for Health Statistics, Vital Health Statistics, ser. 3, no. 2 2001. See also George Lundberg, The Role of the Medicolegal Autopsy in Health Care, Medicolegal Death Investigation System: Workshop Summary (Washington, D.C.: National Academies Press, 2003): 44–45. L. Goldman, “Autopsy: Seventy-five Years after Cabot,” Journal of the American Geriatric Society, 34 (1986): 897–898. 41. Rolla B. Hill and Robert E. Anderson, The Autopsy-medical Practice and Public Policy (Boston: Butterworths, 1988), 35–37. See also Lester S. King, “A History of the Autopsy,” American Journal of Pathology 73 (1973): 514–544. Carmen K. Steigman, “The Autopsy as a Quality Assurance Tool: Last Rites or Resurrection?” Medical Laboratory Observer May 2002: 28–33. 42. John Prutting, “The Autopsy,” letter to the editor, Journal of the American Medical Association 222 (1972): 1556–1557. Some authors disagree that removal of the JCAHO minimal requirement was a significant cause for the decline of the autopsy, on the basis that the decline occurred in numerous countries without regulations. See Hill and Anderson, Autopsy, 162. 43. Hill and Anderson, Autopsy, 161. 44. George D. Lundberg, “Medicine without the Autopsy,” Archives of Pathology and Laboratory Medicine 106 (1984): 449–454. See Richard C. Cabot, “Diagnostic Pitfalls Identified during a Study of Three Thousand Autopsies,” Journal of the American Medical Association 59 (1912): 2295–2298. Kaveh G. Shojania et al., “Changes in Rates of Autopsy Detected Diagnostic Errors over Time: A Systematic Review,” Journal of the American Medical Association 289 (2003): 2849–2856. “Low-tech Autopsies in the Era of High-tech Medicine,” Journal of the American Medical Association 280 (1998): 1273. 45. Vincent J. Di Maio, “Natural Death as Viewed by the Medical Examiner: A Review of 1000 Consecutive Autopsies of Individuals Dying of Natural Disease,” Journal of Forensic Sciences 36 (1991): 17–24. 46. Michael Baden, CAP Today 16 (1991) 32–34. See also Kevin Helliker, “How an Autopsy Could Save Your Life,” Wall Street Journal, 3 June 2003, D1. 47. See Larson v. Chase, 50 N.W. 238 (Minn. 1891). 48. John B. Browning, “Legal Aspects of Coroner’s Autopsies,” Proceedings of 1957 National Association of Coroners, 17–22. See also Jon R. Waltz, “Legal Liability for Unauthorized Autopsies and Related Procedures, Journal of Forensic Sciences 16 (1971): 1–14. For a historical view of autopsy laws see Michael Sappol, A Traffic of Dead Bodies (Princeton: Princeton University Press, 2002). 49. Mechanic, New England Journal of Medicine 312 (1985): 181–183. 50. Joseph Rupp, “Death of a Medical Examiner’s System,” Journal of Forensic Sciences 16 (1971): 420–437. See E. Donald Shapiro and Anthony Davis, “Law and

Notes to Pages 168–171

51.

52.

53. 54. 55.

56.

57. 58.

59. 60. 61.

62. 63.

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Pathology through the Ages: The Coroner and His Descendants—Legitimate and Illegitimate,” New York State Journal of Medicine (1972): 805–809. For a listing of United States autopsy laws see Cyril H. Wecht, United States Medicolegal Autopsy Laws (Arlingtion, Va.: Information Resources Press, 1989). Rupp v. Jackson, 238 So. 2d 86 (Fla., 1970). Rupp, “Death,” Joseph H. Davis, F. A. C. Sevier, and John R. Feegel, “Investigative Powers of the Medical Examiner in Light of Rupp versus Jackson,” Journal of Forensic Sciences 17 (1972): 181–188. See also Shapiro and Davis, “Law and Pathology through the Ages.” “Autopsy: Liability of Coroner for Ordering Unauthorized Autopsy,” Journal of the American Medical Association 117 (1941): 639–640, and “Autopsy: Liability of Private Mortuary for Permitting Coroner’s Physicians to Perform Autopsy,” Journal of the American Medical Association 12 (1942): 150. I. Ghanem, “Permission for Performing an Autopsy: The Pitfalls under Islamic Law,” Medical Science and the Law 28 (1988): 241–242. See Ohio Coroner Law 313.131 and Wisconsin Statute 979.01. Hainey v. Parrot, 2005 WL 2397704, involved the retention and disposal of a whole brain after autopsy. Brotherton v. Cleveland, 923 F.2d 477, resulted from recovery of corneal tissue under implied consent without expressed consent of the next of kin. M. H. Klaiman, “Whose Brain Is It Anyway?” Journal of Legal Medicine 26 (2005): 484–486. English common law provided no property right in a human body or its parts. The 1905 Iowa Supreme Court case Winkler v. Hawkes & Ackley is considered to be the first case of uncontested postmortem organ retention. See Klaiman, “Whose Brain Is It Anyway,” 478–481. For an overall review of the topic see Remigius Nwabueze, Biotechnology and the Challenge of Property: Property Rights in Dead Bodies, Body Parts, and Genetic Information (Surry, UK: Ashgatte Publishing, 2007). Richard D. Raskin, “Autopsy Records Case Argued,” CAP Today (February 1989): 6–7. Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (HIPAA); www.poaccess.gov/. For a discussion of some of the unintended consequences, see Susan Lawrence, “Access Anxiety: HIPAA and Historical Research,” Journal of the History of Medical and Allied Sciences 62 (2007): 422–460. House Bill 1083 Florida (2001), the Dale Earnhardt Law. George J. Annas, “Family Privacy and Death—Antigone, War, and Medical Research,” New England Journal of Medicine 352 (2005): 501–505. Peter Benjaminson, “Morgue Workers Take Parts of Bodies, Dr. Spitz Charges,” Detroit Free Press, 14 May 1976, A3; C. Eugene Emery, “Dr. Sturner Quits Post Four Hours before Hearing,” Providence Journal-Bulletin, 8 June 1991. Eliot Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge (Chicago: University of Chicago Press, 1988), 64–66. See Leroy Riddick, ed. National Association of Medical Examiner’s Position Paper on Pathologists’ Assistants (St. Louis: National Association of Medical Examiners, 1999).

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64. Virginia Lynch, “Advances in Forensic Nursing: New Dimensions in the Twenty-first Century.” Journal of Psychosocial Nursing 34 (1996), 7. Some medical examiners recommended the use of forensic nurses; see “Opportunities Abound for Nurses Medical Examiner Says,” Forensic Nurse (January– February 2003): 19–20. 65. Kelly M. Pyrek, “Nurse Coroners Slowly Gain Ground,” Forensic Nurse (January–February 2003): 24–27. 66. Standing Bear, “Forensic Nursing and Death Investigation,” Journal of Psychosocial Nursing 33 (1995), 7. 67. Marion Cumming, “Nurse-coroner to Forensic Consultant: One Emergency Nurse’s Experience,” Journal of Forensic Nursing 22 (1996): 495. 68. Randy Hanzlick, “Medical Examiners, Forensic Pathologists, and Coroners,” Journal of the American Medical Association 277 (1997): 532.

9. The Popularization of Forensic Pathology 1. “Shaggy Dog City,” Homicide: Life on the Streets, CBS, 16 January 1998. 2. For a description of popular representations of crime in novels in colonial and early America, see Karen Halttunen, “Early American Murder Narratives: The Birth of Horror,” in The Power of Culture, ed. Richard Wightman Fox and T. J. Jackson Lears (Chicago: University of Chicago Press, 1993), 67–100. 3. Police forces developed in America in the early nineteenth century. Historians recognize the “day-watch” in Boston as the first effort to develop a professional police force, followed by one in New York City in 1850. The American system of policing, developed along local lines and manned with amateurs, did not become fully “professionalized” until the 1960s. For a review of the American system of policing see Samuel Walker, Popular Justice: A History of American Criminal Justice (New York: Oxford University Press, 1980). 4. Edgar Allen Poe, “The Murders in the Rue Morgue,” in Tales of Ratiocination and Illusion, ed. Edmund Stedman and George Woodberry (New York: Scribner’s, 1914), 85–86. See also Jeff Siegel, The American Detective: An Illustrated History (Dallas: Taylor, 1993), 7–11. In addition to “The Murders in the Rue Morgue” (1841), Poe’s other detective fiction included The Mystery of Marie Roget (1842) and The Purloined Letter (1844); both featured Dupin. According to Siegel, Poe developed thirty-two conventions of the modern mystery novel in writing “The Murders in the Rue Morgue,” most of which Arthur Conan Doyle later incorporated in his Sherlock Holmes stories. 5. Poe, “Murders,” 21. 6. See Ronald R. Thomas, “The Unequal Voices in ‘The Murders in the Rue Morgue,’” in Detective Fiction and the Rise of Forensic Science (Cambridge: Cambridge University Press, 1999), 40–56, for a more complete discussion of the development of scientific and literary devices in Poe’s story. 7. Alan Pinkerton, Thirty Years a Detective (New York, 1886), quoted in R. Gordon Kelly, Mystery Fiction and Modern Life (Jackson: University of Mississippi Press, 1998), 23. 8. There are innumerable literary discussions on the literary, cultural, and scientific

Notes to Pages 177–180

9.

10. 11.

12. 13. 14.

15. 16. 17. 18.

19.

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role of Sherlock Holmes in the development of criminal justice. Here again see Thomas, Detective Fiction and the Rise of Forensic Science, 75–90. “For Holmes, however, what matters is the scientific method with which the question is approached and through which the case can be ‘read.’ The detective reinforces this point later in the case when he maintains that the most important branch of ‘detective science’ is the ability to read ‘footmarks.” . . . It becomes clear what is important for Holmes is the establishment of the ‘medico-legal’ authority of scientific expertise to mediate any dispute between personal and the political by offering a reading of the encoded evidence of the criminal body” 225. E. F. Bleiler, The Best of Dr. Thorndyke Detective Stories (New York: Dover, 1973). Beginning with The Red Thumb Mark in 1907, Freeman wrote eleven novels and forty-two short stories featuring Dr. Thorndyke. Biographies of famous English forensic pathologists include Douglas Brown and E. V. Tullet, The Scalpel of Scotland Yard: The Life of Sir Bernard Spilsbury (New York: Dutton, 1952), Sydney Smith, Mostly Murder (London: Dorset Press, 1959), and Keith Simpson, Forty Years of Murder (London: Dorset Press, 1978). The life of Bernard Spilsbury is documented in Colin Evans, The Father of Forensics: The Groundbreaking Cases of Sir Bernard Spilsbury, and the Beginnings of Modern CSI ( New York: Berkley Books, 2006). Kelly, Mystery Fiction and Modern Life, 25. Oscar T. Schultz, “Our Antiquated Coroner System,” Hygeia 9 (1930), 908–911, 930 908–912, Oscar T. Schutz, “Tales That Dead Men Tell,” Hygeia 7 (1929), and Margaret Warwick, “Why Should Autopsies Be Done?” Hygeia 11 (1933): 1201–1204 606–609. See Thomas, “The Voice of Red Harvest,” in Detective Fiction and the Rise of Forensic Science, 91–108. Francis Sill Wickware, “The Cases of Dr. Gonzales,” Life, 27 November 1939, 54. Eben J. Carey, “Medical Science Exhibits,” in A Century of Progress: Chicago World’s Fair 1933–1934, 112–113. Department of Special Collections, University Library, University of Illinois at Chicago. Percival Wilde, Inquest (New York: Random House, 1940), 3–9. William Travers, Anatomy of a Murder (New York: St. Martins Press, 1958). Merrell Films, Journal of the American Medical Association (1970): 76–77. Erle Stanley Gardner, The Case of the Demure Defendant (London: Heinemannn, 1956), Gardner’s first Perry Mason novel was The Case of the Velvet Claw (1953); see Julie Johnson, “Coroners, Corruption, and Politics of Death,” ed. Michael Cark and Catherine Crawford, Legal Medicine in History (Cambridge: Cambridge University Press, 1994), 288. For other examples of such dedications, see Erle Stanley Gardner, The Case of the Glamorous Ghost (1955), dedicated to George Burgess Margrath; The Case of the Long-legged Models (1957), dedicated to Michael Anthony Luongo; The Case of the Footloose Doll (1957), dedicated to Theodore Curphey; and The Case of the Moth-eaten Mink (1952), dedicated to Russell S. Fischer. Erle Stanley Gardner, “The Court of Last Resort,” Argosy, September 1948– October 1958).

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20. Richard F. Dempewolff, “Mysterious Death Their Business,” Popular Mechanics 100, no. 1 (1953): 65–69, and Pete Martin, “How Murderers Beat the Law,” Saturday Evening Post, 10 December 1949 May 1949, 222–232. 21. Paulette Cooper, The Medical Detectives: How Modern Science Helps the Dead to Speak (New York: David McKay, 1973), 207. 22. Vincent Bugliosi, Helter Skelter: The True Story of the Manson Murders (New York: Norton, 1974). 23. Herbert Liebermann, City of the Dead (New York: Simon and Schuster, 1976), 13. 24. Milton Helpern, Autopsy: The Memoirs of Milton Helpern, the World’s Greatest Medical Detective (New York: St. Martin’s Press, 1977), 263. For another more contemporary example, see Laura Pelehack, “Profiles: Medical Examiner as Public Health Educator,” Laboratory Medicine 26, no. 4 (1955): 831–832. 25. Thomas T. Noguchi, Coroner (New York: Simon and Schuster, 1983), and Coroner at Large (New York: Simon and Schuster, 1985). Noguchi has said that the money from his book barely covered his legal expenses in defending himself. He was later acquitted of all charges. (personal communication, 4 December 2003). Another example of the same genre is Michael Baden, Unnatural Death (New York: Random House, 1989). 26. For a more nuanced sociological perspective on the importance of Quincy, see Ramona Lyons, “Speakers for the Dead and the Social Construction of Medicolegal Deathwork” ( Ph.D diss., University of Pennsylvania, 1997), 196–204; for a listing of Quincy episodes, see 297. 27. Ibid., 207–211. 28. Marvin Grosswirth, “Among Forensic Pathologists Quincy’s a Social Crusader,” Scientific Digest (1980): 64–67. 29. “Life in the Minors,” Hill Street Blues, episode 53, 24 February 1983. 30. Examples of this photographic technique can be found in David Sedaris, “Working Stiffs,” Esquire, April 1998, 112–121, and Michael Perry, “Health Secrets from the Morgue,” Men’s Health, April 2006, 148, 151, 153–155. 31. B. R. Redman, “Decline and Fall of the Whodunit,” Saturday Review 35 (1952): 8–9, 31–32. 32. Kelly, Mystery Fiction and Modern Life, xi–xxi. 33. Marcella Fierro, personal communication, 2 November 1998. More recently, other authors have exposed themselves to medical examiners and their morgues in order to gain firsthand knowledge of the field. See Stefan Timmermans, Postmortem: How Medical Examiners Explain Suspicious Deaths, and Ramona Lyons, “Speakers for the Dead.” 34. Patricia Cornwell, The Body Farm (New York: Berkley Books, 1995), 85. 35. Ibid., 274. 36. Ed Gorman and Martin Greenberg, Speaking of Murder (New York: Grove City, 1998), 241. 37. In 1990, the year Cornwell published Postmortem, women comprised 36 percent of American medical school classes, and by 1992 filled 28 percent of all existing forensic fellowship positions. “Graduate Medical Education,” Journal of the American Medical Association 270 (1992): 1117.

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38. See Susan Dunlap, High Fall: A Kiernan O’Shaughnessy Mystery (New York: Dell, 1994); D. J. Donaldson, Louisiana Fever (New York: St. Martin’s Press, 1996); Leonard S. Goldberg, Deadly Care (New York: Penguin Books, 1997); Bill Pomidor, Murder by Prescription: A Cal and Plato Marly Mystery (New York: Signet Books, 19950; Robert W. Walker, Pure Instinct (New York: Jove Books, 1995); Kathy Reichs, Déjá Dead (New York: Scribner, 1997). 39. James Hatfield and George Burt, The Unauthorized X-Files Challenge (New York: Kensington Books, 1996), xi. Quincy-like shows proliferated. Some examples: One West Waikiki (CBS, 1994–1996), Diagnosis Murder (CBS specials, 1992–1996), and Crossing Jordan (NBC, 2001–2007) and DaVinci’s Inquest (CBC, 1998–2005), to name a few. Women literary detectives first appeared in the late nineteenth century; see Thomas, Detective Fiction and the Rise of Forensic Science, 16. 40. Kit R. Roane and Dan Morrison, “The CSI Effect,” U.S. News and World Report, 25 April 2005. See also Karin H. Cather, “CSI Effect: Fake TV and Its Impact on Jurors in Criminal Cases,” Prosecutor 38, no. 2 (March–April 2004). 41. Sandra Katz, “The Final Analysis: Accountability in Forensic Medicine,” Law Enforcement 7, no. 1 (February 1980): 33. 42. Simon Cole and Rachel Dioso, “Law and the Lab: Do TV Shows Really Affect How Juries Vote? Let’s Look at the Evidence,” Wall Street Journal, 13 May 2005. See also Max M. Houck, “CSI: Reality,” Scientific American 295, no. 1 (July 2006): 84–89. 43. Barry Siegel, A Death in White Bear Lake: The True Chronicle of an AllAmerican Town (New York: Bantam Books, 1996). 44. Richard Firstman and Jamie Talan, The Death of Innocents: A True Story of Murder, Medicine, and High-Stakes Science (New York: Bantam Books, 1997). 45. Ibid., 61. 46. Amy Engeler, “You Won’t Believe What Her Job Is,” Redbook, April 1997, 116–118, 142–144. 47. Discovery Health Channel, Dr. G: Medical Examiner. 48. Joye M. Carter, I Speak for the Dead (Houston: Biblical Dogs, 2003), 19. 49. Janis Amatuzio, Forever Ours: Real Life Stories of Immortality and Living from a Forensic Pathologist (Minneapolis: New World Library, 2003).

10. In Search of Reasonable Medical Certainty 1. Arthur L. Liman and Max Gitter, Special Counsel’s Report to the Mayor on the Office of the Chief Medical Examiner of the City of New York, April 1985, 5. 2. Ibid., 37. 3. Ibid., 6. 4. Sheila Jasanoff, Science at the Bar: Law, Science, and Technology (Cambridge, Mass.: Harvard University Press, 1995), 7. 5. Ayako Kobayashi, “The Legal Definition of Homicide versus Medical Definition of Homicide in the American Criminal Justice System,” (M.A. thesis, University of Wisconsin, Milwaukee, 1999).

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6. Hubert W. Smith, “Scientific Proof and Relations of Law and Medicine,” Boston University Law Review 23 (1943): 143. 7. Julie Johnson, “Speaking for the Dead: Forensic Scientists and American Justice in the Twentieth Century (Ph.D. diss., University of Pennsylvania, 1992), 6. 8. Liman and Gitter, Special Counsel’s Report, 95. 9. William J. Curran and E. Donald Shapiro, Law, Medicine and Forensic Science, 2nd ed. (Boston: Little, Brown, 1970), 343. 10. Jasanoff, Science at the Bar, 52. 11. See Charles Weiss, “Expressing Scientific Uncertainty,” Law, Probability and Risk 2 ( 2003): 25–46. 12. William Eckert, “Medicolegal Investigation in New York City,” American Journal of Forensic Medicine and Pathology 4 (1983): 197. 13. Barbara Shapiro, Beyond Reasonable Doubt and Probable Cause (Berkeley: University of California Press, 1991), 3. 14. Tal Golan, Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (Cambridge, Mass.: Harvard University Press, 2004), 18. 15. Cathy McClive, “Blood and Expertise: The Trials of the Female Medical Expert in the Ancien-Régime,” Bulletin of the History of Medicine 82 (2008): 91. 16. Golan, Laws of Men, 31. 17. Ibid., 24. 18. Shapiro, Beyond Reasonable Doubt, 6. 19. Alexander Young, “Medical Evidence,” Boston Medical and Surgical Journal 3, no. 26 (1969): 472. 20. Shapiro, Beyond Reasonable Doubt, 6. 21. Catherine Crawford, “Forensic Medicine in Early Colonial Maryland,” in Legal Medicine In History, ed. Michael Clark and Catherine Crawford (Cambridge: Cambridge University Press, 1994), 39. 22. Learned Hand, “Historical and Practical Considerations Regarding Expert Testimony,” Harvard Law Review (1900): 46. 23. Golan, Laws of Men, 40–45. 24. Fred Cohen, “The Expert Medical Witness in Legal Perspective,” Journal of Legal Medicine 25 (2004): 191. See also Frank R. Freemon, “The Origin of the Medical Expert Witness,” Journal of Legal Medicine 22 (2001): 349. 25. James C. Mohr, “American Medical Malpractice Litigation in Historical Perspective,” Journal of the American Medical Association 283 (2000): 1732. 26. Golan, Laws of Men, 61. 27. Ibid., 43. 28. Alexander Young, “Medical Evidence,” 463. 29. Ibid., 465. 30. Golan, Laws of Men, 97. 31. Young, “Medical Evidence,” 465. 32. Smith, “Scientific Proof,” 153. For a review of English Alienists and preMcNaughton court testimony in insanity trials see Joel Eigen, “I Serve as a Physician,” in Clark and Crawford, Legal Medicine in History, 167–199.

Notes to Pages 196–201

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33. Charles E. Rosenberg, The Trial of the Assassin Guiteu (Chicago: University of Chicago Press, 1968), 253. 34. Shapiro, Beyond Reasonable Doubt, 22. 35. Ibid., 90. 36. Ibid., 22. 37. C. M. A. McCauliff, Vanderbilt Law Review 35 (1982): 1305. 38. Ibid., 1293. 39. Golan, Laws of Men, 132. 40. Smith, “Scientific Proof,” 151. 41. Richard Eggleston, “Beyond Reasonable Doubt,” Monash University Law Review 4 (1977): 5. 42. Jasanoff, Science at the Bar, 48. 43. Curran and Shapiro, Law, Medicine and Forensic Science, 343–344. 44. Commonwealth v. Webster, 1850 WL 2988 (Mass.). 45. Block v. Milwaukee S.T.R Co., 89Wis. 371 (1985). 46. Pucci v. Raush, 51 Wis.2d 513 (WI. Supreme Ct. 1971), 519. 47. Ibid., 518. 48. Ibid., 518–519. 49. Brien A. Roche, “The Standard for Expert Testimony Is Not Reasonable Degree of Medical Certainty.” Medico-legal Bulletin 36, no. 6 (1936): 2–3. 50. Doug Haag and Don Latorraca, Memorandum on Level of Certainty Required in Expert Testimony, Office of the Wisconsin Attorney General, 9 June 1995. See also Ralph A. Fine, Fines’s Wisconsin Evidence, 907.02, issue 4 (Butterworth Legal, 1992), 211, and O. Arnold, “Medical Evidence in Wisconsin,” Marquette Law Review 39 (1955–1956): 304–307. 51. John Plunkett, “Shaken Baby Syndrome and the Death of Matthew Eappen: A Forensic Pathologist’s Response,” American Journal of Forensic Medicine and Pathology 20 (1999): 19. 52. James Luke, personal communication, 31 January 2001. 53. Bruce Levy, personal communication, 30 July 2008. 54. Liman and Gitter, Special Counsel’s Report, 14. 55. Young, “Medical Evidence,” 467. 56. Charles Hirsch, personal communication, 15 February 2002. 57. Thomas Fallon, personal communication, 15 March 2002. 58. More recently, the lawyers have argued for a still higher standard of proof in determining guilt in capital murder cases. “They contended that the court should require prosecutors to prove the defendant’s guilt ‘beyond any doubt’ to justify an execution. “I think if you’re going to take another person’s life, argued one lawyer you need to be convinced to a moral certainty.” William Glaberson, “Convicted Killer’s Lawyers Propose Raising Standard of Proof in Death Penalty Cases,” New York Times, 11 January 2007, 21. 59. Charles Wetli, “On Being an Expert Witness,” Laboratory Medicine (1989). 60. Curran and Shapiro, Law, Medicine and Forensic Science, 344. 61. Anthony DePalma, “Medical Examiner, Differing on Ground Zero Case, Stands Ground,” New York Times, 25 November 2007, 35. Hirsch’s determi-

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Notes to Pages 201–205

62.

63.

64. 65. 66. 67.

68. 69.

70.

71. 72. 73. 74.

75.

76. 77. 78. 79.

 272

nation had the effect of potentially denying 9/11 benefits to thousands of survivors and their families. For a review on the AMA and its long history involving medical jurisprudence, see James C. Mohr, Doctors and the Law (New York: Oxford University Press, 1994), 224–236. Frye v. United States, 293 F 1013, (1923). For a detailed discussion of the circumstances surrounding the enactment of Frye, see Golan, Laws of Men, 242–253. See Stokes v. State, 548 So. 2d 188, 193–194. Kelly M. Pyrek, Forensic Science under Siege (Burlington, Mass.: Elsevier Academic Press, 2007), 344. See ibid., 342–346. Federal Rule of Evidence 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. See C. L. Annas, “Scientific Evidence in the Courtroom: The Death of the Frye Rule,” New England Journal of Medicine 330 (1994): 1018–1021. Michael I. Weintraub, “Standards for Medical Expert Testimony,” letter to the editor, Journal of the American Medical Association 288 (2002): 2971. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579 (1993), General Electric Co. v. Joiner, 522 US 136 (1997), Kumho Tire Co. v. Carmichael, 119 SCt 1167 (1999). “The Changing Role of Judges in the Admissibility of Expert Evidence,” Civil Action (National Center for State Courts) 5 (2006): 3. See also Jerome P. Kassirer and Joe S. Cecil, “Inconsistency in Evidentiary Standards for Medical Testimony,” Journal of the American Medical Association 288 (2002): 1382–1387. Sharon Begley, “Ban on ‘Junk Science’ Also Keeps Jurors From Sound Evidence,”. New York Times, 27 June 2002, B1. Pryek, Forensic Science under Siege, 351. Ibid. For views on the existence of the shaken infant syndrome see Genie Lyons, “Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept,” Utah Law Review (2003): 1109. Plunkett, “Shaken Baby Syndrome and the Death of Matthew Eppan,” 19. See also Allen G. Breed, “Studies Split on Shaken Baby Syndrome,” USA Today, 28 April 2007. Carey Goldberg, “Pediatric Expert Express Doubt on Au Pair’s Defense,” New York Times, 12 November 1997. Andrew Wolfson, “Baby Shaking Testimony Barred,” Greenup (KY) CourierJournal, 13 August 2006. Commonwealth of Kentucky v. Christopher A. Davis, Commonwealth of Kentucky, Greenup Circuit Court Case no. 04-CR-205. Pyrek, Forensic Science under Siege, 372.

Notes to Pages 205–211

 273

80. Gert Aston, “Expert Testimony Same as Practice, Needs Peer Review,” American Medical News, January 1998, 5. 81. Cohen, “Expert Medical Witness,” 208. 82. Peter J. Neufeld, National Institute of Justice Workshop on the Forensic Sciences, Washington, D.C., 18 December 2008. 83. J. Rosser Matthews, “Practice Guideline and Tort Reform: The Legal System Confronts the Technocratic Wish,” Journal of Health Politics, Policy and Law 24 (1999): 276. 84. Steven Weigler, “Bite Mark Evidence: Forensic Odontology and the Law,” Health Matrix Journal of Law-Medicine 2 (1992): 303–323. The 2009 NRC Report, Strengthening Forensic Science in the United States: A Path Forward, expressed doubts about the “accuracy of some forensic science practices and . . . the greater expectations for forensic science evidence” and the concern that “if the scientific evidence carries a false sense of significance; or if there is bias, incompetence, or a lack of internal controls for the evidence . . . the jury or the court may be misled.” The report called for a complete overhaul of the practices forensic science laboratories. Strenghtening Forensic Sciences in the United States: A Path Forward, National Research Council (Washington, D.C.: National Academies Press, 2009), 1–2. 85. Matthews, “Practice Guidelines and Tort Reform,” 287. 86. Victor Weedn, National Academy of Science Workshop (2003). 87. Pyrek, Forensic Science under Siege, 358.

Epilogue 1. Jason Felch and Maura Dolan, “Report Questions Science, Reliability of Crime Lab Evidence,” Los Angeles Times, 19 February 2009. For a review of medical examiner and coroner implications see “Medical Examiner and Coroner Current and Future Needs,” in Strengthening Forensic Science in America: A Path Forward, National Research Council (Washington, D.C.: National Academies Press, 2009): 184–201. The Consortium of Forensic Science Organizations is the point lobbying organization of the forensic sciences consisting of representatives of the American Academy of Forensic Sciences (AAFS), National Association of Medical Examiners (NAME). International Association of Identification (IAI), Forensic Specialist Accreditation Board (FSAB), America Society of Crime Laboratory Directors (ASCLD), and ASCLD-LAB the certifying agency of crime laboratories. 2. Maurice Posley, Steve Mills, and Flynn McRoberts, “Forensics under the Microscope,” Chicago Tribune, 17–21, October 2004. 3. James E. Starrs, “The C.S.I. Effect,” Academy News (American Academy of Forensic Sciences), 35 (2005): 32–34. 4. Dan Sosin et al., “Medicolegal Death Investigation, Public Health, and Health Care,” Institute of Medicine, Medicolegal Death Investigation System: Workshop Summary (2003): 38–43. 5. Taser International, Inc. and City of Akron v. Chief Medical Examiner of Summit County, Ohio, Lisa Kohler, M.D., CV no., 2006-11-7421.

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6. Victor Weedn, “The Potential Role of the Federal Government in Death Investigation, Institute of Medicine, Medicolegal Death Investigation System: Workshop Summary (2003): 60. 7. Richard J. Bonnie, “Closing Remarks,” Institute of Medicine, Medicolegal Death Investigation System: Workshop Summary, (2003): 63. 8. Weedn, “Potential Federal Role,” 56, 59. 9. “Strengthening Forensic Science,” 22.

Select Bibliography

Journals American Journal of Epidemiology FBI Law Enforcement Bulletin Police Chief Transactions of the Massachusetts Medico-Legal Society

Papers, Collections, and Archives American Academy of Forensic Sciences, Colorado Springs. American Board of Pathology Archives, Tampa, Florida. American Society of Clinical Pathologists, Chicago. Boston Public Library, Boston. Rare Book Collection. Butler, Willis P., Papers. Louisiana State University, Shreveport. Century of Progress Exhibition Archives, University of Illinois, Special Collections Chicago. Charleston County Medical Examiner Archives, Medical University of South Carolina, Charleston, S.C. Childs, Richard S., Papers. Rare Book and Manuscript Library, Butler Library, Columbia University, New York. Countway Library, Harvard University, Cambridge, Massachusetts. Cumberland County Historical Society, Carlisle, Pennsylvania. Cumberland County Coroner Records 1793–2000. Office of the Coroner, Mechanicsburg, Pennsylvania. Cumberland Country Coroner. Records. Cumberland County Coroner, Harrisburg, Pennsylvania.

R

Select Bibliography

 276

Cumberland County Coroner. Cumberland County Coroner. Archives. Muehlenburg, Pennsylvania. Cuyahoga County Coroner’s Office. Archives. Cleveland. Eckert, William J., Papers. Jefferson Parish Coroner’s Office, Harvey, Louisiana. Helpern, Milton, Papers, Archived Papers Institute of Pathology, Washington, D.C. Hennepin County Medical Examiner. Records. Minneapolis. Martland, Harrison, Papers, University of Medicine and Dentistry, New Jersey Libraries. Special collections. Milwaukee County Medical Examiner. Records. Milwaukee. Milwaukee Historical Society, Milwaukee. National Association of Funeral Directors, Milwaukee. National Association of Medical Examiners, St. Louis, Missouri. New York Academy of Medicine, New York. Rare Book Collection. Oakland County Medical Examiner. Archives. Pontiac, Michigan. Revere Papers. Massachusetts Historical Society, Boston. Rockefeller Foundation Archives, Rockefeller Archive Center, Sleepy Hollow, New York. Schroeder, Oliver, Papers. Dittrick Medical History Center, Case Western University, Cleveland. Virginia. Office of the Chief Medical Examiner. Archives. Richmond. Harold Washington Library, Chicago. Rare Book Collection.

Other Primary Sources Adler, Herman M. “Crime Detection by the Coroner’s Office.” Pt. 5 of “Medical Science and Criminal Justice.” In Criminal Justice in Cleveland: Reports of the Cleveland Foundation Survey of the Administration of Criminal Justice in Cleveland, Ohio, ed. Roscoe Pound and Felix Frankfurter, Cleveland: 1924, 457–473. Checklist for Inspection and Accreditation of a Modern Medicolegal Investigative System. St. Louis: National Association of Medical Examiners, 1975. Chicago Bureau of Public Efficiency. Administration of the Office of Coroner of Cook County Illinois: Report Prepared for the Judges of the Circuit Court by the Chicago Bureau of Public Efficiency. Chicago: December 1911. The Coroner’s Office: Report of the Investigation Made by the Coroner’s Committee of the Municipal Association in the Interest of Economy and Efficiency. Efficiency series report no. 2. Cleveland: Municipal Association of Cleveland, 1912. Examiner. Newsletter of the Wisconsin Coroners and Medical Examiners Association. Haag, Doug, and Don Latorraca. Memorandum on Level of Certainty Required in Expert Testimony. Office of the Wisconsin Attorney General 9 June 1995. Huagen, Phebe. “Pain Relief for the Dying: The Unwelcome Interventions of the Criminal Law. Unpublished manuscript. William Mitchell College of Law. Jason, Robert S. “Progress Report on Forensic Pathology.” Committee on Pathology, Division of Medical Affairs, National Research Council, National Academy of Sciences, 8 April 1968.

Select Bibliography

 277

Johnson, Thomas L., and Garry Peterson. “Factual Summary in Regard to Deaths of Nancy Jack and Brian Mahoney.” Press release, Hennepin County Attorney, Minneapolis, 24 April 1990. Karsner, Howard T. “The New Institute of Pathology.” App. A of President’s Annual Report. Medical School Section, Western Reserve University. Archives 1928–1928. Levine, Margaret J. Issues and Practices in Managing Medico-legal Death Investigations. Washington, D.C.: National Institute of Justice, 5 October 1987. Liman, Arthur L., and Max Gitter. Special Counsel’s Report to the Mayor on the Office of the Chief Medical Examiner of the City of New York, April 1985. Luke, James L., et al. “Training and Education in Forensic Pathology.” Ad Hoc Committee on National Research Council, National Academy of Sciences, 1 November 1968. “Position Paper on the Replacement of the Coroner’s System of Medico-legal Investigation.” Proceedings of the Institute of Medicine of Chicago 28 (1970). The Sacco and Vanzetti Case, Transcript of the Record of the Trial of Nicolo Sacco and Bartolomeo Vanzetti in the Courts of Massachusetts and Subsequent Proceedings, 1920–1927. 5 vols. New York: Holt, 1928. Shonts, Theodore P. In the Matter of the Charges of Theodore P. Shonts and Others against Patrick D. Riordan, as Coroner of the Borough of Manhattan, City of New York, to Honorable Charles S. Whitman, Governor. New York: 1915, 1–17. Wallstein, Leonard Michael. Report on Special Examination of the Accounts and Methods of the Office of Coroner in New York City. New York: Office of the Commissioner of Accounts, 1915.

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Acknowledgments

This book began during a short walk with Ron Numbers when he challenged me to tell the story of real-life forensic pathologists divorced from the influence of newspaper headlines and television. His demand that I remove my own voice from the narrative has resulted, I believe, in a valid glimpse of the creation of forensic pathology and the work of medical examiners and coroners over the past century. I am indebted to the many medical examiners and coroners who provided me with assistance and access to their insight and collections, including Elizabeth Balraj, Cleveland; William Brady, Portland, Oregon; John Butt, North Carolina; John I. Coe, Minneapolis; Sandra Conradi, Charleston, South Carolina; Joseph Davis, Miami; Lubjisi Dragovic, Oakland County, Michigan; Ali Hameli, Wilmington, Delaware; Thomas Hegert, Orlando; Charles Hirsch, New York City; Thomas Noguchi, Los Angeles; Michael L. Norris, Cumberland County, Pennsylvania; Don Reay, Seattle; Leroy Riddick, Mobile; Charles Stahl and Richard Froede, Office of the Armed Forces Medical Examiner; Oliver Schroeder, Cleveland; Robert Treuting, Jefferson Parish (New Orleans) and Dawn Young, Shreveport. I also thank the faculty of the Department of Science and Bioethics at the University of Wisconsin–Madison who accepted me into the department and helped to mold my historical interests. Professors Tom Broman, Harold Cook, Judith Leavitt, Judith Houck, and Linda Hogle challenged me to view medicine not through physicians but within a richer social and cultural context. I wish to recognize the enthusiastic encouragement I received from my friends and mentors Steven Clark, Mahandar Kochar, James Luke, Garry Peterson, James Mohr and Howard Otto. Without their support, I would have lost my way. During the course of my research I depended on the archivists at a number of libraries, including: George G. Geletka, Cuyahoga County Coroner’s Office Archives;

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Acknowledgments

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Janice Goldblum, Archivist, National Academies, Washington, D.C.; William Hartman, Executive Director, American Board of Pathology; Denise McNally, National Association of Medical Examiners; Debbie Miller, Cumberland County Historical Society and Hamilton Library Association, Carlisle, Pennsylvania; Jennifer K. Nieves, Archivist and Museum Registrar, Dittrick Medical History Center, Case Western Reserve University; Michael G. Rhode, Chief Archivist, National Museum of Health and Medicine, Armed Forces Institute of Medicine; the staff of the Rockefeller Archives; and Lois Densky-Wolff, Head, University of Medicine and Dentistry in New Jersey Libraries-Special Collections Department. This research was supported in part by institutional grant support from the University of Wisconsin History of Science Department and the Rockefeller Foundation. I would like to thank Ann Downer-Hazel and Vanessa Rossi at Harvard University Press and Tonnya Norwood at NK Graphics, whose patience and encouragement helped to make this book a reality. I could not have completed this work without the continual support of Ron Numbers. I am blessed by his willing support, editing, encouragement, and finally his friendship. Ron has guided many graduate students while at the University of Wisconsin–Madison but none more grateful than I. Finally, I wish to thank my wife, Dorianne, and daughters, Nicole and Kaitlin, for their unconditional love, encouragement, and patience.

Index

Abolition of the Office of Coroner in New York City, The, 26 Adelson, Lester, 53, 76, 88; in Legal Medicine Institute, 90 Ad Hoc Committee on Irreversible Coma, 117, 118 Adkins, Janet, 129 “Advantage of the Coroner System over That of the Medical Examiner System” (Gerber), 46 AIDS, 152 Alcohol, in traffic deaths, 144–147 Alcoholism, underreporting of, 137–138 Amatuzio, Janice, 188 American Academy of Forensic Sciences (AAFS), 76, 87 American Academy of Legal Medicine, 85 American Academy of Physicians and Lawyers, 85 American Association of Medical Colleges, 73 American Board of Forensic Examiners (ABFE), 92–93 American Board of Legal Medicine, 80 American Board of Medicolegal Death Investigators (ABMDI), 93 American Board of Pathology (ABP), 78, 81–82, 85–86

American Committee on Graduate Education (ACGME), 85 American Journal of Forensic Medicine and Pathology, 87 American Journal of Public Health, 143–144 American Medical Association (AMA), 3, 4; Committee on Legal Medicine, 44–46, 76; Committee on Medicolegal Problems, 77; coroner courting of, 64–65; on expert witnesses, 201–202, 205; on medical examiners vs. coroners, 36–37, 44–46; on medical expert testimony, 19–20; medical specialties and, 5, 76–77; Model Law and, 60–61, 70; publicity by, 178–179 American Medico-Legal Association, 75 American Police System, The (Fosdick), 32 American Society of Clinical Pathologists (ASCP), 75, 78, 86–87 American Society of Safety Engineers, 144 Analysis of Coroner’s Statistics from Cook County with a Pathological Review of the Cause of Death (Fishback), 39 Anatomy of a Murder, 179 Anti-Euthanasia Task Force, 127 Apollo III, 83–84 Archives of Pathology (Hektoen), 75

Index Armed Forces Institute of Pathology (AFIP), 5, 82–84, 104–105 Atomic Energy Commission, 142 Attica Correctional Facility, 5–6, 111–113 Authority, 3–4, 5–6, 96–130; Attica Correctional Facility killings and, 111–113; Black Panther shooting and, 109–111; Chappaquiddick incident and, 106–109; John F. Kennedy assassination and, 96–97, 98–103; Moritz on, 45–46; rejection of medical, 155; Robert Kennedy assassination and, 103–106; in trials, 113–114 Autonomy, challenges to, 115–133, 210; euthanasia, 124–128; organ procurement, 115–123; religious freedom, 128–129 Autopsies: authority over, 117; clinical diagnoses vs., 137–138, 151–153, 165, 166; colonial America, 13–14; Cook County laws on, 28; decline of, 165–170; demedicalization and, 155, 165–167; education in, 73; error rate in, 73–74; hospital vs. medicolegal, 165–167; laws governing, 109, 167–170; Moritz on, 81, 82; National Research Council on, 35–36; by nonphysician pathologist assistants, 171; pathologists’ opinions of, 77; public health and, 143; Taser Company on, 211 Autopsy (Helpern), 182 Aviation pathology, 83 Bacteriological revolution, 143 Baden, Michael, 102, 112, 166 Bailey, F. Lee, 54 Baldridge, James, 11 Ballistics, 32 Balraj, Elizabeth, 91 Bateman, William, 9 Beck, John Brodhead, 17 Beck, Theodric Romeyn, 17, 74 Beecher, Henry, 118 “Best States for a Murder” (Childs), 64 Big Sleep, The, 179 Bioterrorism, 152 Black Panther shootings, 5, 109–111 Blood-alcohol testing, 145, 146 Bonnie, Richard J., 94 Boorstin, Daniel, 10 Boston Massacre trials, 196 Boston Medical and Surgical Journal, 19 Boston Medical Society, 21 Boswell, J. Thornton, 98–101

 282 Brady, William, 63–64 Brains, removal and retention of, 120, 131, 168–169, 185. See also Organ removal Breyfogel, Herbert, 47 Brown, E. Richard, 5 Brown, Tim, 154 Bugliosi, Vincent, 181 Bundesen, Herman N., 29 Bunyan, John, 13 Bureau of Social Hygiene, 32 Burwell, C. Sidney, 40, 48 Butler, Willis, 57, 59 Cabot, Richard Clark, 73–74, 165 Camps, Bernard, 89 Caplan, Arthur, 125–126 Capote, Truman, 181 Carnegie Foundation, 33 Carney, William, 39 Carter, Joye M., 123, 188 Car trunk safety latches, 102 Case Western Reserve Law and Medicine Center, 76–77, 85 Center for Biomedical Ethics, 125 Centers for Disease Control (CDC), 135, 147–148, 149–150, 152 Certification, 78–82, 84–86, 211–212; alternative, 92–93 Chaillé, Stanford, 20–21 Chain of custody, 121, 171 Chandler, Raymond, 178 Chappaquiddick Bridge incident, 5, 98, 106–109 Charlene Gooding Show, 131 Charleston County Medical Society, 159 Chicago, 67–69, 211. See also Cook County Coroner; Black Panther shootings, 5, 109–111; heat wave, 134–135 Chicago Bureau of Public Efficiency, 28 Chicago League of Women Voters, 111 Chicago Tribune, 134–135 Chicago World’s Fair, 39, 178 Child death review teams (CDRTs), 149 Children: homicides of, 88, 148, 149, 204–205; infant deaths, 13, 88; labor laws on, 141; shaken infant syndrome, 204–205; Sudden Infant Death Syndrome, 88, 148–149, 187–188; trapped in car trunks, 102 Childs, Richard Spencer, 5; on best states for murder, 64; Henniger and, 157; on the long ballot, 25–26, 54, 209; Model Law and, 54–56, 59–62, 67, 69, 209; in

Index National Association of Medical Examiners, 72, 86, 87 Christian Scientists, 168 Chronic diseases, 144 Citizens Against Crime, 163 City of the Dead (Lieberman), 181–182 “Classic Mistakes in Forensic Pathology” (Moritz), 82 Cleveland, Ohio, 29, 76, 88, 90, 147, 211 Cleveland Foundation, 29 Clinicopathological conferences, 73–74, 165 Clinton, Bill, 170 Clinton, Hillary, 170 Coe, John I., 71–72, 90, 115–116 Colden, Cadwallader, 16 College of American Pathologists (CAP), 78–79, 80–81, 86–87, 92, 171; on pituitary gland removal, 115, 116 Collier, William, 11–12 Colonial American systems, 9–18, 193–194, 210 Commercial market test, 201–202 Committee on Medicolegal Problems, 34–37 Communist Red Scare, 31–32 Conflicts of interest, 35, 164 Conradi, Sandra, 91, 162 Consent, 118–119, 123 Consortium of Forensic Science Organizations (CFSO), 208 Consumer Product Safety Commission, 152 Cook County Coroner, 67–69, 139–140. See also Chicago; Hektoen, 27–28; Hoffman, 27 Cornwell, Patricia, 7, 185–186, 187–188, 189 Coronary thrombosis etology, 74 “Coroner and the Medical Examiner, The” (NRC), 35–36, 44 Coroner at Large (Noguchi), 183 Coroner (Noguchi), 182–183 Coroners: Childs’ opposition to, 54–57, 64; colonial America, 9–19, 210; definition of, 1–2; election of, 11; English, 9–10, 210; forensic nurses as, 171–172; Gerber on, 58–62; history of, 45–46; medical vs. legal responsibilities of, 24; National Research Council on, 34–39; physician frustration with, 18–21; politics and, 18, 25, 26; qualifications of, 19, 22–23, 211–212; resistance of to Model Law, 64–65, 69; selection of, 9–10, 17–19;

 283 training for, 93–95, 212; transition from, 2–3, 211–212 Coroners (Childs), 60 Coroners in North Carolina, 61 Corruption, 21, 25, 26, 120, 209; Chicago, 28 Costs, 94; fee-for-service vs. salary systems, 79; National Research Council on, 36; Schultz on, 37–38; in South Carolina system, 157, 158 Cottrell, Terrance, Jr., 128–129 Cowan, Mary, 59 Cox, Julianna, 174 Cranford, Ronald, 125–126 Crawford, Catherine, 3, 15 Crawford, Claudia, 142 Credibility, 103–106 Crieger, John, 13 Crime laboratories and testing, 94, 208; fictional portrayals of, 183–184 Crime rates: detective novels and, 175; public fear of, 3, 30; Schultz on, 39; workload of forensic pathologists from, 84–85 Crossing Jordan, 186 Cruentation, 12–13 Cruzan, Nancy, 124, 125 CSI: Crime Scene Investigations, 186–187 Cunniffe, Edward R., 44 Dachau concentration camp, 78 Dale Earnhardt law, 6, 169–170 Daly, Richard J., 109, 134–135 Daubert Trilogy, 7, 203–205, 206–207, 210 Daubert v. Merrell Dow Pharmaceuticals (1993), 203 Davis, Joseph, 66, 90 Death. See also Homicide: brain-death, 118; definitions of, 117, 118, 132; euthanasia, 124–128; physician-assisted, 117, 124–128, 129–133 Death certificates, 137–138, 140–141, 150, 151–153 “Death Investigation in the Community: Forging New Partnerships,” 92 Death in Whitebear Lake, A (Siegel), 187 Death of Innocents, The (Firstman & Talan), 187–188 Death with Dignity Act, 132 Delaware, 88–89 Delaware Medical Examiner Commission, 72

Index Demedicalization, 6–7, 154–173; forensic nurses in, 171–172; nonphysician pathologist assistants in, 170–171; in South Carolina, 156–163; in Wisconsin, 163–165 Democracy, 3, 59–60, 97, 209 Detective novels, 175–177, 178, 179–180, 185–187 Detroit, 113–114 Diagnostic tests, 165–166 Dill, James, 15 DiMaio, Vincent, 94 Dime novels, 176 Dioramas, 180 Disaster-preparedness plans, 59 Discovery Health Channel, 188 Dissections, 14 DNA evidence, 7, 152, 208, 211; admissibility of, 202–203; autopsies vs., 166–167 Doctors and the Law (Mohr), 3 Donoghue, Edmund, 134–135 Double effect principle, 125, 126, 132 Doyle, Arthur Conan, 176 Dr. G: Medical Examiner, 188 Dragovic, Ljubisa, 130, 131 Drake, Daniel, 16 Drug Alert Warning Network, 152 Drug deaths, 89–90, 143, 147–148, 152 Duke University, 48, 171 Duncan, Andrew, 16 Durham, Theron, 161 Durlacker, Stanley, 66 Eappan, Matthew, 204 Earnhardt, Dale, 6, 169–170 Edland, John F., 111–113 Education. See Medical education Elections, 11; long ballot in, 25–26, 54, 209 Elements of Medical Jurisprudence (Beck & Beck), 17 Elsberg Bill (1904), 25 Emergency rooms, 101–102 End-of-life care, 124–128, 132 English common law, 9–11, 14, 170, 191 Essayian, John, 163–164 Ethics, 6, 17, 20, 106; euthanasia and, 124–128; organ transplants and, 117–123; religious freedom and, 128–129 Euthanasia, 124–128 Evidence. See also Expert testimony: admissibility of, 201–205; -based medicine,

 284 205–206; burden of proof and, 196–197; chain of custody in, 121, 171; DNA, 7, 152, 166–167; reasonable medical certainty in, 190–207; standards of proof in, 190–207 Expert testimony, 13–14, 19–20, 74; admissibility of, 201–205; burden of proof and, 196–197; conflicting, 113–114; evidencebased medicine and, 205–206; fiction on, 181–185; foreign physicians in, 91–92; history of, 192–196; pretrial discovery of, 203; probability in, 196–197; reasonable medical certainty in, 190–207; subjectivity in, 192, 195–196, 199, 201, 210 Fair, A. A., 180 Federal Rule of Civil Procedure 26, 203 Federal Rules of Evidence, 202, 203 Fiction: detective novels, 175–177, 178, 179–180; medical expert period, 181–185; mystery novels, 184–188; scientific period, 177–181; television shows, 183–184, 186–187 Fieger, Jeffrey, 129, 130, 131 Fierro, Marcella, 185 Films, 179 Final Exit, 132 Finck, Pierre, 98–101, 104–105 Firearm deaths, 147, 149–150 Firearm surveillance, 150, 152 Firstman, Richard, 187–188 Fischer, Russell, 43, 47, 50–51 Fishback, Hamilton, 39 Fisher, Russel, 90 Fitzgerald v. Manning (1982), 199 Flexner, Alexander, 33, 34–35, 73 Florida, 65–67, 90, 167–168; Dale Earnhardt law, 6, 169–170 Florida Medical Association, 66 Folkes v. Chadd (1782), 194 Forbes, Michele, 174 Forbus, Wiley D., 48 Ford, Richard, 43, 50, 55–56, 109, 119; on certification, 78, 79–81 Forensic nurses, 171–172 Forensic pathology, 5, 71–95; Armed Forces Institute of, 5, 82–84, 104–105; board certification in, 78–82, 84–86, 92–93; definitions of, 1–2, 81; education in, 71–73; English, 89, 176–177; federal support of, 92–95, 152, 212; foreign physicians in, 91–92; as governmental watchdog, 5–6; hospital pathology com-

Index pared with, 102–103; job market in, 86; as mature profession, 88–92; as medical specialty, 73–75, 210; Moritz’ promotion of, 43–48; negative portrayals of, 174–175; popularization of, 174–189; practice guidelines for, 206; professional associations, 84, 86–88; qualifications for, 211–212; schools of, 89–90; women in, 90–91; work conditions in, 101 Forever Ours (Amatuzio), 188 Fosdick, Raymond B., 32, 40 Foster, Vincent, 170 Fox, Renee, 155 Freedom of Information Act, 169–170 Freeman, R. Austin, 176–177 Froede, Richard, 122 Frye v. United States (1923), 202, 203 Funeral directors, 61–62, 120, 164 Garavaglia, Jan, 188 Gardner, Erle Stanley, 178, 179–180 Garfield, James, 195–196 General Education Board (GEB), 32, 40 General Electric v. Joiner (1997), 203 Gentry, Curt, 181 Gerber, Samuel, 46, 76, 211; in Legal Medicine Institute, 90; on the Model Law, 53–56, 58–62, 65–69, 209 Goddard, Calvin H., 32 Godman, John, 16 Goldblatt, Henry, 41 Gonzales, Thomas, 75, 178 Goodstein, Arnold, 157, 158, 160 Gradwohl, R. B. H., 24, 65, 76 Green, Malice, 114 Gregg, Alan, 34, 40, 48, 49, 50, 51 Gross, Eliot, 190–191 Gross, Samuel, 16 Guiteau, Charles, 195–196 Haddon, William, 145, 146 Hall, Kermit, 177 Hameli, Ali, 72, 86 Hammett, Dashiell, 178 Hampton, Fred, 109–111 Hand, Learned, 194 Hanta virus, 102 Harvard University, 40–52, 75, 85; Ad Hoc Committee on Irreversible Coma, 117, 118; Department of Legal Medicine, 5, 179, 180, 209; dioramas at, 180 Haut, Woody, 181 Hawes, Lois, 130

 285 Health care: ethical issues in, 117–118; euthanasia and, 124–128; organ transplants, 117–123; religious freedom and, 128–129 Health Care Financing Agency (HCFA), 166 Health Insurance Portability and Accountability Act (HIPAA), 169–170 Heat wave, Chicago, 134–135 Hektoen, Ludvig, 27–28, 74; in National Research Council, 33–37; propaganda campaign by, 38–39 Helpern, Milton, 60, 63, 67, 69; books about and by, 182; on Chappaquidick incident, 109; on drug deaths, 89–90, 143; in National Association of Medical Examiners, 72, 86, 87 Helter Skelter (Bugliosi & Gentry), 181 Hemlock Society, 132 Hennepin County, Minnesota, 56, 57, 71–72, 90, 116–117, 124–128 Henniger, Gordon R., 157, 158, 159, 160, 161–162 Henry II (king of England), 9 Heroin, 147–148 Hill, Edwin V., 42 Hill Street Blues, 184 Hirsch, Charles, 200, 201 Hoffman, Peter, 27, 139–140 Holden, William, 105, 182 Holloway, J. W., Jr., 44, 55 Homicide, 33–34, 144; best states for, 64, 65–67; child abuse in, 88, 148, 150; guns in, 147, 150–151; organ procurement and, 120–122; of slaves/servants, 15 Homicide: Life on the Streets, 174, 186, 188 Horner, W. E., 16 Hospital deaths, 95, 143 House Select Committee on Assassinations (HSCA), 102 Human growth hormone, 115–116 Humes, James J., 98–101, 102 Illich, Ivan, 155 Illinois Association of Criminal Justice, 28 In Cold Blood (Capote), 181 Indiana Coroners Training Board, 93 Industrialization, 139, 191–192 Industrial Revolution, 139 Infectious disease surveillance, 140 Informed consent, 118–119 Innocence Project, 205, 208

Index Inquests, 20, 156–157; Chicago, 28; colonial, 11, 193; public health improvement and, 136–137 Inquest (Wilde), 179 Institute of Medicine (IOM), 39, 94–95 International Association of Forensic Nurses, 171 I Speak of the Dead (Carter), 188 Jasanoff, Sheila, 7, 191, 197 Johns Hopkins University, 116 Johnson, Isaack, 9 Johnson, Julie, 3, 79 Johnson, Lyndon B., 100 Joint Commission on Accreditation of Healthcare Organizations (JCAHO), 88, 165–166 “Joint Guidelines of the Hennepin County Attorney and Medical Examiner for the Administration of Pain-relieving Drugs,” 127–128 Jordan, Lester, 154 Jordan, Michael, 154 Journal of Forensic Sciences, 76 Journal of the American Medical Association, 45, 61, 64 Junk science, 191, 203–205, 210 Juries, 186–187; colonial, 11, 12–13; in English coroner system, 10; selection of, 21–22; special, 194; standards of proof for, 192, 193 Jurisdiction, 2 Justices of the peace, 10, 11, 65–67 Karsner, Howard, 41 Kennedy, Edward, 5, 98, 106–109 Kennedy, John F., assassination, 5, 83, 96–97, 98–103, 116, 180–181 Kennedy, Robert, assassination, 5, 98, 103–106, 182 Kevorkian, Jack, 124, 129–133 King, Martin Luther, Jr., 102 King, Rodney, 114 Kingsbury Run torso murders, 58–59 Klugman, Jack, 183 Kopechne, Mary Jo, 98, 106–109 Kuhmo Tire v. Carmichael (1999), 203 LaFollette, Bronson, 163 Larson, Charles, 78–80, 119 Law enforcement, 5–6, 105–106; alcohol testing and, 146; in Attica killings, 111–113; autopsy policies in, 166–167;

 286 detective novels about, 175–177; female forensic pathologists and, 91; Harvard courses for, 43; New York City cover-up in, 190–191; Taser use in, 211 Lead exposure, 88–89 Leary, Timothy, 40–52 LeBrun, George, 25 Lee, Frances Glessner, 40, 41, 42, 43, 46–47, 49, 50–51, 55, 180 Legal Medicine: Pathology and Toxicology (Gonzales), 75 Legal system, 7, 98. See also Expert testimony; Juries; colonial America, 13–14; history of American, 192–196; judicial gatekeeping in, 206–207; out-of-date statutes in, 38; physician frustration with, 18–21; Progressive era, 23–24; science and, 191–192; standards of proof in, 190–207 Liability issues, 168 Lieberman, Herter, 181–182 Lie detectors, 202 Lindbergh baby kidnapping, 177 Lockridge, Milton, 139 Long ballot, 25–26, 54, 209 Louisville Courier Journal, 93 Lukash, Leslie, 87, 88 Luke, James, 147–148, 200 Lund, Herbert, 42 Lynch, Virginia, 171 Mahoney, Tom, 62 Malpractice claims, 76, 194 Maltese Falcon (Hammett), 178 Mann, Geoffrey, 43, 90 Martland, Harrison Stanford, 41, 44, 74, 141–142 Maryland, 52, 90 Maryland Code of Public General Laws, 18–19 Massachusetts: dissections in, 14; medical examiner system in, 4, 21–23, 211; Puritan law in, 11, 14–15; Revere as coroner in, 15–16 Massachusetts Medico-Legal Society, 22–23 Matter of Fact, A, 179 Matthews, J. Rosser, 205–206 McCormick Institute for Infectious Diseases, 33–34 McGurk, Ruth, 48 McNaughton rules of evidence, 195 Media, 56–57, 114, 210; coverage of South Carolina system, 158–159; detective novels, 175–177; films, 179; mystery

Index novels, 184–188; organ procurement and, 121; popularization of forensic pathology in, 174–189; scientific period, 177–181; television shows, 183–184, 186–187 Medical education, 172; Armed Forces Institute of Pathology, 82–84; autopsies in, 165; board certification and, 78–82; clinicopathological conferences in, 73–74, 165; colonial America, 13–14; European, 77; in forensic pathology, 71–73, 74–75, 84–85; Harvard programs, 40–52; Massachusetts Medico-Legal Society, 22–23; maturation of forensic, 88–92; in medical jurisprudence, 16–17; National Research Council on, 34; organ procurement agencies in, 120; primary schools in, 89–90; proprietary, 195; women in, 90–91 Medical Examiner and Coroner Information System (MECIS), 152 Medical Examiner Coroner Alert Project (MECAP), 152 Medical Examiner Coroner Donation Task Force, 123 Medical examiners. See also specific states: definition of, 1–2; fee-for-service vs. salary for, 79; history of, 45–46; Massachusetts, 21–23; National Research Council on, 34–37; New York, 25–27; performance of, 172–173; Rhode Island, 24; standards of practices for, 87–88; transition from coroners to, 2–3 Medicalization, 155. See also Demedicalization Medical jurisprudence, education in, 16–17, 20, 40–52 Medicine: distrust of, 27, 155, 195, 209; evidence-based, 205–206 Medico-Legal Journal, 74 “Merits of the Present Coroner System” (Turkel), 64–65 Metchnikoff, Élie, 42 Methadone, 147–148 Meyer, Adolph, 33–34 Michigan Association of Medical Examiners, 131 Miller, Sherry, 130 Mills, Donald, 106–109 Minneapolis Morning Tribune, 56, 57 Minneapolis Tribune, 115 Minnesota. See Hennepin County, Minnesota Minnesota Intractable Pain Act (1994), 128

 287 Minnesota Medical Association (MMA), 126 Minorities, organ procurement from, 122–123 Mitchel, John P., 26 Model Law, 5, 55–70, 209; coroner opposition to, 58–62, 64–65; reform based on, 62–64, 65–69 Model Post-mortem Examinations Act, 60 Model State Medico-legal Investigative System, A, 56 Mohr, James, 2, 3, 17, 18 Monroe, Marilyn, 182 Morgan, Edmund M., 35 Moritz, Alan, 55, 75, 76, 95; on certification, 81, 82; at Harvard, 41–49, 209; on public health investigations, 145–146; training under, 90 Municipal Association of Cleveland, 29 “Murders in the Rue Morgue, The” (Poe), 175–176 Mystery Street, 179 National Association of Coroners (NAC), 57, 59, 65 National Association of Counties (NACO), 92 National Association of Medical Examiners (NAME), 72, 86–88, 93, 171 National Center for Environmental Health and Injury Control, 150 National Center for Injury Prevention and Control, 150 National Civic Review, 64 National Conference of Commissioners on Uniform State Laws, 60, 69–70 National Foundation for Sudden Infant Death, 148 National Highway Traffic Safety Administration (NHTSA), 146–147 National Institute of Arthritis and Metabolic Diseases, 115 National Institutes of Justice (NIF), 92, 93 National Municipal League, 5, 23, 54–57, 64, 69–70. See also Model Law National Organ Transplant Act (1974), 121 National Pituitary Agency, 115 National Pituitary Program, 116 National Research Council (NRC), 33–37, 208, 212–213 New England Journal of Medicine, 131 Newsweek, 129 Newton, A. W. K., 21

Index New York City, 25–27, 140; Childs on, 60; death certificates in, 136; drug deaths, 143; National Research Council on, 36; police-related deaths cover-up in, 190–191; training in, 89–90; Triangle Shirt Factory fire, 141 New York Short Ballot Association, 26 New York Times, 190–191 New York University, 75 Nick Carter, 176 Noguchi, Thomas, 103–106, 181, 182–183 Nonphysician pathologist assistants, 170–171 Noronic explosion, 59 Norris, Charles, 27, 33, 78 North Carolina, 168 Northwest Ordinance, 18 Nuremberg War Crime Trials, 78 Nurses, forensic, 171–172 Occupational injuries, 76, 139–140 Office of the Armed Forces Medical Examiner, 83 Oklahoma, 67 Oregon, 62–64, 131–132, 147 Organ procurement organizations (OPOs), 120 Organ removal, 115–123; brains, 120, 131, 168–169, 185; family opposition to, 168–169; pituitary glands, 115–116, 119–120 Organ transplants, 117–123 Orlando Sentinel, 169–170 Oswald, Lee Harvey, 100 Pain control guidelines, 127–128 Palmer, A. Mitchell, 31 Parkman, George, 198 Pathology. See Forensic pathology Pathology of Trauma, The (Moritz), 44 Penn, William, 12 People v. Castro (1989), 202–203 Peterson, Garry, 124 Petty, Charles S., 102, 110–111 Phil Donahue Show, 129 Physician-assisted suicide, 117, 124–128, 129–133 Pinkerton, Allen, 176 Pituitary glands, 115–116, 119–120 Poe, Edgar Allen, 7, 175–176 Police. See Law enforcement Politics, 18, 30, 85; in Attica shootings, 111–113; Chicago, 28; Childs on, 54–55;

 288 coroner abuses and, 25, 26; lack of power in, 97–98; in South Carolina, 161–162 Popular Mechanics, 180 Porter, Theodore, 136 “Possibilities and Need for Development of Legal Medicine in the United States” (Schultz), 37–38 Postmortem (Cornwell), 185 Postmortem (Timmermans), 95 Presumed consent, 123 Pritchett, Henry S., 33 Privacy, right to, 124, 169–170 Probability, 196–197, 198, 199 Probable cause, 196–197 Professional associations, 85, 86–88 Professionalization, 30, 72–95; demedicalization vs., 154–173; federal lack of commitment to, 92–95, 212; professional associations and, 86–88; standards of practices in, 87–88 Progressive reforms, 23–24, 30, 139, 177, 209 Public health, 6, 88–89, 134–153, 210– 211; crossroads of, 143–144; data collection in, 136–138; death certificates and, 136–138, 151–153; industrial hygiene, 141–143; reform in, 138–141; research in, 147–149; traffic deaths, 144–147; violent injury prevention in, 149–150 Pulp fiction, 178 Puritans, 11, 14–15 Pyrek, Kelly, 206 Quality control, 94–95, 165, 166 Quincy: M.E., 183–184, 186, 189 Quinine, 147 Quinlan, Karen Ann, 124 Racine County Medical Society, 163 Railroad deaths, 139 Rape investigations, 171 Reasonable medical certainty, 190–207; burden of proof and, 196–197; crime type and, 197; definitions of, 199–201; evidence-based medicine and, 205–206; probability in, 196–197; scientific vs. legal approach in, 191–192 Redbook, 188 Red Scare, 31–32 Reform: democracy in, 3; Model Law in, 61, 62–70; National Research Council in,

Index 37–39; Progressive era, 23–24, 30, 139, 177, 209; public health, 138–141 Religious freedom, 128–129 Religious influences, 14–15, 168, 188 “Report of the Committee of the AMA to Study the Relationship of Medicine and the Law,” 45 Research, 88–89; federal support for, 152, 212; organ donation for, 118–120; public health, 147–149; Rockefeller Foundation, 32–37 Revere, Paul, 15–16, 209 Rhode Island, 24, 116 Rockefeller, John D., Jr., 31, 32 Rockefeller, Nelson, 111, 112 Rockefeller Commission, 113 Rockefeller Foundation, 2–3, 5, 32–52, 209; education grants, 38; Harvard program, 40–52; National Research Council, 34–39 Roe v. Wade (1972), 124 Rose, Earl, 96–97 Rosenberg, Charles, 195–196 Rush, Benjamin, 4, 16 Sacco, Nicola, 31–32, 177 Saturday Evening Post, 180 Scheck, Barry, 208 Schroeder, Oliver, 76, 90 Schultz, Oscar, 29, 35, 37–39, 67 Scientifically based management practices, 170 Scientific techniques, 32, 105–106, 208; in fiction, 176–181; legal causation and, 191–192; media coverage of, 178–179 Seat belts, 146 September 11, 2001, attacks, 94, 201 Sexton, Joel, 158, 160 Shaken infant syndrome, 204–205 Shame of the Cities (Steffen), 23 Shapiro, Barbara, 196 Sheppard, Marilyn, 53–54 Sheppard, Samuel, 53–54 Sheriffs, 10, 11 Shumway, Norman, 121 Siegel, Barry, 187 Siegel, Henry, 112–113 Simpson, Keith, 89 Sinard, John, 201 60 Minutes, 131–132 “Slaughter of the Innocents, The” (Adelson), 88 Smith, Alfred, 144

 289 Smith, Vertin Earl, 63 Social medical history, 155 South Carolina Coroner’s Association, 156, 157 South Carolina coroner system, 154–155, 156–163 South Carolina Medical Examiners Commission, 156–157 South Carolina Medical Society, 156 Spelman, Joseph, 43, 80 Spilsbury, Bernard, 89, 177 Standards of proof, 190–207. See also Evidence; Expert testimony; colonial, 193–194; definition of, 192 Starr, Paul, 2, 155 State Medical Society of Wisconsin, 163 Steffens, Lincoln, 23 Stevens, Rosemary, 5 Stewart, Jimmy, 179 Storer, David Humphreys, 18, 19 Strengthening Forensic Science in the United States: A Path Forward, 208 Stringham, James S., 17 Subpoena power, 18 Sudden Infant Death Syndrome (SIDS), 88, 148–149, 187–188 Suicide, 15, 144; guns in, 147, 150; physician-assisted, 117, 124–128, 129–133; South Carolina police chief, 161 Syphilis, underreporting of, 137–138 Talan, Jamie, 187–188 Taser International Company, 211 Tate, Sharon, 182 Terrorism, 94, 152, 201 Timmermans, Stefan, 3, 95 Toxic shock syndrome, 152 Traffic deaths, 144–147 Transactions of the Medico-Legal Society of Massachusetts, 74 Treuting, Robert, 119 Trial of the Assassin Guiteau, The (Rosenberg), 195–196 Triangle Shirt Factory fire, 141 Turkel, Henry W., 64–65 Tylenol, cyanide-contamination in, 135 Tyndale, Theodore H., 21, 22, 23 Undertakers, 28, 61–62, 120; conflicts of interest with, 35 Unified Network for Organ Sharing (UNOS), 123

Index Uniform Anatomical Gift Act (UAGA), 118–119, 124 United States v. Two Bulls (1989), 202–203 Urbanization, 191–192 U.S. Radium Corporation, 142 Vaccination deaths, 27 Vanzetti, Bartolomeo, 31–32, 177 Vaughan, Victor, 33–34 Vermont, 24 Virchow, Rudolf, 27 Virginia, 10–11, 47, 52, 90, 199 Vital statistics, 137–138, 210–211; inconsistencies in, 151–153 Wallace, Mike, 131–132 Wallstein, Leonard M., 26 Wallstein Commission, 26–27 Wanglie, Helga, 124 Wantz, Marjorie, 130 Warren, Earl, 100 Warren Commission, 100, 102, 181 Webster, John, 198

 290 Wecht, Cyril, 100–101, 102, 109–110 Weimann, George, 37 Weintraub, Albert, 66 Weintraub, Claire, 66 Welch, William, 141 West, Olin, 44 Wiecking, David, 90 Wilde, Percival, 179 William S. Merrell Company, 179 Winspread Conference, 92 Winthrop, John, 9 Wisconsin, 61–62, 144, 163–165, 198 Women in forensic pathology, 90–91, 162–163, 185–186, 187–188 Wood, Natalie, 105, 182 Woodward, Louise, 204 Workers’ compensation, 76 X-Files, 186 Youk, Thomas, 131–132 Zapruder film, 102, 181