Thank you, your Honor. And good afternoon again, ladies and gentlemen.
THE JURY: Good afternoon.
And to you, doctor. Doctor, I don't believe you gave on direct examination whether or not you are presently employed full or part-time with any New York State police agency. You did not make any mention of that, did you, sir?
I'm co-director of the forensic sciences unit of the New York State police. That's a half-time position.
A minimum of 20 hours, but I'm on call seven days a week, 24 hours a day or I have to provide coverage.
How many forensic pathologists are associated with that New York State police unit of which you say you are the director?
I'm the co-director. Dr. Lowell Levine, the forensic dentist, is the other co-director, and we split one position. There are about eight forensic pathologists who are on our--associated with our unit.
Is Dr. Wolf--Dr. Wolf is not associated with the unit of which you are a co-director?
Dr. Wolf is--has been director of anatomic pathology at Albany medical center and is a forensic pathologist to Albany county and to about 20 other counties in upstate New York, about 63 counties in New York state, and she covers a great number of them.
Dr. Baden, did you bring Dr. Wolf into the Boggs, Hanson, Hawkins case for the trials for the last two defendants?
Dr. Baden, is Dr. Wolf going to be the co-editor of this book that you say you're in the process of preparing?
I don't know, Dr.--Mr. Kelberg. I doubt it. I wouldn't use any case that can be identified.
Doctor, is it usually the case that with recognized forensic pathology text or any other field of medical text, that the editors are usually physicians who have vast experience in the area the textbook is covering?
Not necessarily. There are some--many text that are written by people who have little experience. That's why we don't have too many good text about.
And therefore, let me ask you again, how long has Dr. Wolf been board certified in forensic pathology?
And, in fact, the overwhelming bulk of those autopsies were done when you were still with the New York medical examiner's office; isn't that correct?
And, sir, of those 20,000 autopsies that you--or over 20,000 that you've personally performed, how many of them were multiple murder cases arising out of a single incident?
I'd say a few hundred. I mean, we have up to--we had single incident with 15 persons killed and down to two. But a few hundred I would imagine.
Gunshot wounds would be more than half of those multiple murder cases arising out of a single incident?
I would guess, yes. That would be my opinion as I sit here. I have never accumulated the cases in that manner.
Now, doctor, if you do roughly a thousand autopsies a year--and that would be what would be required from 1965 to 1985 to get 20,000, right?
Umm, it would be starting in 1960--1955 actually, but most of them would have been done between `65--from about `63.
Yes. As a medical--I started as a medical student to do autopsies as a volunteer. However, I didn't do that many until `62, `63 when I worked at an official job on weekends and holidays and vacation time.
You wouldn't be allowed to do criminal homicide autopsies when you were starting medical school, would you?
Now, doctor, roughly doing a thousand autopsies a year for 20 years would be accurate?
And would it be accurate to say that you took perhaps usually two weeks of vacation a year?
So if you worked 50 weeks a year doing roughly a thousand autopsies a year, you are doing roughly 20 autopsies a week?
And you said you supervised over 50,000 autopsies during the same period; isn't that correct?
Umm, I got to supervise more as I rose up--I became deputy chief, but the supervision came a little later.
All right. If we just took for average purposes that 50,000 over 20 years, would be roughly supervising 2500 autopsies a year?
And again, 50 weeks. So you're looking at another 50 autopsies that you're supervising, correct?
It worked out about two or three during the week and about five or 10 on weekend days. It varied.
Rarely we--rarely were there depositions. In New York state, it wasn't at that time a deposition type case. There weren't too many civil litigations that we were involved in.
And how long would a criminal homicide autopsy take vis-à-vis the kinds that were not arising out of criminal homicide situations?
The autopsies involved dissection of the bodies. There were many other cases that I would issue death certificates without doing an autopsy. Those are what were called sign-out cases where an autopsy wasn't needed. So we might have in the city of New York at that time something like 30,000 deaths reported to the medical examiner's office each year out of 60-, 70,000 deaths, and of those, about 8,000 would be autopsied. The rest would not be autopsied.
Doctor, is there an organization of forensic pathologists nationwide that issues recommended guidelines as to the number of autopsies which should be done by a particular doctor on a particular day?
And isn't the guideline for the number of autopsies to be done no more than two a day?
I believe now the guideline might be two a day and no more than 250 a year per doctor, but that's of recent vintage. That's in the past 10 or 15 years. In 1960's especially, we just worked morning to night to get the work done, and there were very few doctors in the medical examiner's office at that time.
Doctor, your work with the New York state police pays you approximately 39- to $40,000 a year?
And, sir, your private practice--let's set aside the Simpson case. Are you still taking on other cases besides the Simpson case since you became involved in the Simpson case?
Not very much since my involvement with the Simpson matter, this matter. But in general, I do other cases and I will once this is finished.
And in fact, is it true, sir, that three to four times of your annual income is made from privately retained cases rather than the 39- or $40,000 you make from New York?
And in fact, you spend more than half of your time working on private retained cases rather than for the New York state police cases; isn't that correct?
Now, doctor, how many cases have you done where you've been privately retained--and by the way, privately retained insurance companies have retained your services?
And has that ever involved situations where the insurance company believes the decedent committed suicide and doesn't want to pay on the life insurance policy because there's a suicide exclusion?
It's not quite put that way. If the initial review by the insurance policy by the doctor on staff is that the cause of death is at issue or the question of suicide, which might exclude payment, then they would call myself or another forensic pathologist and ask us to review the case and ask us our opinion. If my opinion was that the person committed suicide, they act one way. If my opinion was the person didn't commit suicide, they might act in another way.
Now, you've also been retained by attorneys representing plaintiffs in civil actions?
Now, doctor, of those times that you've been retained privately, how many involved cases where you did not personally perform the autopsy?
Well, commonly in insurance matters, I'm asked to review other people's work and the results and in I would say majority of my private practice, I review cases other people have done, but I don't do an autopsy.
My question though, sir, is, approximately how many cases have you been retained on in your career for which you're paid for which you did not personally do the autopsy?
Lots. I mean, we're going 30--back 30, 35 years. Many, many cases. Probably the majority of them. I'm just saying the majority of cases I'm retained on, I don't do the autopsy.
And in those situations, do you review any autopsy report that's been issued by the pathologist who performed the autopsy?
Do you review photographs that may be in existence, whether police photographs or Coroner office photographs?
And, doctor, when you do this, do you ever tell the party retaining you that you can't accept this work because since you didn't do the autopsy, it would be pure speculation for you to review these materials and render opinions?
And in fact, have you ever turned money back after you've done a review to tell the party that retains you, "I didn't do the autopsy. Whatever I have in the way of an opinion from these materials would be pure speculation. Here's your money back"? Have you ever done anything like that?
That's not my opinion, no. I--if I agree to review a case, I'll review the case, and I'll do the best I can with the information available.
And in fact, you do render opinions in these retained cases based upon review of whatever was available even though you did not do the autopsy?
And in fact, in the Boggs case that Mr. MacKenzie retained you on, you didn't do the autopsy, did you?
And some of the photographs were taken of the body at the office of Dr. Boggs, right?
Now, doctor, you said this morning that you are critical of any forensic pathologist who would get on the witness stand and testify to possibilities. Isn't that what you said this morning?
I think what I said this morning was in the context of Mr. Shapiro's question where all the opinions or much of the opinions of--on the direct, your witness, Dr. Lakshmanan, were couched in possibilities.
Sir, in fact, the questions were couched as follows: "Doctor, is a set of circumstances consistent with certain findings?" Isn't that how the questions were couched, doctor?
Many of them were, but that's possible. "Consistent with" is difficult to interpret because it could be consistent with 1 percent or it could be consistent with 95 percent, and that's--that's a delicate area to explain to the trier of the facts as to what my opinion is. If my opinion is it's consistent with 1 percent that so and so happened, the jury should not give it as much weight as if it were consistent with 95 percent.
So, doctor, is it your use of the term "Possibility" to relate to doctors who talk in terms of "Consistent with" or "Inconsistent with" when questions are posed?
What I said is that the witness, me in the blue chair, Dr. Lakshmanan in the blue chair here, can only answer the questions that the lawyers put to us, and I think we try to answer the questions the best we can. But if all we say is it's possible that it happened by a bushy-haired stranger whose right-handed from behind, yes, but it's also equally consistent with a bald-headed midget from the front who is left-handed. It's all--it depends on what kind of information I want to give across as an expert, but I don't have control over your questions or Mr. Shapiro's questions.
Well, doctor, if you feel incapable of rendering an opinion because you do not hold an opinion to a reasonable medical certainty, then you can say that as a response to any hypothetical that's posed to you by any lawyer; can you not?
No, no. I think how--my impression is from the testimony that questions are permissible here that wouldn't be permissible in other states.
Well, doctor, my question though to you is, do you feel that you as the witness, as the expert in response to a hypothetical question can say, "I can't answer that. I don't have enough information. It would be speculation. I don't talk in terms of possibilities. I talk only in terms of reasonable medical certainty"? Can you do that, sir?
Surely I can. But you--that's a compound question. Certainly if I don't have enough information, I can't answer. I'll say I don't have enough information, that's beyond my expertise. But I think that I--I'm at the--you know, at the--I have to answer the questions that are put to me and as best I can.
Well, and "As best you can" could involve answering, "I can't answer that question because I can't answer to a reasonable medical certainty." That is an answer you could give, isn't it?
Now, sir, didn't you in the course of your direct examination at least 10 or 12 times offer answers that included the word "Possibility" when asked hypothetical questions?
I don't think so. It's poss--that's possible, but I don't think so. If I did, I try to couch it in the sense that I'm giving it with a different degree of certainty than if I answered to a reasonable degree of medical certainty so that the jury can distinguish what I'm trying to say.
The cut in the front of the shoe? You said it was not proof of it, that Mr. Goldman had kicked the knife, right?
Wait, wait, wait. He didn't finish answering--asking the question. Let him finish. Let him finish answering the question as well.
All right. We will be here through tomorrow if we keep up like this. Let's move along, all right?
KEY QUOTESo according to your criticism that you gave this morning, you should not be offering an opinion that you cannot say to 95 percent certainty. Isn't that your view?
Depends on the question. It depends what the question is and what the information that's being elicited.
Well, sir, did you ever qualify any of the answers you gave by saying this is not to a reasonable medical certainty, this is only something I feel 50 percent plus one, a sense of confidence in?
At times, I said it got monotonous to a reasonable degree of medical certainty when I gave answers.
Sir, have you ever heard the term "Beyond a reasonable degree of medical certainty"?
It's a term that's used in New York state courts. It's one of the--I'd have to defer to Mr. Scheck on that. It's a lawyer term that we're asked not uncommonly in New York.
Well, as a forensic pathologist, doctor, aren't you trained in the relationships between the law and pathology?
Oh, yes. But we're not trained in the law as such. I'm not a lawyer. I don't deem to answer legal questions. I don't even know the difference between a hearing and a trial as you pointed out. But what I'd say is, I--we know knowledge that's applicable to the law.
Doctor, did you write in your report to Mr. MacKenzie on the death of Ellis Green, among other things? "It is further my opinion beyond a reasonable degree of medical certainty that the medical autopsy in toxicology findings presently available are entirely consistent with the cause of death being asphyxia by suffocation," and then: "Mr. Green's alcohol impaired condition at the time of death made him vulnerable and susceptible to die from such a cause." Did you write that in your report?
95--beyond 95 percent certainty. The same as to a reasonable degree of medical certainty. I'm not in a syntax mode there.
In your mind, "To a reasonable degree of medical certainty" and "Beyond a medical degree of medical certainty" are synonymous terms?
In the cases where you were retained by our office, the Belushi case and the Boggs case, you either prepared a report or signed an affidavit spelling out your findings; isn't that correct?
I did prepare a report as you indicate in the Boggs case and I would be guided by whatever you said about Mr. Belushi.
Doctor, were you asked to sign an affidavit in order to extradite Kathy Evelyn Smith from Canada?
And you read it thoroughly, in fact, made some notations on it, didn't you, before signing it?
Well, I wasn't asked to prepare a report. I was in constant conversations with Mr. Shapiro, but I was not asked to prepare a report. It's not usually my custom to prepare a report without being asked.
And, doctor, is that because you don't want to give the opponent any advance notice of what your views may be to prepare for cross-examination?
No. That's not so. In fact, if you called me, Mr. Kelberg, I would have been glad to talk to you.
KEY QUOTEAnd then you had to cut short that conversation, didn't you, because you were tied up at a convention?
Well, in fact, I was not permitted to finish questioning you, that we had to put it off for another time and I was not permitted to follow up any questioning beyond the 20 minutes that I talked with you. Isn't that what happened in that case, sir?
I don't recall that at all, but I'm sure if you say so, I would think it's correct.
And, sir, did you document carefully each and every finding that you made in that examination?
And you've told us I think on direct how important it is for a medical examiner to document carefully all the findings, correct?
And, doctor, it doesn't matter whether you're the medical examiner performing the autopsy or you're a privately retained expert such as you are in this case. The need to carefully document exists in either situation, right?
You do? Do you have your note or notes of the examination of Mr. Simpson's hand or hands on June 17th, 1994?
I have--there's a copy I think that you have, but also, it was documented with multiple photographs.
Now, doctor, this is the--this exhibit is the only documentation in a written form of your observations of both the left and right hands of Mr. Simpson on June 17th; is that correct?
Now, during--we're looking at the upper portion, and, in fact, what we're looking at now is your written notation concerning the left hand examination; is that correct?
Why don't you give a copy to Mrs. Robertson. I'll have one of the law clerks make a quick photocopy.
Let me give the doctor mine. It may be marked up a little bit, but it will be a little easier to tell--
Now, doctor, you only reflect in this notation the left hand; is that correct? You make no reference with respect to the condition of the right hand?
And, doctor, did you follow the testimony of Dr. Robert Huizenga when he was called by the Defense as a witness earlier in this trial?
Have you heard his testimony regarding his examination of Mr. Simpson's left and right hands on June 15th and then his presence when you were examining the hand--hands on June 17th? Did you hear his testimony?
I recall testimony that he gave relative to what he saw in his office on June 15th.
Now, doctor, do you recall hearing him say in response to a question I asked that he found on the left hand three or four cuts, depending on how you want to define the cuts, because there's one that had an interruption which, if it was all part of one process, would be one cut rather than two? Do you recall that?
I recall some of that type of testimony. I'm not specific that there were additional injuries that he saw that I had not seen.
Doctor, let me just briefly refer you to some testimony that was given by Dr. Huizenga, referring to page 37267 of the transcript, line 18 through 20. "How many separate abrasions did you identify ?"
Your Honor, there will be an objection to this line of questioning. It's beyond the scope of direct examination.
Doctor, did you hear this testimony from Dr. Huizenga? "Question: How many separate abrasions did you identify? "Answer: Seven. "Question: And did you also count the number of cuts to his left hand? "Answer: Yes, I did. "Question: How many did you identify? "Answer: Three cuts, one of which on the fourth finger had both an A and B portion. "Question: That's the right--" I'm sorry. "That's the ring finger, correct? "Answer: Correct." Did you hear that testimony before, doctor?
Doctor, how many abrasions did you identify in this note that you made of your examination of Mr. Simpson's left hand on June 17th?
I did not see those abrasions on the 17th, which is two days later, and I did photograph Mr. Simpson's hands with Dr. Lee and I don't--to document the injuries, and I don't recall there being abrasions at that time.
These matters have already been marked. Do you need to see these? Let's bring them over--
All right. Mr. Shapiro, do you want to approach and take a look at these as well, the ones that Dr. Baden has in his possession at this moment?
Doctor, let me show you if I could, please, first exhibit 518-E. Have you seen that photograph before?
Doctor, did Dr. Lee or you in the course of having photographs taken have a ruler placed in the photographs?
And if Dr. Huizenga did not use a ruler when he was having photographs taken at his office on the 15th, would that indicate to you that if the photo has a ruler in it, that it is a photo taken on the 17th?
I'm not sure. I'm not sure. We only have 17 percent gray rulers. So that doesn't look--it has the form of a ruler that Dr. Lee or I would have used, but not necessarily--but not the right color.
Doctor, I want to invite your attention--if Mr. Fairtlough can zoom in on the left thumb area, please. Doctor, do you see the area that is highlighted now by the close-up of this photograph?
I don't recall seeing that. Uh, and I--I do not believe this is a photograph taken on the 17th.
Doctor, then if it was taken on the 15th, your testimony is that that injury--you do believe that that's an injury; do you not?
Is it your testimony that it healed between its state as seen in this photo, if the photo was taken on June 15th, and when you saw Mr. Simpson's hand on the 17th?
Now, doctor, is it your testimony then that you saw none of the seven abrasions that Dr. Huizenga said were present on the left hand along with the cuts?
No. I don't have it in my notes and I would have to check photographs taken on the 17th that were further documentation.
There was a stipulation that these photos were taken on the 15th and the 17th. Defense counsel offered it and I accepted it.
Doctor, what we are looking at on this photograph, did you see this area that's highlighted now when you examined Mr. Simpson on the 17th?
Yeah. There appears to be a healing--some kind of healing mark that you were referring to--
And if Dr. Huizenga referred to it as an abrasion, would you trust his judgment on that?
Now, did you see abrasions along the left wrist of Mr. Simpson when you examined him on the 17th?
I would have to look at the photographs taken on the 17th because I have a notation in the sheet that you gave me and that you retrieved of some--something on the wrist, in the area of the wrist and I just don't recall.
First of all, doctor, let me just show you one of the Defense photographs, which is 1249, and ask you if that appears to be a photograph taken on the 17th when you were present or at some other time and location.
It appears that this photograph, the top that you're showing to me, 1249, was taken at the time that I was examining Mr. Simpson on the 17th.
Let me show you what's 516. I'm sorry. It's 516. Does that also appear to be a photograph that was taken on the 17th, doctor?
Now, doctor, do you see on the lateral side of the wrist what would be the ulnar side I believe, do you see what appear--
And I'm giving the doctor back my copy because I think we still have it for the elmo. I'd like to put it back on the elmo, please.
What I refer to in my notes is, on the medial aspect of the wrist--and when I say "Medial aspect," it's the ul--it's the pinky side of the wrist, the side into the body in the anton position. I have here a half inch in front of the wrist and 3/8 inch back of the wrist, would be the--what appear to be abrasions that are shown on this photograph that you showed me.
Umm, it says, "Wrist, medial aspect, half inch distal to wrist, 3/8 inch proximal to wrist," and I will have the original of this waiting for me at the hotel when I come back to see if anything was left out. But in my opinion, I was referring to the abrasions.
Now, sir, did you appear on NBC Dateline on June 23rd, 1994, regarding your observations of that hand of Mr. Simpson's, the left hand?
Your Honor, if there's going to be a document here, can we have an opportunity to look at it, please?
I'm afraid I'm not familiar with the company, your Honor. Through our media relations, I've been provided with this.
Just to make sure it's in proper context, may I just have a few moments? I don't want to interrupt.
But if all we say is it's possible that it happened by a bushy-haired stranger whose right-handed from behind, yes, but it's also equally consistent with a bald-headed midget from the front who is left-handed.
We will be here through tomorrow if we keep up like this. Let's move along, all right? Let's get past the semantics.
That's not so. In fact, if you called me, Mr. Kelberg, I would have been glad to talk to you. As we once did before.
Have you ever done anything like that? ... 'I didn't do the autopsy. Whatever I have in the way of an opinion from these materials would be pure speculation. Here's your money back'?
I do not recall seeing any of those abrasions.