Friday, January 9, 2015

A Forensic Primer for Journalists

Since the publication last year of my New York Times bestselling book Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner, I have found myself in the public eye as an expert in my field of forensic pathology. When a high-profile death investigation hits the news, journalists from all over the U.S., and occasionally other countries, call and ask me to "explain the autopsy"  to them.  
Autopsy reports can be daunting to read if you have not been trained in medicine, so when I have the time I will make an effort to put things into plain English for these reporters, just as I do for a jury when I work as an expert witness. In many cases, however, I find that professional writers and news analysts lack even the most basic knowledge about forensics.  
Here, then, are some definitions and guidelines that journalists or anyone writing about death investigations and autopsies should find useful.

1. A Coroner is not the same thing as a Medical Examiner
Both a coroner and a medical examiner perform forensic death investigation—that is, examinations on behalf of the public into the circumstances of any death that is sudden, unexpected, or violent. The crucial difference is this: A coroner is an administrator or law enforcement officer, and a medical examiner is a doctor. 
A coroner position is a political one. Coroners are either appointed by an elected official, or are themselves elected. In some counties, the coroner’s office may be a division of the sheriff's department. In some states, it's a branch of the state police.  The coroner is not a physician and does not perform the autopsy; he or she hires contract forensic pathologists for that job. The coroner is responsible for supervising the administrative aspects of the death investigation. The contracting forensic pathologist determines the cause of death (the disease or injury that killed the person), and the coroner determines the manner. Manner of death is a system of classification of the causes of death into categories. The usual list is natural, accident, suicide, homicide, and undetermined, though these may vary slightly by individual jurisdiction.  
Sometimes—historically rarely—the coroner will perform a coroner's inquest, a special court proceeding in which the coroner acts as judge. The coroner has subpoena power and can call witnesses to testify, to answer the coroner's questions, and also to present findings to a jury. Either the coroner or the jury decides the manner of death after a coroner’s inquest. 
A medical examiner is a forensic pathologist, a physician with specialized training in death investigation. In a medical examiner's office, a doctor called the chief medical examiner is in charge of both the death investigation and overseeing the performance of autopsies by other doctors, usually known as assistant medical examiners or deputy medical examiners. The decision of cause and manner of death determination falls on the deputy medical examiners, who receive guidance and supervision from the chief. Generally, medical examiners do not hold inquests.

To confuse things, some offices (like Los Angeles County and Santa Clara County in California) use the term "Medical Examiner-Coroner," and in some counties they refer to the death scene investigators as "Medical Examiners" even though they are not physicians. And, to complicate the term even further, in some areas "Medical Examiner" is also used to refer to doctors in general practice who do insurance physicals in disability claims, and who have nothing at all to do with death investigation.
Bottom line: Find out whether the office you are reporting on calls itself a "Coroner" or "Medical Examiner," and use that term. Stick to it. Don’t use the terms interchangably. It is a mistake to mix them up.

2. Do not confuse the cause and manner of death
Cause of death is the disease or the injury that killed the person: heart disease, appendicitis, stab wound, drowning, etc... Manner of death is a classification of the cause into 5 categories: natural (for disease), accident, suicide, homicide (for injuries) or undetermined (if it can't be categorized easily or there is insuffucient information). So it is incorrect to say "the cause of death was natural" or "the cause of death was the motor vehicle accident" because that means you are conflating cause and manner. It would be better to write "the manner of death was natural" or that he died of "natural causes." For the motor vehicle accident, the cause of death is from blunt force trauma caused by the motor vehicle accident or "death was caused by trauma from the motor vehicle accident."
3. Homicide is not the same thing as murder. 
Homicide means "death at the hand of another." Intent is not a factor—only a volitional act is required to call a death a homicide. So if someone is playing with a loaded gun and accidentally shoots another person, the medical examiner or coroner will classify that death as a homicide. It’s up to the district attorney to determine whether it is in the state’s interest to charge the defendant with murder or manslaughter, or not press any charge at all.  
In some jurisdictions all motor vehicle fatalities are classified as "accidents" regardless of the driver's intoxication status, while in others, DUI offense deaths are mannered "homicide." The district attorney can still charge them as "vehicular manslaughter" or as "criminally negligent homicide" but those are legal determinations and don't change what the coroner will call it.  
Whenever a member of a law enforcement agency kills someone, whether it is an officer-involved shooting, a choke hold, or any other means of causing a fatal incident, the death is generally classified as a "homicide" because it is a death at the hand of another. Typically there is a review by the district attorney to decide whether the officer will be charged with a criminal offense. If the district attorney decides to charges the officer, a prosecutor will take the evidence either to a grand jury or to a preliminary hearing in front of a judge. The forensic pathologist who performed the autopsy will be called to testify as an expert witness in this legal hearing. The judge or jury will decide whether there is sufficient evidence that a crime was committed. If the judge or jury decides the officer was using deadly force within the guidelines of his professional judgement and training, then they will probably find that no crime has occurred. 
That fatal event is still a homicide. That’s what it says on the death certificate as manner of death, as determined by the coroner or medical examiner. But it is not a murder. Murder is a criminal charge, and calling a homicide a murder does not fall within the purview of the agency performing the forensic death investigation. That’s a job for the DA, judge or jury.

4. Don't confuse the autopsy with the death investigation
Deaths are only reported to the medical examiner or coroner if they are sudden, unexpected, or violent. Each state has laws that delineate what cases fall under the jurisdiction of the Coroner/ME, and each jurisdiction decides which cases get investigated, and to what extent. If the death is violent and suspicious, typically the police handle the primary investigation, and the medical examiner will incorporate their findings into the overarching forensic death investigation. The medical examiner will request the police reports and witness statements, and will even review the video of the incident (if there is one) if it helps in the determination of cause and manner of death. But not all agencies are willing to cooperate with the medical examiner's office, and it is not unusual that in high-profile cases, attorneys get involved, and the exchange of information slows even further.  
The autopsy pathologist can only tell so much from the dead body. Trying to figure out the cause of death from the dead body alone without knowing anything about the scene, circumstances, or medical history of the decedent is medical malpractice for a doctor like me. It would be like a surgeon coming in to perform surgery on an unconscious patient without the benefit of a physical exam, medical records or X-rays. 


So do not expect the coroner or medical examiner to release any information about the autopsy on a high-profile case—especially if it’s a homicide—as soon as the autopsy is done. The autopsy is just one piece of a long process that results in a cause of death determination. That process may, and in many cases must, take many months to complete.
5. "Pending" is not the same thing as “Inconclusive"
In many news reports (most recently the ones involving Joan Rivers's death—see http://www.cnn.com/2014/09/05/showbiz/joan-rivers/ ), when the autopsy is complete but the medical examiner has sent out specimens for additional testing, or needs more time to review the police reports or medical records, the preliminary determination after the autopsy will be that the case is "pending.”
Please, please understand this, members of the professional news media: “Pending" means you have to wait for the results. It does not mean "we don't know.”
A pending cause or manner of death also does not mean that the autopsy findings were "inconclusive.” Something is inconclusive when you cannot draw conclusions about it after all the information is available. In a pending case, we are all still waiting for that information before we can come to any conclusion. The autopsy itself may be very, very conclusive, but the medical examiner is not going to tell you that—because they are still working to complete the death investigation, and that will take some time. 
If at the end of the investigation the medical examiner or coroner says the cause of death is “undetermined”… Well, then and only then are you correct in writing that their investigation was "inconclusive." In Joan River's case, several months after the autopsy and the inaccurate early news stories calling the autopsy “inconclusive," the investigating medical examiner’s office reached a determination of both cause and manner of death. These were not inconclusive in the least: http://www.cnn.com/2014/10/16/showbiz/joan-rivers-cause-of-death/

6. The autopsy doesn't “show” or “tell" you anything. The expert does.
It always riles me when I read in the news that "the autopsy showed five gunshot wounds to the body, two at close range, and a single stab wound.” (For instance: http://www.slate.com/articles/news_and_politics/politics/2015/02/laquan_mcdonald_shooting_a_recently_obtained_autopsy_report_on_the_dead.html) No, the autopsy didn't show that. The forensic pathologist determined it. It is his or her professional opinion of the findings. A different forensic pathologist might look at the same body, or at the photos and scene investigation, and determine that, based on the position of the body, the five gunshot wounds were created by three gunshots. Two were bullet re-entry wounds. Oh, and that stab wound? It isn’t a stab wound. It’s actually a therapeutic artifact—a hole put in the body by the doctors in the hospital, during their attempt to save the decedent’s life. 
It is confusing to the public if you divorce the autopsy from the opinion of the practitioner, especially when there is a subsequent review of the findings, and they are found to be mistaken or misinterpreted. It also undermines the public trust in forensic scientists who do their best to interpret the injuries, but may not always be given all the information they need to do a thorough job. 
It is also confusing to the public if you get your hands on an autopsy report and regurgitate its findings without at least calling the pathologist who authored it, to request help in comprehending what exactly you are reading. If he or she won’t speak to you, please try another forensic pathologist. The lay public, whether journalists or their audience, do not have the experience or expertise to interpret most autopsy reports without professional guidance. That may sound paternalistic, but it’s the truth. There’s a good reason that forensic pathologists go to court to interpret their findings in person to juries, and even to judges—their findings can be obscure to anyone not trained in our very narrow and specialized field, and the conclusions we come to in forensic death investigations are important.
In most cases the coroner or medical examiner will release autopsy reports under Freedom of Information Act requests, but they may not have a public information officer who will be able to take the time to explain it all to you. Or the investigating pathologist may not want to go on the record interpreting the findings, and then get cross-examined on what some journalist wrote in the paper about that interpretation—especially if that reportage turns out to be inflammatory or erroneous. Your best bet as a journalist is to find another expert who will take the time to explain it to you so you get it right. 

7. The first legally-mandated autopsy done by the Coroner or ME's pathologist is an independent autopsy. Everything else is not.
“Independent" means not influenced by anything or anyone. During that first autopsy, the forensic pathologist collects trace evidence, has photographs taken, and makes incisions into the body that literally alter the evidence. Even if this pathologist were to face political or bureaucratic pressure to interpret the findings a certain way, the physical evidence of the first forensic autopsy will become public record and will be used in court, where it is open to unblinking scrutiny. So the Coroner's or Medical Examiner's autopsy is always an “independent” autopsy—even if their conclusions turn out to be wrong. It is the documentation and collection of the evidence from the whole body, the first time, that matters, and it is this process of collection that makes the forensic autopsy the only independent one. 
Any pathologist hired by attorneys, the decedent's family, or anyone else to perform a second autopsy is not "independent." He or she is a retained expert. That means if his findings are not helpful to the family's attorney, they don't have to disclose them. At all. 

The Coroner or Medical Examiner's pathologist doesn't have that option. They represent an agency which is legally charged with independently ascertaining the cause of death. They will be called to trial. Their report will be disclosed and argued over. That is the ultimate in quality control—legal transparency and cross-examination. If another public agency, like the Armed Forces Medical Examiner, reviews the original findings at the request of the family or because there is public outcry, that is a secondary review, and it is also no more "independent" than the autopsy performed by the coroner’s or medical examiner pathologist.
Forensic pathologists are doctors, not police officers. Autopsies are not "ordered by the police," or “done for the police," as was written repeatedly during the Michael Brown case in Ferguson, Missouri. Forensic pathologists are not in the business of covering up for anyone, even the police. While they may rely on good relationships with the police department in order to get the information they need to do their job, they are committed to doing that job properly, for very good reasons—if they do not, they will either lose that job, or ruin their relationship with their own boss (the Coroner or medical examiner) in order to please an outside agency (the police).

8. "Consistent with" does not mean "it's the only explanation”, and “appears" is not the same thing as “is.”
When an expert says that something is "consistent with" or that it "appears to be” something, that does not mean this is the only explanation of the forensic findings. Other explanations or interpretations may be plausible, or equally consistent with the physical findings. Sometimes the expert's preference for a particular scenario is contingent on the information that is available at the time, or on that expert’s own experience and training. 
Shawn Parcells, the forensic technician who autopsied Michael Brown under the hire of the Brown family and their attorneys, found this out when the final autopsy report showed that there was particulate material consistent with gunpowder in the wound on Michael Brown's hand. He and retained forensic pathologist Dr. Michael Baden had stated in public that all the wounds "appeared to be" distant range, but Parcells had not taken microscopic sections during the second autopsy he conducted. After Dr. Baden looked at the microscopic slides collected by the original forensic pathologist in the normal course of the first autopsy, he testified to the grand jury that the St. Louis County Medical Examiner's findings were correct.  (See: http://int.nyt.com/newsgraphics/2014/11/24/ferguson-evidence/assets/gj-testimony/grand-jury-volume-23.pdf page 38
The news reports surrounding this case made it seem that the forensic experts disagreed with one another. They didn't. It's just that they were asked different questions at different points in time. And when one of those experts used the word “appeared” about a finding that was not yet final, he was quoted and interpreted by many media outlets as speaking definitively instead.

Conclusion: So what should a journalist do?
- Consult a forensic expert. When you have a breaking news case and an autopsy report in hand that makes no sense, first contact the medical examiner or coroner's office that released the report. Ask if someone there will explain it to you. If they can't or won't, find a forensic pathologist who will.
- Read about forensic topics, and look up information in forensic journals so that you can become more fluent with the language the scientists use, and so that you will be able to challenge them with intelligent questions.
- Be careful how you quote the forensic pathologist. If the expert says "don't quote me" or "off the record," respect that. Scientists are protective of their professional credentials, and will be a lot more comfortable speaking with you on the record if they can see their quotes in context in the substance of the article before it gets out. Have them check what you wrote to make sure it wasn't taken out of context or misunderstood prior to publication. It is much better to get it right than to issue a retraction or correction—or to watch while the source you relied upon comes out in public and points out that you took the time to do your research, and then got the story completely wrong. 
It happens. Forensics is complicated, and sound bites are few. But always keep in mind that you are exploring a story about a dead human being. You owe it to that person—and to your audience, and to the public record—to get the details of the death investigation rigorously right.