Re: Review of Evidence in State v. Church of Scientology Flag Service Organization, Inc.
I have been engaged in a review of the evidence supporting the criminal charges against CSFSO since Chief Medical Examiner Joan Wood notified us that she had changed the death certificate from undetermined to accident and that she had removed dehydration and bed rest as causes of the pulmonary embolus which killed Lisa. The amended death certificate also listed "psychosis" and "history of traffic accident" as factors that contributed to the death but did not contribute to the thromboernbolism. I have reviewed the evidence on which our case is based, reviewed the extensive materials submitted to Dr. Wood by the defense as well as additional materials submitted to us, have done extensive medical research, and have reviewed the case with our existing experts as well as new forensic and clinical experts. I have also reviewed the depositions of Calvin Brandt and John Coe from the parallel civil case, and have fully considered them to the extent they support or undermine the conclusions of Dr. Wood and the underlying forensic basis for the charges.
We initially began this lengthy and time consuming investigation into Lisa McPherson's death based upon the Medical Examiner's insistence that it was caused by criminal negligence, specifically the failure, individually or collectively, of her caretakers to respond to the obvious and life threatening dehydration which caused her death. When we concluded that individual criminal charges could not be pursued, we nonetheless felt compelled by the facts developed in our investigation and by the Medical Examiner's conclusion to pursue corporate charges. We filed a charge of practicing medicine without a license, which we decided should not be pursued as a single but independent charge, only as an adjunct to the primary charge of felony neglect of a disabled person.
Only because this conduct was the proximate cause of serious injury did we perceive it as meeting the legal and constitutional prerequisites to prosecute a religious corporation claiming constitutional and statutory protection. Similarly, our ability to prove to a jury that Lisa's injury or death resulted from the defendant's wrongful conduct supported our belief that successful prosecution was likely and that the commitment of the resources required to bring the responsible persons or entity to justice was merited. Thus, given the issues in the case, correlating the defendant's conduct with serious harm to the victim, even if not an element of both charges, was viewed as a legal and factual prerequisite to prosecution.
While nothing in the review has caused me to believe that the central premises behind the prosecution are erroneous, our ability to establish these necessary facts beyond a reasonable doubt has clearly been compromised. The changes to the death certificate and autopsy report are on their face seriously damaging to our underlying theory of prosecution.
While Dr. Wood is an extremely intelligent and knowledgeable expert who is a formidable witness when defending. a valid position, her inability to coherently explain her decision even under benign questioning by me is completely perplexing. Because of Wood's admission of a serious forensic error, her illogical and unfortunately inconsistent justifications of her decision to change the death certificate and autopsy report, the inconsistency between the changes made in the death certificate and the forensic basis for our charges, her continuing equivocation on issues central to the criminal case, and the very real possibility that the cause of death listed by the Medical Examiner's Office is incorrect, I have come to the conclusion that presentation of the Medical Examiner's current testimony to a jury will create a reasonable doubt on crucial forensic issues. When combined with existing problems in the case, it is my recommendation that we should not continue to pursue the prosecution.
The Initial Autopsy
The credibility problems which now plague the case originate with Wood's entrustment of the autopsy to associate medical examiner Robert Davis, Wood's decision to sign out the autopsy herself five months after Davis' departure, and Wood's still puzzling decision, after mistakenly releasing the autopsy report on an active criminal case, of giving an on camera interview to the national electronic media. Davis, who had retrained in forensic pathology after a clinical career in hospital pathology, was hired by Wood as an associate medical examiner in June of 1991. According to the documentation in Davis' personnel file, problems arose early in his tenure and continued throughout his employment. The difficulty appeared to escalate in March of 1995, culminating in an apparent decision by Wood to either terminate Davis or have him voluntarily resign in August of 1995. Wood relented after Davis' attorney suggested he had been diagnosed as having a mental disorder (and therefore might have a possible claim under the Americans with Disabilities Act). Wood agreed to allow Davis to stay employed until his daughter's graduation at the end of the school year, providing he would voluntarily resign at that time. It was during this interim that Davis performed the autopsy on Lisa McPherson.
While Wood indicates that she was present during parts of the autopsy and believes she was present when the lungs were opened up and the "embolus" was found, Davis does not recall her being present. In May of 1996, Davis left the Sixth District and became an associate medical examiner in Volusia County under then-Chief Medical Examiner Ron Reeves. The autopsy protocol had been dictated but no final anatomic diagnosis had been rendered.
On October 30. 1996. Wood signed out the Lisa McPherson autopsy, determining a pulmonary embolism to be the immediate cause of death and further finding that the embolus was caused by bed rest and severe dehydration. Wood had seen the histological slides before reaching these conclusions but, as far as I can determine, did not examine the tissues preserved by Davis, including the pulmonary embolus or the popliteal vein thrombus which. was believed to be embolism's source. Wood no longer recalls what information she may have had from the law enforcement investigation that Davis would not have possessed and indicates she did not consult with clinical experts prior to reaching her conclusions. Wood no longer recalls any specific reason why she signed out the autopsy herself (Davis apparently signed out on all the other autopsies that were still pending at the time of his departure).'
Subsequently, Dr. Wood decided to grant an on camera interview to Matt Meaghar of Inside Edition, with the knowledge of the police department and the Florida Department of Law Enforcement, but .without the knowledge of our office. During that interview, Wood `The MEO file reflects that a short time before Wood's decision, Lisa's mother, Fannie McPherson, left a message for Dr. Wood indicating that a final death certificate was necessary to complete Lisa's affairs. explained that Lisa had died of the embolism as a result of severe dehydration and bed rest after going without water from five to ten and possibly up to 17 daps Shy referred to Lisa as the severest case of dehydration she had ever seen and indicated that she had been unconsce^~ f^r 48 hours prior to her death. When asked if Lisa was comatose, Wood confirmed that she was "Unconscious, comatose". She emphasized the certainty of these conclusions by stating that she testified in court frequently and was used to choosing her words carefully.
Robert Dams' Testimony
Davis has significantly changed his testimony from a 1997 deposition given in the civil case and strongly disagrees that Lisa was severely dehydrated. He has made a series of strange but damaging accusations against Wood concerning the Medical Examiner's Office's handling of the case. If, as Wood's refutations suggest, Davis' allegations are the result of a serious memory deficit on his part, they nonetheless undermine both the credibility of the office and the reliability of the autopsy on which our forensic case is based.
In the 1997 deposition Davis testified that Lisa's appearance suggested "significant dehydration" and that the vitreous results if accurate were a "profound" indication of dehydration. He suggested that the embolism was pre-mortem and could have resulted from either earlier trauma (such as a traffic accident) or from dehydration and refused to give a definitive opinion as to which cause was actually responsible. He was also equivocal on whether the embolus or dehydration was the cause of death. He expressed no recollection of whether or not the organs may have been sticky and testified that he would not have noted such a factor in that her appearance (the gaunt look and sunken eyes which he described as "hippocratic facies") would have been a much more dramatic indication of dehydration. He indicated he was not very familiar with vitreous testing, although he was aware that potassium values in the vitreous change after death and would defer to others in evaluating the validity of the readings and whether the 300 urea nitrogen level was accurate or an artifact. He suggested that it was vitreous rather than urine values that he would rely on to determine dehydration.
While Davis' substantive testimony was equivocal, he attributed a series of bizarre actions to Wood under questioning by counsel for the Church of Scientology. He suggested that Wood never consulted with or informed him of her decision to sign out the McPherson case, suggested that Wood and MEO Director of Operations Larry Bedore had later called him, unsolicited, to send him the autopsy slides and his personnel file and that he became suspicious of their motives. He also stated that he returned the materials by taxi. He alleged that Wood had told him to refuse to talk to police officers or prosecutors about the case. He did not remember Wood being present during the autopsy and complained that his handwritten notes which would have helped prompt his memory of the case should have been retained in the office file.
I spoke with Davis in May of 1998. My recollection of our meeting is different than what is reflected in his affidavit of February 2000. When I attempted to schedule a meeting with Davis prior to the filing of charges, his attorney questioned the necessity of interviewing him since his deposition had already been taken in the civil case and he did not intend to deviate from that testimony. I met with Davis at his attorney's office in Daytona Beach and was again reminded that he had already been extensively deposed. Our conversation lasted for several hours. He refused to acknowledge the accuracy of the autopsy protocol itself, apparently believing that someone had altered the wording (without significantly changing the meaning) of his dictation. He continued to assert that Wood and Bedore initiated contact with him and sent him the autopsy materials even though Bedore's notes document that Davis called them after a Church of Scientology investigator showed up at his house over the weekend. Davis finally acknowledged that an investigator had shown up at his house and that he was upset by it, but denied that he called Wood's office as a result.
Bedore's notes further indicated that Davis requested the autopsy materials to review and that he told them he was meeting with a lawyer representing the Church of Scientology. Initially, Davis repeatedly denied to me that any such meeting was planned or occurred until his lawyer prompted his recollection by asking him who a certain lawyer was. Davis indicated that the lawyer represented the Church of Scientology (a well known local lawyer not openly involved in the civil suit) and then acknowledged that he had indeed met with him (Bedore's notes suggest Reeves had agreed to cancel the meeting for the "time being") and discussed the case. He seemed not to comprehend that this answer was completely inconsistent with what he had been repeatedly telling me. He continued to maintain that even though he did meet with a Church lawyer about the case, he had not requested to review the materials and continued to state that Wood had admonished him not to talk to police or prosecutors.
At this point, Davis' lawyer suggested a break and requested that she talk with me in her private office. We talked outside Davis' presence. I expressed concern over what I perceived to be memory deficits on Davis' part and whether they were the result of his illness. She indicated he was on "new medication" and doing much better and that he didn't want to become involved in the controversy surrounding the case but just wanted to continue on with his job. She stated she had reviewed the detailed criticisms by Bedore contained in the personnel file but Dr. Davis had not. We later continued the interview with Davis for a brief time and ended it on a cordial note.
Shortly after my meeting with Davis, a controversy arose concerning Dr. Reeves which resulted in his suspension by Volusia County. The Medical Examiners Commission, of which Wood was chairman, was called in to help run the office and appointed a group of Medical Examiners to review a series of autopsies in which the cause of death determinations were being questioned. The reviewing pathologists disagreed with the findings made by Reeves' office. Reeves resigned and Davis was not retained by Volusia County after the inquiry.
At some point after losing his position, Davis continued to talk to Scientology representatives and gave them at least two affidavits that reflected a change in his testimony. In the latest affidavit he opines, in contradiction to his earlier testimony, that the thrombus resulted from the car accident prior to Lisa being released into Scientology's care. He also indicates that he repeatedly told Wood he questioned the validity of the vitreous readings, and that his autopsy findings including the absence of stickiness in the intestines, together with other unspecified "credible investigation" have led him to believe that there is no reliable evidence of dehydration. He further suggests that Wood, not he or Reeves, insisted that the autopsy materials be couriered back immediately by taxi. He further claimed that he repeatedly requested and was denied access to the McPherson file after he left the office but before Wood issued the death certificate.
Wood has repeatedly denied Davis' claim that she did not speak to him before signing out the autopsy. She indicates she spoke to him by telephone, and he agreed with or acquiesced in her conclusion that bed rest and dehydration had caused the fatal embolism. She produced an internal phone toll record confirming a call from her office to his shortly before the certificate was made final. She denies that anyone in her office would have refused him access to the file. She denies that Davis made any comments about the validity of the vitreous tests. She denies telling him not to talk to police or prosecutors (a claim that made little if any sense to begin with)' and instead, as confirmed by Bedore's notes, indicates she advised him not to talk to attorneys representing the Church while the criminal investigation was pending. She denies destroying Davis' "notes" concerning the McPherson autopsy. A detailed review of all of Davis files indicates that he either quit making the notes or they were no longer incorporated into the autopsy files between March and August 1995 - at approximately the time his difficulties with Wood escalated. In reviewing examples of these notes in other files, they do not appear to be particularly detailed and contain substantially less information than dictated in the protocol.
Thus, Davis agreed to meet with and, against the advice of Wood, may have privately spoken with a local attorney representing the Church in early 1997 even though the criminal investigation was unresolved. During Wood's February 1997 deposition in the public records suit she was asked whether she had made comments to "other medical examiners in the state about the Church of Scientology". In light of a recently filed affidavit by Reeves that she had done so to him in 1990, this appears to be information related by Reeves or Davis to the Church even before Davis' civil deposition. Davis was deposed in the civil case without any notice to our office. He subsequently has provided multiple favorable affidavits to the defense and, has relied on unknown investigative information supplied by them to reach conclusions antagonistic to the prosecution and contrary to his initial testimony.
Clearly, having the medical examiner who performed the autopsy testify against the state in a criminal case and contradict the scientific basis of the prosecution is a difficult obstacle. The allegations against Wood and her office can only be countered if Wood testifies with credibility and authority. Defending these allegations by impeaching the accuracy of Dr. Robert Davis' memory will also undermine the reliability of the autopsy he performed.
The defense hired an exercise physiologist who had done extensive research on heat and exercise induced dehydration in healthy subjects. I interviewed this witness informally at their request. He suggested that there was fecal material on the body at autopsy and what appeared to be watery feces on a sheet underneath the body in one of the photographs. (There is also inconsistent testimony that Lisa may have experienced diarrhea during the last 24 hours prior to her death.) In this witness's experience it would be impossible for anyone severely dehydrated to experience diarrhea, as his or her feces would become hard and compact.
Assuming that this stain represents watery diarrhea, our clinical experts disagree that it precludes dehydration. Certainly, diarrhea has been a major cause of dehydration deaths around the world and diarrhea can continue to occur even after the onset of severe dehydration. Moreover, in a situation of intermittent feeding with Lisa going for significant periods without adequate complex carbohydrates in the diet, diarrhea would not be an unexpected condition. As Lisa approached death and became severely uremic and her system became severely compromised, her situation would simply not be analogous to the witness's experience.
The defense has long suggested, despite any objective evidence to support the theory, that the thrombus in Lisa's popliteal vein resulted from an injury she received in the traffic accident. Such a theory puts the cause of death occurring before Lisa was their responsibility and might therefore have some relevance to minimizing their liability in the civil case. Whether any trauma that contributed to the formation of the thrombus occurred in the earlier accident or in the Fort Harrison is of lesser significance to the criminal case which is based primarily upon her caretakers' failure to act once it became apparent that she had a life threatening illness.
Dr. Wood has adamantly maintained that the thrombus and embolus were of recent origin and could not have been the result of trauma sustained in the traffic accident seventeen days earlier. The defense suggests that an injury and resulting bruise occurred when Lisa's lower outside left thigh struck the armrest of her vehicle and this injury is responsible for the formation of the thrombus. While trauma can contribute to thrombus formation directly if it results in injury to the endothelium (the interior surface of the blood vessel), it seems unlikely that a force applied to the side of the leg would injure the interior wall of a vessel buried behind the crook of the knee. While it is not inconceivable that a minor injury could contribute to thrombus formation in some other way, our experts suggest that severity of Lisa's dehydration and her resulting immobility would be much more obvious factors.
More importantly, however, the evidence does not support the suggestion that the bruise on the left thigh (or any other significant injury) resulted from this minor accident. All witnesses describe the accident as extremely minor. They did not observe any injury to Lisa or the other driver, nor did Lisa complain of any pain or injury. A caretaker who watched Lisa several days into her stay testified she had no injuries or bruises of any kind on her legs at that time, describing them as being "like porcelain". The defense avoids the implication of this testimony by relying on an accident reconstruction to establish that the armrest of Lisa's car could have impacted her leg in the location where the bruise is.
We have consulted with Dr. James Ipser, a physics professor at the University of Florida, who has considerable expertise in accident reconstruction and in the mechanics of body movement within a vehicle during a collision. Ipser reviewed the photographs of the damage to Lisa's vehicle and the reports of the officers who witnessed the accident. Ipser concluded that the maximum change in velocity of the vehicle was on the order of 4.5 miles an hour. Even without a restraint system in place (Lisa said she had been wearing her seat belt), the likelihood of injury would be minimal. Moreover, the sideways component of the velocity would be almost negligible - equivalent to l-mph. Therefore, according to Ipser's calculations there is virtually no likelihood that the accident caused the bruise on Lisa's thigh.
The average human body stores only enough carbohydrate to provide energy for body and cellular functions for no more than half a day. If more carbohydrate is not ingested the body then resorts to rapidly metabolizing easily mobilized non-essential proteins for energy. In order to protect essential body substances and organs, which are largely protein, the body then begins to metabolize fatty tissue for energy. Fat is broken down and then is converted in the liver to ketones bodies, specifically acetone, aceto-acetic acid and beta-hydroxybutyric acid, which can be used by the body and brain for fuel. The build up of these substances in the bloodstream during starvation is referred to as ketosis. Ketones are volatile substances that evaporate easily. For instance acetone may be expelled in the exhaled air of the lungs, giving the breath a characteristic odor that is diagnostic of ketosis. As starvation continues and fat stores are used up, the body again reverts to rapidly metabolizing remaining body protein, causing ketosis to decrease or disappear.
Testing of the vitreous within days of death for alcohol should have revealed acetone had it been present. Testing of the small amount of urine removed from Lisa's bladder during autopsy revealed no ketones. A dipstick test for acetoacetic acid was done on both the vitreous and serum four years after Lisa's death and was negative.
The defense has suggested that the absence of ketones in Lisa's urine and vitreous is a strong indicator that she was neither malnourished nor dehydrated. While there is substantial literature suggesting that a person who is starved will develop ketosis, the defense relies primarily on a letter to a medical journal relating a Malaysian study that correlated clinical diagnosis of the severity of dehydration with the amount of ketones present in the blood. The letter is unclear about the state of nutrition the test subjects and it is therefore unknown whether they were only dehydrated or were both malnourished and dehydrated. In fact the premise of the study was not that dehydration would itself cause ketosis but "if one is dehydrated because of poor water intake or net fluid loss, one should have decreased food intake, including carbohydrates. Depleting carbohydrate reserves causes the body to switch to fatty acid and ketone metabolism." (emphasis supplied). I have found no published study indicating that ketones are diagnostic of dehydration, nor have any of our forensic or clinical experts, including Dr. Wood, suggested that dehydration alone would cause ketosis.
Assuming that Lisa was both malnourished and dehydrated there are several possible explanations for the absence of ketones. As a malnourished individual's fat stores are used up, the body reverts again to protein as an energy source and ketosis would disappear. Thus since Lisa was intermittently fed, she could have died in the early stages of malnourishment prior to ketosis or at the end stage when metabolism has shifted from fat back to protein. Also Lisa's severe dehydration and the resulting hyperosmolarity of her blood, could have inhibited ketosis or her intermittent feedings after becoming malnourished could have, by supplying enough carbohydrates to meet the brain's energy needs, caused her ketone levels to drop rapidly and d&natically.15 Since, Lisa ate sparsely and intermittently during her stay, and since her severe condition and closeness to death would have affected her system, it is difficult to predict exactly what part of these complicated and interrelated metabolic processes were ongoing.
While our clinical experts have opined that Lisa would have been unresponsive for one or more days prior to her death (a condition sometimes referred to as a uremic coma), this is not the equivalent of someone who is truly comatose. A person in this state, while they are extremely ill and may appear to be unconscious, can sometimes with great difficulty be aroused to a minimal level. Therefore some intake of nutrition during this period would not be impossible.
However, Wood had committed herself to the position that Lisa had actually been comatose for two days prior to her death, which if true might suggest that she should also be malnourished and therefore ketotic. Perhaps for this reason, Wood's entreaty to one of her consultants by email reveals an air of desperation declaring that her life and career are at stake.18 Since changing the death certificate and autopsy report, Wood has been inconsistent in her concerns over the ketone issue. She initially indicated it had no impact on her conclusions as to the severity of Lisa's dehydration. Subsequently, despite having removed dehydration from the death certificate, she indicated that the absence of ketones did not override her opinion that dehydration was a factor in Lisa's death. In her latest statement, however, she expresses significant doubt as to the validity of both these conclusions due to her unresolved concerns over ketones.
Thus, although our other expert witnesses do not believe that the absence of ketones would override the clear evidence of dehydration, the issue remains a significant concern of Wood and will generate reasonable doubt if she testifies in the case.
The validity of the vitreous tests
The defense has suggested since the outset of the case that the vitreous readings are artefactual and should be disregarded. They have suggested that the machines in question are not certified to test vitreous fluid, that the vitreous fluid was not properly preserved, that vitreous is unreliable for cause of death determinations and that the results are anomalous and inconsistent with Lisa's condition. Finally, they have implied in Bandt's civil deposition that the Medical Examiner's Office may have intentionally "spiked" the vitreous sample in order to achieve artificially high results. There is no doubt that CSFSO will make an unrelenting attack on the validity and even the admissibility of the vitreous test results, including rather vicious and desperate allegations that the samples have been doctored. The more testing we have done and the more times we have reviewed the analysis the more I have become convinced that the tests are scientifically accurate reflections of Lisa's clinical condition.
Vitreous results have been widely used for decades in cause of death determinations throughout the country. Extensive research by Coe and others has shown the stability of the electrolytes and other blood substances in question in the vitreous after death and that they reliably reflect pre-mortem blood levels. Vitreous fluid has been found more reliable than post mortem serum testing because the eye, being a closed chamber, is less susceptible to post death contamination. It is less affected by cellular breakdown than blood because it has only a small cellular content. While the machines are not "certified" for running vitreous samples, I am unaware of any requirement for certification for forensic as opposed to clinical purposes. The Wuesthoff Laboratory has conducted a large number of vitreous tests for Dr. Wood's office and for other medical examiners throughout the state with no previous indication of aberrant results. These machines have been widely used and demonstrated accurate results in the testing of specific substances from vitreous.
Preservation of Samples
The defense will undoubtedly launch an all out attack on the maintenance and preservation of the vitreous sample. They will attack the delay in having the vitreous tested, the failure to refrigerate the sample in its transport to Wuesthoff Laboratory before the analysis, and Wood's failure to acknowledge the existence of remaining vitreous fluid when deposed in the public record suit. The adequacy of the Medical Examiner's procedures for maintaining evidence will be scrutinized in minute detail and it is uncertain what problems may develop.
A central premise of the defense attack is that clinical laboratories have developed standards for how long biological samples may be refrigerated or frozen, yet still be subjected to reliable clinical testing. There are of course no standards for vitreous fluid since it is used exclusively in a forensic and not a clinical setting. While Dr. Wood feels that these standards, which were designed to apply to testing of patient samples for diagnostic purposes, are inappropriately applied in this case, the defense will be able to generate confusion and doubt in this attack. They will also attack the validity of the retesting on a four year old sample and try to suggest that the variances between the readings of the samples precludes them from being scientifically reliable.
It is our belief that the research indicates that the crucial electrolytes we are looking at have been established to be reliable and stable in post mortem samples and that the relatively small variances in test results on different machines over a four year period are inconsistent with any significant evaporation or sublimation of the sample before the Wuesthoff Laboratory testing. Degradation which would affect sodium levels - the breakdown of cells releasing their contents into the extracellular fluid - would reduce the sodium levels, not increase them. Similarly, urea is a highly permeable molecule that is evenly distributed throughout the body in both intracellular and extracellular fluid. It is produced in the liver and is an extremely stable compound. Despite extensive research and consultation with experts, I have not identified any biological process that would increase the relative amount of urea in a sample - other than evaporation or sublimation - nor has the defense suggested any. The sample has been stoppered and has been appropriately maintained (initially by refrigeration and then in frozen form).
Specific Gravity reflected in the Wuesthoff tests
The defense correctly pointed out the specific gravity of the vitreous recorded in Wuesthoff tests of 1.337 was impossibly high. They suggested that this meant the sample was substantially evaporated and that therefore the high readings from the vitreous testing were not accurate reflections of pre-mortem blood levels.
When the vitreous was retested for specific gravity at National Medical Services by Reiders and Bandt in Larry Bedore's presence this was discovered to be a human error. The device used to measure specific gravity requires the technician to look into an eyepiece and read a scale reflected on one side of his field of vision. The same instrument contains a specific gravity reading on one side and a refraction index on the opposite side. The actual specific gravity of the vitreous (1.011) correlated closely with a reading on the refraction index of 1.337 (the reading reported by Wuesthoff). It is therefore apparent that the Wuesthoff technician reported the incorrect reading from the refraction index scale rather than the specific gravity scale.
High BUN/VUN readings
The defense has repeatedly asserted that the vitreous urea nitrogen results (300 mg./dl) are so high that they must be artefactual. They also suggest that they are so out of sync with the creatinine levels that they cannot be correct. In a normal patient urea and creatinine are present in a 10 to one ratio. Lisa's vitreous ratio of urea to creatinine is over 100 to one. While such readings might be considered anomalous in a healthy patient, they are to be reasonably expected in someone such as Lisa who due to her severe dehydration and the lack of perfusion of blood through the kidneys has developed prerenal azotemia.
Urea is the end product of protein breakdown by the body. When the body digests its own or dietary protein, the waste products from that metabolic process are converted by the liver into urea through the action or a specific enzyme. Urea levels are therefore more diet sensitive than creatinine and someone who is metabolizing their own body protein because of malnutrition or is receiving a relatively large proportion of protein in their diet will have elevated urea readings. When a person begins to become severely dehydrated, their blood volume decreases causing inadequate perfusion of blood and oxygen to the kidneys which makes them less efficient and slows the filtration process. Small easily perfused molecules such as urea are filtered out then reabsorbed, while larger molecules such as creatinine escape reabsorption. High electrolyte levels increase further and urea rises out of proportion to creatinine levels. This condition is called prerenal azotemia and is typically encountered by clinical practitioners in nephrology.
Defense experts have nonetheless suggested that since 300 mg/dl is higher than they have encountered in forensic pathology that the values cannot be correct. However, research articles document earlier cases of patients with urea levels at or above 300. Additionally, if one considers the literature predating dialysis (which is now used to keep urea levels under control) the values are far from impossible. For instance in a detailed psychiatric study of the mental symptoms that accompany azotemia which was done in the late sixties, approximately half of a sample of azotemic patients had urea nitrogen values over 250. This same study references earlier reports and studies identifying cases with urea nitrogen levels in the 400's and above.
Simply because modem medical examiners rarely see these values does not make then unexplainable or anomalous. Our experts believe they are consistent with severe, life threatening dehydration, and even more likely in a partially malnourished patient who is receiving urea rich protein in her diet.
Elevated urine sodium
As the body becomes dehydrated the kidneys, in an attempt to conserve water, begin to reabsorb and retain sodium and prevent its excretion into the urine. In the early stages of dehydration-induced prerenal azotemia urine sodium values would be expected to be very low, normally below 10 or 20 meq/L. If the patient's condition continues to worsen, the kidney tubules become dysfunctional and begin to lose their ability to retain sodium. Urine sodium levels then begin to rise, even though the kidneys may still be able to concentrate urine.
Analysis of the very small amount of urine removed from Lisa's bladder at autopsy indicated it contained 53 meq/L of sodium. The defense contends that even if the other vitreous and urine readings are consistent with prerenal azotemia (and therefore not anomalous results), that this sodium level would eliminate such a diagnosis. They also suggest that the high urine osmolarity and specific gravity suggest that structural damage to the kidneys had not yet occurred.
My research and consultation with experts indicates that while these sodium readings are higher than might be expected they do not eliminate the existence of prerenal azotemia. The research articles from which these diagnostic criteria originate acknowledge that it is an imperfect method of distinguishing between prerenal azotemia and renal failure caused by acute tubular necrosis. These studies actually suggest that a significant number of persons with prerenal azotemia will be over the 20 meq/L level, that no one urine index can be used to diagnose the condition, and that traditional urine indices often fail to discriminate between the two conditions Thus, these suggested levels are useful diagnostic benchmarks but do not rule out prerenal azotemia.
More importantly however, the shift from prerenal azotemia to acute tubular necrosis is not an instantaneous process and may be somewhat erratic. A single isolated reading cannot indicate with certainty where along this continuum Lisa would have been. Assuming that the higher urine sodium reading indicates that tubular necrosis had begun, minimal structural damage would not necessarily be distinguishable from normal post mortem changes. Thus, the urine sodium readings are consistent with what our experts believe was occurring to Lisa as a result of her severe dehydration and are not unexpected or anomalous.
The defense's exercise physiologist suggested that when a person begins to become dehydrated, small increases in serum osmolality will trigger dramatic and predictable increases in urine osmolality. (Osmolality and osmolarity although technically different are used somewhat interchangeably as measures of the amount of substances dissolved in a given weight or volume of solute.) He suggested that working backward from Lisa's urine osmolality of 600, her serum osmolality could be calculated to be lower than that required to trigger the thirst mechanism. Therefore, he believes she was not dehydrated.
The nephrologists we consulted along with other clinical specialists indicate that this formula, while it might be appropriate for moderately dehydrated healthy subjects is simply inapplicable to someone who is seriously dehydrated and therefore hypovolemic. As blood volume decreases and the perfusion of blood through the kidneys falls below certain critical levels, the kidneys while still able to concentrate urine and structurally undamaged are unable to operate efficiently. This set of values - urine osmolality of 600, high vitreous sodium, urea and creatinine with a distorted urea to creatinine ratio - is not anomalous but typical of what nephrologists see in prerenal azotemia.
Variance in ICPMS readings
The National Medical Services Lab was supposed to arrange for testing of sodium and chloride levels on Beckman synchron autoanalyzers as had been used in the initial Wuesthoff testing. When this was not arranged, ICPMS testing was used to test for these and numerous other elements. (The Monarch analyzers used to test for urea and creatinine were apparently unable to analyze for these electrolytes in the sample).
ICPMS (inductively coupled plasma mass spectrometry) testing ionizes elements in a sample by combining them with argon plasma and then uses a mass spectrometer to identify and quantify their presence. The readings for Lisa's vitreous and serum chloride were distorted - almost ten times the readings given by other methodologies. Similarly, the sodium readings were uncharacteristically low and varied greatly from the three other tests (done on Hitachi and Beckman machines in 1996 and Beckman machines in 1999). Although not acknowledged in the report of National Medical Services to the Medical Examiner's Office, chlorine is not an element that can accurately be measure by ICPMS.
Chlorine is close in atomic weight to the argon gas which is used to transport the sample through the mechanism and therefore readings are often abnormally high because the chlorine reading is confounded by the presence of high levels of argon. Moreover, chlorine does not form a positive ion in plasma form, a phenomenon that will also prevent accurate readings.
While sodium can be tested for by ICPMS technology, I question the accuracy of the readings in this case. National Medical Services appears to have its machine calibrated to detect trace amounts of a wide range of elements for qualitative purposes. For instance the machine was completely saturated and could not obtain a reading for sodium even when the sample was diluted 10 to one. The only readings that were obtained were in a sample that had been diluted 100 to one, which would greatly magnify the effect of even the most minute of errors in the dilution process. (By contrast the other methodologies tested chloride and sodium in an undiluted sample.) In speaking with the technician who actually conducted the analysis he suggested that ICPMS is frequently used to qualitatively determine what elements are present in a sample with actual amounts quantitatively determined by other methodologies. He suggested that if the readings were inconsistent with multiple readings by other methodologies that the latter readings would probably be the more accurate.
The experts with whom I have discussed the issue are certainly more used to relying on results obtained by machines such as the Hitachi and Beckman, and indicated that their opinions were not affected by the aberrant readings obtained on this one technology. If the case is pursued further I believe we will need to contact an expert in this methodology to pursue these questions.
Allegations of tampering
As previously suggested there is no known natural process that will cause urea to rise in a sample other than evaporation or sublimation. Since the suggestion of evaporation is inconsistent with the relative stability of the vitreous readings over a long period of time, the defense has implied in their deposition of plaintiffs expert Calvin Bandt that MEO personnel intentionally doctored the sample. This is ludicrous and does not deserve extended comment.
Dehydration as a factor in Thromboembolism
The defense has suggested that the thrombus and resulting embolism was caused by trauma related to the traffic accident and not by dehydration. CSFSO submissions to Dr. Wood argue that dehydration is not a risk factor for thrombus formation. In support of this somewhat absolute claim, CSFSO supplied copies of texts and articles which detail the factors that can lead to deep venous thrombosis but which do not specifically mention dehydration as a risk factor. Dehydration is not a frequent factor in post surgical development of venous thrombosis as most hospital patients are adequately hydrated. Therefore it is not always mentioned as a specific risk factor. However, the primary mechanisms that cause thrombus formation have been known for decades.
Conditions that increase the concentration of the clotting substances in the blood, reduces blood flow or increases blood viscosity will predispose a patient to a venous thrombus formation. Severe dehydration clearly reduces blood flow and increases blood viscosity and is recognized in texts and research articles as causative factor in thrombus formation.
I have consulted with experts in nephrology, internal medicine, hematology and gerontology and all have unequivocally indicated that the connection between severe dehydration and thrombus formation is well recognized.
Destruction of Evidence
In a recently filed motion the defense has asserted that the Medical Examiner's Office failed to follow its own policies and destroyed or allowed the destruction of evidence by failing to adequately and timely test and preserve samples of bodily fluids, releasing the body for cremation before a cause of death had been determined, and destroying the autopsy notes of Dr. Robert Davis. We have only begun to review the details of the motion, but were certainly previously aware of a number of these potential criticisms.
Ordinarily, I do not believe that the destructive testing of evidence such as the urine during the investigative stage of a case by an objective and qualified lab presents a significant due process issue. However, destructive testing of the urine sample after a written promise to preserve all evidence will, at a minimum, cause embarrassment and yield additional impeachment of the Medical Examiner's Office. This will be even more true if the destruction of the sample was not caused from the necessity of testing but either from miscommunication or the inadequacy of the procedures and containers used to preserve the sample. Thus, whether or not any of these issues warrants serious consideration as grounds for dismissal, all will be used to attack the credibility of our essential forensic expert.
Dr. Wood in her Inside Edition appearance suggested that some of the lesions on Lisa's hands or extremities could be roach bites and in later press interviews suggested that in fact they probably were roach bites. These statements generated a considerable response from the Church, resulting in claims that roaches do not bite living human beings. Wood's comments in this regard, if proven false, therefore subject her to possible impeachment for making unsubstantiated claims. On the other hand, if the claim is true, it would suggest that the level of care received by Lisa was far less than suggested by her caretakers testimony and bring the honesty of virtually all of their investigative statements into question. Since roach bites would obviously be unrelated to the cause of death or any great bodily harm Lisa suffered, this is a less significant substantive issue in the criminal prosecution than in the civil case.
The defense's assertion (made I believe in response to the press rather than to our office) that roaches don't bite living breathing humans is clearly incorrect. Reports dating back hundreds of years document roaches biting both adults and children and pathologists recognize that roaches are omnivorous insects who will attack both living and dead human flesh. The roaches' unspecialized mouth parts remove the keratin from the outer layer of skin and can sometimes be confused with abusive injuries.
The plaintiff in the civil case has retained multiple board certified forensic entomologists who have apparently reached the conclusion that marks on Lisa represent roach bites. As a result of this information we attempted to confirm whether any of the abrasions on Lisa's body could be proven beyond a reasonable doubt to be premortem roach bites. We contacted a board certified forensic entomologist (an apparently small group) who happened to work for the FBI laboratory. While this expert was retraining in the behavioral sciences section and no longer involved in entomological work he referred us to William Rodriguez who is Chief Deputy Medical Examiner, Special Investigations, Office of the Armed Forces Medical Examiner. Rodriguez, who has written and lectured extensively on forensic issues, reviewed enlargements of autopsy of the lesions/abrasions on Lisa's body. Rodriguez acknowledged that roaches do indeed bite living and dead humans and that some of the marks could in fact be roach bites, but did not feel he could render a definitive opinion in this case from viewing only the photographs without having seen the body. Thus, it does not appear that the issue of roach bites will be a significant source of affirmative testimony in the criminal prosecution, nor does it appear that it will be a source of significant impeachment of Dr. Wood.
Wood's Explanation of the Autopsy Changes
After the filing of charges but before the invocation of discovery, the Church invoked a Medical Examiner's policy that requires them to review additional evidence to determine if a change in the cause of death or other findings is appropriate. An extremely large volume of complex information was forwarded to the Medical Examiner's Office for Dr. Wood's review through written and oral submissions to her attorney. The Church had suggested that if forced to litigate the issues, the proceedings would reveal information extremely damaging to Wood's office and her career. Her appearance on national television had not only damaged her relationship with our office and left her more vulnerable to litigation concerning the death certificate, but had also committed her to a detailed forensic position, any modification of which would be professionally embarrassing. Additionally, the autopsy had not been personally performed by Wood but by an antagonistic former employee who was now critical of her conclusions. It is apparent that this unique set of circumstances coalesced to put what Wood characterizes as tremendous pressure upon her and may have impacted the quality of her judgment.
The decision to change the death certificate and the autopsy report occurred after Wood reviewed the slides and photographs of the thrombus and noticed evidence of trauma than she had not seen before. She then had a phone conversation with Dr. Joe Davis, the former Medical Examiner for Dade County to seek his counsel about what to do. The details surrounding her decision to change to death certificate and autopsy report remain confusing. Her explanations concerning the reasoning behind the changes have been illogical and inconsistent.
She vacillated in her conclusions even as she prepared the amended certificate. After talking to Joe Davis she executed a notarized change in the death certificate to accident and removed dehydration and bed rest as causative factors. She then reconsidered that decision and resolved to change the manner of death to homicide with dehydration listed as one of multiple factors and then again changed her mind the next morning, deciding to follow Joe Davis' initial advice. She finalized the changes by forwarding them to the appropriate agencies and faxing copies to our office and to the defense.
The primary reason Wood articulated for changing her findings had nothing to do with the information submitted by the defense but was due to her realization that the microscopic slides of the popliteal vein and the photographs of the muscle tissue surrounding it provided evidence of trauma to the area which could explain the thrombus formation. She had no explanation for why she had not seen this in any of her prior examinations of this material even though it had been in her possession since Lisa's death. She suggested that since it was possible that trauma alone could have caused the thrombus she could not assign a finite portion of causation to dehydration and bed rest and therefore chose to remove them. The risk factors for thrombus formation are considered to be cumulative. While trauma may conceivably cause a thrombus on its own, it is equally true, as reflected by Wood's initial conclusions, that dehydration or immobility may cause a thrombus without trauma being present and that trauma is frequently insufficient to cause such a clot without the presence of other factors. Thus, in my opinion, the only apparent reason for giving trauma priority as the cause of the thrombus is the aggressiveness with which the defense would attack the alternative factors.
Wood somewhat acknowledged this by saying that she removed the dehydration because it was subject to attack and because Joe Davis had advised her that in his controversial cases he liked to take the middle ground' that would not be subject to dispute. Of course, Davis knew very little about the case and was acting on her representations as to the presence or absence of trauma in the area of the clot. Wood suggested to me that she believed that removing dehydration would somehow strengthen the credibility of her conclusions.
Wood also cited the absence of ketones as a concern in removing dehydration as a cause of death. Wood continued to assert, however, that the ketone issue did not affect her opinion as to the severity of Lisa's dehydration or the degree or duration of her symptoms. Our other experts had difficulty with this incongruity, and felt it was illogical to suggest that dehydration so profound, that it could have independently caused her death, could be present yet neither contribute to thrombus formation nor hasten death once an embolus was thrown. Moreover, since the only possible relevance of the absence of ketones was to bring into question the severity of Lisa's dehydration, it made no sense to view this issue as affecting dehydration's role as a causative factor in the death but not its presence or severity.
Wood's inclusion of "history of traffic accident" as a causative factor in the death was equally difficult to understand. She adamantly maintained that the trauma to the popliteal area was recent and that the traffic accident had played no role in the formation of the thrombus or the embolism that she believed killed Lisa. Rather, Wood asserted that but for the traffic accident she would not have been taken to Morton Plant, and but for her being taken to Morton Plant she would not have been released to the care of the Scientologists and would therefore not have been kept at the Fort Harrison and died. This is of course superficial and fallacious reasoning. There is no reason to believe that if Lisa's "psychotic break" had occurred under other circumstances she would not have been taken to a medical facility for evaluation and every reason to believe that had her problem manifested itself in the presence of her fellow scientologists that they would have handled it in a similar fashion. One might just as well have argued that the fact that Lisa was a Scientologist, lived in Clearwater or got out of bed that morning are causes contributing to the death. To include so tenuous a causative factor while at the same time removing dehydration, is simply illogical.
Wood's opinions have continued to fluctuate over time. I initially construed her decision removing dehydration as a cause of death to obviously mean she did not believe it to be causative factor. Subsequently, after my meeting with Joe Davis, Wood suggested as had Davis that since Lisa's psychotic state caused her to become dehydrated, "dehydration" was subsumed as a cause of death with the term psychosis. Of course, disregarding the question of why, if it was included in this fashion, it was necessary to change the death certificate to begin with, the section in which psychosis is found lists "causes" contributing to the death but not contributing to the immediate cause - the thrombus. Since Wood's primary explanation at that time for dehydration being a factor in Lisa's death related to its role in thrombus formation, this explanation also seemed illogical.
Wood had also indicated that the "ketone" issue had been solved based upon references in Guyton's textbook on physiology that as malnutrition progresses and fat stores are used up, the body switches back to metabolizing proteins and ketones are no longer produced. In subsequent conversations with myself and Jim Hellickson in March of this year, Wood qualified this statement suggesting that Guyton's reference also indicated that the switch back to protein metabolism would ordinarily occur weeks later in the starvation process than where Lisa would have been. She had initial hesitation over whether absence of ketones would prevent her making a causative link between dehydration and Lisa's death from the thromboembolism. After considering the matter she concluded that it did not and expressed a definite opinion that dehydration was a causative factor that played a significant role in the death of Lisa McPherson.
The most recent statement given by Wood represents yet another decided shift in her opinion. She indicates she has doubts about the severity of Lisa's dehydration and testified that dehydration "may or may not" have been a factor in her death. Due to Wood's inconsistency and indecisiveness these issues cannot be proven beyond a reasonable doubt.
Wood's memory of events surrounding her decision is also flawed. In her recent statement she could not recall details about the reasoning behind her decision to change the death certificate nor the details of her conversation with Joe Davis. She incorrectly remembers several conversations with me which are inconsistent with her previous testimony, had things out of sequence, and was inconsistent even during the statement itself. For instance at one point in the statement she claimed that she had only very recently concluded that dehydration was a causative factor in the death as a result of reading Bandt's deposition from the civil case even though she had committed herself to that opinion on multiple occasions over a month before Bandt's deposition was taken. At another point in the same statement she claimed to have relied partially upon Bandt's deposition (taken in May, 2000) as a basis for changing the death certificate on February 16th.
Thus Wood's current testimony creates a reasonable doubt both as to the severity of Lisa's dehydration and whether that dehydration was a factor in her death. Her inability to logically explain her opinions makes it clear that she cannot withstand cross examination in this case.
No evidence of dehydration
The defense submissions to Dr. Wood and their arguments to the press and in pleadings suggest, as does Dr. Robert Davis, that there is no evidence of dehydration. Even though, because of Wood's testimony doubt can be created concerning its severity, the suggestion that there is no evidence of dehydration is simply not accurate.
During Lisa's stay her failure to drink significant amounts of fluid was a continuing concern of her caretakers and their reports back to Alain Kartuzinski give substantial reason to fear that she was becoming dehydrated. CSFSO employee Janis Johnson, a former doctor, told police that the evening of Lisa's death before she was taken to the hospital, she recognized from Lisa's skin turgor and sunken eyes that she was "majorly" dehydrated. She had noted the previous Friday that Lisa was losing weight and becoming dehydrated and recommended at least 2 liters of water a day be given to her. (The notes do not reflect that this occurred but do indicate that Lisa became too weak to walk over that weekend before her death). Dr. David Minkoff, who treated Lisa at the emergency room, testified that Lisa appeared to be severely dehydrated and that Johnson had told him that Lisa had lost significant amounts of weight before her death. Other health professionals at the New Port Richey hospital confirm that conclusion; at least one nurse had checked Lisa's skin turgor and noted that it "tented" as would be expected in a seriously dehydrated person.
The autopsy photographs, which depict food encrusted teeth, dried lips and mucous membranes, and sunken eyes, have been viewed by other medical examiners, nephrologists, and other clinical experts who agree that the appearance of her body reflects significant dehydration. The clinical values from the vitreous of sodium, chlorine, urea nitrogen and creatinine are all elevated consistent with dehydration. These tests were performed multiple times on different machines over a substantial period of tune with the vitreous values consistently indicating severe dehydration.
The Cause of Death
Wood and Robert Davis have now both concluded that the immediate cause of death was a pulmonary embolism. Dr. Robert Davis in his civil deposition indicated that he believed in looking at the embolism that it was well established, but on microscopic examination it appeared more recent. Wood may have been present when the embolism was viewed at autopsy but may not have been present when the leg was opened and the thrombus found in the left popliteal vein. While she reviewed the slides taken from both the thrombus and embolism, she apparently did not view either of these items in the tissues preserved from the autopsy. How closely she looked at any of these items is open to debate, since she did not notice what she now believes to be the obvious evidence of trauma in either the photographs or slides of the popliteal area.
Prior to the filing of the criminal case, Wood also consulted Steve Nelson, Chief Medical Examiner in Polk County concerning the case. Nelson initially agreed supported Wood's conclusions concerning the severity of dehydration and its causative role in McPherson's death. After learning of her decision to alter the death certificate, he reviewed the photographs and slides and believed that any hemorrhage was consistent with being a result the autopsy process itself rather than prior injury.
In reviewing the case, I consulted forensic pathologist Charles Wetli who had initially been selected by Wood as a consulting expert, but did not get involved in the case at that time. Wetli was Chief Deputy Medical Examiner in Dade County and is now being the head Medical Examiner for Suffolk County New York. Wetli reviewed a second set of histological slides and both sets of photographs and also reviewed the autopsy, Davis' deposition and affidavit and the chemical test results. Wetli requested to be able to fly down and view the original slides and the tissues from the embolus and thrombus that were preserved from the autopsy. He felt the second set of slides was of poor quality but he believed that the embolus appeared to be post mortem and was not the cause of death. He showed the slides to other pathologists without telling them about the case and they voiced the same conclusion.
After reviewing the original slides which are of much better quality and the preserved tissues Wetli is confident that the clot is post mortem and not the cause of death. While the popliteal thrombus may be ante-mortem, it is very recent and in any event it did not contribute to the cause of death and could not have been 17 days old. Therefore the only cause of death is dehydration. Wetli is comfortable relying on the vitreous tests to establish the severity of dehydration as that type of evidence is routinely used by medical examiners in deciding cause of death. He has no detailed opinion as to how symptomatic Lisa would have been as that is more the province of clinicians. He does not believe ketones would be an issue in a dehydration case.
If Wetli, who is the only one of our consultants to actually review the tissue samples, is right, his testimony would be supportive of the basis underlying the prosecution. However, it would also indicate that our medical examiner is completely erroneous in another major conclusion concerning the cause of death. Such an error would be another major blow to the credibility of her remaining conclusions in this case. To the extent Wetli might be incorrect in this conclusion, it suggests that the medical reasoning underlying our case cannot be established beyond a reasonable doubt.
I continue to feel comfortable that the legal principles set forth in our responses to the Motions to Dismiss are valid and we are prepared, should a similar death occur, to fully investigate and pursue charges, if appropriate, against the responsible parties. The actions and testimony of Dr. Wood, a forensic witness essential to the state's case, has so muddled the equities and underlying facts in this case, however, that it has undermined what began as a strong legal position.
While I believe many of the issues raised by the defense are incorrect and can be successfully litigated, I do not believe the damage of contradictory and harmful testimony of both the medical examiners involved in the case can be overcome. The ability of Dr. Wood to testify authoritatively and credibly in this case has been undermined by her own actions in changing the death certificate and by her inability to persuasively explain that decision in a manner that does not create doubt as to the forensic issues crucial to the case.
When these problems
are combined with the reality that our own experts are in significant
disagreement with Wood on critical issues, including cause of death, I
do not believe that there is a reasonable probability of successful prosecution.
Realizing that our office's ethical obligation is not merely to continue
a prosecution based upon probable cause but to determine whether sufficient
credible evidence exists to prove the case beyond and to the exclusion
of a reasonable doubt, it is my recommendation that the charges be nolle