First, let’s get to the easy parts of the day — the Commonwealth finished up today using the entire morning to present more witnesses to George Huguely’s texting and e-mailing other women in the days before Yeardley Love’s death, his pattern of drinking all day in connection with the father-son golf tournament, and his level of intoxication the night of her death. The prosecution began the case with “George Huguely was a jerk,” they ended with “George Huguely was a jerk.” I infer that they think that their strongest argument is “George Huguely was a jerk.”
Then the prosecution rested at lunch time, and the defense made a motion to strike — to throw out or at least reduce — on most of the charges. The argument, in essence, was that the evidence failed to show that he premeditated, failed to show that he committed breaking and entering, etc. Judge Hogshire heard the arguments, but denied the motions.
At about 3 PM, the defense began its evidence. First, they called Dr. Alphonse Poklis, a toxicologist at MCV. Dr. Poklis is known to lawyers as one of the best toxicologists around. He testified mainly as to Yeardley Love’s blood alcohol level — .14 at the time of death, probably .16 to .18 at the time of her altercation with George Huguely.
Then things got interesting. Dr. Jan Leestma, a neuropathologist from Chicago, testified that he disagreed with the contention that Yeardley Love died of blunt force trauma to the head. He believed that she died because she was face down on her pillow as blood leaked from her cut mouth onto the pillow. The blood-soaked cloth then effectively smothered her. He faulted the beta-APP staining test that the prosecution experts had done to show axonal injury; Dr. Leestma said that he didn’t look at those slides from Dr. Fuller and Dr. Lopes because he believes that the underlying science is junk. Just watching from the back, with no ability to see exhibits, it is almost impossible to get a sense of whether a witness is testifying well or is likely to be believed, but as a general proposition, an expert who says, “I’m right and the rest of the world is wrong” is not usually persuasive.
Dr. Leestma is correct to acknowledge that beta-APP staining is generally well-regarded in the forensic community; I would be way out of my depth to attempt an analysis of this technology. I did a quick Google search for medical journals discussing this technique, and all of the articles that I found from peer-reviewed publications praised beta-APP staining as a valuable tool in forensic neuropathology.
The only debate that I could find concerned how long after injury the patient must live for beta-APP staining to be an effective diagnostic tool. One study concluded that it was accurate in showing axonal injury only if the person lived for at least two hours or three hours after injury; other studies found that it was effective for injuries occurring as little as 35 minutes before death. I have not seen any article that suggests that it is prone to false positives — the articles discussing time delays are efforts to explain away negative findings, not positive findings like those made by Drs. Fuller and Lopes.
But Dr. Leestma is getting close to an issue that forensic neuropathologists have been dealing with for years — Shaken Baby Syndrome (SBS). Here I get to my standard disclaimer — I am not a doctor, I don’t have access to the autopsy reports and slides, and I wouldn’t know what I was looking at if I did. What I know about this topic comes from research or from medical witnesses from other cases. And what follows here is little more than informed speculation…
Shaken Baby Syndrome is that pattern of injury that doctors have come to associate with the death of an infant who has been shaken in such a way that her head goes back and forth on her poorly-developed neck muscles until brain stem injury results. The injury may be fatal. Beta-APP staining is a diagnostic technique used by pathologists on autopsy to prove that some child suffered axonal injury; combined with other symptoms, it can be proof of Shaken Baby Syndrome.
The problem is that doctors and lawyers are beginning to realize that the science behind Shaken Baby Syndrome is shaky, at best. It is beyond the scope of this post to discuss the difficulties with the science behind Shaken Baby Syndrome — suffice it to say that studies have emerged in the last few years that sharply disagree with the science that has been used for the last 30 years to incarcerate parents for the death of their infant. As at least some pathologists and neuropathologists now recognize, science that they thought was clear and settled 30 years ago may now be seen as quite probably wrong.
Yeardley Love’s axonal injury is essentially an adult version of Shaken Baby Syndrome, and if the research into the inadequacies of pathologists’ tests like beta-APP staining to diagnose SBS can be applied to adult axonal injury, perhaps Dr. Leestma is on good scientific ground when he says, “Beta-APP staining is of no forensic value.”
LATE ADDITION/CORRECTION — Someone contacted me directly and told me that I had gotten some of the facts wrong in the part that came next. In particular, I had not remembered that the evidence nailed down the timeline fairly precisely to establish that the maximum gap between the infliction of Love’s injuries and the time that her body was found was about 2 hours to perhaps 2 hours and 15 minutes. I am trying to maintain a law practice, so I am not able to sit in on all of the evidence. After Chuck called my attention to this, I went back to WVIR’s blow-by-blow, witness-by-witness recitation of the evidence, and I stand corrected.
So, here goes the corrected version…
Recent research suggests that there is a question about the forensic value of beta-APP staining when the child had had some injury and swelling for some reason before the fall or assault that is thought to have caused death. If the child lived more than three hours passed from the time of the first injury to the brain, the response to beta-APP staining is simply unreliable. So what, you say. Here the evidence suggests that Yeardley Love lived for 2 hours after her altercation with George Huguely. That is within the window of reliability (2-3 hours), so it should be accurate, right? Well, not really, for two reasons:
- The medical testimony here is NOT that Yeardley Love lived for 2 hours after her brain injury; the testimony that establishes the 2-hour window is lay evidence. (That doesn’t mean that it is not perfectly credible — I think it is. It’s just that it has a different implication, as I’ll discuss.) The evidence seems to suggest that her altercation with George Huguely took place in the 12:00 midnight to 12:30 AM time period. Her body was found shortly after 2 AM, and the police officer who found her to not be breathing said that he got there at 2:20 AM. I am a little unclear about the exact limits of Dr. Lopes’ testimony (she was the UVA neuropathologist) when she said, as the WVIR summary puts it: “She reconfirmed that from tests and what she observed Love’s death had to have occurred in at least two hours and no more than six.” Dr. Fuller, the MCV neuropathologist, testified (according to the reports) “that the bleeding in the area of the brain stem … can cause death due to cardiac arrest or respiratory issues; … [death] could be immediate or take a couple hours.” The defense had made some hay over the fact that they could not tell how long she had lived. Given the differences of medical opinion in the clinical research, maybe Dr. Leestma is getting at this issue on the question of the validity of the beta-APP staining. The significance of the fact that the 2-hour window is established by lay testimony, and the expert testimony varies on how soon death would likely have occurred, points out the limits of medical opinion testimony. One expert says death could be immediate, up to two hours; one expert says it could be two hours to five hours later. Each is, independently, a reasonable-sounding opinion given by a doctor with credibility in her field. But the opinions differ. The difference emphasizes the fact that much of medicine, and much of medical opinion, is not so much science as it is scientifically informed and educated speculation. This is not news to lawyers, who deal all the time with differing medical opinions from the same facts. I regularly do personal injury cases, where my client’s treating physician will say, “I’ve treated this woman for 2 years. I believe that she is permanently disabled.” And the insurance doctor will come in and say, “I’ve seen scads of these cases, and the doctors who are treating these cases are quacks or are applying dubious methods or scientifically invalid tests to come to their conclusions. She’s not permanently disabled; she needed physical therapy for a few weeks, but then she should have been fine. Anything after 6 weeks is psychological, not physical.” (There is one very well educated doctor who is regularly hired by State Farm to offer these opinions. And in a certain number of cases these doctors are believed by juries.) These two doctors are looking at the same patient, the same records. They are feeling the same back. They both have fine credentials and years of experience. How can they arrive at such widely divergent opinions? Is either of them a quack? The answer is that medicine is not an exact science, and predictions and interpolations and extrapolations are especially inexact. So the difference in the expert testimony — even on an issue that seems to be small — allows the defense to emphasize the inexactitude of the medical opinions here. *** END OF CORRECTION — Thanks, Chuck, for pointing this out.***
- The medical research also shows that what may seem to have been an insignificant head injury days before may “re-bleed” — that it started to bleed again days later. If she had had a whack on the head days earlier — perhaps as a part of something that happened in a lacrosse game — and it didn’t bleed significantly then, it might have started to bleed again, perhaps a few hours before her encounter with Huguely.
So if the recent research has called into question the forensic value of beta-APP testing in SBS cases, it may have no value in a case like this either — as Dr. Leestma testified. The problem from the trial advocacy standpoint is that it is very difficult to win an argument against the entire scientific community. If the quotes that I have read from the cross-examination of Dr. Leestma are accurate, he may have come across as simply arrogant — “I’m right, and everyone else is wrong.”
One other point needs to be made here — the prosecution pathologists testified that they could not tell how much force, or what kind of force, would have been necessary to get a fatal axonal injury; that is in accord with the general state of medical knowledge — as one study in the Journal of Neurotrauma put it:
The extent and severity of AI [axonal injury] cannot be predicted from biomechanical data, such as the height of the fall.
So the crucial question — how did she get this head and neck injury — really can’t be answered on the basis of the forensic evidence. There are many different theories that account for many of the known facts, but I have not heard one that accounts for them all.
Suppose there are two reasonable theories about what happened, and the jury can’t be sure beyond a reasonable doubt which is true? The standard jury instruction on circumstantial evidence is as follows:
It is not necessary that each element of the offense be proved by direct evidence, for an element may also be proved by circumstantial evidence. You may convict the defendant on circumstantial evidence alone, or on circumstantial evidence combined with other evidence, if you believe from all the evidence that the defendant is guilty beyond a reasonable doubt.
When the Commonwealth relies upon circumstantial evidence, the circumstances proved must be consistent with guilt and inconsistent with innocence. It is not sufficient that the circumstances proved create a suspicion of guilt, however strong, or even a probability of guilt.
The evidence as a whole must exclude every reasonable theory of innocence.
I put in bold the part that defense lawyers love to cite to the jury. So here are a couple of theories of how she died:
- He barged into the room and shook her repeatedly, so that her head repeatedly hit the wall. There is no physical evidence to corroborate this — no damage to the wall, and the marks on her body don’t suggest that he grabbed her and shook her — but the lack of evidence in this case may not really prove anything. This theory is based, more than anything else, on his own statement that “her head kept hitting the wall.” She passed out, from some combination of brain injury and alcohol. She was limp and he threw her back into bed and left her there when he should have called 911. This sounds callous and malicious, and sounds like it could be murder.
- He hit her with his fist while she was pinned up against the wall, causing a coup-contrecoup injury, and in the general wrestling around, he twisted her neck, causing a rupture of the blood vessels at the base of the skull. She then passed out because of the combination of brain injuries and alcohol. The bleeding at the base of the skull damaged the parts of the brain stem that regulate heartbeat and breathing, she suffered from a cardiac arrhythmia, and she died some hours later. This sounds malicious and it sounds like murder (perhaps only second-degree murder; that’s a topic for another time).
- As they were fighting after he kicked his way into the locked bedroom, he threw her down to the ground and she hit her head in a twisting kind of motion, suffering all three of the brain injuries noted at the same time. As in the other scenario, she passed out, the bleeding at the base of the skull damaged the brain stem, and she died from the cardiac arrhythmia that ensued. This also sounds somewhat malicious, though not as malicious as scenario #2.
- As they were wrestling on the bed, they fell off the bed. When they landed, his arm was across her neck so that the impact with the floor was greater than it would be if she had just fallen off the bed herself, and with that impact there could have been twisting and tearing of blood vessels at the base of the skull. This also accounts for the coup-contrecoup injuries to the brain and for the injury to the right part of her neck. This sounds more like a freak accident in the middle of a fight, and like an “accident, contrary to the intention of the parties,” which sounds like either manslaughter or accidental-felony-homicide-second-degree-murder.
- She fell as in #4, cut her lip in the struggle, was put back up in bed by Huguely before he left, she continued to bleed, she turned over so that she was face down, her cut mouth continued to bleed, the bleeding saturated the pillow case and she couldn’t get oxygen and she died from what amounts to asphyxiation. This sounds like nothing more than manslaughter, and perhaps the jury could conclude that it was so unlikely a scenario to think that she would have rolled over and asphyxiated herself that he shouldn’t be blamed for this unfortunate accident.
A fertile imagination could write other screenplays for what happened that night — some more violent and some less so. Under the jury instructions, the jury will have to come to some sense of what they think happened, and then apply those instructions to that scenario. If they cannot exclude other theories of innocence, they must acquit. If they cannot exclude theories that make him less guilty, they will be told that they must adopt the most defendant-friendly scenario.
The defense will continue on Day 9 with more expert testimony, and I am sure that they will develop these uncertainties in the science more fully.
As on other days, I suggest you look at the detailed notes on the testimony on the WVIR website under the “Day 8” story.
