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Tuesday, May 26, 2020

A Short History of American Forensic Science

     By 1935, crime laboratories were up and running in New York City, Chicago, Detroit, Boston, Los Angeles and Philadelphia. The FBI Lab had opened its doors in 1933. The bureau's national fingerprint repository had been operating in Washington, D.C. since 1924, the year J. Edgar Hoover, an early advocate of scientific crime detection, became the agency's fourth director. August Vollmer, the progressive police administrator from Berkeley, California, and Dean John Wigmore of Northwestern University Law School, had been tireless crusaders for forensic science and physical evidence as an alternative to coerced confessions, eyewitness testimony, and jailhouse informants. Wigmore and Vollmer were the main forces behind the formation, in Chicago, of the Scientific Crime Detection Laboratory in 1930. In 1938, the private lab became part of the Chicago Police Department.

     In the 1930s, a pair of private practice forensic chemists and crime scene reconstruction analysts in the northwest, Oscar Heinrich and Luke May, were grabbing headlines by solving high-profile murder cases. Stories involving crimes solved through the scientific analysis of physical evidence had become commonplace features in the fact-crime magazines so popular at the time. Numerous textbooks and manuals had been published on the subjects of fingerprint identification, forensic ballistics, questioned documents, trace evidence analysis, forensic serology, forensic medicine, scientific lie detection (polygraph), and forensic anthropology, the identification and analysis of skeletal remains.

     Criminal investigation textbooks of this era contained detailed instructions on how to protect crime scenes, render crime scene sketches, photograph clues, mark and package physical evidence, dust for latent fingerprints, make plaster-of-Paris casts of tire tracks and footwear impressions, and in the case of sudden, unexplained, or violent death, look for signs of criminal homicide. By the mid-thirties, virtually every court in the country accepted the expert opinions of practitioners in the major forensic fields, and jurors recognized the advantages of expert physical evidence interpretation over the more direct testimony of jailhouse snitches and eyewitnesses.

     Today, notwithstanding DNA science and computerized fingerprint identification and retrieval capabilities, crime solution percentages in the United States have not improved since the mid-thirties when the FBI started collecting crime statistics. The emphasis on street policing (order maintenance), the escalating war on drugs, and the threat of domestic terrorism has diminished the role of criminal investigation and forensic science in the administration of justice. At a time when DNA technology has advanced far beyond the imaginations of the pioneers of forensic serology (Dr. Paul Kirk and others), rapists, pedophiles, and serial killers are escaping detection and arrest due to DNA analysis backlogs created by a shortage of funds and experts.

     Ironically, one of the byproducts of DNA science has been the release of hundreds of innocent people who have been convicted on the strength of coerced confessions, unreliable eyewitnesses, and the testimony of jailhouse informants. In the small percentage of trials involving the analysis of physical evidence, jurors are commonly exposed to conflicting scientific testimony. When faced with opposing experts, jurors tend to disregard the science altogether. The forensic pioneers of the twenties and thirties would be appalled by this hired-gun phenomena and the low productivity of today's investigative services.

     During the first decade of the 21st Century, due to forensic misidentifications caused by substandard lab conditions and incompetent personnel, crime laboratories in, among other places, Houston, Chicago, Philadelphia, Detroit, and Boston, had to be temporarily closed. During this period, for the first time in the history of the science, there were numerous high-profile fingerprint misidentifications. Moreover, modern forensic science has seen the infusion of pseudo-science and bogus expertise into the nation's courtrooms.

      In March 2009, the National Academy of Sciences, an organization within the National Institute of Justice, after an eighteen month study, published a report criticizing the state of forensic science in America. The writers of the widely publicized report recommended that Congress create a federal agency to insure a firewall between forensic science and law enforcement; finance more research and personnel training; and promote universal standards of excellence in the troubled fields of DNA profiling, forensic firearms identification, fingerprint analysis, forensic document examination, and forensic pathology. From this, one might reasonably conclude that modern forensic science, weighed against the hopes and dreams of its pioneers, has not lived up to its potential.

Dueling Experts

     The increasing presence of dueling expert witnesses, encouraged by the procedural and adversarial nature of the criminal trial process, is a problem without a satisfying remedy. As a trial technique, defense attorneys often put expert witnesses on the stand whose main job is to muddy the waters and confuse the jury. Trial lawyers call this ploy "blowing smoke."

     If there is an answer to this muddying the waters technique, it will have to come from within the legal and forensic science professions in the form of a tighter code of ethics. Regarding battling experts, judges could help by imposing stricter standards in the area of who qualifies as an expert. (Lawyers like expert witnesses because they can render opinions. Regular witnesses cannot.) This would help keep out the phonies and reduce the opportunity for opposing testimony, particularly in the field of forensic questioned document examination where half the "experts" are under-qualified. The problem also exists in the field of forensic pathology in disputes regarding cause and manner of death. It is also not unusual to see blood spatter analysts on both sides of a case.

     Many jurors, when confronted with conflicting forensic science analysis, disregard the evidence completely. Forensic science was supposed to bring certainty and truth to the criminal justice system, not confusion. 

Driven to Write

What kind of an emotion is the desire to write? It is not a core emotion like joy or fear. Nor is it a biological drive in the sense that hunger or sexual desire is. But there are secondary emotions and secondary drives, made up of a mixture of core emotions or drives, often in combination with certain beliefs. Secondary emotions include complicated states such as guilt, hope, and smugness. Secondary drives might include the urge to buy a house or to gamble. It is in this secondary category that the drive to write best fits.

Alice W. Flaherty, The Midnight Disease, 2004 

Thomas Wolfe On the First Novel

Usually the first novel of a young writer is a book of discovery. From his meager experience, accentuated by his youth, comes a knowledge so new and startling and so wonderful that its pain is almost beyond bearing. Mellow, many-faceted understanding is not for now; understanding is the hard reward of decades of summers. Youth's knowledge, youth's discoveries, are as sure as an April dawn. [Mr. Wolfe (1900-1938) was a bit of a mental case.]

Thomas Wolfe in Wolfe by Richard Walser, 1961 

How the "Great Writers" Wrote

Great Writing was done in a language that had nothing to do with the way one spoke. The words were similar, but arranged more cleverly, less directly. A good literary sentence was like a floor with a hole hidden in it. You got to the end and thought: "Why'd he say it that way? He must really be a great writer." Plain English language was a degraded thing, good only for getting around your dopey miniature world, cashing checks and finding restaurants and talking about television and so on.

George Saunders, amazon.com, 2004 

Monday, May 25, 2020

Marybeth Tinning: America's Worst Munchausen Syndrome by Proxy Case

     In January 1972, Marybeth Tinning's 8-day-old daughter Jennifer died of acute meningitis. The death brought Marybeth a wave of sympathy from her friends and neighbors. The nurse's aide, married to a cold and indifferent man who worked at the Local General Electric plant in Schenectady, New York, welcomed the attention she did not get from her husband. Three weeks after Jennifer's death, Marybeth rushed her 2-year-old son, Joseph, to Schenectady's Ellis Hospital where he was pronounced dead. Without the benefit of an autopsy, doctors diagnosed the boy's cause of death as a viral infection accompanied by a "seizure disorder."

     The tragic loss of two children within a span of three weeks brought Marybeth Tinning an intense amount of sympathy and attention. This once ignored and lonely woman fit the criminal profile of a person with the so-called  Munchausen Syndrome by Proxy personality disorder. Mothers with MSBP hurt or kill their children for the sympathy and attention they receive from friends, family, and hospital personnel. However, it wasn't until 1977 that members of law enforcement and the medical community became aware of this homicidal motive.

     Tragedy hit the Tinning family six weeks after Joseph's death when 4-year-old Barbara Tinning died. Following the third death of a Tinning child, hospital personnel, suspicious of foul play, notified the police. The pathologist, however, by identifying the cause of death as cardiac arrest, killed any chance of a criminal investigation.

     A year and a half after Barbara Tinning's sudden death, 2-week-old Timothy Tinning died at Ellis Hospital while being treated for a mysterious illness. The pathologist, unable to identify the cause of death, recorded it as a Sudden Infant Death Syndrome (SIDS) case. ( SIDS is not a cause a death but merely a description of the death. However, it sounds more scientific than "unknown death.")

     In September 1975, Nathan Tinning, five months old, died of "pulmonary edema." While hospital personnel were growing increasingly suspicious, the police didn't get involved because all of the deaths except one had been classified as natural, and the one exception had gone into the books as SIDS.

     Three and a half years after Nathan Tinning died, Marybeth lost another child to sudden death. Mary Tinning, age two and a half, had been a healthy child who, for reasons that baffled physicians, simply died. Although she was not by definition an infant, her death was recorded as another SIDS fatality.

     In 1980, after the sixth Tinning child had died of undetermined causes, sympathy for Marybeth was hardening into suspicion of murder. At the Ellis Hospital, among a dwindling group of Marybeth sympathizers, there was speculation that perhaps the Tinning family had been cursed with a "death gene." On August 2, 1981, emergency personnel rushed 3-year-old Michael Tinning, suffering from breathing difficulties, to the hospital where he died shortly thereafter. The official cause of death--bronchial pneumonia--didn't stem the tide of suspicion. The fact that Michael had been adopted laid waste to the death-gene theory.

     In less than ten years, seven children from the same family had died mysteriously, and no one in the health care or law enforcement communities had asked the person most closely associated with each fatality, Marybeth Tinning, if she had anything to do with these deaths. While a few of her friends and neighbors still considered Marybeth a tragic, cursed figure deserving of their sympathy, her husband Joe seemed unfazed by it all.

     On the night of December 19, 1985, four years and three months after Michael Tinning's death, Marybeth telephoned her neighbor, also a nurse's aide, and said, "Get over her now!" The neighbor arrived at the Tinning house and found 3-month-old Tami Lynne, born when Marybeth was forty-two, lying on a changing table. The infant had turned purple and was not breathing. According to Marybeth, the baby had been fusing all evening, and when she (Tinning) couldn't stand it anymore, she got up from watching television to ascertain why the baby was crying. She said she found her child tangled in blankets and not breathing. Unable to revive her, she had gotten Joe out of bed, called her neighbor, and then telephoned for an ambulance. The emergency personnel reached the house shortly after the neighbor arrived. At St. Clare's Hospital, doctors pronounced Tami Lynne dead.

     The forensic pathologist who performed the infant's autopsy knew the Tinning family history of sudden death. Notwithstanding this knowledge, and the purple coloration that suggested death by suffocation, the pathologist classified this fatality as a case of SIDS. Hospital personnel, however, suspected criminal homicide. They believed that Marybeth Tinning was a serial killer.

     The local police had been suspicious of Marybeth for years, but because none of the autopsies had resulted in a finding of homicidal death, they could not justify a criminal investigation. All they had to go on was the statistical unlikelihood of so many mysterious deaths occurring under the same roof, to the same mother. After Tami Lynne's death, a detective from the Schenectady Police Department went to the Tinning residence to ask Marybeth about the circumstances of the infant's passing. When he entered the house, Marybeth was reported to have said, "I know what you're here for. You're going to arrest me and take me to jail." The detective did not take her into custody, but the investigation had begun.

     Detectives from the Schenectady Police Department and investigators with the New York State Police met in Albany to review the eight Tinning autopsy reports, hospital records, and statements that had been made by ambulance and emergency room personnel. After the meeting, the officers agreed that without physical evidence of child abuse, an eyewitness, or a cooperating spouse, they would need a confession. If Marybeth did not confess to killing her children, they had no case. A little help from the forensic medicine community would have gone a long way in aiding the police, but it wasn't there. Marybeth Tinning would have to confess.

     Seven weeks after Tami Lynne's death, a Schenectady detective and a state police investigator came to the Tinning house and asked Marybeth to accompany them to the state police station in Louderville for questioning. Although she knew she was not under arrest, Marybeth agreed to be questioned. In the interrogation room, the suspect said she understood her Miranda rights, and agreed to waive them. Initially, according to the police account of the interrogation (which was not recorded) Marybeth denied doing anything to her children that would have caused their deaths. The detectives made it clear that they did not believe this, and not long into the interrogation, they were joined by another officer, a state trooper who had known Marybeth from childhood. "I didn't do it!" she kept saying. The interrogators, convinced she was lying, pressed on.

     Eventually breaking down under the pressure of the station house interrogation, Marybeth admitted that she had killed three of her children. She said she had used a pillow to smother 3-month-old Tami Lynne, 5-month-old Nathan, and 2-week-old Timothy. She denied foul play in the other five unexplained sudden deaths. Detectives brought her husband Joe into the interrogation room and she repeated her admission to him. Joe Tinning seemed unmoved by the news that his wife had murdered three of their children.

     A stenographer typed up the confession in a question-and-answer format, a transcript that ran to 36 pages. When describing Tami Lynne's death, Marybeth said, "I got up and went to her crib and tried to do something with her to get her to stop crying. I finally used the pillow from my bed and put it over her head. I held it until she stopped crying."

     A team of forensic pathologists examined the exhumed bodies of three infants. Two were too badly decomposed to render any clues, and the third turned out to a body taken from the wrong grave. On December 16, 1986, at the preliminary hearing, Marybeth rescinded her confession, claiming that her interrogators had forced her into confessing falsely. "They were telling me what to say," she said. "The police made a statement and I just repeated it." Marybeth's attorney asked the judge to exclude the 36-page confession on the grounds it had been acquired in violation of his client's Miranda rights. The judge denied the motion.

     A local prosecutor charged Marybeth Tinning with the murder of Tami Lynne, the last child to die. The case went to trial in 1987. The forensic pathologist who had initially ruled the death a SIDS fatality took the stand and testified that the child had been smothered to death. Five other pathologists for the prosecution agreed with this postmortem diagnosis.

     The defense countered with six forensic pathologists of their own who attributed Tami Lynne's death to a variety of natural causes. One of the defense experts testified that the child had died from Wernig-Hoffman disease, a genetic disorder that attacks the spinal column.

     The jury, confused by the conflicting medical testimony, relied on the defendant's confession to find her guilty. The jurors may also have found it hard to believe that eight children from one family, including an adopted child, could have died of natural causes. (Actually nine if you count the first child's death.)

     At the Tinning trial, forensic science, instead of guiding this jury to a rationale verdict, had cancelled itself out. Apparently unsure if Marybeth had intentionally killed the child for the attention she would get, the jurors found her guilty of murder in the second degree, an offense that carried a maximum sentence of 25 years to life.

     At her sentencing hearing, Marybeth, reading from a prepared statement said, "I just want you to know that I played no part in the death of my daughter, Tami Lynne. I did not commit this crime but will serve the time in prison to the best of my ability. However, I will never stop fighting to prove my innocence." The judge imposed the maximum sentence of 25 years to life.

     Although the Tinning case is an extreme manifestation of the Munchausen Syndrome by Proxy personality disorder, it is not the only case in the history of sudden infant death where an alarming number of babies have died before law enforcement authorities launched criminal investigations. (The Marie Noe case in Philadelphia is another example.) Before England's Dr. Roy Meadow introduced this syndrome into the vocabulary of murder, mothers in multiple death cases were less likely to come under suspicion of murder.

     In March 2007, after living twenty years in prison, Marybeth Tinning had her first parole board hearing. To the board members she said, "I have to be honest, and the only thing I can tell you is that I know that my daughter is dead. I live with it every day. I have no recollection and I can't believe that I harmed her." The board denied her request for parole.

   In late January 2009, at her second parole hearing, Tinning said, "I was going through bad times when I killed my daughter." The board, believing that her remorse was "superficial at best," denied her parole. She was denied early release in 2011 and 2012.

     In June 2016, the parole board, for the fourth time, denied Marybeth Tinning's bid for freedom. After being denied two more times, Tinning was granted parole on August 12, 2018. She had been in prison 30 years.

The Shaken Baby Syndrome: The Shirley Ree Smith Case

     When a presumably healthy baby dies in his or her crib for no apparent reason, and there is no evidence of foul play, rather than classifying the cause of death as "unknown," or "undetermined," a coroner or medical examner will usually call the fatality a "sudden infant death syndrome" (SIDS) case. Although this is the same as ruling the death as "undetermined," it sounds more scientific. At one time, the parents of SIDS babies found themselves under clouds of suspicion. Today, as a result of scientific study of these cases, forensic pathologists are attributing natural death causes in infant deaths that earlier would have been classified as SIDS fatalities.

     The "shaken baby syndrome" (SBS) refers to signs of physical trauma found in children under six who have been violently shaken. When a baby or toddler is shaken too hard, the victim's brain is jarred against the skull, causing it to bleed and swell. Most pediatricians and forensic pathologists believe that to diagnose SBS, they must find, at minimum, evidence of subdural hematoma (brain hemorrhaging), retinal bleeding (broken veins in the eyes), and cerebral edema (liquid on the brain that causes it to swell). The conventional wisdom had been that a child with these injuries who had neither been in a car accident or fallen from a two-story window had been violently shaken. Supportive evidence of SBS might include trauma to the neck and spine, bruises on the arms and torso, and broken ribs.

     In the late 1990s, a handful of pediatric researchers began to question the science behind the standard SBS diagnosis.Could cerebral edema and blood in the eyes and brain have other causes such as vitamin deficiency, disease, or reactions to vaccines and drugs? Diseases thought to cause symptoms of SBS included hypohosphatasia, brittle bone disease; Alagilles's Syndrome, a liver ailment; Bylers Disease (a liver disorder common among the Amish); and glutaric acidura (acid buildup in infants that causes paralysis and retinal bleeding). Some experts believe that a relatively short fall to a hard surface, say from three feet, can cause damage to the brain similar to that found in SBS victims.

     Because there is no agreement among pediatricians and forensic pathologists what physical evidence of SBS consists of, homicide trials involving defendants accused of shaking infants to death often involve dueling expert witnesses testifying against each other.

Shirley Ree Smith Case

     In 1997, a jury in Van Nuys, California convicted Shirley Ree Smith of shaking her seven week old grandson to death. The prosecutor convinced the jury that Smith had shaken the baby to stop him from crying. The medical examiner, in explaining why there wasn't as much cerebral bleeding as one might expect in a SBS case, said the baby had been shaken so violently the blood vessels in the brain stem suffered "shearing," casusing instantaneous death without bleeding due to the fact the baby's heart had stopped beating. The autopsy had failed to produce evidence of brain swelling or retinal bleeding.

     The Smith defense put two forensic pathologists on the stand who classified the death as a SIDS case, noting that the baby had jaundice, a heart murmer, and low birth weight. The jury accepted the prosecution's version of the facts, and found Shirley Ree Smith guilty. She received a sentence of fifteen years to life.

     A state court of appeals upheld the conviction. The Ninth Circuit federal court of appeals, however, in 2006, reversed the conviction and ordered Smith released from prison on the grounds the jury had missclassified the baby's death as a SBS fatality. The state prosecutor appealed the case reversal to the United States Supreme Court.

     On October 31, 2011, the supreme court, in a 6 to 3 decision, reinstated Shirley Ree Smith's homicide conviction. This meant she would have to return to prison. The six justices upheld a longstanding legal principle that an appeals court cannot substitute its judgment for a jury's. The high court, recognizing the jury in the Smith case may have relied on the wrong forensic pathologists, reminded the Ninth Circuit Court that judges in jury trials cannot decide the law and the facts. If Shirley Ree Smith had a remedy in law, it would have to be in the form of executive clemency.

A Surrogate Life of Imagination

We are not geniuses, most of us who write novels, but we are, many of us, people who have chosen to live the surrogate life of the imagination. We have perhaps settled for that state which Wallace Stevens speaks of. "The final belief," he said, "is to believe in a fiction that you know to be a fiction, there being nothing else."

Brian Moore in Agony and the Ego, edited by Clare Boylan, 1994

Journalists and Novelists

The dominant and most deep-dyed trait of the journalist is his timorousness [timidity]. Where the novelist fearlessly plunges into the water of self-exposure, the journalist stands trembling on the shore in his beach robe. Not for him the strenuous athleticism--which is the novelist's daily task--of laying out his deepest griefs and shames before the world. The journalist confines himself to the clean, gentlemanly work of exposing the griefs and shames of others.

Janet Malcolm, The Journalist and the Murderer, 1990

Autobiographical Reality

Autobiographies are written as their authors remember their lives, which may or may not be the way it really was. Autobiography has a limited market with commercial publishers unless the author is already well-known or has had a most unusual and interesting life.

Doris Ricker Marston, A Guide to Writing History, 1976