Grounds for Appeal

ELEVEN

The weather had turned very cold by the time Richard Pryor and Angela were due to go to Bristol for another conference about Millicent Wilson. As they drove down the lower part of the deep Wye Valley to Chepstow, the leafless trees looked black, except for a rime of frost on the upper branches. Richard was glad of an efficient heater in the Humber, which was still a novelty for him, as his Austin A70 in Singapore would have needed a heater like the proverbial hole in the head.

Under a grey sky which threatened snow, they made the now familiar ferry crossing over the Severn on a choppy tide the colour of lead, then across a frozen countryside towards Bristol. This was the first really cold weather Richard had experienced since returning from the Far East, and he was glad that the women in his life had recently persuaded him to buy an overcoat. He had returned from Singapore with a selection of locally-made linen suits, which Angela, Sian and Moira had privately decided made him look like Stewart Granger in one of his safari films. They had browbeaten him into getting a couple of more sober suits, better adapted to the British climate, for which he was now grateful.

This morning, Angela was even better equipped for the frost, as over her slimline business suit she wore a dark beaver lamb coat, with a matching fur hat. As she sat snugly in the passenger seat beside him, Richard thought she looked cuddly, an image which sustained him for the rest of the drive into St Paul’s.

When they arrived at the unprepossessing offices of Middleton, Bailey and Bailey, they found Penelope Forbes and Douglas Bailey already there, together with their ‘silk’, Paul Marchmont. He was younger than Richard had expected, probably just a couple of years older than himself. Instead of the portly, silver-haired orator that was the stage concept of a QC, Marchmont was tall and wiry, with an unruly mane of black hair which he kept flinging aside with a hand in an almost theatrical gesture. Richard guessed that he was bit of a showman, like many successful barristers.

After introductions were made, Marchmont got down to essentials, as his time was money — lots of it!

‘Miss Forbes, Mr Bailey and myself have spent an hour going over the legal aspects of the case and reviewing the circumstantial evidence,’ he began. ‘This Appeal stands or falls upon a defence of alibi, which is really the only issue we can use, so the medical contribution is vital.’

He turned a ten-kilowatt smile on Angela, making her decide that he could either be a charming advocate or a deadly adversary.

‘That includes you of course, Doctor Bray. Your opinion about the blood stains is very important. Perhaps we could lead off with that aspect first.’

Angela, a battle-hardened expert witness, had no hesitation in launching into a clear and succinct account of the significance of the blood found on the sleeve of Millie Wilson’s coat. She had her sketches and an album of police photographs on her lap as she spoke.

‘There seems no dispute that Millie hit Shaw twice on the nose with a pint milk bottle in retaliation for his assault on her late that evening. The post-mortem recorded a bruised and broken nose which accords with several heavy blows. Neither is there any doubt about the blood on her coat having coming from Shaw, as the forensic lab in Bristol clearly showed that it is of a group and subgroups consistent with him and quite unlike Millie’s own blood.’

Paul Marchmont listened intently, then nodded and, having brushed back his hair, came to the heart of the matter.

‘The Crown claims that it came from the fatal wound in the chest. You can dispute that?’

‘Yes, and I fail to see why it wasn’t challenged at the trial. The transcript of evidence shows that their pathologist agreed that it was “entirely possible” when it was put to him, but he wasn’t pressed about it. There was no contrary evidence led by the defence on that point.’

‘And you have some?’ queried the Queen’s Counsel.

‘Part of this is more in Doctor Pryor’s province, and I’m sure he can answer for himself. But from the forensic biology point of view, these blood “stains” are really blood “spots”, having travelled through the air and landed on the sleeve of the coat, rather than being smears. I also found, from trawling through all the evidence, that she was left-handed and this was the left sleeve. That point was never raised at the trial.’

‘But why could not the same spots have come from the chest wound?’ demanded Marchmont. ‘Her hand, whether left or right, would be virtually touching the chest if she stuck the knife in it.’

Angela shook her head and proffered the photograph album, opened at a page showing a close-up of the woman’s jacket sleeve.

‘These are a shower of tiny spots, quite well spaced. They are not contact smears; they are from a fine spray striking the cuff area.’ She held out her left arm and indicated the outside of her own sleeve, just above the wrist.

‘I think Doctor Pryor will bear me out in my opinion that a single stab wound through clothing in the chest, which did not penetrate any substantial arterial blood-vessels, would not produce any spray, as virtually all of the fatal bleeding was internal, within the chest organs.’

Though she needed little support, Richard came in here to confirm what she was saying.

‘You can see from the photographs of the body at the scene that there was hardly any bleeding externally. He was wearing a vest, shirt and waistcoat and all that is visible is a stain soaked into the cloth around the narrow slit where the knife went in.’

‘Could this spray not have come off the knife when it was pulled out?’ asked Douglas Bailey. ‘I’ve been involved in cases where there’s blood all over the room — even on the ceiling — from spatter off a weapon.’

‘Sure, that happens, usually with blunt instruments or things like axes. But almost always, the weapon has been applied to surfaces that are already bloody from previous blows. Usually, a single blow causes a momentary contraction of blood vessels and it’s a few seconds before enough blood flows for the second or third blow to pick enough liquid to throw around the place.’

‘And Millie hit him at least twice on the nose with her bottle,’ concluded Angela. ‘So she could have caused a splash with her second impact, throwing a local spray back on to her sleeve.’

‘The other thing is that when the knife was found on the floor, only a close inspection could tell it had been used,’ said Richard, with a quickening fluency of which his grandfather, a Welsh Methodist preacher, would have approved. ‘There were some faint dried blood smears on the blade, but it took proper examination in the laboratory to confirm it. So there was very little blood on it, certainly not enough to cause a shower of spots. When a knife is pulled out cleanly from a wound, the muscle contraction can close the edges tightly against the blade and wipe it. And then of course there were three layers of clothing to give it an additional wipe.’

The QC nodded. ‘You’ve convinced me, doctors, but we have to convince three sceptical Lords of Appeal. Now what about the time of death? That’s where we will win or lose.’

Coffee appeared, giving Richard time mentally to gird his loins before setting off on a much more detailed argument.

‘Let me make it clear, Mr Marchmont,’ he began after they had settled down again. ‘I cannot deny that Arthur Shaw might well have died at around eleven or twelve o’clock that night, as the prosecution claimed. But what I can do is show that, because of the uncertainty of the methods their pathologist relied on, he could have died several hours either side of that claim. Obviously, that could not have been on the earlier side, as a number of the people in the house saw him alive until he went upstairs to assault Millie. But the hours after that time are certainly in contention.’

‘This is where we need a detailed argument, Doctor Pryor,’ said Paul Marchmont. ‘You are directly at odds with their expert on this.’

‘Right, let’s take the easy ones first,’ said Richard. ‘Their Doctor Mackintyre said that he relied on a concurrence of post-mortem lividity, rigor mortis, stomach contents and temperature to arrive at his conclusion that death had occurred between eleven and twelve o’clock. That is utter nonsense, as any medical man who, from an imperfect examination fourteen hours later, puts a time of death within a one-hour bracket is either ignorant or foolish!’

‘Strong words, doctor!’ said the QC.

‘If he had said “consistent with those times”, I would agree with him, but that then fails to destroy Millie’s alibi, as someone else could have done the deed outside the very short time bracket.’

Marchmont once again tossed his hair back. ‘Carry on, please, doctor.’

‘First, lividity, or “livor mortis” as it was probably called in Doctor Mackintyre’s day. Completely useless as a timer of death. It can even occur in deep coma, such as barbiturate overdose. But the time it takes to appear due to gravitational settling of the red blood cells is extremely variable. To use that to pin down a time to an hour, when seen half a day later, is little short of ludicrous.’

Penelope Forbes, who had been very quiet in the presence of her leader, came in with a query that showed that she had researched the case in depth.

‘Haven’t I read that this lividity becomes fixed after a certain number of hours, which can be used in timing?’

‘That is certainly in all the textbooks, but in practice it is very variable and often doesn’t occur at all,’ was the firm reply. ‘I’ve experimented myself and found it to be totally unreliable.’

Douglas Bailey was getting out of his depth here. ‘Can you explain that, Doctor Pryor?’

‘When the blood cells settle, they are still inside the veins under the skin, so that the dark reddish-purple colour is visible. The delay for this to happen is very variable — in fact, in some old or anaemic people, it is never visible. Now if the body is moved after death, such as being turned over, the blood may or may not reposition itself towards the new lowest areas. Sometimes it does, sometimes it doesn’t. For years, pathologists and police surgeons have tried to put a timeline on when it stops moving and becomes fixed. But even when fixation does occur, it’s so random in its timing as to be useless. I’ve copied out the opinions given for this and for timing rigor mortis from almost a dozen textbooks of forensic medicine and you will see that the range of disagreement runs to many hours, so it’s of virtually no value!’

He passed around a few carbon copies of Moira’s typing and waited until the three lawyers had scanned them.

‘So what about rigor mortis? That’s always held up in detective novels to be the bee’s knees for timing death,’ said Paul Marchmont.

‘Much the same criticism as with hypostasis,’ replied Richard. ‘There are generalizations, which are not at all accurate — and so many exceptions to the generalizations that no useful rules remain.’

‘Can you expand on that a little, doctor? asked Penelope Forbes. Angela watched her partner and recognized him getting into lecture mode. She knew he was good at it and wondered if his students in Bristol University appreciated him.

‘Rigor is stiffening of all the muscles of the body after death, due to a chemical reaction affecting their proteins. The problem is that there are a number of factors which affect the speed and intensity of this stiffening. For example, strenuous activity shortly before death hastens it appreciably, which is why battle casualties often have a rapid onset of rigor. The same happens after electric shock. Then temperature also accelerates it and cold delays it. I’ve seen a body dead in the snow for some days with no rigor, but as soon as it was brought into the mortuary, it stiffened up.’

‘It was a very hot period when Arthur Shaw died in June last year,’ interjected the solicitor. ‘It was virtually a heatwave.’

‘I realized that, Mr Bailey, which was why I phoned the weather people at Bristol Airport the other day. Their records showed that the temperature, even at midnight, was much higher than usual for that date, so there’s another factor to use in the argument.’

‘What effect would that have had?’ asked the QC.

‘Rigor could have come on faster, giving the impression that death had occurred earlier than it really did. The trouble with that argument is that the accuracy of back-calculating is so poor that trying to adjust for temperature is not much use.’

‘So the old formulae given in the books I’ve seen for calculating from rigor is just not correct?’ persisted Miss Forbes.

Richard shook his head. ‘It’s the old story of the bell-shaped curve, which pervades much of biology. There’s a high point on the graph where most of the cases lie where, say, rigor comes on in three to six hours or so. But on each side of the peak, there’s a slope where the other cases lie, either earlier or later. If the bell is high and narrow, then accuracy is better, but if, as with rigor, the bell is low and flat, then there’s no chance of accuracy.’

He cleared his throat. ‘And that’s just for the onset of rigor. It increases in strength, then eventually passes off, called resolution, but the time when that happens is even more unpredictable. Unfortunately, many of the textbooks stick to the myth of a reliable timescale and copy it from edition to edition, because there’s nothing better to replace it with.’

‘You sound a bit of cynic, doctor,’ observed Paul Marchmont with a smile.

‘I prefer to think of myself as a realist,’ replied Richard. ‘The younger generation of pathologists are hopefully more critical of these sacred ideas of the older, dogmatic school. I met a German pathologist at a meeting last year, who is combing all the medical literature for over a century to list the variations in opinions about hypostasis and rigor.’

‘We’ve got stomach contents next; are you just as pessimistic about those?’ asked the senior barrister.

Richard rolled his eyes towards the ceiling. ‘Even worse! The old legend about stomach contents emptying in about two and half hours is again the top of the biological bell, but there are even more variable factors. The type of food, amount of liquid in it, amount of starch, personal variation and even variations in the same person. You can measure the speed of emptying in Bill Smith one day, then give him the same food another day and get a different answer! Fear, injury, coma, pain and emotional upset all modify the speed of digestion and emptying. To use it to calculate a time of death to within an hour is frankly ridiculous!’

‘Is examining the stomach contents of no use whatsoever, then?’ asked Douglas Bailey.

‘Only in the very broadest terms, insufficient to use as probative evidence. It might tell you what the last meal was and therefore you’d know that death occurred after the time it was eaten. For instance, if a man ate a curry one evening and was found dead two days later with a stomach full of curry, you’d know he hadn’t lived long enough to have his usual ham and eggs for breakfast next day.’

Angela came back here, as this was partly her province.

‘Even that’s not easy, unless digestion had not proceeded very far. We can often identify certain foods under the microscope, like meat fibres and some vegetables — but we’re not like the sleuths in crime novels, who can discover that the deceased had consumed a salmon sandwich and a cup of Earl Grey tea three hours before death!’

Marchmont held up his hands in mock surrender. ‘I get the point. Now what about temperature, which you said was the best method?’

‘Well, I said the least inaccurate,’ amended Richard. ‘Doctors have been trying since about 1840 to devise a formula to calculate time of death from the obvious drop in temperature after death — unless, of course, you happen to die in some parts of the tropics, where the post-mortem temperature actually increases!’

‘I don’t think Bristol comes into that category,’ said Douglas Bailey wryly.

‘No, but the temperature at the scene is very important, and we know that Shaw was killed during a Bristol heatwave,’ countered the pathologist. ‘The problem is that the investigation was poorly carried out, as no one took the room temperature nor the body temperature when the scene was visited. Doctor Mackintyre didn’t attend the scene and didn’t even see the body until the afternoon, over six hours after it was found, when he eventually put a thermometer in the rectum.’

‘And that matters in calculating the interval?’ asked Marchmont.

‘It’s vital, as for at least six hours, the body was cooling in the mortuary, no doubt much colder than the flat in St Paul’s, which distorts the cooling curve. We should really find out whether the place was air-conditioned, as some big city mortuaries are, which would increase the cooling even more. I’ve actually heard of a case where the body was put in the refrigerator for some hours until the post-mortem and then the pathologist took a temperature!’

‘So you can castigate any attempt at arriving at an accurate result?’ asked Penelope.

‘Certainly, I can! Even when the best procedures have been followed, the accuracy is poor and cannot be narrowed down to less than a couple of hours either side of the calculated time. It’s traditional to use a rule of thumb that a body cools at about one and half degrees Fahrenheit per hour, but all one can say about that is that if the answer turns out to be correct, it must be sheer luck!’

He paused for breath and then carried on.

‘The size of the body, the amount of fat insulation under the skin, amount of clothing, fever, hypothermia, the environmental temperature, draughts, humidity and other factors make this little better than guesswork.’

Paul Marchmont leaned back in his chair. ‘So you can confidently go into the witness box and declare that at the trial, the pathologist had been in error when he claimed that Arthur Shaw must have died between eleven and twelve o’clock that night?’

‘Absolutely. I’m sure he was just agreeing with the prosecution who were maintaining that the man was killed during that short window of opportunity when Millie Wilson was alone with the deceased.’

‘If he had been challenged on that, do you think he would have admitted that death could have been outside those tight limits?’

Richard Pryor shrugged and turned up his hands in a Gallic gesture.

‘It’s not for me to say that, but I would have hoped that Doctor Mackintyre would have done so. However, as I said earlier, some well-entrenched expert witnesses dig their heels in hard, if they are challenged.’

Penelope Forbes pursued this issue. ‘Would he have been aware of these caveats you’ve mentioned, which affect the accuracy of any estimate?’

‘I don’t know about would have known, but he certainly should have known, if he appears as an expert. There have been innumerable research papers in the journals for decades. In fact, only this year, one of the most important papers was published from Sri Lanka, where Doctor de Saram made a careful estimate using forty executed prisoners, where obviously the time of hanging was known to the minute. He found, amongst other things, that there was a “lag period”, a variable delay in initial cooling of up to forty-five minutes. Others have shown an even longer “temperature plateau”, as it’s called, where the normal body temperature persists for a time after death. So already, we have an in-built error almost as long as the hour claimed by Doctor Mackintyre.’

Richard felt that he had browbeaten his listeners long enough with his potted course in forensic medicine, but there were a few more questions from the lawyers, who wanted to make sure that they understood this most important aspect of their campaign to save Millie Wilson from many more years in prison.

When they at last finished and had been given more details of the expected date of the court appearance in London, Richard and Angela bade the lawyers farewell and escaped into the chilly street.

‘Well, I think we’ve more than earned a gin and tonic and a decent lunch somewhere!’ said Richard firmly, taking his partner’s arm as they made their way back to the black Humber.