Death on a High Floor (41 page)

Jenna moved to the podium, the large textbook Uncle Freddie had given her in hand. “Dr. Eliopolous, have you ever personally conducted any studies related to determining time of death?”

“No.”

“So all of your information is from studies outlined in textbooks?”

“From textbooks and other published studies. Although that is true of a lot of inferences drawn on the clinical side of forensic pathology.”

It was a polished answer from a polished expert.

“So you’ve never personally, for example, measured the liver temperature of someone whose time of death you knew exactly?”

“No. But many others have done so and recorded their observations.”

“Or personally studied the stiffness of a jaw muscle of someone whose time of death you knew with precision?”

Eliopolous thought about it. You could almost see him reviewing in his mind all the jaw muscles of the dead he’d ever moved. He was not an expert to be rushed. “No.”

“Would you call your determination of time of death an estimate, then?”

“I’d call it a very good estimate.”

“Well, in those textbooks and studies you’ve seen”—Jenna looked at the thick book she had placed on the podium, but did not open it—“have you ever read that the rate at which the temperature of the liver falls after death is in part dependent on the ambient air temperature around the body?”

“Objection!” It was Benitez coming to life. “The question calls for speculation and is without foundation, since it assumes such books and studies say what Ms. James says they say. But she hasn’t produced them so that we can see if they do.”

It was an utter bullshit objection with an expert, particularly because Eliopolous had already acknowledged that the studies and textbooks existed. But the objection certainly sent a nice message to the witness if he wanted to take it up—ask her exactly what damn books she’s talking about.

Judge Gilmore had looked to be reading something on the bench and paying attention out of only one ear. But one ear was clearly enough, since she didn’t even wait for Jenna to respond before ruling. “Overruled,” she said. “You may answer, Doctor.”

“Yes, I have read that kind of thing,” Eliopolous said.

“Did you determine the ambient air temperature of the reception area at
Marbury & Marfan
between 4:00 and 5:00 a.m. that morning?”

“No, I didn’t.”

“If the ambient temperature at the time of death was, say, sixty degrees, the drop in liver temperature would have been faster than if it were seventy-two degrees, isn’t that right?”

“Yes . . . somewhat.”

“Making the time of death later rather than earlier?”

“Yes . . . slightly. Which is why I estimated time of death as a range.”

“Have you also read, Doctor, that the rapidity with which liver temperature drops after death is affected by the amount of blood loss?”

“Yes.”

“Is the drop faster or slower if there was a lot of blood loss?”

“Faster . . . again, somewhat.”

“Was there, in your opinion, a major loss of blood by the victim here?”

“Yes, he had lost perhaps half his volume of blood.”

“So that situation, too, might have pushed the time of death later rather than earlier?”

“Yes, I suppose. By a small amount.”

“And Doctor, have you ever read that the rate of decrease in liver temperature is impacted by how much body fat the victim has?”

“Yes, fat is an insulator, so the less body fat, the faster the temperature drops.”

“In your opinion, did the victim here have an average amount of body fat?”

“No, he was very lean. He had the body of an athlete.”

“So his liver temperature after death might have dropped faster than 1.5 degrees per hour?”

“Yes, that’s again
possible
.”

“Again, pushing the time of death toward a later time?”

“It could, somewhat.”

“Doctor,” Jenna said, “are you familiar with the fact that some people have lower body temperatures than other people? That not everyone is at 98.6 degrees?”

Up to the moment of that question, Eliopolous had displayed the usual demeanor of an expert being questioned by someone he clearly regarded as a technical inferior. The attitude of “Yes, there are those little quibbles, but nothing of importance, unknowledgeable worm.” With Jenna’s last question, though, I thought I detected a slight stiffening of
his
body.

“Um, yes. I am. There is a range.”

“Did you make any effort to determine Mr. Rafer’s average body temperature when he was alive?”

There was a very long pause, as, I had no doubt, Dr. Eliopolous’ very agile brain searched for a way out but failed to find one. “No, I didn’t.”

“If it were the case that Mr. Rafer’s average body temperature, measured by mouth, was only 96.9 degrees instead of 98.6, would that make a difference in your estimate of time of death?”

Benitez was up and animated. “Objection! There is no evidence in the record that Mr. Rafer had a below-average body temperature.”

“I’m presenting it as a hypothetical, Your Honor,” Jenna said.

“It’s unethical, Your Honor, to pose a hypothetical unless Counsel has a good-faith basis to support the facts she’s put in the hypothetical.”

Judge Gilmore peered down at Jenna. “Miss James, do you have a good-faith basis for that particular hypothetical fact?”

“I do, Your Honor.”

“The objection is overruled, then.” She turned to the witness. “You may answer the question.”

I waited to see what Dr. Eliopolous would do. Experts are funny witnesses. On the one hand, they are owned by the side that brought them, and they understand that their job is to help their owners. On the other hand, professionals, even the slimier ones, have some sense of fealty to truth.

He chose to tell the truth. But with a lot of backing and filling.

“Well, Ms. James,” he said, “if Mr. Rafer
truly
had an average body temperature, measured by mouth, of 96.9—which would be unusual, perhaps even rare—and assuming that his average liver temperature was also correspondingly lower, and assuming that the rate of fall of temperature in his liver after death was the standard 1.5 degrees per hour, your
hypothetical
fact could push my estimate of time of death one hour later, to a range of 5:00 a.m. to 6:00 a.m.”

That seemed to me like a pretty good answer, despite the hedging. But, then, after a very slight pause, Dr. Eliopolous showed himself to be an experienced expert by adding something to his answer.

“However, Counsel,” he said, “the rigidity of the victim’s jaw, based on my personal experience, suggests an earlier time of death to me. And I have no information about what his average body temperature actually was, so I have to assume it was like most people’s rather than subnormal.”

Jenna could have reminded him that he had just admitted that his own experience didn’t include measuring actual, known time of death against jaw stiffness. Instead, she chose to ignore his wiggle and to try to pull the noose of the hypothetical a bit tighter.

“Doctor,” she asked, “if, hypothetically, the ambient air temperature at the time of death was sixty degrees, and given that you found Mr. Rafer to have lower-than-average body fat, and given that you yourself observed that he had lost a great deal of blood quickly, and assuming hypothetically that his average body temperature was 96.9, isn’t it possible that within a revised range of 5:00 a.m. to 6:00 a.m., the time of death was actually closer to 6:00 a.m. than to 5:00 a.m.?”

“It’s possible, yes. But I still don’t regard it as likely, and by the way, I haven’t bought into your revised range, even hypothetically.”

“But it would be within the realm of reasonable medical possibility?”

“Yes, I suppose it would. Assuming your key hypothetical fact is true.”

And then Eliopolous did something that experienced witnesses aren’t supposed to do. He stepped out of role. “Ms. James,” he asked, “do you actually have Mr. Rafer’s medical records showing a lower than average body temperature?”

Judge Gilmore was suddenly fully awake. In our odd system of law, witnesses don’t get to ask questions, only answer them. So Jenna was not required to answer Eliopolous’ question. But the judge could have left her to twist in the wind of having to decide whether or not to answer the question anyway, with the press watching. Or the judge herself could have asked exactly what records Jenna was referring to. Instead, Judge Gilmore returned the earlier favor.

“Dr. Eliopolous, you’re enough of an experienced expert to know that that’s not a proper question for a witness to put to a lawyer. Ms. James has represented to the court that she has a good-faith basis for her hypothetical, and, particularly with no jury present, that’s all we need. Ms. James, do you have further questions of this witness?”

“Yes, I do, Your Honor.”

“Then please proceed.”

At that moment, Oscar slipped into the chair beside mine at the counsel table. I hadn’t noticed him come into the courtroom. He pushed a note at me:
Called Ogalu. He’ll get Boone out.
Meanwhile, Jenna was moving forward.

“Dr. Eliopolous,” Jenna asked, “do you have a copy of People’s Exhibit 4 there?”

“Yes, I do.”

“Let me call your attention to page six. Do you see there where you refer to a large bruise on the heel of the victim’s right palm? On the fleshy area directly below the thumb?”

“Yes.”

“Doctor, in your opinion, was that more likely a premortem or postmortem bruise?”

“It appeared to be premortem. Before death. Although, from the looks of it, it was very fresh. So it might have come just before death.”

“Do you have any theory as to what caused that bruise?”

“Likely, after Mr. Rafer was stabbed, he fell forward and, and in his last seconds of consciousness, instinctively tried to break his fall with his hand.”

“Wouldn’t a fall like that also have caused trauma to the bones or ligaments of the hand, wrist, or forearm?”

“It could have.”

“Did you observe any such collateral damage?”

“No.”

“Wouldn’t someone breaking his fall in that way normally bruise the other side of the palm as well?”

“He could, but the biomechanics of falls are funny. They can go a lot of different ways.”

“Doctor, wouldn’t a person, falling in that circumstance, normally try to block his fall with both hands?”

“Perhaps. I think that’s also hard to say for sure.”

“Did you observe any bruising on the victim’s left hand?”

“No.”

Oscar pushed another note at me:
So what? How’s this help
? In truth, I had no clue. I wrote
Beats me
on the note and pushed it back to him. Meanwhile, Jenna continued on about bruises.

“Doctor Eliopolous, on page eight of your report, I notice that you observed a bruise on the front of the victim’s right ankle.”

“Yes, I did. And anticipating your question, it appeared to be a premortem bruise, again rather new. It was the type of bruise likely caused by a trauma—hitting something—rather than being twisted or sprained.”

So now, Eliopolous had turned to volunteering helpful things during cross. Sometimes that meant an expert had started to go native. Maybe he’d been intimidated by Jenna’s clever trap on the liver temperature stuff.

“Do you have any suppositions as to what caused that bruise?” Jenna asked.

“Maybe something about his fall, although a bruise in that area caused by a fall would more likely be on the shin or knee. But, again, falls are rather unpredictable in their biomechanics.”

“So you really don’t know?”

“No, I don’t.”

Eliopolous was now looking bored by the questioning. I looked over at Team Benitez, and they also seemed rather uninterested. Benitez himself was studying a file of some sort, and his assistants were whispering to each other about something. I didn’t want to turn around, but I could almost feel the courtroom Blob pulsing with the thought: “For God’s sake! Will you please give us something we can write home about?”