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Medical Expert Evidence

April 25, 2014 | by

It’s late, and you’re still awake. Allow us to help with Sleep Aid, a series devoted to curing insomnia with the dullest, most soporific prose available in the public domain. Tonight’s prescription: “Medical Expert Evidence,” a treatise first published in Lippincott’s Magazine of Popular Literature and Science in April 1873.

Sleep-Aid-Medical

Albert Anker, Zwei schlafende Mädchen auf der Ofenbank Date, 1895

There is scarcely any position of more responsibility than that of the medical expert in cases of alleged poisoning. Often he stands with practically absolute power between society and the accused—the former looking to him for the proof of the crime and for the protection which discovery brings; the latter relying upon him for the vindication of his innocence. How profound and complete, then, should be his knowledge! how thorough his skill! how pure and spotless his integrity! how unimpeachable his results! Yet recently the humiliating spectacle has been repeatedly presented of expert swearing against expert, until the question at issue was apparently degraded into one of personal feeling or of professional reputation. So far has this gone that both judicial and public opinion seems to be demanding the abolition of expert testimony. The medical expert must, however, remain an essential feature in our criminal procedures, partaking as he does of the functions of the lawyer, inasmuch as he has, to some extent, the right to argue before the jury, partaking also of the judicial character in that it is his duty to express an opinion upon evidence, but differing from both judge and advocate in that as a witness he testifies to facts. Were the attempt made to do away with his functions, there would be an end to just convictions in the class of cases spoken of, because no one would be qualified to say whether any given death had been produced by poison or by a natural cause.

In many matters that come under the notice of medical experts there is room for honest differences of opinion. Of such nature are questions of sanity and insanity. It must be remembered that these are, after all, relative terms. Reason leaves its seat by almost imperceptible steps. Who can determine with exactness the line that separates eccentricity from madness—responsibility from irresponsibility? Moreover, the phenomena upon which opinion is based are, in such cases, so hidden, so complex, so obscure, that in the half-lights of a few short interviews they will often be seen differently by different observers.

In scarcely any of its parts does toxicology belong to this class of subjects—certainly not at all in so far as it deals with mineral poisons. To a great extent it is a fixed science—a science whose boundaries may be widened, whose processes may be rendered more delicate, but whose principles are in great measure settled for ever. Not in the imperfections of the science, but in the habits of the American medical profession and in the methods of our criminal procedures, lies the origin of the evils complained of.

Some of the causes of the present difficulties are readily to be seen. One is the common ignorance of legal or forensic medicine among the members of the profession. In none of our medical colleges is legal medicine taught as a part of the regular course or as an essential branch of study. Consequently, when the student graduates he has only heard a few passing allusions to the subject from professors of other branches. Unfortunately, this is more or less true of many other medical subjects of importance: helped out, however, by his mother wit, and impelled by necessity, the imperfectly-educated graduate after a time becomes very generally a skillful practitioner. During the period of growth his daily needs govern the direction of his studies, which are therefore more or less exclusively confined to the so-called practical branches. Forensic medicine is not one of these, poison cases are comparatively rare, and to be called upon to give a definite opinion upon such matters before a legal tribunal happens not once in the lifetime of most medical men. Consequently, to a great part of the American medical profession legal medicine is a veritable terra incognita.

Moreover, the whole drift of modern medicine is toward a division of labor, and forensic medicine is more widely separated from the ordinary specialties of the science than these are from one another. In a case of delicate eye-surgery who would value the opinion of a man whose attention had been devoted mainly to thoracic diseases? What specialist of the latter character would even offer an opinion? Yet physicians who acknowledge that they have paid no especial attention to toxicology do not hesitate to give the most positive opinions upon the most delicate questions of that science. Men who would, as in honor bound, ask for a consultation in any case of serious sickness outside of their line of private practice, on the witness-stand put forth with the utmost boldness their ignorant crudities, careless or forgetful of the fact that they may be imperiling the life of an innocent human being. On the trial of Mrs. Wharton for the attempted murder of Mr. Van Ness, Dr. Williams asserted that there are peculiar characteristic symptoms or groups of symptoms of tartar emetic poisoning; and both he and Dr. Chew—who with frankness acknowledged that he had not especially studied toxicology—did most positively recognize tartar emetic as the sole possible cause of certain symptoms which were but a little beyond the line of medicinal action, and for which obviously possible natural cause existed. Contrast these bold opinions with the cautious statement of a man who had given a lifetime of study to this particular subject. On the trial of Madeleine Smith, Professor Christison—at that time the first toxicologist of England—stated that if in any case the symptoms and post-mortem appearances corresponded exactly with those caused by arsenic, he should be led to suspect poisoning.

Another source of mischief lies in the fact that the law does not recognize the well-established principles of forensic medicine, and consequently the books in which these principles are laid down by the highest authorities are excluded by the courts, while the vivâ voce evidence of any medical man, however ignorant on such points, is admitted as that of an expert.

It is therefore not to be wondered at that juries give but little consideration to the knowledge or professional standing of expert witnesses. It is, in fact, notorious that the medical autocrat of the village, who has superintended the entrance of the majority of the jurymen into this troublous world, is a more important witness than the most renowned special student of the branch: indeed, the chief value of the real expert often rests on his ability to influence the local physician. At the late Wharton-Van Ness trial the defence desired to show that the work of the chemist employed by the prosecution was unreliable, because the analyses made by him in a previous case had “been condemned by the united voice of the whole scientific world.” The court was not able to see the relevancy of this, and refused to allow the professional ability or standing of an expert to be called in question. The witness thus adjudged competent brought no results into court; had kept no laboratory notes; relied solely on a memory so deficient that although he had been teaching for thirty-five years, he could not tell the shape of a crystal of tartar emetic, the poison in question; and upon the stand made a statement different from one which he had furnished officially to the district attorney of Baltimore fourteen months before.

There are principles of toxicology which ought to have legal force and recognition, and ought to govern expert testimony in the same way that the principles of evidence govern ordinary testimony. Without presuming to enumerate these, I will cite two or three for illustration. Certain substances, the so-called irritant poisons, such as arsenic, tartar emetic and the like, induce their toxic effects by causing irritation and inflammation of the alimentary canal. All authorities agree that poisoning by these substances cannot be proved, or even rendered, very probable, by symptoms alone—that chemical evidence, the discovery of the poison in the food, dejections, or in case of death the body, is absolutely essential for making out a case. Irritation and inflammation of the alimentary canal occur so often and so suddenly from natural causes, which are sometimes apparent, but often hidden, that no especial weight can be attached to them.

In the case of the so-called neurotic poisons, those which act upon the nervous system, the symptoms are so closely simulated by natural disease that even when they agree in the most absolute manner with those usually developed by any such poison they only render poisoning highly probable, not certain. When in any case the symptoms diverge from the typical array, poisoning becomes improbable just in proportion to the amount of divergence.

All toxicological authorities also agree that in the case of the metallic poisons, such as tartar emetic and arsenic, the metal must be brought into court, and that the so-called “color tests” are not to be relied on. When sulphuretted hydrogen is passed through solutions of these metallic substances colored precipitates are thrown down, which at one time were thought to be absolute proof of the existence of the poison in the original solution. But in the celebrated Donnal case, tried at Falmouth, England, in 1817, Dr. Neale saved the accused by showing that a decoction of onions, of which the deceased had eaten a short time before death, yielded similar precipitates to those relied upon by the prosecution as establishing the presence of arsenic in the stomach. In regard to tartar emetic, Dr. Taylor, in his work on medical jurisprudence, says: “Antimony in the metallic state is so easily procured from a small quantity of material that on no account should this be omitted. A reliance on a small quantity of a colored precipitate would be most unsatisfactory as chemical evidence.” In defiance of all the authorities the prosecution, on the trial of Mrs. Wharton for the murder of General Ketchum, rested its proof of poison upon these color tests and their sequences. The defence, however, found that the counterparts of three out of the four so-called characteristic reactions were readily performed with the substances known to have been in the stomach of General Ketchum at the time of his death.

Several cases of poisoning which have been tried recently in this State and Maryland have attracted much attention, and I propose now briefly to outline these, and show that the disgraceful scenes which have taken place were not due to deficiencies of toxicological science, but to the causes already spoken of.

First in time among these causes célèbres was the Schoeppe case, the facts of which may be briefly summed up as follows: Dr. Schoeppe, a young German practicing medicine in Carlisle, Pennsylvania, became engaged to be married to a Miss Stennecke, a maiden lady of sixty years of age. Miss Stennecke was somewhat of an invalid, not often actually sick, but habitually distressed by dyspeptic symptoms, etc. On the morning of the 27th of January, 1869, feeling unwell, she sent for Dr. Schoeppe, who gave her an emetic. In the afternoon, according to the testimony of her maid, she was weak, but apparently not ill. Between 7 and 8 P.M., however, she became much worse, and her servant noticed that she was very drowsy, so that if left alone she would immediately fall asleep whilst sitting in her chair. Shortly after this she was put to bed, and was not seen again until the next morning about six o’clock, when she was found comatose, with contracted pupils, irregular respiration and complete muscular relaxation. Late in the afternoon of the same day she died quietly.

Nothing was said about poisoning until some days afterward, when, a will having been produced in favor of Dr. Schoeppe, an accusation was made against him. The body of Miss Stennecke was exhumed, and underwent a post-mortem examination, which, for culpable carelessness and inexcusable omissions, stands unrivaled. Not a single organ in the whole body was thoroughly examined, and many of the more important parts were not looked at. Death, preceded by the symptoms exhibited in the case of Miss Stennecke, occurs not infrequently from insidious disease of the kidneys, yet these organs were not taken out of the body. The stomach was examined chemically by Professor Aiken of the University of Maryland, who reported that he had found prussic acid, and who testified on the trial that Miss Stennecke had received a fatal dose of that poison. When, however, his evidence was sifted, it was discovered that he had only obtained traces of the poison by the distillation of the stomach with sulphuric acid. As saliva contains ferrocyanide of potassium, out of which sulphuric acid generates prussic acid, the latter substance will always be obtained by the process adopted by Professor Aiken from any stomach which has in it the least particle of saliva. If, then, the professor did really get prussic acid, without doubt he manufactured it.

Dr. Hermann, however, testified that Miss Stennecke, whom he saw on the morning of her death, must have died of a compound poison, because her eye looked like that of a hawk killed by himself some years before with a dose of all the poisons he had in his apothecary’s shop. Dr. Conrad confirmed the assertion of Dr. Hermann, that Miss Stennecke could not have died from a natural cause, and testified that as the liver was healthy, therefore the kidneys must have been so too—a conclusion which could only have been evolved from his inner consciousness.

In vain Professor Wormley protested, declaring that it was impossible Miss Stennecke could have been killed by prussic acid, because that poison always does its work in a few minutes, if at all, whereas Miss Stennecke lived nearly twenty-four hours after the alleged poisoning. What did it matter that Dr. Conrad had shown himself by his post-mortem examination ignorant of the first rudiments of legal medicine, and that Dr. Hermann was a village doctor of the olden type dragged into court from a mediæval contest with the diseases of simple country-folk, while Professor Wormley had devoted his life to toxicology and achieved a world-wide reputation? What did it matter that the written words of all authorities upon such subjects in every land were in absolute accord with Dr. Wormley? Under the ruling—which has been reaffirmed at Annapolis—the settled principles of science were overborne by ignorant conjecture, and to the mockery of justice, to the deep disgrace of our commonwealth, Dr. Schoeppe was condemned to death upon evidence which, from the same bench, was subsequently stigmatized as being insufficient to warrant his commitment for trial.

Three years of close confinement under the shadow of death followed. The governor refused a pardon, and Dr. Schoeppe heard the hammer driving the nails into his scaffold beneath the prison-window. He was measured for his coffin, but at the last moment was reprieved, and listened to the heavy thud as the drop fell and a man whose companion he was to have been on the scaffold was launched into eternity. Finally, moved by the incessant pleadings of Mr. Hepburn, the junior counsel, by the urgings of the public press, led by the Philadelphia Evening Bulletin, and by the protests of numerous scientific bodies, the legislature passed a special act granting Dr. Schoeppe a new trial. On this occasion the judge allowed the weakness of the expert testimony for the prosecution to be demonstrated, and chiefly as a result of this demonstration—of what has been called the “coarse brutality” of showing Dr. Conrad’s ignorance—Dr. Schoeppe was acquitted.

If the principles contended for in this article had been acknowledged, the processes and results in the case of Dr. Schoeppe would have been far different. In the first place, the post mortem would have been entrusted to some one qualified to make it—an expert in legal medicine—and very probably a natural cause for the death of Miss Stennecke would have been found. Such post mortem not having been made, the case, after Professor Aiken’s analysis, would have been dropped, because it was impossible that prussic acid could have caused the death. Had, however, capable experts failed to detect a natural cause of death, a very serious case might have been made out against Dr. Schoeppe, even though the analyst had not found morphia in the stomach. The prosecution might have affirmed that the poison had been absorbed, and therefore was not in the stomach, and, for the support of the charge, relied upon the resemblance of the symptoms to those produced by morphia, and upon the absence of natural cause of death.

A case which has acquired even more celebrity than the last is that of Mrs. Wharton of Baltimore. The chief facts, as developed at the first trial at Annapolis, are as follows: General Ketchum, a man of over middle age and usually in good health, was very much engaged in attending to matters of business at Washington throughout the entire day of the 24th of June, 1871. The weather was very hot, yet he walked about hurriedly and steadily, getting no dinner, and returning in the evening to Mrs. Wharton’s at Baltimore about 9 P.M., where he ate a very hearty meal, consisting partly of raspberries. During the night he was heard to go down stairs several times. The next day he complained of feeling unwell, but took at bed-time a glass of lemonade with brandy, and during the night had some slight vomiting and purging. In the morning he complained of sick stomach and giddiness, and at Mrs. Wharton’s earnest request Dr. Williams was finally sent for, and on arriving at 4 P.M. found him sitting up and vomiting, and prescribed as for a slight attack of cholera morbus. The next morning General Ketchum thought himself so much better that he discharged his physician. He was, however, very drowsy during the day, and the evidence at the trial rendered it probable that he took laudanum on this day upon his own responsibility. In the evening he was found sleeping heavily upon the lounge, and again at Mrs. Wharton’s request Dr. Williams was sent for, but did not think it worth while to come. The next morning Mrs. Wharton again sent for Dr. Williams, as General Ketchum was found still lying upon the lounge in a stupor. He remained in this state until his death, which took place in a convulsion at 3 P.M. He had had during the intervening period repeated convulsions, and about one o’clock had become very uneasy, uttering incoherent cries, but did not recover true consciousness. At the examination of the body, made the following morning, the spinal cord was not looked at: the inner membranes of the brain were found congested, and the brain-substance presented throughout “those dark points of blood which indicate passive congestion.” No other lesions were found, and the stomach was handed for analysis to Professor Aiken, who in due time reported that he had “satisfied himself” of the existence of at least twenty grains of tartar emetic in it.

It is highly probable that this official announcement had much influence upon the minds of Drs. Williams and Chew, with their colleagues, and it is very certain that by it and their representations was created the public belief in Baltimore that General Ketchum had been poisoned. The false analysis remained for months uncontradicted, and backed up as it was by the whole intellectual and moral force of the University of Maryland, it could scarcely happen otherwise than that public opinion should become so set and hardened that no testimony at the trial could affect it, especially as local pride and local prejudice came to its support when experts from other cities questioned the work of the Baltimore physicians.

Mrs. Wharton’s servants were first accused, but after a few days she was arrested, and with her daughter—who has clung throughout to her faith in her mother’s purity and goodness—was thrust into a common felon’s cell, with only the grated bars between her and the lowest of men in every stage of drunkenness and delirium. After nearly two weeks her lawyers obtained her removal to one of the better rooms of the jail, but it was months before anything was said in her favor.

The trial opened on December 4, 1871, at Annapolis, and lasted nearly two months. The circumstantial evidence certainly went no farther than to render it probable that if General Ketchum died of poison it was administered by Mrs. Wharton. The State attempted to prove as a motive that Mrs. Wharton owed the deceased money. They were signally unsuccessful in this, however; so that a very intelligent member of the jury said to the writer since the trial, “Whether Mrs. Wharton did or did not poison General Ketchum, certainly the State completely failed to prove a motive.” The defence admitted that Mrs. Wharton had bought tartar emetic near the time of the alleged poisoning, but proved that she was in the habit of using it externally as a counter-irritant, and that it was purchased in the most open manner, through a third party, not with the secresy that marks the steps of the poisoner.

Thus the whole case centred in a rather remarkable degree upon the expert testimony, and the very point of it all was the chemical analysis. This is not the place to follow out in detail the scientific testimony, but only to point out some peculiarities of it. Almost all the medical witnesses for the prosecution were colleagues of Professor Aiken, none of them men of eminence in toxicological science—surgeons, physiologists, obstetricians, the whole faculty, trying apparently to hide the nakedness of their colleague. Never was strong language more justifiable than that of Mr. Hagner, when he said, “It seemed that the University of Maryland was on trial, and that blood was demanded to support it.”

After all, the testimony of most of these gentlemen amounted only to this: that they did not believe the death of General Ketchum could have occurred from natural causes. On the other hand, the numerous medical witnesses for the defence, unconnected by any bond of common interest, testified that natural causes, were sufficient to account for the death; many of them asserting that the case in all its symptoms and post-mortem appearances tallied precisely with the so-called fulminating form of cerebro-spinal meningitis, which was prevalent in Baltimore at the time of General Ketchum’s death.

The medical witnesses for the defence further called attention to the fact that the symptoms of General Ketchum’s illness were wholly different from those produced by tartar emetic, and some denied that the latter could have caused the sickness. The chemical evidence for the prosecution was triumphantly refuted. It was shown that antimony did not conform in its reactions with at least one of the tests, which Professor Aiken said his precipitates did; that almost all the other reactions could be closely simulated with ordinary organic bodies; that the processes used were those universally condemned by authorities; and that carelessness was everywhere so manifest in their conduction as to entirely vitiate any results. It was also proved that Professor Aiken had simply estimated the amount of tartar emetic in General Ketchum’s stomach by the ocular comparison of the bulk of precipitates, neither of which could have been pure, and in neither of which was the existence of antimony really proved. To weigh a precipitate was a labor not to be thought of when nothing more important than the life of a woman was involved: guessing was all that such a trifling issue demanded!

The most extraordinary event of this most extraordinary trial occurred when the chemists for the defence had completely broken down the testimony of Professor Aiken. With the knowledge, it is said, of at least one of the judges, without the presence of a representative of the defence, or even of a legal officer, the body of General Ketchum was secretly exhumed by the doctors who had shown themselves so eager for the execution of Mrs. Wharton. The viscera, which they removed, were put into the hands not of a chemist of national reputation, but of an individual who had been advanced from the position of hospital steward at Washington to that of professor of chemistry in a small local institute at Baltimore. This professor, when on the witness-stand, was singularly confused as to his weights and measures, and finally shared the ignominy of his predecessor. The defence had several chemists at Annapolis of world-wide reputation and unspotted integrity. If the prosecution really believed that General Ketchum had been poisoned, if they really did expect tartar emetic to be found, why did they not allow the presence of these gentlemen at the analysis, and thereby ensure the condemnation of Mrs. Wharton? The conviction is irresistible that they were afraid of the truth—that they were simply determined to procure the desired verdict at all hazards and by any means. Yet this was the procedure for the completion of which the court suspended the trial for two days, because, as Chief-Justice Miller stated from the bench, “it thought the ends of justice demanded it”! Is any further evidence needed of the strange ideas, of the perversion of truth and justice, which have grown out of the American method of using expert testimony?

Before leaving this trial I desire to quote from advanced sheets of the edition of Dr. Taylor’s great work on medical jurisprudence, now passing through the press. Reviewing the trial in London with that freedom from bias which the isolation of distance produces, he says: “The trial lasted fifty-two days, and an astonishing amount of evidence was brought forward by the defence and prosecution, apparently owing to the high social position of the parties, for there is nothing, medically speaking, which might not have been settled in forty-eight hours. The general died after a short illness, but the symptoms, taken as a whole, bore no resemblance to those observed in poisoning with antimony; and but for the alleged discovery after death of tartar emetic in the stomach, no suspicion of poisoning would probably have arisen... The chemical evidence,” he adds, “does not conflict with the pathological evidence, for it failed to show with clearness and distinctness the presence and proportion of poison said to have been found. The evidence that antimony was really there was not satisfactory, and that twenty grains were in the stomach wholly unproven.”

What would have been the course of this trial if expert testimony were established upon proper principles? Professor Aiken having shown his complete incompetency in the Schoeppe case, the analysis would have been entrusted to some skillful chemist, who by failing to discover poison would have established the innocence of Mrs. Wharton, or by bringing positive results into court have ensured conviction; or, Dr. Aiken having made the analysis, and having broken all the laws of toxicological evidence, his testimony would have been ruled out, and the case dismissed because the bungling of the State’s witness had destroyed the evidences of guilt or of innocence.

In January, 1873, Mrs. Wharton was tried at Annapolis for attempting to poison Eugene Van Ness. The facts of the case are briefly as follows: Mr. Van Ness, whose relations with the Wharton family had been extremely intimate for many years, was a bank-clerk, but during the spring and early summer of 1871, besides attending to his regular duties, was employed in settling a large estate. He habitually rose early, often at 5 A.M., and generally worked until eleven o’clock at night. During this period he suffered from severe nervous headaches, and probably from other symptoms of an overworked nervous system, but on this point the testimony disagreed. His stomach is at all times so sensitive that brandy nauseates him. On the 19th of June, after taking some claret on an empty stomach at Mrs. Wharton’s, he felt very badly, suffering from lightness of the head or giddiness and general wretchedness, with stiffness and numbness in the back of his neck. On the 20th he stopped at Mrs. Wharton’s about 4 P.M., having eaten nothing for seven or eight hours, and took raspberries with cream, and drank claret. This claret, he stated, “had a taste like peach leaves.” Directly after this he had an attack similar to, but much more violent than, that of the day before. Some little time after this, whilst in a condition of profound relaxation, he took some brandy, and at once emptied his stomach by a single spasmodic effort of vomiting, with immediate relief. The weather was extremely hot during the whole time in which the various attacks here narrated took place.

On the 24th of June, Mr. Van Ness rose at 5 A.M., but was forced to return to bed by a severe headache. At 9 A.M., after dressing, he said to his wife that he would not eat at home, but would stop at Mrs. Wharton’s on his way to the office, to get a cup of her “nice black tea.” A piece of toast was all he ate before his return to Mrs. Wharton’s from the banking-house at 4 P.M. Mrs. Wharton then offered him some lager beer, and, partly at his own suggestion, put into it something out of a bottle labeled “Gentian Bitters.” He found the liquid so bitter that he took but a part of it.

Shortly afterward Mr. Van Ness became partially blind, and was “seized with the same feeling of giddiness” as on the day before. After this he had convulsions, with unconsciousness, for which large doses of chloroform and chloral were given. During the attack the patient repeatedly said it was of the same character as the preceding ones, and referred the trouble to the pit of the stomach and to indigestion.

The next morning (Sunday), about an hour after waking, he took some tea and toast, and in ten minutes was seized with nausea, followed by heartburn and retching, which lasted all day. On Monday morning some beef tea—two-thirds of a cupful—was given him, and in less than an hour as much more, which induced nausea with heartburn. In the evening he was roused, and more beef tea offered him, which he refused because the last dose had made him sick, and he was afraid this would have the same effect. He was, however, prevailed on to take it. After this he fell asleep, but in a short time woke up with violent nausea, burning at the pit of the stomach, and finally vomiting. Not until this occurred did he discover anything wrong with the beef tea: as he vomited it he found it had an acrid metallic taste.

The circumstantial evidence in the case did not amount to any more than, or indeed as much as, in the previous trial. It was distinctly admitted that no motive could be found, Mr. Van Ness testifying that the relations between himself and Mrs. Wharton were most friendly; that he held four thousand dollars of her government bonds, for which she had not even a receipt; that she depended upon him for the completion of her pecuniary arrangements for a contemplated trip to Europe; or, in other words, that she had nothing to gain and much to lose by his death, and that there was no conceivable emotional motive, such as hate, revenge or envy.

No attempt was made to prove that Mrs. Wharton had at any time in her possession strychnia, the poison alleged to have been used by her. As on the previous trial, the case centred upon the expert testimony, but there was no direct chemical evidence, neither the food, the matters vomited nor the bodily secretions having been examined. Some sediment found in a tumbler of punch was asserted by Dr. Aiken to consist largely of tartar emetic. This tumbler was not connected with Mrs. Wharton, except by being found at her house in a position where, in the language of one of the State’s witnesses, “hundreds of persons” had access to it. It was carried about in the pocket of a lady inimical to Mrs. Wharton, and into at least one drug-store, before it reached Professor Aiken, whose analysis was as faulty as before. Any tartar emetic present in the sediment might have been procured in a pure form by the simple process of dialysis. The only apparatus necessary for this would have been a glass vessel divided into two compartments by a piece of hog’s bladder stretched across it. These chambers having been partially filled with distilled water, and the sediment of the tumbler put into one of them, the tartar emetic would have left the other ingredients and passed into the second compartment. By taking the water out of this and evaporating it, the poison would have been obtained in a pure crystalline state, and might have been brought into court. But Dr. Aiken thought it sufficient for him to “satisfy himself”: as he stated on the witness-stand, he did not consider it his business whether other people were or were not satisfied. Consequently, the court was only favored with a memorized report of the color tests used by him, exactly as in the previous trial. One of the reactions which he said he obtained antimony does not conform to.

Drs. Williams and Chew unhesitatingly stated on the witness-stand that they recognized poisoning as early as the Saturday of Mr. Van Ness’s illness. Yet they gave no antidote. They employed on Monday and Tuesday a treatment which, although well adapted to a case of natural disease presenting such symptoms, would in a case of poisoning have materially increased the risk to life. They did not save the matters vomited: they did not save the secretions, which would certainly have contained antimony if Mr. Van Ness had been poisoned as alleged. According to their testimony, Mr. Van Ness received six doses of poison on as many different days, four of the doses administered under their eyes; yet they gave no warning to the unfortunate victim or to his friends. If the theory they upheld be correct, that Mrs. Wharton poisoned both General Ketchum and Mr. Van Ness, the extraordinary spectacle was presented of one man lying dead in the house from the effect of poison, of another receiving day after day the fatal dose with the knowledge of the attending physician, yet no antidote given, no warning word put forth, no saving of the evidences of guilt! It would seem as though silence at a trial would best become gentlemen with such a record, yet they were the only experts who asserted that strychnia was the sole possible cause for the attack of the 24th of June, and tartar emetic of the subsequent attacks.

The experts for the defence asserted that the convulsion of Saturday could not have been caused by strychnia or other known poison; that although the symptoms of the later attacks resembled those of tartar emetic poisoning, they were not identical with those usually produced by that drug; and that it was exceedingly improbable that these attacks were due to the poison named, because obvious natural causes for them existed.

The impropriety and total insufficiency of our methods of criminal prosecutions were very strongly shown by this trial. One member of the jury could barely write his name, and not more than one or two of them were in the lowest sense of the term educated; no record of the testimony was kept by the court, and none, except in the very beginning, by the jury, who must therefore have been guided chiefly by impressions, lawyers’ speeches or newspaper records; the feeling amongst the populace, with whom the jurymen freely mingled, was so bitter that one of the experts was barred out of his lodgings at ten o’clock at night, openly because he was for the defence of Mrs. Wharton; the newspaper which circulated most largely in the place misrepresented the testimony, and devoted its columns to scurrilous attacks upon the integrity and professional ability of the medical witnesses for the defence. Yet under these influences, mazed and confused by the subtleties and partial statements of the lawyers, these twelve honest but ignorant men were called upon to decide between physicians offering precisely opposite opinions. It is well when this so-called administration of justice ends as a monstrous farce and not as a tragedy.

The conduct of the Wharton-Van Ness trial would have been far different if the expert testimony had been what it ought to have been. If the excretions of Mr. Van Ness had been put in the hands of a properly-qualified chemist, by finding the metal antimony or by proving its absence he would at once have settled the case. As it is, there is no proper evidence of the guilt of Mrs. Wharton. The probabilities are in favor of her innocence, because the symptoms were certainly widely divergent from those induced by poison, if not, as I believe, absolutely incompatible with poisoning. The medical gentlemen who attended Mr. Van Ness, by destroying all the evidence, have made a just conviction and an absolute proving of innocence equally impossible.

If it were necessary, further illustrations of the deficiencies of our criminal processes could be detailed. Some little time since, upon the chemical evidence of Professor Aiken, a poor colored woman was hung in Anne Arundel county, Maryland. She died protesting her innocence, and the general impression appears to be now that she did not commit the crime. A prominent member of the Maryland Bar told me recently of a case tried in that State, in which the accused, as he stated, certainly did kill the deceased with arsenic, yet in which, by showing the insufficiency of Professor Aiken’s analysis of the stomach, he obtained the acquittal of the prisoner.

It cannot be stated too strongly that the trouble is not in the science of toxicology, nor in the real students of it. So far as mineral poisons are concerned, any qualified expert will determine the question of poisoning with the unwavering step of a mathematical demonstration.

The legal recognition of the true character and position of the expert, and of certain principles of medical jurisprudence, would probably improve the present status, but it is doubtful whether some other method of reform may not be more available. Professor Henry Hartshorne, at the last meeting of the American Medical Association, suggested that the court should appoint in poisoning cases a commission to collect the scientific testimony and make report on the same. This seems at first sight practicable, but suppose the court had appointed, as is not at all improbable they would have done, Professors Aiken and Chew and Dr. Williams as the commission in Mrs. Wharton’s case? The result would certainly have been an unjust conviction.

In Spain and some other countries of Europe the custom is to refer the case to the local medical society. If the opinion afterward given is unanimous, the court is bound by it; if any member object to the opinion, the case is referred to the medical society of the province; if the disagreement continue, the matter is brought before the chief society of the capital. Evidently, this plan would not work well here. In Prussia it was formerly, and may still be, the custom for an expert holding a fixed appointment under the government to investigate the case, and to send his report to the Royal Medical College of Prussia. A standing committee of this body, after investigating the matter, sent the original report, with their comments, to the ministry, by whom it was referred to a permanent commission of experts. The report of the latter body, with all the other papers, was finally sent to the criminal court. This method seems complicated, but it resulted in giving to Prussia the best corps of experts the world has ever seen, as well as the most eminent individual medical jurists.

It is not, however, the object of the present paper to urge any especial method of reform, but to call attention to the need of it, and to show that the present evils do not grow out of the imperfections of medical jurisprudence, but out of the methods of our criminal procedures. Certainly, the matter needs investigation, and it is hardly possible but that some practicable means of relief could be devised by the deliberations of a mixed commission of lawyers and medical jurists of eminence.

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  1. […] There is scarcely any position of more responsibility than that of the medical expert in cases of alleged poisoning. Often he stands with practically absolute power between society and the accused—the former looking to him for the proof of the crime and for the protection which discovery brings; the latter relying upon him for the vindication of his innocence. How profound and complete, then, should be his knowledge! how thorough his skill! how pure and spotless his integrity! how unimpeachable his results! Yet recently the humiliating spectacle has been repeatedly presented of expert swearing against expert, until the question at issue was apparently degraded into one of personal feeling or of professional reputation. So far has this gone that both judicial and public opinion seems to be demanding the abolition of expert testimony. The medical expert must, however, remain an essential feature in our criminal procedures, partaking as he does of the functions of the lawyer, inasmuch as he has, to some extent, the right to argue before the jury, partaking also of the judicial character in that it is his duty to express an opinion upon evidence, but differing from both judge and advocate in that as a witness he testifies to facts. Were the attempt made to do away with his functions, there would be an end to just convictions in the class of cases spoken of, because no one would be qualified to say whether any given death had been produced by poison or by a natural cause. Read full article […]

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