“Do you want this jury to understand that at that time in the exercise of your solemn professional duty you used less than your best skill and competence?”
“Well, I reached an incorrect conclusion and that speaks for itself.”
“In other words, you didn’t do your best? Is that right?”
“I did my best.”
“You took into consideration all of the facts and circumstances?”
“Certainly.”
“Then what did you mean by stating that you didn’t take into consideration the redness of the patient’s skin?”
“Well, at the time I didn’t consider that had anything to do with the cause of death.”
“You noticed it?”
“Yes, I noticed it.”
“You considered it in connection with the other facts in the case for the purpose of determining the cause of death?”
“Well, I considered it.”
“And decided that it indicated a death by coronary thrombosis?”
“Definitely not. It was not an indication of death by coronary thrombosis, but was an indication of death by cyanide of potassium or carbon monoxide poisoning. That is one of the indications.”
“You noticed it at that time?”
“Yes.”
“And you considered it in connection with determining the cause of death?”
“Well, in a way.”
“And at the time that did not indicate to you the possibility of death by cyanide of potassium?”
“At the time, no.”
“Why?”
“Because at that time I hadn’t been advised of certain factors in the situation which later changed the entire aspect of the case.”
“You changed your opinion at a later date after you had been advised of those factors?”
“And after I had assisted in performing a post-mortem on the body after it had been exhumed.”
“And at that time you took into consideration the significance of the redness of the skin?”
“I did.”
“And that, as you have stated, was as a result of a history of the case which had subsequently been related to you and which appeared to be more significant?”
“In a way, yes.”
“So that you changed your opinion as to the cause of death because of what someone had told you?”
“No, sir. I did not.”
“You changed your opinion as to the significance of the redness of the skin because of what someone had told you.”
The doctor hesitated, looked helplessly at the district attorney. “I said that in view of the history of the case.”
“When you say the history of the case you are referring to what someone has told you?”
“Yes.”
“So you changed your opinion as the result of hearsay evidence?”
“I didn’t say that.”
“You changed your opinion as to the significance of the redness of the skin because of hearsay evidence.”
“Well, yes. If you want to put it that way.”
“Thank you,” Mason said. “That’s all, Doctor.”
“Just a minute,” Hamilton Burger said. “I have some questions on redirect which perhaps I should have asked. I rather expected they would have been covered on cross-examination. Doctor, why do you now say that Mosher Higley met his death as the result of cyanide of potassium?”
“Just a moment,” Mason said. “That question is objected to. It is not proper redirect examination. It should have been asked on direct examination. It is quite clear what happened here. The district attorney failed to bring out a part of his case because he felt that while I was cross-examining the witness the facts could be brought out with more telling effect by the witness. Having taken that gamble he is now bound by it.”
Judge Ashurst stroked his chin, seemed for the moment undecided,
“If I may explain, Your Honor,” Hamilton Burger said, “I—”
Judge Ashurst shook his head. “I think the situation speaks for itself, Mr. Prosecutor,” he said. “I think there is no question that counsel for the defense is correct insofar as his statement of the facts and of the rule of law is concerned. However, the function of this Court is to administer justice and not to act as a referee in a legal sparring match between counsel. It is, of course, a general practice for attorneys to lay traps for opposing counsel so that certain facts which may be of considerable significance can be brought out on cross-examination to the confusion of the cross-examiner. In this case there’s no question in the mind of the Court that the prosecution attempted to follow these tactics and the counsel for the defense was shrewd enough to avoid the trap.
“However, the Court is mindful of the fact that the examination of witnesses is entirely in the discretion of the Court, and as I stated before this is not a legal sparring match. This is an attempt to get at certain facts. This fact is a very significant fact, a very important fact. The Court is going to permit the witness to answer the question, but the Court warns you, Mr. Prosecutor, that in this case the technical rights of the defendant will be carefully protected. As counsel has so aptly stated, these so-called technicalities are the safeguards erected by the law of the land to protect the accused. The Court will overrule the objection. And the Court doesn’t want any more legal gymnastics in this courtroom. Now go ahead and answer the question, Doctor.”
Dr. Granby cleared his throat importantly and said, “I had originally concluded that the decedent probably died as the result of coronary thrombosis. My post-mortem examination showed there was no coronary thrombosis. Furthermore, my post-mortem failed to disclose any cause of death. The body had been embalmed. It therefore seemed a logical medical assumption that there had been a cause of death which must have been destroyed by the injection of embalming fluid. Cyanide of potassium is a deadly poison, all traces of which are destroyed by the injection of embalming fluid. The redness of the blood is a further indication of death by cyanide of potassium. Therefore, taking all of these factors into consideration, it is now my considered medical opinion that the decedent met his death because of poisoning by cyanide of potassium.”
“That’s all,” Hamilton Burger said. “You may cross-examine.”
“In other words,” Mason said, “the only reason that you now say the decedent died from poisoning by cyanide of potassium is that you can’t find any other cause of death?”
“In a way, that is true.”
“Are you familiar with the fact, Doctor, that in a certain percentage of cases, the best pathologists in the country are unable to find a cause of death?”
“Yes, but I don’t think the percentage is high.”
“What is the percentage?”
“I don’t think that is relevant to this case.”
“I do, Doctor. Please tell me what the percentage is.”
“It is a variable.”
“You mean it fluctuates between certain percentages?”
“Yes.”
“What are the percentage limits of fluctuation?”
“They depend on the skill of the pathologist.”
“I am assuming that the autopsy surgeon has the highest skill. Isn’t there a certain percentage of cases where medical science is unable to find any cause of death?”
“Well... yes, a certain percentage.”
“What is it?”
Dr. Granby shifted his position. “I don’t know.”
“Then if you don’t know it might be as high as ten per cent.”
“I don’t think it is. I am quite certain it is not.”
“But you don’t know?”
“No, I don’t know.”
“You do know that in a significant number of cases pathologists are unable to find a cause of death at the time of post-mortem examination?”