While on his Post Mortem investigation examining the flawed death investigation system in the U.S., ProPublica reporter A.C. Thompson soon discovered that child cases were more often mishandled than others. Many coroners and medical examiners lack a firm understanding of children’s anatomy and several do not even have the most basic medical certifications. All this coupled with the raw emotions that come with handling child cases can lead to wrongful convictions, as ProPublica’s A.C. Thompson details in this week’s podcast.
When asked if the U.S. should follow measures taken in Canada to prevent wrongful convictions, Thompson responded, “To be frank with you, in the U.S., nobody cares about this stuff. I think that, honestly, there's a different culture between the U.S. and Canada. In Canada, when there's a problem that crops up repeatedly in the criminal justice system, they often have province wide judicial reviews where they have a big inquiry and they look and say, ‘Hey, how can we not have this happen again?...The U.S. doesn't have that culture of introspection when it comes to the criminal justice system.”
Read the full transcript below as well as Thompson’s related story, The Hardest Cases: When Children Die, Justice Can Be Elusive. You can also listen to previous ProPublica Podcasts on iTunes.
Mike Webb: Hi, I'm Mike Webb, and thanks for listening to the ProPublica podcast. While it's often been assumed by police that the last adult present with the child is the most likely person to have harmed the child, reporters from ProPublica, NPR, and Frontline show why that is not a safe assumption. In fact, their investigation reveals that medical examiners and coroners have repeatedly mishandled cases of infant and child deaths, helping to put innocent people behind bars. The multi part investigation was published by ProPublica on Tuesday, June 28th. Joining us in the Storage Closet Studio is one of the reporters, A.C. Thompson. Thompson is a multi award winning journalist whose work has resulted in convictions of New Orleans police involved in the murder and cover up of the death of Henry Glover, and his work with the Chauncey Bailey Project recently resulted in the conviction of the man who shot the late newspaper editor. Welcome to the podcast, A.C.
A.C. Thompson: Thanks for inviting me into the closet, Mike.
Mike: [laughs] All right. Well why don't we start by looking at one case in particular that you focused on, and that's the story of Ernie Lopez. Tell us what happened with him.
A.C.: So Ernie Lopez is a guy from Amarillo, Texas. In the year 2000, he was babysitting a small child. His wife regularly babysat for a mom -- babysat her three kids -- and he was babysitting those children that day as his wife ran an errand. The girl's name was Isis Vas and she was six months old. What Lopez says happened is basically, she collapsed. She went into cardiac arrest and just became incredibly, deathly ill.
Mike: And he had also noticed that she had some bites on her face.
A.C.: Exactly. What he says is that over a span of about a week before she crashed and went into cardiac arrest, he noticed all kinds of problems. So he said, "Look, she had these bruises or bumps on her face, they looked like bug bites or something. She wasn't eating. She was feverish. She had black stools. She was really lethargic." He noticed all of these things, and his wife did, as well, and corroborated that before the girl crashed.
She crashed, she was rushed to the hospital, and she died a day later. What the hospitals doctors and nurses suspected was that she had been sexually assaulted and murdered. When they took the body for an autopsy, that was confirmed by the forensic pathologist who did the autopsy.
Mike: OK. Why did they suspect sexual assault?
A.C.: Because the girl was bleeding. She was bleeding on her brain, she was bleeding from her vagina, she was bleeding all over. They saw this and said, "Oh, this looks like sexual assault does." And she had bruises. She had bruises on multiple parts of her body.
Mike: So what made you doubt that Lopez had caused these things and was responsible for her death?
A.C.: All right. So if I was telling this like great, narrative tale, I would build the whole case against Lopez, because it looks strong. It looks very convincing. And when you get those symptoms and a man has been caring for a baby - he's the person alone with the child - that's what you would automatically think. It's understandable to think that, and it's quite predictable.
However, if you go a little deeper, the evidence against Ernie Lopez starts to look sketchier, surprisingly. And this is why, is that Ernie Lopez went to prison, he was sentenced to 60 years in prison. He was sentenced to prison for sexually assaulting a small child and he still has capital murder charges pending against him which can be instated at any time. And he was sent away.
When he was sent away, he got a pro bono lawyer, a woman named Heather Kirkwood, and she reached out to a bunch of doctors around the country and around the world and said, "Hey, will you look at this child's medical files? Will you look at everything that's here and tell me what you think happened?" They came back to her and said, "Oh, there's something that's very strange about this child's medical labs, about her lab reports, that hasn't really been noted, and you should be aware of it."
Mike: And what was it that they saw?
A.C.: What they said was this child's blood would not clot. Her blood would not clot. It was so messed up that basically she was going to bleed and bruise from almost anything. The theory that these doctors were working on is that, if you look at her labs that this problem had been developing for days. That it couldn't just erupt suddenly in response to a trauma, but that actually this bleeding and this bruising was a product of a disorder called DIC, and that it was the product of a blood clotting disorder that had caused her to bruise. When I started calling the doctors who had said this, I was very skeptical, I was like, "Really? Because it doesn't look like that to me.”
Mike: It just sounded...
A.C.: I was really skeptical and I spoke to one of them, Dr. Michael Laposata, and I said, "All right, you are telling me that a child can get blood on her brain, she can bleed from between her legs, she can manifest these bruises from this blood disorder? That is what you're telling me?"
And he said, "You don't get it. You don't understand this stuff." He said, "I've been doing this for 20 years. I've had patients come into my office and they're bleeding from their eyeballs, they're bleeding from their ears, they're bleeding from their vaginas, they're bleeding from every orifice." He said, "It definitely can happen, and there's a lot of different conditions that can lead to this DIC."
Mike: So what did the attorney do?
A.C.: The attorney filed a habeas corpus petition, an appealed to get Lopez out of prison in Texas courts, and she rounded up a lot of doctors to look at this and testify as part of the habeas corpus process. She did that in 2009. The court granted her an evidentiary hearing, which is basically like a mini trial. It was a way to talk about the new evidence that was being brought up in the Lopez case.
The evidentiary hearing was actually four days longer than his original trial, it was nine days long. At the end of that, a judge took all this evidence under consideration and a year later, because justice moves slowly, always, he said, "Hey, I'm not going to say this guy is innocent, I don't think he's proved his claim of innocence, but I am going to say that it's entirely possible that a jury would have come back with a totally different verdict if they'd heard this medical evidence the first time."
And the thing to know is that the standard for a judge to say, "This man's actually innocent," is that no juror possibly could believe otherwise, and that's an incredibly high standard. Almost nobody gets granted that standard. You know, like, "Hey, you are innocent." But in Texas, it's also not that common that a judge will say, "Hey, this guy got ineffective counsel at his first trial. We need to explore these new issues," and, essentially, moved to overturn the conviction.
Mike: So it sounds like it's a bunch of factors are at play, but what I'm kind of wondering is, it sounds like Joni McClain was the forensic pathologist and she was the one that insisted on his guilt. Is that correct?
A.C.: She's one of several. Obviously, when somebody gets charged with murder, which he has been, and when there's a big criminal prosecution like this, the medical examiner is going to play a key role to it. Anytime somebody dies and there's a criminal prosecution, they're going to play a big role.
If she had come back and looked at all the lab tests, and looked at all of the medical records and said, "Hey, you know, it really looks like abuse, but I can't be sure," then we would probably be in a very, very different position, and it's entirely possible that he wouldn't have been prosecuted.
Mike: I don't want to blame Dr. McClain, but I do wonder, had she had better training, do you think she would have come back with a different conclusion?
A.C.: You know, I don't know that training is the issue. I think that there's an increasing awareness among forensic pathologists that, "Hey, we need to be very, very careful in child death cases," because they're complicated. Shooting cases are simple, there's a bullet. The question then becomes, "Whose gun did it come from?" A stabbing is simple, exsanguination. You know, there's a stab wound. You can tell what that is.
Child death cases are very complicated because, frankly, it doesn't take that much to kill small children and a little bit of disease, a little bit of trauma, can do it. I think that she might have come to a different conclusion if she had consulted with other specialists and talked to them about what these lab reports meant. Because when she testified in court, she was asked during the habeas evidentiary hearing, "Hey, well what do these lab reports mean?" And she said, in multiple occasions, "That's out of my area of expertise. I don't know what those mean. You need to speak to someone who treats living patients, because we don't run blood tests on dead people."
Mike: You wrote that Ontario, Canada went through a similar situation. What steps did they take to prevent that kind of wrongful determination?
A.C.: What they said is, "Look. You should be board certified forensic pathologist." That means you should have an extra year of training and you should be able to pass the tests that show that you know how people die suddenly. You should consult with other doctors on these difficult cases, and confer with them.
Your work should be peer reviewed, your autopsy should be peer reviewed by other forensic pathologists to make sure you're not overlooking something. And that you should think of yourself an independent scientist, as someone who wants to find the truth, no matter how nebulous and murky it is, rather than somebody who works for law enforcement.
Mike: OK. Are there any plans for the U.S. to take similar steps?
A.C.: To be frank with you, in the U.S., nobody cares about this stuff.
Mike: Why? Why do you say that?
A.C.: I think that, honestly, there's a different culture between the U.S. and Canada. In Canada, when there's a problem that crops up repeatedly in the criminal justice system, they often have province wide judicial reviews where they have a big inquiry and they look and say, "Hey, how can we not have this happen again?" or, "What's going on here?"
The U.S. doesn't have that culture of introspection when it comes to the criminal justice system. So Mississippi, for example, we've got at least three cases there that are connected to one medical examiner who apparently made questionable diagnoses that led to two people being wrongly incarcerated and one person being wrongly prosecuted for killing children.
And you haven't seen Mississippi go back through those cases and say, "Huh. What could we do better? What happened? How'd this go wrong?" They've just basically denied that it happened.
Mike: But that needs to happen, doesn't it?
A.C.: I think that you would be much better served to go back and look when the criminal justice system makes mistakes than to pretend that it didn't happen.
Mike: Who has oversight of forensic pathologists, and what can we do?
A.C.: Yeah, so nobody does. That's the short answer. The trip is, with forensic pathologists, and they work in medical examiner and coroner offices around the country, is that there is no national body that oversees them. There's no national standards, there's no rules on a national level that govern them.
Mike: So it's up to the states to sort of implement...
A.C.: And a lot of the states have very few standards and rules themselves. So in a lot of places, the people who are doing autopsies are not trained forensic pathologists or may not be pathologists at all. I mean, here's the thing. The U.S. could easily look at what Canada has done and go back and look and see if they have had these problems.
Mike: So if you were going to advise a state, what would you recommend?
A.C.: If I was going to advise a state, I would look at a state like Texas, where in Houston, there have been multiple cases where the former medical examiner called things homicides, called cases homicides, that have turned out not to be. I would say, you should probably go back and look at all of that person's work.
And those cases were changed by another medical examiner, another doctor working for the county, who came in and said, "Oops, not good." I would say, "Look, go back. Go back and look at this." But I would also say, look, at a federal level and this has been recommended by the National Academy of Sciences we know what the best practices in this field are, and we know what the problems are when you get it wrong.
It's not that hard to create standard national standards. It just isn't. But it requires a will, and right now there isn't a lot of will. The attention is on other things. But there's a whole blueprint laid out by the National Academy of Sciences on how to improve this field, and how to improve other forensic fields.
Mike: All right. A.C. Thompson, thank you very much for joining us.
A.C.: Thank you.
Mike: That was A.C. Thompson. The other journalists involved in the investigation are Chisun Lee, Joe Shapiro, Sandra Bartlett and Catherine Upin. You can read the full story and see all of the associated content, such as the case files for people who were wrongfully convicted, at ProPublica.org/PostMortem, and you can catch the related Frontline episode and NPR segments on their individual websites by searching on the term "Child Cases." And now for our Officials Say the Darndest Things Tumblr Quote of the Week. "Obama hasn't been too bad to banks. It could've been worse." Who said it? We don't know, but it was a top executive at one of the nation's largest banks, speaking anonymously to a New York Times reporter about the relationship President Obama has with Wall Street. OK. Thanks to Minhee Cho for producing, thanks to you for listening. For ProPublica, I'm Mike Webb. We'll talk to you next time.
Transcription by CastingWords