MEDICAL EXPERT EVIDENCE.

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.

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.

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.

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.

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."

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?

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.

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.

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.

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.

H.C. WOOD, JR., M.D.