[The following testimony was given beginning on August 11, 2009]
DR. MICHAEL BADEN
DIRECT EXAMINATION BY MICHAEL BURT
[Vol. 8: BMHR 1880-1996]
I received a medical degree from New York University School of Medicine
in 1959 after receiving a bachelor’s degree in science from the City College of
New York in 1951. I am a physician and a forensic pathologist who has practiced
as a forensic pathologist for 44 years.
I interned and then did a residency at Bellevue Hospital Medical Center in
New York, and began working as a part-time assistant Medical Examiner for the
City of New York. I completed my training in 1965 and became a full-time
Medical Examiner. I stayed on with the Office of the Medical Examiner in New
York, and held various positions, including that of the Chief Medical Examiner.
In 1985 I became the Chief Forensic Pathologist for the New York State
Police, a position that allows me a private practice as well. I am testifying here as
a private forensic pathologist. As the Chief Pathologist for the State Police, I have
statewide jurisdiction, and cover the 62 counties of New York State. (BMHR
1881-1882).
My CV lists my publications and presentations.
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To be Board certified means that you have received and demonstrated the
pertinent training, and that you have passed the examinations. There is a better
chance that physicians are good if they have passed the relevant boards. (BMHR
1884).
There are sub-specialties in pathology that include clinical and anatomical
pathology. Forensic pathology is another sub speciality. A forensic pathologist has
training beyond a hospital pathologist. I passed the boards in anatomical, clinical,
and forensic pathology. (BMHR 1884-1885).
I have taught at the New York University School of Medicine, the Albert
Einstein School of Medicine, the Albany Medical Center, the John Jay School of
Criminal Justice and the New York Law School.
I have consulted with a number of government offices, including Attorney
General and District Attorney offices, homicide investigators, the FBI, the Dept. of
Justice, DEA, ATF, as well as with defense counsel. (BMHR 1887-88).
I have consulted with both plaintiff and defense counsel, prosecutors and the
defense.
I was the Chief Forensic Pathologist for the U.S. Select Committee on
Assassinations back in the 1970's, which investigated the deaths of President John
F. Kennedy and Dr. Martin Luther King. (BMHR 1888).
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I have also been called upon to provide consultation outside of the U.S. in a
number of countries. I have qualified as a forensic pathologist over a thousand
times.
The reason that you need independent pathologists in cases is because law
enforcement related forensic pathologists can make mistakes. A recent report from
the National Academy of Sciences pointed out that crime laboratories and Medical
Examiners have a prosecution bias. When I work for the State Police, I welcome
the presence of an independent pathologist. (BMHR 1890-1892).
When I was a young Medical Examiner, I was encouraged by the head of my
office to consult with the defense in addition to working for the Office of the
Medical Examiner to get a better perspective on why a Medical Examiner should
be independent.
I have been involved in a number of cases in which persons have been found
in water. (BMHR 1892-1893).
My involvement with this case dates back to 1998 when I was a presenter at
a meeting of the American Academy of Forensic Sciences. I was approached by
somebody who showed me some photographs. My recollection is that I looked at
photographs and it looked like necrophagia, or the eating of tissue from dead
bodies by animals. (BMHR 1894-1895). I was subsequently sent a letter by
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attorney Dan Stidham. Exhibit 52; (BMHR 1895). Mr. Stidham might have sent
me some additional materials at a later time. I then received another letter from
Mr. Stidham dated May 25, 1998 which enclosed affidavits from a dentist, and an
entomologist. I was asked if I could testify at a hearing that was two weeks away,
and was provided with no further information. (BMHR 1896-1867). I recall that
one of the declarations was from a “bug guy, Dr. Neil Haskell, a well-known
entomologist.” Dr. Haskell had opined that various animals had caused marks on
Steve Branch’s face, and the suggestion was that these might be some kind of
arthropods or freshwater fish. (BMHR 1898-1900).
I did not recall any further contacts in the case until 2003 or thereafter. At
that time, Dr. Spitz had shown me some photographs, and I recall that I felt they
showed animal necrophagia. After the meeting with Dr. Spitz, I was formally
retained by counsel for Damien Echols. (BMHR 1899-1901).
By then, I had received some material about the case. I understood that
some of the evidence in the case involved the notion of cults, and the cutting off of
body parts. I attended a meeting in Little Rock that was also attended by Dr.
Perretti. I recall as well that Dr. Vincent Di Maio, the recently retired Chief
Medical Examiner in San Antonio, Texas, who has written a number of good
books on forensic pathology, as has Dr. Spitz, had separately and independently
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come to the same conclusion about necrophagia. (BMHR 1900-1901).
Both Dr. Di Maio and Dr. Spitz are renowned in the field of forensic
pathology.
Attorney Riordan had sent me the autopsy reports; many photographs, and
Dr. Peretti’s testimony. I was of the view, having reviewed the material, that the
testimony about the cutting off of the penis and scrotum by a human being was
“just wrong.” (BMHR 1901). I explained that it sounded as though the finding by
the pathologist in this case had been seized upon to go along with the theory that
the case involved satanic cult activity. (BMHR 1901-1903). My opinion was that
while there were a number of injuries to the victims, some of the injuries had a lot
of blood around them and some of them had none. That indicated to me that some
of the injuries were post-mortem. (BMHR 1902). There was also an indication that
there were skull fractures and damage to the brain that was likely to have rendered
all three boys unconscious. (BMHR 1903-1904).
In my opinion, the cause of death would have been multiple injuries and
drowning. My view was that the three boys were most probably not conscious at
the time they were immersed in the water. In looking at this case, I was concerned
that a “proper forensic pathologist” should know the difference between postmortem
and pre-mortem injuries. (BMHR 1904). It was in part for that reason, as
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well as because of my views about the animal caused injuries, that I suggested to
defense counsel Riordan a meeting with Drs. Peretti and Sturner in a nonadversarial
situation. (BMHR 1904).
A meeting was arranged and a number of experts were present with the
exception of Dr. Spitz, who had a prior commitment elsewhere. A series of letters
was written, including one by me to Dr. Peretti indicating that the meeting would
take place on May 17, 2007. The prosecutors were present. So was Dr. Di Maio
who had known Dr. Peretti. I had contacted Dr. Sturner, with whom I had
previously worked in New York. Dr. Sturner was then retired, and according to
my recollection he did not remember that much about the case and would not be at
the May, 2007 meeting. (BMHR 11895-1897). Dr. Souviron, a forensic dentist
was there, and so was Dr. Robert Wood, another forensic dentist, from Canada.
Dr. Di Maio and I talked to Dr. Peretti at the beginning of the meeting, and thanked
him for being accommodating. My recollection was that Dr. Peretti’s response
having heard the opinions about animal predation was that he thought he had
previously seen examples of animal predation but that “... he was or was going to
do a study about the last 10 years in all drowning cases in Arkansas...” to see what
kinds of injuries would have been found in those cases. (BMHR 1909-1910).
Dr. Peretti had agreed to get back to the other doctors about a couple of
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things, but never did. He hadn’t told any of us at the meeting his opinions. He had
stated that he would consider what we had discussed. (BMHR 1911-1912). I
know that some letters were written after the meeting. I had thought that Dr.
Perretti was eventually going to provide the information about his experience with
post-mortem injuries to bodies by animal activity and other activities. The
prosecutor did write a letter.
Eventually, Dr. Peretti provided a written response in the form of a letter on
the Arkansas State Crime Lab letterhead dated May 30, 2008 in which he
referenced a finding by a local dentist who had indicated that there had been no
human bite marks on the bodies which I agreed with. (BMHR 1912-13). The
letter also indicated that microscopic samples demonstrated the presence of
hemorrhage meaning that these were ante-mortem injuries and not post-mortem.
In my opinion this was “just plain wrong.” (BMHR 1913). The only tissue samples
taken had been from under the tie marks around the wrists and ankles, and around
the testes of one of the boys. Otherwise, there were no sections or slides made
from any of the other tissues, including those where there may have been animal
predation. (BMHR 11913-1914).
I was concerned that Dr. Peretti’s letter stated things that were not true, in
that not only had there been no microscopic slides taken that would have refuted
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the theory of animal predation, but there were no samples of the penetrating
wounds either. (BMHR 1914-1915).
I also disagree with the statement in the Peretti letter that some of the
wounds had incised edges indicative of having been caused by a sharp instrument.
I am of the view that all of the wounds to the boys’ heads had been caused by
“blunt force trauma.” There were tears in the skin and not sharp cuts. (BMHR
1915-1916).
In some of the photographs, you can see areas where the skin has been
rubbed away from the left side, plus penetrating wounds that are very shallow that
are consistent with animal activity, not wounds caused by a knife. (BMHR 1916-
1917). Steve Branch had wounds to his face that showed small punctures and
abrasions. A number of the wounds show no bleeding into the tissues which would
be post-mortem predation or necrophagia. I have seen injuries like this in my own
practice. (BMHR 1917-1918).
I cannot be specific about what animal might have caused the injury, but my
view is that the injuries I saw were consistent with animal activity. I did review the
affidavits of Shawn Ryan Clark and Heather Hollis, who explained that they had
been swimming in the ditch and had seen alligator snapping turtles in it. Exhibit
32; (BMHR 1920-1921).
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I would not purport to identify specific animals that might have inflicted the
injuries. I would defer to forensic veterinarians. They could have been turtle
injuries, there were scrape marks that might look like turtle claw marks, and there
might have been dogs or other animals. Some of the injuries on the bodies are
triangular and consistent with my experience with the sorts of triangular injuries
caused by snapping turtles. (BMHR 1921-1923).
In my view, the knife that was depicted as the murder weapon, which is
shown in Exhibit 48N did not inflict any of the injuries that I observed. Also, the
use of a grapefruit in closing argument to mimic the skin of a body was “awful”.
(BMHR 1924). The most common way to mimic human skin in a replication is the
use of pig skin. (BMHR 1925-1926).
Reviewing the injuries to Michael Moore, it appears to me that the injuries
to the area around the ear, and elsewhere that did not hemorrhage or bleed were
post mortem. In reviewing the actual photographs used at trial, I can see certain
punctate or puncture wounds. These wounds were not the subject of microscopic
slides. The trial photos show punctate wounds around the lips and nose. There is
no bleeding from them. They are postmortem. (BMHR 1933). Having heard Dr.
Perretti’s opinion testimony about injuries consistent with sexual assault, it is my
opinion that there is absolutely no evidence of such injuries here. He is simply
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speculating. I have never run across the kind of opinions Dr. Perretti gave in this
trial in the literature, or in my experience. (BMHR 1935-1936). I would “one
hundred per-cent disagree with making the diagnosis of forced fellatio on this
evidence.” (BMHR 1936). I opine that there is no evidence of sexual assault in the
anal area, or around the ears. I explain that Dr. Peretti’s account of ear injuries in
forced fellatio of children was incorrect. I state I have not seen it in my experience
or in the literature. (BMHR 1935-36). There were a lot of pathologists who could
have evaluated these opinions at the time of these trials
I disagree with the testimony and opinions about the significance of injuries
to the ears, as well as that opinion testimony that there are any defensive wounds
on Michael Moore near his hands, or elsewhere. (BMHR 1937-1938).
Dr. DiMaio agreed with me that there was no evidence of sexual assault on
the basis of the findings of anal dilation. We had thought that Dr. Peretti, who had
heard our views on the subject, was going to provide us his further thoughts on the
subject, but he never did. (BMHR 1939-1940).
The photographs of Steve Branch shown to Dr. Peretti at trial do not indicate
to me any cutting wounds made with a knife. (BMHR 1940-41). My opinion is
that these are injuries inflicted by postmortem animal activity. In considering the
testimony from the Misskelley trial at RT 841, I agree that there are gouging
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wounds here with the skin pulled away together with some irregular puncture
wounds, but these are not bleeding injuries, and unless they were caused by
someone sitting there with a weapon and ‘constantly puncturing’, these irregular
wounds are some kind of animal activity. (BMHR 1942-43). The same observation
can be made about the scrape wounds on his ear, and in that area of the body. The
redness on Mr. Branch’s cheek as seen on the photos is not caused by hemorrhage
or bleeding. Something has rubbed off the skin, and it has dried and turned
brownish. (BMHR 1943-44).
There are no injuries to the ears, or to the anus, of Mr. Moore or Mr. Branch
that are consistent with forced sexual activity of the type described by Dr. Peretti.
(BMHR 1945). And these are postmortem injuries. (BMHR 1946).
The discoloration of the penis which Dr. Peretti had testified could have
occurred during oral sex looked more like some kind of animal activity. The kind
of “banding” you see here is not characteristic of oral sex, and to say otherwise is
pure speculation. (BMHR 1947). There should have been a microscopic section
taken and there was none.
With respect to Mr. Byers, the kind of discoloration that you see here is not
characteristic of a fresh hemorrhage. It looks like a postmortem injury, perhaps
caused by snails - snails inflict that kind of injury. Other abrasions might have
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been caused by a very small fingernail, but more likely by the scraping of animals.
(BMHR 1949-1950).
There are no injuries shown in the photos of Mr. Byers that are suggestive of
sexual assault. With respect to testimony given by Dr. Peretti concerning the
appearance of injuries around the anus and genital area of Mr. Byers, I disagree
with the opinions stated. First, I believe that the appearance of the anus was
normal. Second, the absence of bleeding in the genital area causes me to opine that
the wounds there were post-mortem. There is no cutting. They are likely from
animal activity. They are not serrations from a knife. (BMHR 1951).
There were no stab wounds or cutting wounds inflicted prior to death in the
genital area. The area in question is “very vascular,” and that there is no bleeding
at all in the area, and the edges of the wound are irregular. None of the injuries I
see are wounds caused by an instrument while the victim was alive. (BMHR
1952). I also disagree with the testimony given that what you see here are some
wounds resulting from the twisting of a knife when the victim was moving.
I was asked to review the report concerning the autopsy of Mr. Branch,
which indicates that there was a tissue slide made of the injury on Steve Branch’s
penis. I had not remembered that. But the report states that the tissue slide showed
no hemorrhage. (BMHR 1954-55).
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None of the microscopic slides of tissue taken from the anal area of the 3
boys showed the kind of hemorrhaging that you would expect to see if there had
been forced sexual activity, such as penile insertion, while the victims were alive.
(BMHR 1955).
I also disagree with the testimony that there are injuries here consistent with
what you see with rape victims. You don’t see these sorts of superficial abrasions
where the victim is raped while still alive. You would see black and blue marks.
(BMHR 1957).
I also disagree with Dr. Peretti’s testimony that the injuries to Mr. Byer’s
mouth and ears were similar to those of the other children and are “normally” seen
in children who are forced to perform oral sex. Also, if there had been oral sex,
they should have been able to find evidence of it through mouth swabs and swabs
taken of the back of the larynx. (BMHR 1959-60).
In my opinion, this case absolutely warranted the involvement of an
independent forensic pathology evaluation at the time. (BMHR 1960).
During the noon recess, the father of one of the victims, Mr. Byers told me
that the bodies were found in an area that had some snapping turtles in it. I also am
aware that there were animal hairs removed from the bodies that were later
examined by the Crime Lab. (BMHR 1961-62).
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I recall that during the May 2007 meeting the subject of turtle bites had been
brought up, but Dr. Peretti had opined that he did not believe that there were turtle
bites as he had raised turtles. (BMHR 1963).
DIRECT EXAMINATION BY JOHN PHILIPSBORN
I have reviewed testimony given by Dr. Peretti at a post conviction hearing
in which he testified that he had passed the examination in forensic pathology. He
apparently did not pass the anatomic pathology portion of the examination, and
thus was not board-certified. (BMHR 1964-65).
The meeting in Little Rock that I referenced included two pathologists and
two odontologists consulting with the defense, as well as Dr. Peretti, other Crime
Lab staff, and other persons. (BMHR 1965-66).
Any opinion testimony that Dr. Peretti has given in either the first or the
second of the trials that there was evidence of sexual assault on any of the remains
of the three boys is incorrect in my opinion. Also, Dr. Peretti never distinguished
correctly between pre-mortem, peri-mortem, and post-mortem injuries. (BMHR
1966-1967).
Had the children been alive, conscious and struggling against their restraints,
one would have expected bruising and hemorrhage under the skin. Only Mr. Moore
has some hemorrhage in the tissue under ligatures, which means that his heart was
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beating when the ligatures were put on, though the lack of hemorrhage around the
wrists suggests that he was not struggling. (BMHR 1968-1969).
There is no forensic evidence that supports an anecdote that an individual bit
off the testicles of one of the victims and sucked out his blood. (BMHR 1969-
1970).
There is no evidence that supports a statement that an individual had
observed the three children being stabbed. I opine that none of the boys was
stabbed. There is some evidence that supports a scenario involving a small number
of blows with a blunt instrument that resulted in head injuries. There is no evidence
that they were beaten with fists. (BMHR 1970-1971).
There were no injuries consistent with the victims having been injured by a
survival knife consistent with the one displayed in the Baldwin trial, which is
Exhibit 48 NN in this hearing. (BMHR 1972).
There was no evidence of forced fellatio or of anal sex of any kind. (BMHR
1972-1973).
There were continuing education courses provided to criminal defense
lawyers in 1993 that covered forensic pathology. There were also board-certified
forensic pathologists the defense could have consulted with in 1993. There were
also some authoritative texts like those produced by Spitz and Fisher, Bernard
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Knight, and others that were available to review. There would have been some
journal articles about drowning. (BMHR 1973-1974).
Assuming that the same photographs were used in the Misskelley and
Baldwin trials, my testimony and opinions about the pathology related opinions
given in Misskelley’s trial would have also applied to Baldwin’s trial. (BMHR
1975).
CROSS EXAMINATION BY KENT HOLT
I have no disagreement with the autopsy protocols used, or with the reports
produced. My disagreements are with the interpretation of the injuries. (BMHR
1978).
Drowning hastened the death in this case, and there were also other life
threatening injuries. (BMHR 1978). If the drowning had not occurred, these
individuals may have survived.
I do not agree with an opinion rendered by another pathologist named Terry
Haddix that postmortem animal predation injuries on Steve Branch’s face may
have been superimposed on ante-mortem injuries. It’s possible, but I think it’s
more likely that all of these injuries occurred after death. (BMHR 1982-1983).
I believe there were ante-mortem injuries to the head, brain and skull of each
of the three boys. There might be a question of whether there was a dragging type
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injury to the face of one of the boys that could have been pre-mortem, but I believe
it was post-mortem. (BMHR 1984-1985).
REDIRECT EXAMINATION BY MICHAEL BURT
I think that Dr. Peretti did a proper job of documenting the injuries. I think
he did a partial job of taking tissue samples. (BMHR 1989).
I did review the 2007 report by Dr. Terry Haddix that you are showing me. I
agree with several of her opinions. I am aware that Dr. Haddix, Dr. Spitz, Dr.
DiMaio, Dr. Souviron, Dr. Wood and I all agree about postmortem animal
depredation. My disagreement with Dr. Haddix is over the possibility of there
being some ante-mortem injuries to Mr. Branch’s cheek. (BMHR 1993).
