The proceedings on August 12, 2009 were concluded. BMHR 2124. The
testimony resumed the next day, August 13. 2009
DR. JANICE OPHOVEN
ABSTRACT 193
DIRECT EXAMINATION BY JOHN PHILIPSBORN
I am a forensic pathologist with special training in pediatrics and pediatric
pathology. My focus has been on pediatric pathology. (BMHR 2125). I am aware
that in 1993 and 1994 there were physicians who, like me, had specialty training
and specialty emphasis in the field of pediatric pathology. There had been board
certification available for training in pediatric pathology for some years as of that
point in time. A number of well-known children’s hospitals had pediatric
pathologists. (BMHR 2125).
I went to school at the University of Minnesota, and completed my medical
training there. This was in the late 1960's. I encouraged the University to assist
me in constructing a training program in pediatric pathology. By the mid-1970's, I
was able to study in a combined program of pediatrics and pathology. I did a
Fellowship at the Hennepin County Medical Examiner’s Office in 1980 to
complete all my training. I began practicing in 1981.
I undertook training as a pathologist as well as a forensic pathologist. I also
obtained training as a pediatrician, and I practiced in a Children’s Hospital for
about ten years, running the laboratory, with the focus on pediatric pathology. [End
of Volume 8. Begin Volume 9. Volume 9 begins at BMHR 2130.]
Pediatric pathologists perform autopsies, and also interpret laboratory
ABSTRACT 194
results. There are a number of issues specific to the pathology of children that call
for specialization. I sat for the boards in forensic and anatomical pathology. I did
not sit for the boards in pediatric pathology because I had been out of training more
than ten years at the point at which those boards would have been available, but I
maintained professional relationships, memberships in pertinent organizations,
continuing education, and teaching in the field of pediatric forensic science and
sexual abuse since 1981.
After I completed my training at the Hennepin County Medical Examiner’s
Office, I continued as a Deputy Medical Examiner dealing mainly with child
fatalities. I trained residents from the Hennepin County Medical Center on issues
of pediatric pathology.
Since that time, I maintained an informal relationship with Medical
Examiners around Minnesota. (BMHR 2133).
Hennepin County covers the twin cities of St. Paul and Minneapolis. It
covers seven different counties.
I have consulted for a number of offices and agencies involved in the
investigation of child abuse. Included in that has been my familiarization with the
issues of child sexual assaults and sexual injuries, which are manifested very
differently in children than in adults. (BMHR 2134-35).
ABSTRACT 195
I have consulted with both law enforcement agencies and with criminal
defense counsel. For the first 15 to 20 years of my practice my work was primarily
for law enforcement and for agencies prosecuting childhood injuries and fatalities.
In the last ten years, I have been involved increasingly with defense work. I do
still get calls to review cases for prosecutors and law enforcement. (BMHR 2135).
I have been involved in the writing of text books on pediatric pathology,
including one on Pediatric Forensic Pathology. They cover what is intended in the
field. I have also been invited to write chapters for a series on head trauma and
children. I have been asked to discuss and lecture on both sexual homicide as well
as abusive trauma in children. (BMHR 2136). [Dr. Ophoven was offered as an
expert in forensic pathology with a special emphasis in pediatric pathology without
objection. BMHR 2137]
In my work on this case I reviewed transcripts and testimony, investigative
materials, crime scene analysis and diagrams; trace evidence materials; voluminous
photographs, autopsy reports and the like. I have reviewed testimony concerning
the cause and manner of death by Dr. Peretti. (BMHR 2137).
As far as I am concerned, there were standards applicable to the postmortem
examination of eight-year olds, whose deaths were being investigated in
relation to some form of sexual abuse. There were standards of practice for
ABSTRACT 196
pediatric pathology that any physician who is trained and understands the nature of
the practice would know. You get to know that kind of information as you are
becoming qualified as a forensic pathologist and as you prepare for the board
certification. There is no specific recipe that attends an autopsy, but you need to be
aware of the unique or unusual circumstances. If you have not been exposed to
them, you ask for advice. That was an established standard in 1993.
It may be that a pathologist is able to do an autopsy and collect the evidence,
but may not be in a position to render opinions based on the unique nature of the
case. (BMHR 2139).
The recommendation of consultation with others was well known in the
medical field as of 1993.
I have reviewed the reports on the deaths of Mr. Moore, Mr. Branch, and
Mr. Byers. The reports did not include a number of things that I would have
expected. They looked to have been prepared according to a fairly basic template.
The connection between the conclusions and actual findings are often not evident.
(BMHR 2140).
By 1993 and 1994, there was a general consensus in the field that you
needed to take tissue samples where there was a suspicion of a death of a child
involving a sexual assault or sexual abuse. In this case, the tissue sampling was
ABSTRACT 197
limited.
I am of the opinion that the testimony offered by Dr. Peretti linking the
findings that he made to opinions about forced fellatio or some kind of anal
penetration of the victims was not within generally accepted professional norms in
that he did not link the data available and the opinions rendered.
My reasoning for testifying this way is that the findings of sexual abuse,
penetration, and injury are very concrete. They depend in part on understanding
the context and the conditions under which the body was found. In my opinion,
Dr. Peretti’s testimony was predominantly speculative. The testimony regarding
fellatio and forced oral sex was speculative. With respect to anal dilation, the
photographs show very normal anal anatomy. Anal dilation is not something
considered abnormal during an autopsy. There is no apparent abnormality of the
anal skin.
My concern was that what was communicated to the jury is highly
speculative. (BMHR 2142-43).
I agree with the beginning of Dr. Peretti’s testimony from the
Echols/Baldwin trial that a post-mortem examination is done in a context. If you
have even a basic suspicion of a sexual assault, for example, you would work up
the case and collect potential evidence of this. Listening to the testimony that Dr.
ABSTRACT 198
Peretti gave about the findings in the case of Mr. Moore, particularly around the
mouth, and looking at the photographic evidence, there is nothing that would raise
as inflammatory a thing as forced oral sex. I view the testimony as a violation of
professional responsibility.
With respect to the testimony that Dr. Peretti gave concerning the reddening
or congestion of the mucosa which is the internal lining of the anus, I also viewed
the testimony given as shocking. The suggestion that there could have been
evidence of sexual abuse is the problem. There is not a shred of evidence that
there is any damage to the anus and rectum, so suggesting evidence of sexual
penetration is improper. (BMHR 2148).
Similarly, the photographs that are being displayed which reference State
exhibits 64B and 65B showing the undersurface of the penis of Mr. Branch, and
specifically where Dr. Peretti said that you see this kind of injury when an object
like a belt is wound tightly around the penis of a child, or where young children
have oral sex, is not scientifically valid. Dr. Peretti’s testimony first of all
references what I think was a post-mortem alteration. It does not look like a sexual
injury at all. (BMHR 2150).
With respect to the injuries to Christopher Byers and photographs shown at
trial that were described as a close-up of where the penis and scrotal sac and testes
ABSTRACT 199
should be, in my opinion the response that agreed that this was an area of
mutilation was wrong. This is not a close scientific question. This injury did not
result from the use of a sharp tool. If you look at the area depicted, you can see
that the tissue has been torn. It has not been removed through the use of a sharp
object. You can also see little puncture wounds where there is no blood. You can
see a number of punctate wounds. Looking at other exhibits that show the close-up
of the area as it was shown during the course of the trial, the way the testimony at
trial came out the area is described as showing indications of organs that have been
carved out, and have cutting and gouging wounds. If you look, you see scalloped
edges. This has been torn off. This is pretty basic pathology. (BMHR 2153).
You can see that there has been some pulling away of the tissue. It has been
torn out. There is no blood in the tissue area and you can see that this is clearly
post-mortem. The testimony at trial that there was no evidence of animal activity
or insect bites is wrong. This is evidence of animal activity. (BMHR 2154).
It’s a basic tenet of forensic pathology that you go to the scene in a case,
particularly one where there are serious implications. I am aware that in his
testimony Dr. Peretti has said that since he has been in the State of Arkansas
nobody has ever called him to go to a crime scene. (BMHR 2155).
I am also aware that Dr. Peretti testified that he was not present when the
ABSTRACT 200
remains of the three boys were taken out of the area of the drainage ditch and
removed from the scene. It is important to see the bodies in the situation and the
actual place where they are found. It is a fairly common practice for a Medical
Examiner to be summoned in those situations.
I am also aware of Dr. Peretti’s testimony when he was cross-examined by
the lawyer for Mr. Baldwin, and asked about the mouth injuries and how consistent
they are with the injuries you see in children who have been forced to perform oral
sex. In my opinion, there is no professional literature that would have supported
the testimony given by Dr. Peretti on this issue. First, there is no pattern of injury
here that indicates some form of sexual injury. Second, there is no evidence
associated with patterns of fellatio such as bruises to the palate, or bruises to the
back of the throat. The pattern of injuries has nothing to do with oral sex. (BMHR
2157). The statement that these sorts of injuries were not present because the teeth
were clenched makes no sense.
The testimony about injuries to the ear being characteristic of oral sex with
children is absolutely inappropriate. I saw no evidence that any of these children
were grabbed by an ear or held by an ear. (BMHR 2158-59).
There were no injuries consistent with any of these three young boys being
forced to perform oral sex.
ABSTRACT 201
The only pattern to the injuries was a pattern of vermin predation. I didn’t
see any pattern associated with a serrated knife or with a tool of any kind. (BMHR
2159).
I disagree with Dr. Peretti’s testimony in the Echols/Baldwin trial that a
weapon such as a sharp knife was involved. There is no evidence consistent with
that finding. (BMHR 2160).
Looking at one of the close-up photos of Mr. Byers, which is Exhibit 48MM
in this hearing, my view is that there are teeth marks, puncture lacerations, torn
tissue, and possibly claw marks. These are clearly not human in origin.
With respect to Mr. Branch, my view is that the injuries to the cheek or to
the face where there are perforations, gouges and lacerations is like the photo of
the predation to the genitals. This is not related to some form of sexual crime.
These appear to be post-mortem, at least from the photos. (BMHR 2162-63).
The photos of Mr. Branch in the 48 series show the same kind of damage
from different angles.
I have looked at the photographs of Mr. Byers, ME331, and there is no
indication of the use of a sharp object. The marks that were pointed out in
photograph 48LL are claw marks.
The knife depicted in 48NN was not involved in anything that happened
ABSTRACT 202
with these three boys. (BMHR 2165).
There have been a number of publications about common (and uncommon)
mistakes that are made in the diagnostic process and in post-mortem review where
mistakes are made because of a failure of adequate training and experience. The
Goudge Commission Report involved cases in Ontario where a particular theory of
pathology which was flawed was applied in a number of cases, including a
pediatric case where a woman was charged with murder for having killed her baby
when it was determined that the child had been mauled to death by a dog.
Looking at this case, I cannot understand how thoughtful consideration and
differential diagnosis would have led to the conclusion that these children had been
sexually assaulted, or subject to sharp force trauma. (BMHR 2169-70).
Observable injuries to the lip would not have been the hallmark of sexual assault,
and at the time of these cases there was information available on how to properly
diagnose sexual injury in children.
The appropriate methodology that one should use when suspecting or
diagnosing a sexual penetration of the mouth is whether any of the elements
typically seen in sexual abuse are present. You have to have a pattern of injury
that is scientifically verifiable and consistent with sexual abuse. (BMHR 2171-72).
There is none of that in this case.
ABSTRACT 203
Second, if you have the presence of ejaculate in a child where ejaculate
shouldn’t be, then you have evidence of sexual contact. The third sign of sexual
activity is the presence of a form of sexually transmitted disease. All of these
things are relatively straightforward. If you do not have any of these things in a
given case, then the forensic pathologist does not have anything to contribute on
the question of sexual activity. (BMHR 2172).
It is not unusual in my profession to be asked to provide a source of opinion.
Sometimes it is based on experience, and sometimes on specific literature. One
needs to know the definition of sexual injury, and what is known about predation
injuries, drowning and so forth. (BMHR 2173).
I do not recall Dr. Peretti being asked any questions about what literature he
was relying on to render his opinions about sexual assault, or even what experience
he was basing his reference on in stating his opinions about injuries to ears and
mouths and sexual assault.
If I had announced to a meeting of fellow professionals that I would be
reviewing and producing information on cases involving remains recovered from
water to assess signs of predation, I would have provided the sources of my
opinions. (BMHR 2176)
DIRECT EXAMINATION BY MICHAEL BURT
ABSTRACT 204
There are multiple organizations that set forth standards that are pertinent to
the work of the forensic pathologist. We practice medicine. Our basic tenet is to do
no harm and to make sure our ethical principals as physicians are adhered to.
(BMHR 2178)
For Dr. Peretti to have testified that injuries to the ear and lips signify oral
sex is not an appropriate way to testify. A pathologist like any other doctor offers
a differential diagnosis. One needs to have suitably narrowed the analysis to be
able to express an opinion, or to state that one does not know.
Refusing to answer a question yes or no, or allowing the unsubstantiated
suggestion that a certain state of affairs exists, is not ethical. I was taught that
forensic pathologists wield too much influence on a jury to opine about matters on
which there is no scientific evidence. For example, on the question of the evidence
of sexual assault, the answer would be yes or no, based on the physical evidence.
Even if you are presented with a confession, however dubious, as in your
hypothetical, the role of the forensic pathologist is to determine whether there is
evidence of sexual assault. Using a statement by an accused as the basis for a
pathologist’s opinion is inappropriate. (BMHR 2183-84). While I ask for all
available information as a pathologist, including statements of that kind, I do not
base my opinion on what a witness says. I match what the witness says to what I
ABSTRACT 205
found at autopsy and then give an opinion. (BMHR 2184).
Going back to the photographs of the anal orifice, the photograph you are
showing me is normal. There is nothing that suggests this child has been
sodomized. As to Exhibit 71C, a photograph of Mr. Byers’ genital and buttock
area, there is nothing shown here that supports the testimony that there was
capillary dilation, or cutting wounds. (BMHR 2186). Similarly, with respect to
the testimony of Dr. Peretti concerning Mr. Moore, the kind of trauma to a child’s
mouth that is seen here is not consistent with fellatio. (BMHR 2188-89).
CROSS EXAMINATION BY KENT HOLT
In the past five years I have done around 200 autopsies. In the past two
years I have done fewer than a hundred, including three or four autopsies on
children. (BMHR 2193-94). I am a member of the Society of Pediatric Pathology,
as well as of the National Association of Medical Examiners.
I have taken a number of courses, including courses at the Body Farm in
Tennessee (which works with the FBI) that deal with animal predation. I have
worked with law enforcement organizations on cases in which predation was
suspected. I keep up with the literature on this topic. (BMHR 2194-95).
I have not consulted with any of the other pathologists in this case, though I
may have seen some of their reports. If Dr. Baden indicated that the manner of
ABSTRACT 206
homicide was blunt force injury to the head and drowning, I would agree with that.
(BMHR 2196-97). In my view, there were pre-mortem skull fractures. The
remainder of the injuries to the boys’ bodies in my view were entirely postmortem.
(BMHR 2197-98).
Limiting my testimony to questions of sexual violence or mutilation, I see no
evidence of pre-mortem injury.
If I were trying to assess what kind of animal was involved and I were with a
crime laboratory, I would suggest that evidence be collected to help assess that, or I
would consult with people who might know the answer. I can say, looking at some
of the injuries here, that they are claw marks. (BMHR 2202).
In my view, you need to differentiate between the way a forensic pathologist
would look at evidence of sexual assault, and the way a court might do so. For me
either there is an injury or there is not; either there is ejaculate or there’s not; either
there is a sexually transmitted disease or not. Circumstantial evidence that is legal
is a matter for the courts, not for me. (BMHR 2205).
I believe I have been paid something in the neighborhood of $3000 for my
work on this case. I have been involved in the case since 2006. My office will be
charging for my testimony. I charge between $300 and $400 an hour. (BMHR
2210).
ABSTRACT 207
I did work on a case involving a person named Jeremy Marshall. I signed
the case off as a natural cause of death, and 18 years later the mother came forward
and said she had suffocated her child. (BMHR 2211).
REDIRECT EXAMINATION BY JOHN PHILIPSBORN
I agree that you always want to try to get the best information you can about
a case, and as indicated on cross-examination, there are times when additional
information helps refine an opinion. Additional information from colleagues might
cause me to change my interpretation.
Looking at the remains of Mr. Byers (ME331), I see no evidence in the area
of the removal of genitalia that this child’s heart was still beating at that time.
(BMHR 2215-16).
During further examination today I did opine that the timing of the
placement of ligatures is of significance. Part of the concern, as the FBI puts it, is
to differentiate between a staged event and an actual legitimate crime scene. One
of the questions that I would seek to address is whether there was an indication that
a person was dead at the time ligatures were applied. There is no way to verify
scientifically, based on the evidence here, that the ligatures were placed on either a
conscious person or a person who was alive. (BMHR 2218-19). [Dr. Ophoven was
ABSTRACT 208
