The Hunt - Chapter 3: The Micron Man
Because first of all, a pathologist has no way of measuring skin.
This is Chapter 3 of The Hunt, our ongoing serial. Read Chapter 2 here.
Saskatoon, Saskatchewan1, Canada, apparently.
The late fall of 2003 was a dark period for the city of Saskatoon. It had been a bit more than two years since the freezing deaths of Rodney Naistus and Lawrence Wegner2. Saskatoon Police Officers, Ken Munson and Dan Hatchen, had been convicted of unlawful confinement for dropping Darrell Night off on a frigid night in 2000 and sentenced to eight months in prison. Investigations into the suspicious deaths of Indigenous men and women at the hands of the Saskatoon police and the RCMP (who had their own, very significant list of human rights violations building at the time) were ongoing.
The abuse of Indigenous youth and adults by people in power had been exposed and those who’d long been in a position to ignore the shit that rolls downhill had temporarily lost that luxury. The onslaught of bad policing and prosecutorial misconduct cases seemed neverending.
Six months earlier – two years after Mr. Stonechild’s body had been exhumed for a second autopsy – the justice minister initiated an inquiry into the circumstances of Mr. Stonechild’s death. Sixty-three witnesses testified over forty-three days.
Gary Robertson began his second day of testimony on October 21, 2003. Over the next two days, Robertson would testify, based on his “close range photogrammetric analysis,” that abrasions on Mr. Stonechild’s nose and wrists were consistent with the edge of police-issue handcuffs. Robertson’s opinions — and little else — would form the basis for the finding that Mr. Stonechild was in police custody when he died.
But on this morning, the subject matter isn’t Mr. Stonechild; it’s Gary Robertson.
In most US States and federal courts, a witness is “qualified,” as an expert prior to being permitted to give opinion testimony, via a similar process as the inquiry followed here — lengthy testimony under oath concerning their professional and educational history.
Done right, by experienced counsel, and a witness with valid credentials, the process is about as useful and interesting as a new sponge. Usually, you don’t cross-examine a witness about whether they really went to college, or what they did there. Usually, the witness being qualified isn’t Gary Robertson.
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The first day of Robertson’s testimony in the Stonechild Inquiry, addressed his education (brief, publicly funded) work history (vague, self-promotional), research (denting pigs), and past testimony (one case in Canada, two in the United States).
On the second day, as he was cross-examined concerning whether, as a photogrammetrist, he had any business opining concerning marks on human skin. Robertson took the startling position that only a photogrammetrist could offer such an opinion:
Drew Plaxton, esq., attorney for the Saskatoon Police Union, inquired as follows:
Q. Okay, let's pretend I had an opinion from a pathologist who was going by his or her knowledge of human tissue, as opposed to someone who froze four pigs. Okay, let's pretend that's my source of information. And let's say that information was the thawing and freezing process will change dimensions of human tissue. Would you agree with me that any measurements you made after that process, if indeed it did change the dimensions, won't help us.
A. Well, first of all I wouldn't agree with that statement, because first of all a pathologist has no way of measuring skin. So how could a pathologist make a statement that there was no difference in the dimensions of the skin…
A. -- if he hasn't provided any measurements of the skin?
That “okay” is an “okay” I know well. I’ve seen it in my own deposition transcripts. It’s involuntary. It’s the sound you make when someone says something, on the record, so bizarre that you can’t quite keep your reaction non-verbal. Even though you know the court reporter’s good enough that it’ll be on the transcript, and it will interrupt the flow.
Still, Mr. Paxton, on his toes, having seen his opponent drop his shoulder, stepped in to land the next blow:
Q. Do you have any basis for the opinion you just gave us as to what a pathologist may or may not know?
A. Only if a pathologist is trying to provide information regarding measurements that they make, yes, and I would be able to directly address that.
Mr. Robertson doubled down on the bizarre position that a photogrammetrist is the only acceptable source of information concerning anything you can measure, including marks on human skin.
Dr. Emma Lew, then, the medical examiner for Miami-Dade County, was asked, in writing, to respond to Mr. Robertson’s contentions, and responded as follows:
Q. A previous witness has given testimony about the location of the marks on the wrist as determined by photogrammetric measurements, and in particular that the marks are below the base of the thumb. Are you able to determine the location of the marks on his wrist from the photos? If yes, how? If no, why not?
A. It is obvious where the mark is located on the right hand/wrist because the anatomical landmarks are clearly seen in the excellent quality photographs. The mark is indisputably between the base of the right thumb and the right wrist. The mark continues on the right thenar eminence, that fleshy part of the palm that is at the base of the thumb. The measurements taken from the photographs are invalid because a scale is not included in the photographs. No photogrammetric measurements are necessary to interpret the location of the mark – just look at the photograph and compare on your own hand. Physical evidence and common sense prevail over pseudo-science.
But Mr. Robertson – who is not known to have ever completed a course in anatomy – was confident in his ability to opine accurately and conclusively concerning whether the “marks” on a human body are “consistent” with an object. Why? Because he’d been allowed to do it before.
Three times. Twice in the United States, and once in Canada.
Time to rewind and ask ourselves: what the fuck is photogrammetry and how exactly did this guy convince people this is how any of this works?
Popularized and shortened, by Rob Schneider, in Grown Ups when he says: “Saskatchatoon, eh!” Neat.