Direct Exam: Jay Clark

He is a medical doctor and pathologist who practices in Fort Wright, Ky. He was associate professor of pathology at UC, taught at Deaconess Hospital and now teaches at St. Elizabeth. He is an associate professor of pathology at Wright State University in Fairborn, Ohio and was also on faculty at the University of Louisville. He was director of autopsy pathology at the University of Cincinnati in the 1990's. He is currently a deputy coroner in Cincinnati, as a consultant to forensic pathologists. He is a medical examiner in Kentucky and consults with forensic pathologists. He has written 10-15 articles in forensic pathology and is board certified by the American Board of Pathology, Anatomical Pathology, Forensic Pathology and Neuropathology. He is licensed to practice in Ohio and Kentucky.

He said he has overseen, reviewed, and conducted 3,000-3,500 autopsies in his career. Those were full autopsies, but brain and cardiovascular autopsies have been his specialty for many years. He now does about 150 brain autopsies a year. In his 25 years of testifying, he's only testified three or four times as an expert in a criminal case and testified for the defense in those. He testified many times as a "fact witness" for the prosecution in the capacity of medical examiner. He's also testified in cases in which Dr. Uptegrove has testified.

He said he was paid a $2,500 retainer to review the case, but didn't charge for his trial testimony. He didn't testify in the second trial, he said. He is being paid for this trial, but for a court-required "capped" fee, which he has never done, other than this trial. Clark asked why he agreed to help Ryan at a reduced fee at this trial, but Travis Vieux objected/sustained.

He said a neuropathologist is trained in the field of the brain and nervous system and he has worked in sudden death cases and child abuse cases. He explained that the brain has to be preserved in formaldehyde for at least a week before it can be examined.

Based on his experience, a forensic pathologist, should look at all history and he explained that when he makes a conclusion about a person's death, he will combine information from multiple sources, so he reviewed police photos of the scene at the Widmer home, ER records, the run sheet from EMS, medical records from Sarah Steward from over the years, and the reports from both autopsies, Dr. Uptegrove's and Dr. Spitz's. He also reviewed previous testimony of other witnesses regarding their contact with Sarah prior to her death and written statements from Max Smith and other EMTs, as well as the notes of Doyle Burke, who is the coroner's investigator.

Clark handed him the affidavit from Bethesda Arrow Springs, both autopsy reports and a few other documents. He looked over Dr. Spitz's and Dr. Uptegrove's autopsy reports and said that the autopsies by both doctors have findings that are specific to drowning.

It's "troubling when a young person dies because young people aren't supposed to die", he said. Drowning has been shown to be involved in "underlying disease processes" because cardiac or neurological abnormalities have often been found in drowning victims. He said he was troubled by the thoroughness in the examination of Sarah's heart and brain.

Clark asked him to explain about the brain and he said, "Well I've got my brain over there," while Clark retrieved a tupperware-like container out of a bag by the defense table. "It's not real," he said, bringing laughter from the gallery. He held the brain in both hands and said that brains are "mushy", but when placed in formaldehyde, it gives it the rubbery consistency of Velveeta cheese, so it's "less soupy." He said when the brain is hardened it can be dissected more easily. In the case of looking for seizures, there are certain sections of the brain that should be sampled, but Dr. Uptegrove did not take any tissue samples of the sections that would show seizures. There were only two glass slides, with two very small pieces of tissue on each one.

He said he brought a diagram of recommended tissue samples you would want to take to detect seizures or epilepsy and Clark placed a diagram of the brain on the screen. He took that diagram from a text book, and while he agreed with the book, he doesn't rely on it. In a typical examination looking for seizures, he takes about 15 to 20 slides from the brain and, referring to the diagram, he said there are 14 "target zones" recommended to take tissue samples from, to look for seizures. He used the red laser pointer to show the sections of brain that need to be sampled. In the deep part of the brain, there can be characteristic abnormalities, he said, but if you're only going to take one area of the brain during an autopsy, take the hippocampus, the inside part of the temporal lobe, because it will tell you the most.

He said parts of a diagnosis can be missed if you don't wait until the brain has fully hardened before examining it. If the brain is examined "fresh" it's like jello. You won't be successful because it will disintegrate and a complete diagnosis can’t be made with a fresh brain unless it's been in formaldehyde.    

He said he had a container with a 'fixed' (hardened) brain and another one with an 'unfixed' brain, and asked if the jury can touch it. "I think they would prefer not to," said Judge Bronson. Dr. Balko then put on latex gloves and explained that formaldehyde "fixes" the brain. He opened a small container with a sliver of brain showing the jury the consistency of an "unfixed" brain. He said it was a pig brain which Mr. Clark was nice enough to get from a local meat processing plant.

He laid it out on a large piece of paper to show the jury how he cut into it. He explained that you can't make the cuts very thin because it disintegrated. "It's soft and mushy" he said as he tried to cut it. "Now it tries to get away, and you can't make a cut." He then held up another portion of brain and showed, by cutting into it, that this piece was more firm. He said he can look at the tissue and get a sample of it much better when the brain is "fixed." He held up the piece after cutting it and said it was the hippocampus and it was very easily accessible if you cut through a preserved brain. It was placed in formaldehyde for about a week and then washed thoroughly.

"We've had a lot of narrative, can we get back to questions and answers please?" asked Vieux. "Hopefully we will," Judge Bronson replied. As the doctor pulled his gloves off and wiped up the mess on the table, the judge asked Travis Vieux if he will want to explore this in cross-examination? Vieux replied, "I don't think so..." The court room, and jury laughed.

Clark then handed the doctor two glass slides from Sarah's autopsy by Dr. Uptegrove. He identified them as pieces from the cerebellum. The brain slices, which were placed on the screen, were a purplish-pink color. He said the brain slices are stained to appear pinkish-purple to show details. Another piece looks like cerebral cortex, the doctor said. If there's an underlying seizure disorder, especially warm water seizures, he recommended taking 14 slides.

Clark asked if he agreed that Uptegrove didn't find any neurological problems with Sarah's autopsy, but Balko said he couldn't agree or disagree, because her brain wasn't properly examined. He added that by the time Spitz did his autopsy, the brain had already been 'cut up' and it would be difficult to determine landmarks, if the brain was previously cut up before it was "set". The brain was impossible to put back together at this point. Spitz took tissue samples from other organs, but not the brain.

After reading the testimony of Sarah's friends he said it seemed like Sarah had a situation where she was drowsy quite often and that could have been an indication of narcolepsy, which could have been determined by testing the hypothalmus. He said you could see the change in the brain of a narcoleptic under a microscope because there is a depletion of certain neurons that cause drowsiness. Everyone's depletes over time, but narcolepsy is "abnormally early depletion." Some who have sleeping disorders can have seizure disorders and vice versa.

He said based on Dr. Uptegrove's slides, it cannot be ruled out that Sarah suffered from a neurological event. " There was simply not enough information taken," he said, and added that Uptegrove didn't examine samples of the brain to rule out epilepsy or narcolepsy. "When you look at the brain, you look at anything abnormal," he said. He has detected narcolepsy via a biopsy on a patient because the tissue showed depletion of the neurons that he spoke of earlier.

Explaining about seizures, Dr. Balko said you can't detect an electrical disturbance in the brain to determine if a person had a seizure, if they have died, and you don't always find evidence of a seizure when you take samples from the 14 sections of the brain. However, seizures can be detected in the morphological changes in the brain, he said.

He said he's currently working on a study with Children's hospital, where brain tissue is taken out of living patients to analyze for seizures. They are analyzing 60 cases and "We're seeing a spectrum of pathology"; the results aren't all the same. He said he has seen cases of a person in their mid 20's with no history of seizures, die of a seizure or something that happened as a result of it.

Clark then moved on to the heart and Balko said you can find abnormalities much easier in the heart than the brain. Samples of the heart can be taken on the day of the autopsy since it doesn't have to be "fixed" like the brain does. First he looks at abnormalities of the valves when examining the heart because very small abnormalities can cause sudden unexpected death. Many young people who suffer from heart disease have an arrhythmia, which is an irregular heartbeat. If a person has an arrhythmia and dies, the arrhythmia can't be seen in an autopsy but you can sometimes find changes consistent with an electrical disruption. "It's a process not an event", he said. You can't find a cough during an autopsy, but you can find a reason for the cough. He began to explain about Long QT Syndrome but Vieux objected/sustained.

Balko went on to say that to adequately examine the heart, several sections should be taken, sliced like a loaf of bread. Uptegrove took samples of the heart, but Balko said it wasn't clear what areas of the heart the samples were taken from, without magnification. From what he could see, he didn't think Uptegrove took samples from areas that he [Balko] would have taken, to look for certain heart conditions. The minimum number of samples that should be taken to examine the heart should come from eight different areas. The samples should be examined serially, like a loaf of bread.

Clark asked what type of cardiac disorders would he look at during an autopsy and he named Long QT syndrome first, saying there were 12 variants in the Long QT syndrome that are genetically linked and it was the condition that was mostly linked to death in young people. He went on to say that he's had two cases of Long QT and one of them was a young boy who drowned in a pool. Mayo Clinic conducted a genetic test for Long QT and two of the family members ended up having Long QT.

He went on to explain that the QT is the time interval where the heart beat is measured. If the time is too long between heart beats, it's called Long QT syndrome which can cause fast, chaotic heartbeats. He went on to say that there was some evidence, not diagnostic, that Sarah might have suffered from Long QT 7 Andersen Tawil Syndrome. One symptom is a cleft palate, which Sarah had when she was young, and some patients with Anderson Tawil have been misdiagnosed as narcoleptic. Migraine headaches are also associated with this syndrome, ears are situated low on the head, and there is sometimes webbing of the hands.   He said he didn't see any good autopsy photos of Sarah's hands, and it’s hard to assess the placement of her ears in the photos. Short stature is another characteristic. Sarah was 5'1, which he said is below average.

Asked if bruises can form after death, Balko said yes, if CPR is performed bruises can be formed. He explained that CPR compressions circulate blood back to the heart, and if the blood is moving it could create bruising. Bruising is caused by damage to the tissue from compression force or blunt-force. He said if a person drowns in fresh water, you'll have 'hemodilution', when hemorrhaging tends to be worse. The blood is thinner because it's mixed with water and more prone to leak.

Clark put a photo on the screen of Sarah's bruised arm from the autopsy, and asked the doctor to explain. He said the mark on the arm is typical in a drowning victim because of hemodilution, which occurs throughout the entire body. He added that he found evidence in both inner elbows and left jugular where medics tried to insert an IV line.  Balko acknowledged that during the first trial, he was shown different autopsy photos

Clark put a photo on the screen and Balko said he identified it as a portion of the tongue during the first trial. When Clark asked him how he made a mistake like that, Balko replied that first, it's a photo of only a piece of tissue, and second, it's a 2-D representation of a 3-D piece of tissue. There's nothing else in the photo to compare it to, and the photo was depicted upside down for him to identify.

In its proper orientation, he said, it's soft tissue showing something above the aorta, but he can't place it without any landmarks of the body. He would want to see the tissue in relation to other identifiable body parts. Clark put another photo on the screen to help Balko get oriented, and he said he can now see it's the thyroid cartilage. When the photos are side by side you can see the aorta and the thyroid cartilage so it can be identified, but it can't be identified in the other photo because the aorta isn't visible.

He said he has performed autopsies on people who were manually strangled and typically in strangulation, you will see damage to the cartilage in the neck, petechial hemorrhaging and strep muscle hemorrhages, but none are specific to strangulation; vigorous resuscitation can present the same injuries, including hemorrhaging in the neck. The victim might also have hair or skin under their fingernails from a struggle. He added that as a forensic pathologist, he would look at events that transpired prior to death to determine what happened, when injuries mimic each other.

A photo of Sarah's face, shoulders and chest from the second autopsy was put up on the screen and the doctor pointed out a large reddish-purple area on the neck and spreading downward onto the shoulder. He said this large area is all one bruise and pointing out a smaller one on the right side of her neck, he said that was a separate bruise. A diagram of the neck was then placed on the screen and Balko identified the cricoid and thyroid cartilage. The photo of Sarah's neck was put back and he pointed out where the Sellick maneuver would have been done. He said he hasn't performed the Sellick maneuver but it's an agressive procedure to help insert a breathing tube. He drew a blue 'V' on the screen to show the jury where the pressure would be applied and said the redness on the front of her neck is where he would expect to see injuries from the Sellick manuever.

A photo of EMS personnel doing the Sellick maneuver was put on the screen, which the doctor identified. He pointed out that one hand was stabilizing the neck and the hand placement was in the same area where discoloration was on Sarah's neck. The photo of Sarah's neck, showing bruising was placed next to it. Vieux objected and Clark said, "I haven't asked my question yet". Clark then circled the two photos in the same parts of the neck and asked if that was consistent with the Sellick maneuver. The doctor said his opinion is, that the discoloration on Sarah's neck is a result of resuscitation and intubation attempts and the reason is, there was no evidence of injury at the time first responders arrived, and the injuries appeared to have been acquired after EMT arrival. He said there was mention of the Sellick maneuver in the EMS report he reviewed.

Returning to the photo of the left side of Sarah's neck and pointing to it, Clark asked if the bruising in that area was consistent to attempts to insert an IV, and Balko replied, yes, the neck was more prone to bleed because of the hemodilution. Clark then asked, once a person is dead and no more CPR is performed, and blood has leaked from the IV stick or compressions, where does the blood go? Balko replied, "It would be contained in the area". Blood would escape from the vein puncture and collect into pockets. He went on to explain that there are" tissue planes" in the soft tissue, that limit the flow of blood through the entire body, for example, your blood wouldn't leak from your shoulder all the way to your toe. There was a tissue plane that would prohibit the blood from leaking to the back of the neck from the front of the neck as the body lays on a table in the morgue.

When considering the manner of death, he said he considers all the aspects of the case, the clinical and anatomical findings. Clark asked what the manners of death were and Balko replied, natural (such as a heart attack or stroke), suicide, (taking one's own life), accidental (falling down steps, being hit by a car), undetermined (when you can't reach a level of medical certainty), and homicide (having your life taken by someone). He went on to explain that homicide is a legal definition but it doesn't mean that a crime has occurred. Nothing further.

Cross Exam: Travis Vieux

Asked if he testified in the first trial, Balko said yes, and he gave the same opinion about cause and manner of death in that trial. Vieux then asked if he formed his opinion of Sarah's death as "undetermined", before or after reviewing the microscopic slides. He said he didn't recall if he reviewed the slides from Uptegrove but said it wouldn't have changed his mind. He has since looked at the slides. Vieux then asked if he gave testimony at that trial about his concerns over the lack of slides, and he replied "No".

Asked about the different positions that he holds and being a consultant, Balko replied that the amount of time he spends on consulting is less than 20 percent; the other 80 percent is spent doing brain autopsies and teaching anatomical and forensic pathology. He has experience doing full body autopsies, but has only done about 10 in the last five years.   However, he stands by his opinion that the cause of death was drowning and the manner of death was undetermined.

He said he was contacted to be involved in this case about 10 days before the first trial started. Five days before the trial, he had a teleconference with Arnold and Vieux. At that time, he said the cause was drowning;  manner was undetermined. But he hadn't received the scene photos or the transcript of the 911 call. "You made that determination with that limited information?" said Vieux. "That's correct," he said. At that time, he had not reviewed testimony from the first-responders and didn't receive any information from Ruth Ann Steward or Michael Steward, but he received the transcripts of the testimony of Patty Kroger, Dana Parker Kist, and other friends of Sarah's.

He agreed that he wasn't present at the autopsy but she appeared nourished and healthy at the time of her death. He didn't see any pruning in the autopsy photos, but didn't see anything noted about pruning in the reports either. He agreed pruning would be 'usual' if a person had been soaking in bathwater for 30 minutes but he didn't know if warmer water would accelerate pruning.

He didn't see any injuries or bite marks on Sarah's tongue, a bruised sternum, fractured ribs or marks on her jaw line or the underside of her chin. There were no internal injuries to the larynx or trachea. He agreed that Uptegrove examined some features of the brain and didn't find any evidence of disease, but he didn't see anywhere where Dr. Spitz did an examination of her brain or took photos. Balko said he was not asked to review her brain. He didn't physically see Sarah's brain, other than the slides that were taken and he said he didn't see her heart, either, but agreed there were no signs of heart disease or contusions to the heart. He agreed that Spitz took five slides of the heart, but only reviewed the left ventricular muscle of the heart.  He said in all of the reviews of Sarah's medical records, he didn't find any indication of seizures or head injuries that would cause unconsciousness and there was no evidence of a brain aneurysm. Balko agreed that to have a diagnosis of Sudden Death due to Epilepsy, you have to have a diagnosis of epilepsy, which Sarah did not. He wouldn't know if he would expect to see bruising on Sarah's extremities if she had a Grand Mal seizure in a bathtub.

He said in cases of sudden cardiac death from arrhythmia, physical exertion "can be" a primary factor. He had no reason to disagree with Sarah's EKG being called "normal" during a follow up to her diagnosis with a heart murmur as a baby. He also agreed that hemodilution would cause an increase in blood pressure.

He agreed that in cases of manual strangulation, there might not be finger marks, and bruising may appear later. He didn't see any defensive wounds on Sarah. He didn't know if it was possible for a person to drown in under 60 seconds. Pressure to the carotid artery could cause a person to lose consciousness, but he didn't know if this could take place in less than 10 seconds.

Postmortem cooling can be as slow as 1 degree per hour and it's possible for someone who's ill to be warmer at time of death. He agreed it's difficult to move a dead body by yourself. There are limitations to reviewing an autopsy, rather than actually doing it and there are also some limitations to doing a second autopsy as opposed to a first because one can lose all relationships of internal organs.

Vieux put up the photo of Sarah's larynx and Balko agreed that he identified it as the epiglottis, but he said it's difficult to tell where this photo is supposed to be in relation to other organs. He said Sarah ultimately drowned, but he didn't know if she had a seizure or had a cardiac event.

In the sudden unexpected death cases he saw from Long QT syndrome, he said the victim's didn't have anterior neck damage. No further questions.

Re-Direct Exam: Jay aClark

In regards to the boy swimming that died from Long QT syndrome, Clark asked if the boy had 45 minutes of vigorous chest compressions, and 5 intubation attempts. Balko said he didn't know but it would make a difference in injuries to the body.

Clark asked if Uptegrove did not do things that he[Balko] would have done in the autopsy and the doctor said Uptegrove was charged with coming up with a cause of death, but "I know [this is] what I would do" in similar circumstances". If you're doing a thorough review, you need to review all materials, but he was limited in what he could review because Uptegrove didn't take all the microscopic slides that he should have.

He said there was no evidence that Sarah suffered from bilateral obstruction of the carotid arteries. He didn't know if Dr. Uptegrove talked to Ruth Ann Steward or Mike Steward before he ruled Sarah's death a homicide. He also didn't know if Uptegrove talked to the first responders. "The more information you have, the better”, Balko said. Clark recalled that Spitz photographed the brain and then asked if Uptegrove photographed the brain. Balko replied, "Not that I recall".   Clark said that one of the witnesses testified that after 30 min in water, pruning is evident, but Balko said there was no indication about how long Sarah was in the water in the reports he reviewed.

Balko agreed the term epilepsy is "used and misused frequently" and a person can have a first seizure without a family history. He said an epileptic would have at least one seizure, but if you had one seizure and drowned as a result, you could not be diagnosed as an epileptic. Even if there is no family history of seizures or epilepsy, there are specific areas in the brain that can be examined during autopsy. He pointed these areas out on the diagram.

He said there are cases of a normal heart tracing even if a patient has Long QT syndrome. The tracings can change over the years and Long QT won't show up every time.  Nothing further.

Re-Cross: Travis Vieux

Balko agreed that he would have done things differently from Dr. Spitz.