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Emberly McLean-Bernard, born six weeks premature in rural Mississippi, weighed less than five pounds when doctors sent her home. She did not cry and barely ate, her mother said, and not two days elapsed before she began to gasp for breath. Jocelyn McLean rushed her daughter to the nearest emergency room, but the baby was already turning blue.<\/p>\n
The medical team went straight to code blue, pumping air into the baby\u2019s lungs, trying to force an IV line into Emberly\u2019s neck and scalp, prodding her with a rectal thermometer \u2014 but her vital signs kept failing. After four hours, they gave up.<\/p>\n
A state medical examiner concluded that the death had not occurred because of a medical problem, but had been a homicide, the result of \u201cblunt force injuries with signs of strangulation.\u201d<\/p>\n<\/div>\n<\/div>\n
Ms. McLean, a 29-year-old Black mother with two other small children, was charged with capital murder.<\/p>\n<\/div>\n<\/div>\n
Ms. McLean was stunned. The emergency room doctor who had tried to save the baby was shocked. But Dr. Joye Carter, a forensic pathologist tapped by the defense to review the case, saw an all-too-familiar pattern: a medical examiner who made a ruling without talking to the doctor or even examining the hospital records. Supervisors who signed off on his decision. A criminal justice system that all too often sends Black people to prison on evidence that might not have convicted someone else. In court, Ms. McLean and her lawyer recalled, Ms. McLean was called a \u201cmonster.\u201d<\/p>\n
She spent more than a year in jail before Dr. Carter\u2019s autopsy review forced the state medical examiner and prosecutor to acknowledge that the baby\u2019s injuries could be explained by the desperate attempts to save her that night.<\/p>\n
\u201cI\u2019m thankful that this woman didn\u2019t murder her child,\u201d Steven Jubera, the assistant district attorney in Tallahatchie County, said in an interview after the charges were dismissed. \u201cBut the flip side of it is, \u2018My God, I\u2019ve had a woman locked up.\u2019\u201d<\/p>\n<\/div>\n<\/div>\n
The nation\u2019s death investigation system, a patchwork of medical examiners, freelance experts and elected coroners who may have no medical training, is responsible for examining suspicious and unexplained deaths. Wrapped in a mantle of scientific authority, its practitioners translate the complexities of disease, decomposition, toxicology and physics into simple categories like accident, homicide or death by natural causes, setting in motion the legal system\u2019s gravest cases and wielding tremendous influence over juries.<\/p>\n<\/div>\n<\/div>\n
Yet these experts are far from infallible. As forensic science of all kinds faces scrutiny about its reliability, with blood spatter patterns, hair matching and even fingerprints no longer regarded as the irrefutable evidence they once were, the science of death has been roiled over the past year with questions about whether the work of medical examiners is affected by racial bias, preconceived expectations and the powerful influence of law enforcement.<\/p>\n
A study published last year by the Journal of Forensic Sciences<\/a> found evidence of cognitive bias when 133 forensic scientists were presented with identical medical evidence in hypothetical cases involving child deaths. The deaths were more likely to be ruled an accident if the child was white and the caregiver was a grandmother; they were more frequently ruled a homicide when the child was Black and being cared for by the mother\u2019s boyfriend.<\/p>\n The study, whose authors included Dr. Carter, touched on the very essence of the simmering debate over forensic pathology. It showed, its authors said, that judgments that ought to be based on science can become clouded by prejudice when medical examiners allow their findings to be affected by information that is not medically relevant. But many leaders in the field insist that medical examiners are obligated to consider the totality of the case before them \u2014 including statistics showing that boyfriends are more likely than blood relatives to commit child abuse.<\/p>\n The new research was met by an explosive backlash. The National Association of Medical Examiners complained that the study<\/a> had been poorly designed and improperly conducted. One association member filed an ethics complaint against Dr. Carter and the three other forensic pathologists listed as authors, claiming that the paper would do \u201cincalculable damage to our profession.\u201d<\/p>\n One of the authors suggested retracting the paper simply to end the controversy. \u201cI can\u2019t even sleep at night because of all the hate and vitriol that I\u2019ve received,\u201d he wrote in an email shared with The New York Times. In frustration, Dr. Carter, who had spent years trying to expand racial representation in the profession, resigned as head of the organization\u2019s diversity committee.<\/p>\n Recent cases like the death of George Floyd in Minneapolis \u2014 where some experts contended that the prolonged weight of police officers on Mr. Floyd was not the cause of his death \u2014 have catapulted the debate over bias into the public arena.<\/p>\n<\/div>\n<\/div>\n Dr. Andrew Baker, the chief medical examiner in Minneapolis, who would go on to perform the official autopsy in the Floyd case, acknowledged in an address to the American Academy of Forensic Sciences in 2015 that \u201cegregious failures of the system have led to tragic consequences for innocent defendants.\u201d<\/p>\n<\/div>\n<\/div>\n But he attributed the failings to bad apples in the profession, not a failure to establish safeguards against error. \u201cOvert failings \u2014 such as incompetence, dishonesty, fraud and corruption \u2014 do not constitute cognitive bias,\u201d he said.<\/p>\n Dan Simon, a professor of law and psychology who served for six years on the federal committee<\/a> charged with creating better forensic standards, said medical examiners have been uniquely resistant to adopting reforms. \u201cThey stand out in their recalcitrance,\u201d he said. \u201cAnd it\u2019s a serious problem.\u201d<\/p>\n<\/div>\n<\/div>\n Critics say that a reluctance to admit the possibility of bias, combined with a lack of diversity in the profession and a traditionally cozy relationship with law enforcement, can increase the chances of racial disparities when medical examiners err. A string of Black<\/a> and Latino<\/a> defendants have been freed in recent years, some from death row, after the autopsy findings that had helped convict them were disproved.<\/p>\n In one California case, Vicente Benavides spent 25 years on death row on charges of raping and sodomizing his girlfriend\u2019s 21-month-old daughter so brutally that it killed her. Mr. Benavides was released in 2018 after experts said the cause of death presented at trial was anatomically impossible.<\/p>\n Before getting involved in the case of Emberly\u2019s death in Mississippi, Dr. Carter had spent much of her career taking on the issue of racial bias in the forensics profession.<\/p>\n<\/div>\n<\/div>\n She attended medical school at Howard University, which was then the only historically Black school with a pathology residency, and in 1992 became the first Black woman to lead a medical examiner\u2019s office, in Washington. She realized that there was virtually no pipeline to train and recruit people of color in her profession even though more than half of homicide victims in the country are Black.<\/p>\n<\/div>\n<\/div>\n Later on, she heard absurd claims from fellow medical examiners, including that Black people were impervious to pain and that bruises could not be detected on dark skin. She came to believe that a lack of cross-cultural training was causing mistakes with large consequences.<\/p>\n Some of those ramifications became apparent during her forensic pathology residency, in the 1980s, when she was the only Black pathologist in the office of the medical examiner in Miami.<\/p>\n Poor Black women were turning up dead in dismal settings \u2014 cheap hotels, abandoned buildings, open fields. Though the women were found in similar poses, the deputy medical examiner believed that their deaths had been triggered by a combination of cocaine use and voluntary sex. Nearly all were classified as drug-induced accidents.<\/p>\n Dr. Carter pushed back. The victim she examined had a severe crack habit, but Dr. Carter declined to call the death an accident.<\/p>\n She was right. After a public outcry, the autopsies were reviewed, and injuries were found that had been overlooked or dismissed; the deaths were all reclassified as homicides. A man with prior rape convictions became the prime suspect in 32 killings over nearly a decade. He died before he could be brought to trial.<\/p>\n Over the years, the most commonly cited source of bias in forensic pathology has been law enforcement influence, in part because in some places police detectives are routinely present during autopsies.<\/p>\n<\/div>\n<\/div>\n In the Mississippi case, it may have been the other way around: The prosecutor, Mr. Jubera, said there was no suspicion of foul play in Emberly\u2019s death until the pathologist called it a homicide. That left, he said, only one suspect: her mother.<\/p>\n<\/div>\n<\/div>\n For months after Emberly\u2019s death, Jocelyn McLean called the county coroner and the state medical examiner\u2019s office looking for an explanation of why her daughter had died, worried that she had missed a warning sign, or that the hospital had released the baby too soon.<\/p>\n She got no answers. The medical examiner\u2019s office had a considerable backlog that was forcing families, the police and courts across the state to wait lengthy periods for autopsy reports.<\/p>\n But unlike in many jurisdictions, Mississippi\u2019s medical examiners were board-certified forensic pathologists working in a state-of-the-art lab. Still, 15 months ticked by before the local prosecutor was notified by the pathologist on the case, Dr. J. Brent Davis, that the death was a homicide.<\/p>\n Ms. McLean, who was living near Atlanta and had been visiting Mississippi when she went into labor, saw the first sign of trouble in December 2017, when she received a Facebook message from a caseworker at the Georgia Division of Family and Children Services warning that if Ms. McLean\u2019s two living children were not seen by the agency within 48 hours, they would be removed from her custody.<\/p>\n During the subsequent visit, the caseworker disclosed that state authorities in Mississippi had concluded that Emberly had been a victim of child abuse. \u201cI was like, ain\u2019t no way. Ain\u2019t no way that could have happened,\u201d Ms. McLean said. \u201cShe was in my custody the whole time.\u201d<\/p>\n<\/div>\n<\/div>\n Emberly\u2019s siblings, who were then toddlers, were forced to strip naked for an exam and were removed from Ms. McLean\u2019s custody for almost a year.<\/p>\n<\/div>\n<\/div>\n Her first chance to see the autopsy report came in early 2019, when she agreed to sit down with Mississippi homicide investigators to give a voluntary statement.<\/p>\n During that interview, one of the investigators claimed that a tear in Emberly\u2019s rectum could have been caused only by sexual abuse.<\/p>\n Ms. McLean responded in a tone of subdued disbelief: \u201cAre you saying she was raped?\u201d<\/p>\n As she began to grasp what the investigators were implying, she twice asked to take a lie-detector test. None was administered.<\/p>\n The prosecutor, Mr. Jubera, said he ultimately disregarded the medical examiner\u2019s findings of potential sexual abuse, saying that they \u201cdidn\u2019t make sense in this scenario.\u201d But he did not question the homicide ruling. \u201cI have to rely on my experts,\u201d he said.<\/p>\n He theorized that Ms. McLean, upset by relationship problems with Emberly\u2019s father, had killed the baby in a \u201cpostpartum snap.\u201d<\/p>\n Three years after Emberly\u2019s death, Ms. McLean was indicted on a charge of capital murder.<\/p>\n She remained in jail for almost a year, telling her children over video visits that she was working at a new job. When the coronavirus pandemic delayed her trial, a judge allowed her release on a $250,000 bond and a $350-a-month ankle monitor.<\/p>\n<\/div>\n<\/div>\n Her court-appointed lawyer, Tara Lang, was troubled by the case. Mississippi has the country\u2019s highest infant mortality rate, and the baby had been released from the neonatal ward before she began to gain weight.<\/p>\n<\/div>\n<\/div>\n Dr. Rodney Baine, the doctor who had tried to save Emberly\u2019s life, told Ms. Lang that the baby showed no signs of injury when she arrived at the hospital but was simply very vulnerable and very sick.<\/p>\n He reiterated that contention in an interview with The Times. \u201cIt\u2019s just A.O.G.,\u201d Dr. Baine said. \u201cAct of God.\u201d<\/p>\n<\/div>\n<\/div>\n Ms. McLean found herself wondering if the medical examiner would have looked at the death of a white child differently. \u201cI\u2019m a Black mother,\u201d she said. \u201cHe just knew, off rip \u2014 she killed her baby.\u201d<\/p>\n Her lawyer was introduced to a medical expert she was told might be able to help: Dr. Carter.<\/p>\n \u201cWhen I looked at the autopsy, I had already read the medical records,\u201d Dr. Carter, 65, said. \u201cSo then I was like: \u2018What? This doesn\u2019t make any sense. This makes no sense at all.\u2019\u201d<\/p>\n The medical examiner\u2019s report, she wrote in a memo, did not mention several alternative explanations for the baby\u2019s condition: a post-mortem test for a virus that came back positive, thermometer probes that could have caused the rectal tear, multiple attempts to find a vein that left bruising and puncture wounds in her head and neck.<\/p>\n<\/div>\n<\/div>\n \u201cIt was clear immediately to me that the doctor hadn\u2019t reviewed the medical records,\u201d Dr. Carter said.<\/p>\n<\/div>\n<\/div>\n It is not clear why Dr. Davis did not have the records in his case file or insist on getting them.<\/p>\n \u201cI\u2019ve done I don\u2019t know how many autopsies \u2014 the first thing you look at is the emergency room records,\u201d said Dr. Baine, the emergency room physician who had tried to save Emberly.<\/p>\n The Tallahatchie County coroner, Ginger Meriwether, did not return calls for comment. Dr. Davis, who conducted the examination, and the supervisors who approved it also declined to comment.<\/p>\n \u201cThis is the kind of case that chills you to the bone,\u201d Dr. Carter said.<\/p>\n In October, more than five years after Emberly died, Jocelyn McLean\u2019s capital murder trial was finally set to begin.<\/p>\n Her lawyer, Ms. Lang, had been raising serious questions about the case for more than a year, sending the prosecutor first the missing medical records, then Dr. Carter\u2019s review of the autopsy report.<\/p>\n Mr. Jubera had in turn sent them to the state medical examiner\u2019s office and to Dr. Davis, who was by then working in Utah.<\/p>\n Months went by with no response. So Ms. Lang prepared to confront Dr. Davis on the witness stand about how he had reached his conclusions.<\/p>\n<\/div>\n<\/div>\n Just days before trial, Dr. Davis abruptly changed his mind. The death was not a homicide after all, he wrote in a memo to Mr. Jubera. The baby\u2019s injuries were \u201cconsistent with lifesaving efforts\u201d and, in the genital area, diaper rash.<\/p>\n<\/div>\n<\/div>\n Dr. Davis wrote that the revision was prompted by a review of the hospital records, which he said he had not seen before. Without them, he said, there had been \u201cno other explanation\u201d for the injuries. The charges were dropped.<\/p>\n The Innocence Project has filed a civil rights lawsuit against the medical examiners involved, saying that a \u201cgrossly inadequate and reckless investigation\u201d had deliberately ignored evidence that weighed in Ms. McLean\u2019s favor.<\/p>\n On the eve of her trial, Ms. McLean had made arrangements for her children to be cared for while she was in Mississippi, and had even planned a good-luck dinner with her co-workers at McDonald\u2019s, where she is an assistant manager.<\/p>\n Instead, she found herself seated in the back corner of a library in Douglasville, Ga., speaking to a reporter.<\/p>\n She was relieved that the case had been dropped, she said, but for her the real turning point had come many months before, when her lawyer called with the news that Dr. Carter had recognized that no one had killed her baby.<\/p>\n \u201cIt was a type of relief,\u201d she said, \u201cthat somebody believed me.\u201d<\/p>\n<\/div>\n<\/div>\nFlawed Autopsies and Wrongful Convictions<\/h2>\n
Emberly\u2019s Autopsy<\/h2>\n
The Expert<\/h2>\n
A Long Delay<\/h2>\n