Gunshot/Bullet

ENTRY

PROBABLE INJURY

Buccinator, Masseter (Graze?) – not mentioned by Dr. Embry

EXIT

Right side of face - angle of jaw

REENTRY

Lateral to base of neck 3 ½ inches right of anterior midline

COMMENT

TRACK

Supra-clavicular muscles

PROBABLE INJURY

Omohyoideus? Scalene anterior? Transverse cervical artery? Phrenic nerve? Pleural dome?

COMMENT

This is speculative, based on the contents of that area.  The supra-clavicular triangle, formed by the mid-third portion of the clavicle, the omohyoideus muscle and the sternocleidomastoid muscles, contains among other things, a portion of the subclavian artery, part of the brachial plexus, and the transverse cervical artery, all in a confined space.  Prosector did not mention if any of these structures were perforated by the bullet.

TRACK

2nd rib, posterior:

COMMENT

Did this bullet (called “A” by prosector) perforate the pleural dome and lung apex, either or neither, on its way to the rib?

TRACK

Through right upper lobe of lung

COMMENT

There are two lungs, a right and a left.  The right lung has generally three lobes, divided into ten segments (according to the nomenclature or Jackson & Huber, and Brock).  “The right upper lobe of lung” implies that there is only one lung with right and left Upper lobes.  Bad English if not bad anatomy.

COMMENT

This bullet had to perforate the pleura to enter the lung, causing an open pneumothorax.  The bullet evidently changed direction on hitting the 2d rib .it could not hit 2d rib, and then return to chest without a change of direction. Did it fragment?

COMMENT

Does he mean the “upper lobe of right lung?  Precision in description is essential in a case that could result in a potential death penalty.   This path is not clear. The superior segment of the right lower lobe extents posteriorly as high as the fourth rib.  How did this bullet descend in the posterior portions of the chest to the level of the ninth rib without entering the lower lobe? Suggestion: bullet path was not completely followed

TRACK

Musculature of back (found and recovered)

None of the perforations found on the sweater are consistent with this entry wound that had any gunshot residue adherent.

COMMENT

ENTRY

Right back 16 inches from top of head and 2 ¼ inches right of posterior midline.

RECOVERY

Area of right 7th rib at costo-sterno junction

TRACK

Skin and muscles of back

Right lower lobe of lung

COMMENT

TRACK

Right atrium [of heart]

Right ventricle [of heart], lateral margin

Right hemi diaphragm

Anterior abdominal wall

7th rib (recovery)

COMMENT

This is a potentially fatal wound with a short delay.  A wound to the right side of heart is rapidly fatal.

COMMENT

ENTRY

RECOVERY

TRACK

COMMENT

TRACK

COMMENT

ENTRY

EXIT

TRACK

COMMENT

COMMENT

G.        Summary of Betty Swiney Wounds

Betty Swiney was shot six or seven times with one bullet possibly exiting and reentering her body.  The gunshot wound called “A” by Dr. Embry:  With the body in the “Anatomic position” – this bullet – fired in a sharply downward direction pierced the right cheek and exited.  It is believed to have re-entered the right neck, and was found in the right lung (as a fragment).  Dr. Embry did not measure what he called the reentry wound in the neck.  If the bullet causing gunshot wound “A” did not reenter the body, it represents another lost bullet, and a second, undescribed bullet caused the damage attributed to the bullet causing gunshot wound “A”.

Two other shots were fired into the front of her body, and three were fired into her back.  Gunshot wound “B” of Dr. Embry, was to the back and perforated the right heart, and lung, before being recovered in the subcutaneous tissue of the anterior abdominal wall.  It had a slightly downward path.  This bullet was fatal, and probably quickly incapacitating, meaning that Betty fell in her tracks after being shot. Wounds to the right heart are quickly fatal, in minutes, if not seconds.

It is not clear what Dr. Embry means when he says that, “Free gunpowder is found around the skin of the wound.”  The “no soot or stippling” is clear enough, but must be interpreted in conjunction with Higgins’ report on the examination of the clothing worn by Betty Swiney.

Gunshot wound “C” as named by Dr Embry is a perforating wound through the chest, diaphragm and liver before exiting the back of the body. No gunshot residue was associated with this wound, which although potentially fatal, was not immediately so.  This bullet was not recovered.   This wound had the potential of causing bleeding into the abdominal cavity and a gradual build-up of shock over a long time. The wound path was described as slightly downward. 

Gunshot wound “D” as named by Dr Embry is another anterior abdominal wound, which perforated the head of the pancreas, the mesentery and the inferior vena cava.  It was a potentially fatal wound in an undeterminable amount of time.  No gunshot residue was associated with this wound.  The wound path is “slightly downward”.  Dr. Embry did not describe any retroperitoneal hemorrhage that would be associated with this wound---bleeding from the inferior vena cava.

Gunshot wound “E” as named by Dr Embry differs from the other shots except gunshot wound “A” in that it is fired at a markedly downward angle, perforates the sacrum with loss of bony tissue, penetrates the abdominal cavity as well as the sigmoid colon (twice), and is found floating freely in the pelvis.  Its location does not necessarily indicate the endpoint of a trajectory, as the perforation of bone can cause a change of direction.

A “few gunpowder particles are found on the skin next to this wound”.  This is confusing, as the next sentence states, “No soot or stippling is present”.  This has to be evaluated in conjunction with the examination of clothing made by Higgins.

Gunshot wound “F” as named by Dr Embry is a superficial wound to the right buttock, perforates the gluteal fat and exits leftward, downward and medial to the entrance, with an in body track of approximately five inches.  No mention is made whether it perforates any of the gluteal musculature.  Again the cryptic notation: “A few gun powder particles are found around this wound.  No soot or stippling…” This has to be evaluated in conjunction with the examination of clothing made by Higgins.

From the description made by Dr. Embry, and without seeing the autopsy photographs, certain conclusions may still be drawn, subject of course to revision if necessary.  Several diagrams were produced based on Dr. Embry’s verbal descriptions, and are attached below (see diagrams in the Appendix A, B, and C).  These diagrams are for demonstration purposes only, and do not pretend to be drawn to scale.

In order for the AR-7 rifle to be the murder weapon, and for at least some of the shots fired were when Betty Swiney was standing, the assailant(s) had to fire from at least four feet away for there not to be any soot or powder detected on the skin and clothing.  Considering the length of the rifle, this makes the assailant(s) distance at least seven feet from the victim. If a handgun were the murder weapon that distance can be shorter.  It is unlikely that a single killer danced around her between shots, but two killers could have alternated shots.

I believe that all the shots fired from in front of Betty Swiney were fired in quick order, while Betty Swiney was standing, followed by the shots fired from behind her, while she was still upright.  Bullet “C” was fired before bullet “B” which would have Dropped Betty Swiney in her tracks.

Bullets “A”, “E. ” “D” and “F” were most likely fired when Betty Swiney was on the floor, perhaps on all fours and the killer(s) standing above her.

Again I must state that this analysis is based entirely on the verbal descriptions provided by Dr. Embry; I did not see the scene of autopsy photographs.  Should the photographs reveal conflicting information, my conclusions would of course change.

THE CRIME SCENE INVESTIGATION

This crime scene investigation is discussed in my affidavit. (qv)

THE “FORENSIC” EVIDENCE

A.        THE AR-7 RIFLE - CHARACTERISTICS

When assembled, the AR-7 owned by Swiney has a stock-barrel length of 37 ¼ inches (slightly over three feet)[13] .  That means that if the weapon is fired in a (near) horizontal position, the shooter would have to be at least three feet away from his victim (for a contact shot).  In order to have no gunpowder residue emitted from the barrel deposited on the skin or clothing, allow about four feet for a rifle and about 2 ½ feet for a handgun (this is a general statement, and not necessarily for a specific weapon).  Occasionally an aberrant burned or unburned powder particle will be propelled a greater distance, but this a pure chance happening.

The AR-7 is recognized as one of the dirtiest weapons ever made[14], and tends to jam.  This is a characteristic of all of these rifles and not only the one Swiney owned.  Chambered for the 0.22 long cartridge only, the stated muzzle velocity was 1070 feet/sec, although a dirty barrel may slow this down.  Because of the amount of residue left in the weapon, the ejection mechanism tended to jam. This happened during the test firing by Higgins and the tests performed by Dr. Nordby.

B.        RIFLE AS THE MURDER WEAPON

In summary, the amount of damage caused by a bullet depends on several variables, the bullet shape, distance from target (bullet velocity), the presence of an intermediate target, and above all kinetic energy given the bullet when fired.  Damage is caused by the creation of a wound cavity as the bullet passes through the body and transfers energy from it to the tissues, and disrupts the cohesive forces that bind the tissue.  It has been known for a long time that a bullet’s ability to injure changes about velocities near 1,000 feet per second (fps).  The AR-7 firing Remington 0.22 caliber long riddle rounds has a stated muzzle velocity of 1070 fps, so it is near the threshold between the slower velocity wound cavity and the larger more damaging wound cavity.  The actual rifle may have a lower velocity if fouled by gun power of primer deposit.

A bullet that is stopped in the body loses all its kinetic energy, energy imparted to the tissue it penetrates.  Conversely, a bullet that perforates the body keeps some of its energy.  An expanding (hollow nose) bullet is designed to release all its energy in the tissue, and a “wadcutter,” because of its blunt shape also imparts all its energy to the tissue.

If fired by a pistol, the same round that would have a 1070 fps fired by a rifle would have a slower velocity, and therefore would do less damage to the target than a rifle would.  This damage is disruption of the target tissue, usually as a tunnel surrounded by a necrotic and hemorrhagic rim, and if the victim survives long enough, there will be signs of inflammation, primarily swelling.  The associated hemorrhage can be due to the avulsion of many small blood vessels, or laceration of a large vessel like the aorta or jugular vein through direct perforation or blast effect.

ANALYSIS OF HIGGINS’ BALLISTIC REPORT

Examiner Higgins examined the putative rifle, the retrieved cartridge casings, the retained bullets, Betty Swiney’s clothing, and the perforated glass windowpane.

General Observations:

1)      Higgins did not state if the rifle was “clean” or not.  If it were recently used to fire off at least eight rounds, the barrel, and lock would be filthy.  Cleaning such a rifle takes time, and the timing of this case does not permit Swiney to take that time to clean the rifle, and do everything he is alleged to have done.

2)      Higgins fired two of the rounds that were present in the rifle’s magazine for use as a control to compare the retrieved bullets and cartridge casings.  The weapon jammed in the process.

3)      According to the report made by Higgins, he received nine envelopes, each of which contained an expended cartridge casing--- “0018”, 0019”, “0020”, “0021”, “0025”.

4)      Received separately is “0026”, and “0024”.  This accounts for seven (7) of the nine (9) cartridge casing envelopes..  Higgins states that all were fired from the putative rifle, but does not say on what criteria he based his conclusion.

5)      Of the eight (8) bullets apparently fired, two (2) bullets were recovered in Ron Pate, and four (4) recovered from Betty Swiney.  Two (2) other bullets were not recovered – one allegedly from the wound labeled “C” by Dr. Embry, and one labeled “F” by Dr. Embry.

6)      The expended bullets that were recovered from Pate were too distorted to make a comparison.  These bullets were not identified as 0.22 caliber, nor does Higgins state if these bullets were jacketed or not, soft or not soft, did not indicate the weight or other characteristics that would be used to further analyze these bullets.

7)      The bullets recovered from Pate’s body possessed “some similarities” to the test bullets fired from the putative AR-7, but Higgins did not confirm a match.  Were these in fact “class characteristics” such as the number and direction of twist?

HIGGINS: Five small sealed envelopes, each labeled in part "88-25863 Betty s Swiney" and each respectively marked “A”, “B”, “D”, and “E” and “Right Lung”.  Envelopes “A”, “B”, “D”, “E” each contained one apparent .22-caliber expended bullet. (emphasis added) This accounts for five bullets. With two bullets perforating and not recovered, there is one bullet too many!  Was a seventh bullet fired?  What was contained in envelope labeled “A”, and what was contained in envelope labeled “Right lung”?)

COMMENT:  Why is this “apparent”?  If Higgins cannot tell, who can?  Convictions cannot be based on “apparent” evidence.  The envelope marked "right lung" contained a non-ferrous (meaning non-iron).  He is concerned with the presence of lead, and arguably tin.  The non-iron is a non sequitur

HIGGINS: [and] a metallic fragment that was similar in appearance to the bullets.

COMMENT:  What does “similar in appearance” mean?  What did this “fragment” look like — size, shape, color, consistency?  That is the least description of what that fragment might have been.  Did it occur to Higgins to determine if it was lead or some alloy?  With a suggestion that more than one weapon was used, this information is critical, and failure to follow through, gross negligence.

HIGGINS: Laboratory examination and microscopic comparison of each of the submitted expended bullets test fired through the (1) above revealed ample evidence that the bullets found in envelopes “A”, “B”, and “E” had been fired through the barrel of Charter Arms rifle serial number A21497.  The bullet in envelope “D” did not possess the fine detail that was necessary for identification. (emphasis added)

COMMENT:  Again, one fragment too many.  What ample evidence does Mr. Higgins have?  It is not included in his report.

Higgins also processed the swabs taken from Patrick Swiney for the presence of primer residue (GSR).  What technique did he use to test for GSR?  His report doesn’t say, yet it does say he found none.

However, at the very bottom of Higgins’ GSR report are the negative results and a disclaimer: “Laboratory analyses failed to reveal conclusive evidence that the above-named person fired a weapon, handled a fired weapon, or whether the hands were in close proximity to a firearm when it was discharged.  It should be noted that certain brands of .22 caliber rim fire ammunition do not contain the elements necessary to make this determination.” (emphasis added)

COMMENT:  We are not interested in “certain brands” but only Remington long rifle) 0.22 caliber ammunition.  This is a non sequitur.  This statement is deceptive, as it implies without stating that the brand of ammunition fired from the rifle did or did not contain those elements. 

DISCUSSION

Certainty in medicine and science is an elusive term, made more slippery by the demands the court makes of an expert witness.  Without a perfect answer, courts in general rely on subjective criteria to connect two facts with each other, looking for cause and effect. 

The word itself “certainty” derives from the Greek Krainen (krainen): to separate through a sieve.  In forensic sciences and medicine certainty is based on two concepts, that of the ability to compare an unknown with a known, and Locard’s Principle[15] that every contact leaves a trace. The first concept relies on having a valid “control” sample to compare with the unknown “clue”, and should include a brief description how this comparison was made.  An opinion by an expert can be accepted as a fact if the trier of fact so decides, but they are not obligated to do so.

A fact is an observation that can be verified by others, given sufficient convincing and reliable documentation.  The determination that fact A causes a result B is a purely subjective determination, occasionally buttressed by quantitative measurement and either a formal quantitative probability, deductive reasoning, or as in court a qualitative probability based on pattern recognition and previous experience.

If I throw a baseball into the air in the real world, I am certain that it will return to Earth.  This conclusion is based on my previous experience as well studies by others who have measured all the parameters that determine the how and wherefore of a baseball in flight.  The probability of that baseball remaining suspended in the air forever is nil, and an opinion that a baseball thrown into the air will eventually fall back to Earth is an absolute certainty.

In medicine, there is less certainty, and a diagnosis is made through often-subconscious associations of pattern recognitions and previous experience.  A doctor never seeing small pox will have trouble making the diagnosis, while one that has seen many cases will make the diagnosis on sight.  Likewise, in Forensic Pathology, previous exposure to similar conditions makes the diagnosis easier and with more certainty.

A pathologist seeing 1000 gunshot wounds will have little difficulty recognizing a gunshot wound, and will know what to look for, describe it and preserve the wound by proper photography.   He will not confuse it with a stab, or confuse an entry with an exit wound while a neophyte never having seen a gunshot wound might have trouble differentiating a stab wound from either an entry or exit gunshot wound. The experienced pathologist can describe what he sees in concise and precise terms so that another trained pathologist can visualize what was seen, and the description should coincide with any photographs, taken as a quality control mechanism.

Given several caveats, a good description can go a long way to help the courts, but certain questions cannot be answered with any precision given the state of the art today. The forensic pathologist should be able to anticipate some of the questions anticipated by both the prosecution and defense, and prepare to answer them, if he can.  This pro-active approach saves him embarrassment in court.

The answer to these questions as much as they can be answered should be found in the autopsy protocol, which is standardized by each pathologist who does a forensic autopsy   His does not have to be a Shakespeare with his writing, but must be clear, accurate, and complete.  Every wound has a location on the body, and its center should be located on the body as a plain measurement and in relationship to the top of head or heel, to the anterior or posterior mid-line, and another visible landmark, if necessary.  An entry wound can be either larger than the missile’s caliber, the same size as, or smaller, so in general the dimensions of the skin perforation do not indicate the bullet size.  No estimate of the bullet caliber is possible based on the entry wound alone, but an experienced pathologist may opine whether the wound was caused by a large of small caliber bullet.  Based on the information in the protocol. The bullet that penetrated Pate’s neck was not tumbling or wagging.

A general characteristic is the presence of an abrasion collarette, variously called a marginal abrasion, and if eccentric indicates grosso moto the tangency of skin penetration. At higher velocities, this collarette changes its character, and is often associated with one or more radial lacerations.  Another feature found is a grease collar common to all bullet wounds, more or less visible.  With wounds of close contact, or wounds where there is loose skin, the usual round or ovoid entry wound can be stellate or irregular, and the abrasion collarette minimal.[16]

The bullet looses significant energy stretching and disrupting the skin – it does not as once believed bore or drill its way—and if retained by the body expends all its kinetic energy.  Obviously the more energy the moving bullet has, the greater amount of energy is absorbed if the bullet is penetrating but not perforating, and current wisdom states that the more energy absorbed, the greater the wound cavity and damage. 

RON PATE

In the instant case, it is believed by the state that Pate was initially shot in the neck from outside the house, and that bullet, after perforating a metal screen and glass window, entered Pate’s neck and stopped after perforating the fourth cervical vertebra, only to fall into the epidural space, probably in transit.  The total in body wound track is less than two (2) inches long (Appendix H).  The wound trajectory is described as virtually horizontal.  Dr. Embry does not mention any description of the retrieved bullet, or the wound cavity produced by it.[17]  Higgins states that the bullet recovered from Pate’s neck has “similarities” with those test bullets fired from the AR-7, but he could not identify it as a “match”.[18]

Higgins apparently did not test this bullet retained in Pate’s neck for any remnant glass fragments, and Dr. Embry did not describe any glass fragments in or around the wound.  In the absence of any glass fragments found inside or outside the perforated window, there is no proof that (1) the window perforation was fresh or (2) that the bullet that struck Pate also perforated the window.

It cannot be determined from the information received in what position Pate was when he was shot in the neck.  However, if the bullet’s trajectory did not deviate—that is remained horizontal throughout its path in the air, and in Pate’s neck, it would be reasonable to assume at first glance that Pate was sitting when shot.  This is based on the location of the perforation in the window, which was not measured from the ground,  but is near the bottom of the windowpane.  However, if Pate was shot in the neck first, he could not move afterward because of a transected spinal cord, and he fell in his tracks, or where his feet were, away from the table.  No one ever tested to find out if there was a clear straight shot from the window to where Pate was putatively standing.

The same would hold true if Ron Pate were shot in the head first, which would also incapacitate him immediately.  However that places the killer(s) in the building to fire both shots; it would be unlikely that the killer(s) shot Pate in the head and then walked outside to shoot him through the window.  The geometry would not be possible.

Dr. Embry is unclear about the damage done to the spinal cord.  If in fact the spinal cord was totally transected, a quadriplegia with phrenic nerve paralysis would have killed Pate in short order, and he would have fallen in his tracks.  The phrenic nerve, which among other things controls the diaphragm derives from anterior cervical roots 3-5.  With the spinal cord transected at the level of the fourth cervical vertebra, a component from C-3 may already be far enough out of the spinal canal not to be affected, and allow some diaphragmatic activity.

The head wound is easier to interpret, even with minimal evidence.  This close wound to the head was surrounded by burned and unburned gunpowder, and had a ⅛ inch diameter and had a minimal abrasion collarette.  This bullet caused significant damage to the brain’s base and would have been fatal in a short time, independent of the neck wound.  Again this bullet was deformed, and could not be “matched” to the AR-7.  All probability is that this wound was received while Pate was on the ground.  There is no report of Pate’s clothing being examined.

BETTY SWINEY

It is not possible to determine with any degree of certainty what position Betty Swiney was in when shot, or the order of the shots.  It is clear however that she was shot from both the front and the back, and the shooter did not alternate positions between shots.  Gunshot wounds “A”, “E” and “F” are unusual, and geometric considerations are such that they imply that Betty Swiney was closer to the ground than the shooter(s).  The same would hold for gunshot “E”— one shot with a decidedly steep downward angle according to Dr. Embry

Gunshot wound “B” through the back, can be considered the most lethal shot, among others, and if Betty Swiney were standing when she received it, it would have floored her.  Bleeding from the right ventricle is quickly fatal.  The bullet was recovered in the anterior abdominal wall.  She could have attempted to get up—or at least was on all fours after the shot, thereby in a position to receive gunshots “A”, “E” and “F”.  Gunshots “A”, “B” and “C” would all cause a pneumothorax, with restricted breathing.

In this scenario, gunshot “C” would have been the first shot; perforating her chest; this bullet was not recovered.  This shot would cause hemorrhage, would not cause “instant death” but shock in an indeterminate amount of time as well as an open pneumonthorax.

Because Dr. Embry did not comment on the size of any of the wound tunnels, it is not possible to state with any degree of certainty that the rifle AR-7 was the murder weapon or another weapon was used.  Other evidence must be used to evaluate this possibility, and another report relates to this.  At close ranges, seven of the eight gunshot wounds –based entirely on the descriptions made by Dr. Embry—and those descriptions only, could easily be made by a pistol or revolver.  Testing of the putative weapon would resolve this issue, and either confirm that the AR-7 was the murder weapon or refute it as the murder weapon.

Higgins’ casual examination of the retrieved material is subject to challenge, and the remaining material should be tested.  I would add that the under pants of both victims, if retained, should be tested for seminal stains; in the absence of vaginal washings, a positive result would confirm that Betty Swiney had sexual relations in the immediate time before the murder, although it would not identify her partner.

The clothing examination by Higgins is also casual.  Dr. Embry describes free gunpowder “around “ or “next” to gunshot wounds “E” and “F”, but no residue on the clothing that covers these wounds are detected by Higgins.  Either there is some residue present that he did not detect, making his report suspect in its entirety, or there was in fact no residue on the clothing involved.  Since clothing acts as a filter, the residue must of necessity pass through the two layers of clothing before it reaches the skin.  This implies that Betty Swiney was partially nude when she was shot, and clothed afterward by her killer(s).  The gunpowder residue found in the clothing bag has not any value with respect to this paradoxical finding. (See Appendix D of a case of a gunshot wound through clothing acting as a filter—but not a 0.22 caliber pistol).

CONCLUSION

In my opinion as a forensic pathologist, that:

1. The crime investigation was far below the standard needed for a murder investigation, and therefore prejudiced Swiney;

2. The medical examiner, for whatever reason, neglected to collect pertinent samples, which prejudiced Swiney, thereby preventing him from getting a fair trial;

3. The firearms examination is grossly deficient, misleading and wrong, depriving Patrick Swiney a fair trial, and prejudicing the results of that trial.

4. The conclusion that Swiney could fire an AR-7 rifle at least eight times without getting any primer residue on him is blatantly erroneous, misleading, and prejudiced Swiney, thereby denying him a fair trial.  The most important fact in this case, is the false statement by Higgins that an AR-7 rifle fired at least eight (8) times would leave no residue on the shooter’s hands.  The certainty in this challenge is extremely high; the inability to test fire the actual weapon involved in this case does not diminish the certainty of my conclusion because the degree of certainty involved is in the order of the baseball analogy above.  The gunshot residue deposit is a class characteristic, individualized for the AR-7, which is universally recognized as a dirty weapon, only with respect to magnitude.

5. If a physical action “A” causes a result “B” every time it happens, and “B” does not happen, neither did “A”.  This is a law of physics and the laws of physics supercede the laws of Alabama.

6. If the rifle spews off powder as is stated in another report, and Swiney’s hands do not have powder residue on them, he did not fire the weapon, meaning that the indictment against him is faulty, and by definition he is not guilty of the crimes alleged.

The above opinion is based on the material received by me and because I was unable to see quality reproductions of the crime scene and autopsy photographs, they are subject to change if warranted by inspection of the crime scene and autopsy photographs.

Respectfully submitted,

_____________________________

G M Larkin MD DABFM FACFE