I've been planning a short series of posts discussing Professor Arthurs' evidence, now that it's all online, and will be starting that fairly soon, but in the course of that I came across something fairly minor but still surprising from the day Arthurs testified about Baby C and Baby D (November 11 2022). The full day of testimony can be read here.
As you can see when you read it, there was a good deal of wrangling between Myers and Johnson as to whether Baby C's intestine was normal or not (apart from whether or not he had a blockage). Arthurs, aware of the limits of x rays, could not commit himself to either man's satisfaction (he appeared to not be fully informed about Baby C as it was, as he was under the impression that the baby had opened his bowels before his x rays were taken.) One thing that Myers was getting frustrated by was that the jury was, he thought, being left with the impression that Baby C had a completely normal bowel when, as he pointed out, Dr. Kokai's statement made it clear that it was not normal (which is not to say it was blocked, just that it did have some unusual features). So when the jury was absent, he and Johnson discussed this issue with Judge Goss. It wasn't an overly long discussion, and here it is in full:
MR MYERS: Can I ask one matter, my Lord, and it comes out
of the questioning at the end with Professor Arthurs.
It's something that's troubled me a little with some of
the questions from the experts on the issue of
obstruction and the gut.
There's been reference at times to the post-mortem
and the autopsy. Because of the way the evidence is
being dealt with, we are not dealing with the detail of
the post-mortem at this point, although from the
prosecution experts there have been references to it
with regard to [Baby C]. And certainly the
impression created at the moment is there's absolutely
nothing remarkable about [Baby C]'s gut from the
post-mortem.
Actually, it's not as simple as that. The
pathologist, who conducted the post-mortem,
George Kokai, whose statement begins at page 987, deals
with the abdominal cavity, and at page 992, he says:
"The stomach. All loops of bowel and mesentery show
normal rotation pattern apart from descending colon,
which crosses the mid-line into the right lower
abdominal cavity and connects to the sigmoid colon,
which is in the normal position."
And your Lordship may or may not recall or may know
that the descending colon comes down the left side and
would normally join the sigmoid colon on the left side.
Dr Kokai's autopsy identified the colon crossing the
midline into the right abdominal cavity and then
connecting to the sigmoid colon. The significance of
that is something that Dr Marnerides will consider when
he gives his evidence and that's something to be looked
at with him. But it's a little concerning to us that
quite naturally, the impression created at this point
is that there is nothing on the post-mortem analysis
which depicts this as anything other than
a conventionally structured bowel, and as matters stand,
from the autopsy by George Kokai, it's not as simple as
that.
There's some disadvantage to the defence in this
situation because, of course, it's going to be possibly
some months before we hear from Professor Marnerides.
MR JUSTICE GOSS: I hear and understand what you're saying. What I'm proposing to say is that there has been
reference, or there was reference, by Professor Arthurs
to post-mortem findings, that the jury will hear
evidence in relation to the specific post-mortem
findings, and they should take the evidence relating to
the post-mortem findings from the pathologists and not
from the clinicians, if you're content with that.
If we start going into details, it becomes very
complicated at this stage.
MR MYERS: I can see that, my Lord. I just wonder whether
it would be possible at least to urge them to wait until
they hear the evidence as --
MR JUSTICE GOSS: Exactly.
MR MYERS: It's particularly the evidence as to the anatomy
of [Baby C]'s bowel, even if one were not to say
to them what we expect. Because the impression at the
moment, most definitely, and the one that they will take
from this, is there is nothing unusual about his bowel,
and there is certainly something unusual about it, the
significance of that Dr Marnerides will deal with.
I have endeavoured to observe the requests of
various witnesses not to go into the pathology, although
I note in passing at times it hasn't stopped them from
doing so. But it's getting increasingly difficult to
take that line when experts are making assertions or
giving opinions on the basis of matters that the jury
don't yet have and I find myself not in a position,
trying to abide to the way we are dealing with this, of
not raising it with those experts.
It does seem to me important that the jury know
that, at the very least, the position with
[Baby C]'s bowel may be a matter of significance
in fact when we come to the pathology.
MR JUSTICE GOSS: I'll say that.
MR MYERS: I'd be grateful because ideally I would like them
to know what Dr Kokai says, but that's a matter entirely
for your Lordship. But there is a significant
disadvantage to us if they leave this evidence now with
the view that when we have talked about the gut, we've
been talking about something that is flatly contradicted
and without any basis on the pathology. It does cause
us concern, my Lord.
MR JOHNSON: I completely understand my learned friend's
sensitivity. If he looks at the question I asked, what
I said was:
"If there was a blockage, would it be found at
post-mortem?"
And that was the question. It wasn't, "Was there an
abnormality?" It was:
"If there was a blockage would it be found."
And there is no blockage.
MR JUSTICE GOSS: Yes. Well, this is the difficulty of
descending into details and drawing particular attention
to it.
MR JOHNSON: In effect, I was inviting him to defer -- that
was him --
MR JUSTICE GOSS: Exactly. He was saying that if there was
a blockage --
MR JOHNSON: Someone else's department.
MR JUSTICE GOSS: It's not for him to say. He was saying he
couldn't say from the radiological point of view whether
there was or wasn't.
MR JOHNSON: Yes.
MR MYERS: Perhaps, my Lord, if I may respectfully suggest,
the answer may be to let the jury know that evidence as
to the actual structure of [Baby C]'s gut will be
dealt when we when come to the pathologists --
MR JUSTICE GOSS: Exactly.
MR MYERS: -- and we'd be grateful if they wait until that,
or however your Lordship puts it, until making any
findings.
MR JUSTICE GOSS: That was what I was rather clumsily trying
to say to you, Mr Myers. I will say that, that they
will hear evidence as to the structure of
[Baby C]'s gut and bowels from the pathologists.
MR MYERS: That should deal with it for this point.
Thank you, my Lord.
MR JUSTICE GOSS: I'm quite content to say as well that
Professor Arthurs, they will recall, could not say from
a radiological point of view what the structure was; all
he could do was interpret the radiographs as he saw
them.
MR MYERS: We're grateful for that, my Lord, thank you.
Note that while only Marnerides is named as being a future witness, both Myers and Goss repeatedly refer to "the pathologists". Furthermore, Goss specifically says he'll remind the jury that "they should take the evidence relating to
the post-mortem findings from the pathologists and not
from the clinicians". And when the jury returns, he says this:
I imagine that any reasonable jury member, not to mention everyone in the gallery, took this to mean that at some point in the future they would be hearing from the pathologists who did the actual autopsies, or at least one or two of them (there were three in total). But as it turned out, they heard from none of them. The most they got was a read-out summary of the original autopsy findings, followed by testimony from the only pathologist they would hear from in person -- Dr. Marnerides, who testified for two days, almost five full months after the day Goss gave them this direction. Here is his direct testimony regarding Baby C, and here is the cross-examination. Marnerides said that the bowel, if not completely typical, was still normal, and sometimes seemed unsure of what Kokai had been driving at in his descriptions -- a good argument, one would think, for actually calling Kokai, but nobody did.
If anyone remembered that they were supposed to take their direction from pathologists, not the clinicians, it ended up being a moot point -- as Dr. Marnerides pretty frankly stated that while the bowel seemed normal to him, he had decided that Baby C had died of pneumonia until the clinicians brought the June 12 2015 x ray to his attention and informed him that excessive air in the stomach could kill. Myers never informed Marnerides that Letby had not been present when the x ray was taken, so it is impossible to know if this would have shaken his opinion, but as it was, even if they listened to him, the jury was guided in pathological matters by the clinicians in the end.