# For lurking JDs and MDs : Bullcoming



## Bertha (Jan 10, 2011)

I don't expect this thread to get much attention but I've noticed some pretty high caliber political arguments around here with some well read combatants on both sides. Here's a recent Supreme Court decision that's becoming growingly problematic in the courts. I'm curious if anyone's familiar with this decision and whether you have any predictions. The second link provides html and pdf links to the dissenting opinion (not that I'm biased or anything but I'll provide it here: http://www.law.cornell.edu/supct/pdf/9-10876P.ZD) 

http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

http://www.law.cornell.edu/supct/html/9-10876.ZS.html


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## superstretch (Jan 10, 2011)

I'm a hardcore followerer of Constitution Law/Judicial Law, but tl;dr at the moment. I am, however, thrilled that there are some justices who still have their heads on straight-

http://www.newburyportnews.com/opinion/x2134993461/Court-upholds-publics-right-to-monitor-police
http://www.forbes.com/sites/peterjreilly/2011/08/17/key-part-of-obamacare-unconstitutional-eleventh-circuit-rules/


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## Bertha (Jan 10, 2011)

Life is tl;dr at the moment for me. This particular decision is making my life difficult. I pay attorneys a lot of money and none of them can tell me what's ACTUALLY going to happen. But whatever it is, it's starting to happen. I'm glad you're a ConLaw fanboy. We need more of those. If you ever get some downtime, at least skim it and read the dissent.


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## superstretch (Jan 10, 2011)

Roger that. In brief? I skimmed and it looked like evidence had to be presented manually?


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## Bertha (Jan 10, 2011)

That's a pretty good Cliff. It means that the defense can call all manner of ancillary staff to appear from the outside lab to the mailroom. I'm still unsure who's going to accept the financial burden of producing these witnesses.


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## steviep (Feb 25, 2011)

Really Al, Justin Bieber?????


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## superstretch (Jan 10, 2011)

Oh yeah.. I totally forgot to mention that.

Dude. What gives. Baby Baby Baby been on repeat on your ipod all day?

*edit* I don't like that when I search for "somebody to love" on youtube, he beats out Queen.


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## DonnyBahama (Jun 21, 2011)

Political arguments? Around *here*? Please… let's not spoil things! 

I have no thoughts on Bullcoming, but as for Constitution Law, I personally think that Citizens United v. FEC was the beginning of the end for this country as we know it (and as the founding fathers intended it.) Combined with the general gullibility of the citizenry, it gave the Koch Brothers and ALEC free reign to legislatively subvert the most fundamental underpinnings of the Constitution. I have become a future expatriate. I just need to find a country with good weather, good civil rights policy, a single-payer healthcare system, and good, sustainable forestry. (Panama is looking pretty good.)


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## DMIHOMECENTER (Mar 5, 2011)

Al, I did just read the entire thing.

First, thank you for taking nearly 30 minutes from my precious life (yeah, I took the Helen Keller speed reading course long ago). =) <= lol @ new symbol

Second, That's crazy. So will there be a new job category of watching the GS while it runs overnight to make certain that the chain of evidence is not broken ? Will that have to be the same person that filled out the paperwork AND goes to court ?

Third, (a question)... Do they pay mileage for the lab jobs in New Mexico ?

Fourth (last) - So what other case NEEDS this exclusion of evidence and WHO is it important to ? To err on the side of caution is a good thing, but not if squarely in the realm of stupidity.


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## DMIHOMECENTER (Mar 5, 2011)

Hey, Donny. Don't forget Belize.


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## Bertha (Jan 10, 2011)

^whew. Thank you, Grimes. I was worried that I was the only one. =) I like the new symbol, too, and will be stealing it=). First, sorry about that; it is painful. Second, EVERYONE'S fair game. You can no longer just subpoena the guy (doctor, for example) that "interpreted" the data; you now subpoena everyone involved with the generation of that data (from beginning to end). Third, who pays is still up in the air. Let's not talk too loudly about who pays. For now, at least, the defense has been absorbing most of it. Fourth, I like the notion of being able to face your accuser. However, the lab nerd with the MS in molecular biochemistry, the guy twisting knobs on the chromatograph, he's not your accuser. It allows the defense to impeach ancillary staff in an effor to muddy the waters. These waters are revealing an iceberg's tip, I fear.


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## Bertha (Jan 10, 2011)

Donny, I feel the urge. I understand your compulsion to bail. It's very frustrating because I love America. I know of quite a few retirees that are headed to Costa Rica where their paltry retirement stretches a little further. We probably should say Belize and Panama too loudly; keep it a secret=)


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## HorizontalMike (Jun 3, 2010)

Hey Al,
I have only two words for your West Virginia Homeboy Expert Medical Examiner Fred Zane that you sent to South Texas:

*He Lied.*
And Here is a Barry Scheck interview on Fred Zane's lies. [excerpt]*..."DNA technology has exposed a lot of unreliable methods and has made the law enforcement community realize that forensic scientists shouldn't be police-cops in lab coats. What we have failed to do in this country is develop a tradition where forensic science is an independent brute force in the criminal justice system, where the same kind of vigorous standards that we require for medical scientists and research scientists are applied to forensic scientists. We have a lot of problems in the crime labs in this country. There are two chapters in our book, one about "junk forensic science," so-called, and another chapter about fraudulent forensic science, because we have problems everywhere. Today, we have lab scandals all over the place. We describe one in West Virginia, involving Fred Zane, whose dry lab didn't even do the experiments in about 330 cases, at the very least.

He just faked the data?

Faked the data. They had inconclusives, or just gave the results they wanted, didn't even do the tests. He moved on to San Antonio, Texas, where he did the same thing. Joyce Gilchrist, whom we mention in our book in the first edition (we have a new one coming out in the fall), has now been caught in Oklahoma City, a known ersatz forensic scientist, who was caught giving results that didn't make any sense, where she may not have even done the work, and she's been fired. Now they're looking at 3,000 cases and [will] whittle them down to another about 300. We have lab scandals today in Houston, Texas-Harris County. If Harris County, Texas, were a state, they would have executed more people in this country than any state other than Texas."*

P.S. It really, really screwed things up here in Texas and we all wished you had kept this good-ole-boy in WV. Too bad he died before any real justice was served him. That being said, I truly believe the Fred Zane case applies to such a ruling in your posted case on DWI.


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## Bertha (Jan 10, 2011)

Awesome!!! Leave it to Horizontal to be on it like a hawk. Zane's not a medical examiner, though, Mike. He was a scumbag toxicologist, if even that. See:

http://en.wikipedia.org/wiki/Fred_Zain

I can't believe I just referenced wikipedia. Oh well, we're all woodworkers here.

The jurisprudence section of the AAFS talked a lot about ole Zane last year, lol. I was embarrassed to say where I lived for the first time. You're right, Mike, Zane kind of nucleated this whole mess (you like that astro lingo?  It's since supernova'd, as I'm sure you're aware. Old Barry and the Innocence crew, always tinkering with the nucleotides, lol.


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## Sodabowski (Aug 23, 2010)

Dunno what you guys really are talking about, but I have several bottles of a delicately brewed french beer from the Alps handy if any of you want a nice drink to go along with your chat


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## HorizontalMike (Jun 3, 2010)

I was living in San Antonio in the late 1980s-90s when all this was blowing up and it was bigger than any Hurricane ever dreamed of being.

Scumbag forensic toxicologist it is *;-)*
Even though some sources indicate otherwise.


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## DMIHOMECENTER (Mar 5, 2011)

Fred Zain (born 1951 or 1952, died 2002) was a disgraced forensic* lab technician* in West Virginia and Bexar County, Texas, USA.
He was employed as a trooper in the West Virginia crime lab based on a false resume. He claimed to have a chemistry degree from what is now known as West Virginia State University, when in fact he had an English degree and had received a "D" grade in the only two science courses he had taken. No one with the West Virginia State Police ever checked his resume in over 20 years of employment, nor was he ever subjected to double blind quality control reviews.


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## Bertha (Jan 10, 2011)

Mike's actually right, though. The term "medical examiner" has been a bit bastardized. It originally served to separate an appointed physician system (Medical Examiner System) from the elected coroner system. An ME has to be a physician; a coroner can be your plumber. However, in certain states, the ME can deputize "county medical examiners" who may or may not be physicians. So, even though Zain was a forensic toxicologist of the PhD type, it's very possible that he could have carried the title.

The current big cheese WV State toxicologist is a star. He's a super, super smart, really nice guy. This was way before his time but can you imagine the grief over this case? TX has county chief toxicologists and some of them are very, very good. I grew up in Harris County, Mike. NASAville. The Harris County Office has become very well respected over the last many years. Their Chief is a star. Very good Office.


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## HorizontalMike (Jun 3, 2010)

"...The Harris County Office has become very well respected over the last many years. Their Chief is a star. Very good Office."

Let's hope so, Texas needs all the help that they can get.


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## Bertha (Jan 10, 2011)

Scary stuff, eh Mike?


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## DMIHOMECENTER (Mar 5, 2011)

So, logistically, from the labs standpoint, the person (with proper certification and credentials) that is assigned the case should start the paperwork, follow the testing, document the data directly and write the report so that only one person has to appear before the court. That goes for each and every case, because who the hell really knows what will go to court and what will not.

So they get their case load, get paid extra for "overload" up to a certain percent, then above that level the county/district/parish/burrough, etc. is forced to hire additional persons (just to handle the load). And who pays is up in the air !?

Jeez.


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## HorizontalMike (Jun 3, 2010)

Sounds like a *Jobs Bill* to me ;-)


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## TechRedneck (Jul 30, 2010)

The lawyers in this instance are not as interested the quality of the evidence as they are at attempting to discredit the witnesses. Lab nerds are usually great at what they do, get them on a stand with a nasty defense lawyer and they can be reduced to a bowl of jello even tho the evidence, procedures, and results are solid.

If enough money is involved, both sides try to get lab results and then the lawyers spend more money and time trying to discredit each other's witnesses because they know juries get confused over the science but remember the emotional testimony.

This (I believe) is what is behind this ruling when you look closer at it. Just do the simple math.

Judges = lawyers
Politicians = mostly lawyers
Campaign contributors = lawyers
Big business = big money lawyers
Wealthy = money to pay lawyers (OJ Simpson anyone?)
Class action lawsuits = lion's share goes to lawyers

vs

Common guy = usually screwed because they cant afford lawyers
Government = shrinking budgets to fight lawyers
medical field = high malpractice insurance to protect against lawyers
small business = always worried about being sued by lawyers

Do you see a common theme here?..$$$$$$$ just follow the money$$$$$$

Now if you think I don't like lawyers you are wrong. I know many fine and honorable lawyers and respect the profession. However… some good ole common sense goes a long way.


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## Bertha (Jan 10, 2011)

Therein lies the reason I posted this. Because I STRONGLY believe in both what TechRedneck and Cr1 just said.


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## CharlieM1958 (Nov 7, 2006)

I'm pretty conservative on a lot of issues. But when it comes to constitutional law, I follow the axiom that it's better to let 100 guilty men go free than to convict an innocent man.

The key for me in this case is chain of custody. Kennedy, in his dissent, said: "The record reveals that the certifying analyst's role here was no greater than that of anyone else in the chain of custody."

Correct, Justice Kennedy. But it was also* just as great* as anyone else in the chain of custody. Every chain is only as strong as its weakest link. In this case, there is a* missing* link.

I do understand the problems this kind of decision can create, but that's part of the price we pay for a constitution heavily weighted in favor of the rights of the individual citizen.


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## Bertha (Jan 10, 2011)

First, any ME that's reduced to a quivering little girl on the stand shouldn't be an ME, and probably won't be for long. I can't say the same about a technician or investigator. I agree with both Cr1 and Charlie. Cr1 is probably a SKILLED, therefore SUCCESSFUL attorney because he recognizes what is available isn't always most effective. When I come across a lawyer screaming during the Daubert, I know he's going to lose. When I get asked whether I ever failed a test in highschool or have ever been pulled over for speeding, I know he's going to lose. I don't get riled and when he's storming around, the jury is usually rolling their eyes. The right to face your accuser is paramount. There is bad science out there. The chain of custody by definition is only a strong as each link. I'm more interested in seeing how skilled and therefore successful attorneys will utilize this decision. Many laboratories have relied upon "send-outs" to regional reference laboratories. When you call half of their staff on a given day, it functionally grinds the office to a halt. This may be OK. A lowly lab tech is likely to appropriately bill $300 an hour; a physician $1000 to $5000. It's just a big bill, whether necessary or not. And no one's stepping up to write the check. P.S. Cr1, my graduate work was in molecular biology. I know a bit about that education you received. I think your boy Scheck has learned a bit too


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## HorizontalMike (Jun 3, 2010)

I am NOT a microbiologist, NOR have I played one on TV, but I live with one. I am not sure which is worse…

*;-)*


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## CharlieM1958 (Nov 7, 2006)

Mike, I live with a micro-manager. Does that count?


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## HorizontalMike (Jun 3, 2010)

Charlie,
Only on the molecular level…


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## Bertha (Jan 10, 2011)

^Huge LOL. I've worked with microbiologists and molecular biologists who were micromanagers, so I feel your pain. They offer Board Certification in Microbiology if you're already a Clinical Pathologist. Given my micro background, I decided to look over a review book for the micro boards. I quickly decided that I didn't need to be boarded in micro. It was friggin painful.

Mike, I have some gift ideas for any science nerd in your life.


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## TechRedneck (Jul 30, 2010)

cr1, I was talking about "discrediting" the witness. I agree with you on most of your points, however when you get $$$ money $$$ involved, the defense team will turn over every leaf and lift every rock in order to "discredit" an otherwise honorable and hard working tech or any witness.

Everybody makes mistakes including lawyers but if you have the money to dig up dirt on witnesses then you are bound to find something and the topic gets switched from the science to the credibility of the witness. All you need is reasonable doubt and that is what the defense is after.

If you call enough witnesses any good lawyer can find something out there. That's my point.. the little guy or the over worked DA or court appointed lawyer doesn't stand a chance.

Our judicial system is the best there is bar none. But it is flawed in many aspects and the scales tip on the side of money and power. The "system" lives in their own world (much like Washington) and common sense gets thrown out the window. People need to step back and look at things from a distance and see it for what it is. At least you have the kahunas to admit it and I respect you for that.


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## Bertha (Jan 10, 2011)

^agree totally with TechRedneck, especially the part about kahunas. The defense is trying to "muddy the waters" if you will. Cr1 can better comment on impeaching strategies. You expect it as someone called frequently to testify as an expert. However, when you call the entire staff of a highly technical laboratory and go to any length to impeach all of them, it makes for a real mess for the jury to sort out. When do you draw the line and either not call a particular witness or stay out of their prior arrests and divorces? Cr1's right, if you get up there, stomp and holler, and bash every witness, the jury will hate you.

And Tech, lawyers don't make mistakes


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## Bertha (Jan 10, 2011)

For Mike:

http://www8.nationalacademies.org/onpinews/newsitem.aspx?RECORDID=12589


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## HorizontalMike (Jun 3, 2010)

Al,
Very true, there is a true need for improvement.

In Texas, however, prosecutors don't like forensic evidence very much when it contradicts their case. Here is a current Rick Perry case that the bets are Perry will go ahead and execute this man.


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## Bertha (Jan 10, 2011)

^yeah, that one's a bit dicey. Anytime I hear "a collection of experts", I get a little uneasy. Check out the record of some of the most famous forensic pathologists like Henry Lee, who is neither a forensic pathologist or even a physician.

Doctor of Science - 2002
*Honorary *Degree
American International College, Springfield, MA

Doctor of Humane Letters - 1999
*Honorary *Degree
Bridgeport University, Bridgeport, CT

Doctor of Law - 1997
*Honorary *Degree
Williams Law School, Newport, RI

Doctor of Humane Letters - 1996
*Honorary *Degree
Saint Joseph College, West Hartford, CT

Doctor of Science - 1990
*Honorary *Degree
University of New Haven, West Haven, CT
.
*Phd - 1975
Biochemistry
New York University, New York, NY*
.
MS - 1974
Science 
New York University, New York, NY
.

BS - 1972
Forensic Science
John Jay College of Criminal Justice, New York, NY

Degree -1960
Police Science
Central Police College, Taiwan, Republic of China

But, I guess he IS actually a JD (sorry, Cr1). I'm happy to see bite mark evidence bite the dust. Gotta be careful with this stuff.

Oops! Reference:
http://www.drhenrylee.com/about/


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## HorizontalMike (Jun 3, 2010)

"I'm happy to see bite mark evidence bite the dust. Gotta be careful with this stuff."

Ok Al, fess up… Who you been givin' hickies to?

*;-)*


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## Bertha (Jan 10, 2011)

That's only ONE of the reasons I'm happy to see that evidence go away 
Now if I can just get rid of this pesky ballistic evidence, this Texan will be in the clear


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## RZH (Nov 20, 2009)

Along the lines of failed forensic science in the US:

http://www.pbs.org/wgbh/pages/frontline/post-mortem/


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## Bertha (Jan 10, 2011)

If anyone wants to meet some of the freaks that can be found in forensics, Ron's link is a good place to start. I understand that it's a creepy profession, but do you really need to be creepy yourself?


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## Bertha (Jan 10, 2011)

OK OK ~!!!
Imagine hearing lawyers talking about it in casual conversation before you knew what it was!

As in…
"this is a bullcoming issue" 
"under bullcoming, blah blah" 
"according to bullcoming, blah blah"


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## HorizontalMike (Jun 3, 2010)

And imagine if you are dyslexic!...


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## Bertha (Jan 10, 2011)

I took dairy science in college, Mike. I know far too well where this is going


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## Bertha (Jan 10, 2011)

I like the new forum titles.


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## DMIHOMECENTER (Mar 5, 2011)

You mean the blindfolded scratch and sniff ones ? ;=)


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## Roger Clark aka Rex (Dec 30, 2008)

These are from a book called Disorder in the American Courts, and are things people actually said in court, word for word, taken down and now published by court reporters that had the torment of staying calm while these exchanges were actually taking place.

__

ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
__
ATTORNEY: Are you sexually active?
WITNESS: No, I just lie there.__

ATTORNEY: This myasthenia gravis, does it affect your memory at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of something you forgot?
_
ATTORNEY: Do you know if your daughter has ever been involved in voodoo?
WITNESS: We both do.
ATTORNEY: Voodoo?
WITNESS: We do.
ATTORNEY: You do?
WITNESS: Yes, voodoo.__

ATTORNEY: Now doctor, isn't it true that when a person dies in his sleep , he doesn't know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
__
ATTORNEY: The youngest son, the 20-year-old, how old is he?
WITNESS: He's 20, much like your IQ._

ATTORNEY: Were you present when your picture was taken?
WITNESS: Are you ********************ting me?

ATTORNEY: So the date of conception (of the baby) was August 8th?
WITNESS: Yes.
ATTORNEY: And what were you doing at that time?
WITNESS: Getting laid._

ATTORNEY: She had three children, right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS:None.
ATTORNEY: Were there any girls?
WITNESS: Your Honor, I think I need a different attorney. Can I get a new attorney?
__
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Take a guess.__

ATTORNEY: Can you describe the individual?
WITNESS: He was about medium height and had a beard.
ATTORNEY: Was this a male or a female?
WITNESS: Unless the circus was in town I'm going with male.
_
ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?
WITNESS: No, this is how I dress when I go to work._

ATTORNEY: Doctor, how many of your autopsies have you performed on dead people?
WITNESS: All of them. The live ones put up too much of a fight.
__
ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?
WITNESS: Oral.___

ATTORNEY: Do you recall the time that you examined the body?
WITNESS: The autopsy started around 8:30 PM.
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: If not, he was by the time I finished.
__
ATTORNEY: Are you qualified to give a urine sample?
WITNESS: Are you qualified to ask that question?__

And last:

ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No.
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law.


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## helluvawreck (Jul 21, 2010)

*Roger*, these are hilarious. Just wondering - aren't many politicians also lawyers? (or the other way around)


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## Bertha (Jan 10, 2011)

Huge LOL, I have a few doctor buddies who are also lawyers. As a non-lawyer myself, facing these guys is a terrible proposition. However, they're the ones responsible for the most quotable quips on the stand. They'll have the whole bench rollingand I don't even know what happened. Secret lawyer language and all


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## dbray45 (Oct 19, 2010)

Rex -I needed this thanx


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## S4S (Jan 22, 2011)

Well read combatants on both sides ? That is so funny ,Al . you crack me up ! By the way, happy birthday !


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