Medical examiner defends his suffocation conclusion

By Matt Pordum

Wednesday, Oct. 27, 2004 | 11:08 a.m.

The prosecution's key medical witness in the Ted Binion murder case laid out the reasons behind his conclusion that Binion had been killed by suffocation and then defended it in court Tuesday.

Dr. Michael Baden said that after examining photographs of Binion's body, toxicology reports, medical records and a police record it was his opinion that Clark County Chief Medical Examiner Lary Simms erred in concluding the death was a homicide by overdose of Xanax and heroin.

In 2000 Sandy Murphy and Rick Tabish were convicted of murder in connection with Binion's September 1998 death and were sentenced to life in prison, but the Nevada Supreme Court later overturned the convictions. Defense attorneys contend that Binion died of a drug overdose, and Simms' conclusion helped support that contention.

Simms testified that he concluded the markings on Binion's chest and around his lips occurred after his death.

Baden, however, said a variety of injuries Binion suffered -- abrasions found on his chest, upper lip, on the side of his mouth, bruises found on his upper and lower back and broken blood vessels in his eyes -- had all occurred near the time of Binion's death.

Baden said the injuries were consistent with a manner of asphyxiation known as "burking" -- a type of suffocation "where the mouth or nose are obstructed and someone sits on the chest to prevent the diaphragm from moving up and down." He said this form of suffocation is usually done "to leave as little injury to the body as possible."

He said the practice got its name in 1829 after two men in Scotland named Burke and Hare used to find drunken women, kill them in this manner and sell the bodies to medical schools. Burke was later hanged for some 20 murders, Baden noted.

Baden is co-director of the forensics unit for the New York State Police Department and has performed more than 20,000 autopsies in his 38 years in the field. He is also the host of HBO's long-running show, "Autopsy" and testified in O.J. Simpson's murder trial.

It was Baden who first determined Binion's death was the result of suffocation in the summer of 1999, and his testimony at the first trial was considered crucial to the earlier convictions of Murphy and Tabish.

Tabish attorney, J. Tony Serra, asked Baden if one man or one woman could do burking.

Baden said "burking" didn't require two people, but it would be "unlikely for a female to do this to a male by herself. With Binion in good physical condition unless impaired by drugs or alcohol, it would take two people."

Much of Baden's testimony was about abrasions on Binion's chest that Baden said were caused by someone placing pressure on the buttons on his shirt causing rubbing and scratching against his skin "at or near the time of his death."

Baden said he validated his determination after examining a photo taken at the crime scene of Binion's chest and then comparing it with a photo taken during the autopsy roughly 15 hours later. He said the later photo showed the abrasions were drying as a "fresh scrape" would.

But Murphy's attorney, Michael Cristalli, contended the marks were from dermatitis. Cristalli introduced enlarged photographs of the red marks found on Binion as well as a letter from Dr. Martin Mihm Jr., who is the senior dermatopathologist at Massachusetts General Hospital.

Cristalli said Mihm reviewed the blown-up photos of the marks and determined they were a "type of dermatitis" and not "caused by pressure."

While Baden said Mihm was " a very good dermatopathologist" he was "out of his expertise in this discussion." He doubted whether Mihm had seen all of the photos concerning the marks and that if he had Mihm would have determined "scabs were forming from a scrape" and not from dermatitis.

Baden said the changes he observed between marks in the first and second photo were not consistent with dermatitis. Additionally Baden said he reviewed Binion's last three doctor visits in which no dermatitis on the chest was observed

Serra also challenged Baden's button theory by asking him if "it would have helped to have the shirt of the decedent" in coming to his conclusions. Baden said the shirt "would have been helpful" but the photos were "very useful."

Serra asked Baden if he would have liked to have measured the distance between the buttons on the shirt, the size of the buttons and what they were made of. Baden said he did ask for the shirt, but it wasn't available.

The whereabouts of Binion's shirt was the subject of a pretrial evidentiary hearing after Serra filed a motion to dismiss the case because without the shirt the prosecution's burking theory would be difficult to prove or disprove.

Clark County Coroner Michael Murphy testified at the hearing it was not the office's responsibility to retain clothing, and the shirt would have only been taken as evidence if a homicide police officer decided to do so. He said he figured that because Binion's death was not originally determined to be a homicide, no officers came to retrieve the clothes as evidence. He said the coroner's office followed the correct chain of custody in sending the shirt to the mortuary with Binion's body. The shirt was never recovered from the mortuary that received Binion's body.

Serra also wondered how it was possible for buttons to be the cause of the marks as there "were two levels of cloth between the body and buttons." Baden reasoned the button "could be against the skin and could be twisted by a lot of pressure against the skin."

Serra said with no shirt and, hence no evidence the buttons touched the skin, Baden's "fantasy theory goes out the window." Cristalli took exception with Baden's admission that photographs served as the basis for his determination that the marks on Binion's mouth were abrasions caused by trauma that occurred prior to death.

Cristalli introduced a transcript from Baden's testimony at the O.J. Simpson trial in which he stated "it was very dangerous" to determine the timing of injuries based on photographs. Baden said he based his finding that the abrasions occurred prior to Binion's death on not just the photos but also on the fact that private investigator Tom Dillard told him people who saw Binion the day before his death never saw such marks.

Baden admitted, however, that Dillard never said whether the witnesses said Binion did or didn't have such markings around his mouth the day before his death.

Cristalli also noted that the coroner's investigator and the police detective that examined Binion's body the day of the death never reported any trauma on Binion.

Baden said he disagreed with their findings saying, "I think their statements are wrong. Police are good as police, but not as doctors."

Baden also said after reviewing Binion's toxicology report and learning of his heroin addiction, he was able to deduce the millionaire casino figure had only had an amount of heroin in his body "typical for recreational users."

Baden's findings contradicted what Simms testified to a day earlier. Simms said "lethal doses" of both heroin and Xanax were found in Binion's blood, as was a "therapeutic" level of Valium. He said the presence of all three drugs collectively increased their volatility and led to Binion's death.

Baden rejected Simms' argument the three drugs worked together to kill Binion, saying the the level present "increases euphoria, but does not increase the risk of death because the levels are too low."

"Any heroin addict walking around the streets of Las Vegas and New York would have these levels (of heroin) in the blood," Baden said.

Baden said although the levels of Xanax and heroin found in Binion might be considered lethal doses for some drug users, Binion had developed a tolerance for the drugs.

Serra said from 1992 to 1998 Binion wasn't on heroin aside from a few "slip-ups," but then "hit it hard again." He asked Baden whether a user like Binion, returning to the drug after an absence, could overdose on the amount that he had previously been able to take without a problem.

Baden rejected the argument saying tolerance "develops very quickly in every individual."

Serra later asked if a person would overdose if he had been using a gram of heroin a day that was 9 percent pure heroin, but then took a gram of heroin that was 93 percent pure. Baden said if the person was using the drug intravenously, an overdose would be almost "certain" but if the person was smoking the heroin, as Binion did, "too little gets absorbed" to make an overdose possible.

Smoking heroin -- "chasing the dragon" -- was Binion's method of choice for ingesting heroin. It involves taking a piece of "black-tar" heroin and rubbing it on a piece of aluminum foil. The user then takes a lighter and ignites a flame underneath the foil, inhaling the fumes of the heroin as it burns.

Baden said while he was familiar with overdoses of heroin users who inject, snort or smoke it in a cigarette, he knew of no cases in the United States where someone overdosed by "chasing the dragon."

Serra asked Baden if it was possible Binion had perhaps died like some recently reported Canadian heroin users had who also "chased the dragon." Serra said there were some suspected deaths due to inhaling the aluminum foil used in the process.

Baden said while some brain damage cases could be based on using aluminum foil, no deaths due to it have been reported. He said no aluminum was found in Binion, but he also acknowledged that tests may not have been conducted to look for it.

The prosecution is scheduled to continue its case in this morning.