Lucy Letby - Specifically those who think she is guilty…

[BEAchDays2]

I’ve just been reading massive amounts of posts of Facebook following the new doc out about LL. (Blame a long train journey!) and it got me thinking, those who still think she is guilty what are your reasons?

It does feel like the tide has turned generally. I haven’t watched the new doc yet, likewise has anyone seen it, and is it worth it?

The way you’ve written that sounds like you’re talking about the protocol for filling in a death certificate or similar, which is different from speaking forensically about a murder case. When doing the latter, what is evidentially a proper answer will depend on the question being asked and the issues in the case. It is never appropriate to usurp the role of the jury by answering a question which is ultimately up to them.

I still find it hard to see how saying death or injury was due to natural causes (not most likely to have been, but was), is not ruling out air embolism. He was not speaking off the cuff, it was a script delivered with the cameras of the world’s media flashing in front of him.

Anyway, if you’re right, and what Lee says is both forensically appropriate and scientifically sound, the CCRC, and in turn the CA, should have a very easy job. Let’s see.

In the meantime, threads like this make me more grateful, not less, that juries decide guilt or innocence and not expert panels as some advocate. I’ve the greatest of respect for science, but it should inform criminal trials, not decide them.

What do you mean by speaking forensically? The panel was clear about its remit - explaining most likely cause of death. Its members included a forensic pathologist. The press conference was to announce the findings. The full reports were submitted to the CCRC and will have been accompanied by the necessary legal arguments as to how they pertain to the prosecution case.

A jury exists for the duration of a court case. Outside the very narrow circumstances of contempt of court, of course the relevant experts can comment as they please whether agreeing with a jury or not. You may not approve of it, but there is simply no rule or logic that prohibits it.

In Lucy Letby's case, the prosecution did not simply argue that there had been air embolisms etc. They argued that there were no plausible natural causes of death. This is the basis for the murder charges. An appropriately qualified and informed medical panel is of course in a position to identify clear and plausible natural causes of death. In this case, they have found any murders, and there is no reason for them not to say so.

(Ruling out air embolism is a bit of a red herring here. The answers to "is there any evidence this child suffered venous air embolism" would presumably be no, in all cases. The answer to, "can you positively prove this child didn't suffer venous air embolism" would perhaps not be no for some of these deaths as for many many unsuspicious deaths. Not having full detail on alarms, timings scans etc for all of deaths I don't know if they would tackle the latter question in all of the full reports. There's also the possibility some of the children suffered pulmonary vascular embolism during CPR, which is a risk with neonates, or even non fatal air where a risk factor existed (baby A). So there's a lot there that goes beyond a press conference just by virtue of detail).

Usurping the jury's function, I suppose, would be expecting a court to leap straight to overturning a sentence based on a press conference. That is a long way from stating that, applying your relevant expertise to the full information available, you have not found any murders.

It is never appropriate to usurp the role of the jury by answering a question which is ultimately up to them.

The jury’s job is to adjudicate on whether the accused is guilty. How can 12 non-medical people be expected to understand and weigh up the medical evidence, especially when a one-sided and frankly fanciful version has been presented to them?

Fundamentally, there were no symptoms whatsoever that pointed at venous air embolism being the causes of deaths (and in one case IIRC a collapse). The appeal court failed to understand that the theory of air embolism rested entirely on the erroneous interpretation of the Lee and Tanswell paper. And if erudite judges can make this mistake, so can a jury.

I’ve read the CA judgment again over the past couple of days, as I find it helpful to do so every time I comment on a LL thread which is about 3 times now since July 2024.

It’s just flat wrong to say ‘the theory of air embolism rested entirely on the erroneous interpretation of the Lee and Tanswell paper’. I don’t know how you can read the judgment, which of course sets out in some detail the basis on which the prosecution experts arrived at air embolism, and say that.

By speaking forensically I mean giving evidence in court or speaking or writing something prepared for the purpose of court proceedings. I think an expert speaking at a press conference has a duty to be mindful of the impact of what he says. The vast majority of listeners think ‘this is what he would say in court’ and it creates an enormous noise, whereas if he actually said it in court it would be probed and challenged and there would be a judge to keep everything on track. So I think it’s rather naughty.

You’re probably right that he hasn’t breached any actual rules though, although I don’t know what his professional body says about this sort of thing.

The judgment is incoherent. Time and again it refers to skin discolouration, as though that was relevant to venous air embolism. I cannot find anywhere an explanation about why the babies’ other symptoms were indicative of venous air embolism.

This presumably is indeed what he would say in court if asked the relevant question in examination or cross examination So I don't see anything "naughty" about it.

Yes indeed. The court of appeal judgement is very flawed. It does not accurately reflect proceedings in the first trial. It does not deal rigorously with the science even as presented in the first trial. It makes fairly arbitrary claims as to jury conclusions from the first trial. All of this means it can give the initial prosecution case a semblance of coherence so it does make that case appear stronger, but it can't fully conceal its inadequacies.

You say ‘as though that was relevant’ as if it isn’t. Are you saying that skin discolouration is irrelevant to air embolism? If you are, are you sure you mean irrelevant, and not just ‘not diagnostic of’?

The judgment says that the prosecution witnesses treated different types of skin discolouration seen in the babies as consistent with, but crucially not in itself diagnostic of, air embolism. They relied on other factors as well, in conjunction with skin discolouration, to arrive at the diagnosis. In using skin discolouration as a factor consistent with, but not in itself diagnostic of, air embolism, the prosecution witnesses were not at odds with Lee and Tanswell, which included in its review of a number of air embolism cases, many which displayed various types of skin discolouration (and so demonstrating that different types of skin discolouration are consistent with air embolism).

I don’t find the judgment incoherent at all.

Indeed. It couldn't be more appropriate for highly qualified medical experts who've been invited to participate and have access to more information than the jury did to offer an opinion.

Yes, I am saying skin discolouration is irrelevant, except for Lee’s sign, which relates to arterial embolism. Skin discolouration may have been observed in some babies with air embolism described in the literature but I have not seen any suggestion anywhere that there’s a meaningful correlation with, let alone being diagnostic of, air embolism. Have you?

"Consistent with" does not imply any significance. Anything causing hypoxia / shock, hence anything requiring resuscitation, will cause skin discoloration. The features identified in the CoA judgement as consistent with air embolism are consistent with distress, desaturation and death generally. You can make a narrow legal argument that they aren't irrelevant because they happened and don't disprove air embolism, but that's it.

Where an internal incoherence arises is in the judgement then claiming that a diagnosis based on these common symptoms could was anything but a diagnosis of exclusion, and in the unsubstantiated argument offered to support this.

‘Consistent with’ does not imply any significance

Right, ok. The point is, the prosecution witnesses didn’t go any further than taking it into account as a factor consistent with air embolism. They didn’t say ‘it’s air embolism because of the skin discolouration’. Therefore the CA concluded that there was nothing in the argument that the jury had been led into error.

What were the observed clinical features that led to the conclusion of air embolism?

And that conclusion in no way undermines Dr Lee's analysis of the problems with the diagnosis. What we have is Lee saying, you were wrong to think venous air embolism can be diagnosed through symptom x, and the remaining symptoms are too general to make a diagnosis by excluding other conditions. And the CoA said fine, they didn't rely on symptom x alone, but it was okay for them to rely on the remaining symptoms because they had considered and included other conditions.

That is not of course how diagnosis works: you need to have grounds to consider a condition likely. And the CoA's definition of a diagnosis of exclusion (which they then ... exclude) continues to puzzle me. Maybe someone else can explain it.

That sounds like you’re testing me. How many marks? One for each clinical feature I can name? You can just look it up in the judgment, it’s all set out there. I suspect what you’re getting at is that the prosecution didn’t make out their case on air embolism. That’s fine, it’s your opinion if that’s what you think. The jury came to a different view. LL was robustly represented both at trial and in the CA and has failed to even get leave to argue there was anything wrong with what that jury heard. Her defence have thoroughly covered the ground that you’re seeking to cover already.

It’s a genuine question. Perhaps you could point to the reasons in the judgement. All I am seeing is reference to rashes and discolouration (which we have already established are not indicative or even suggestive of AE), failure of resuscitation, and reference to radiological signs of post mortem air bubbles (which are associated with CPR and decomposition).

That is the problem (or some might say the advantage) of the appeal court's power to "read the jury's mind". If Evans and Bohin had been right that this distinctive discoloration indicated venous air embolism, the argument that there had been murder by air embolism would be far more persuasive. Remove that strut, and the evidence is so weak that it can scarcely be called by that name. But because other symptoms, however irrelevant or unpersuasive in themselves were referenced, the Court of Appeal can assume the jury would not have decided differently if they had known the science of the matter.

It's an entirely artificial exercise which may seal the question neatly away from a legal perspective, but allows the dismissal of legitimate scientific concerns which rightly undermines confidence in our justice system.

consistent with, but crucially not in itself diagnostic of, air embolism

The "consistent but not diagnostic" formulation could easily describe completely meaningless things, e.g.: "her working at the hospital was consistent with, but not diagnostic of, her having caused air embolisms". So what is that formulation worth, as evidence?

The jury’s job is to adjudicate on whether the accused is guilty. How can 12 non-medical people be expected to understand and weigh up the medical evidence, especially when a one-sided and frankly fanciful version has been presented to them?

Because the experts explain it to them in a way they can understand. Air embolism is not a difficult concept to get your head round. Court transcript-

https://lucyletbyinnocence.com/dewi-evans-testimony.html?st_source=ai_mode#babies-ab-exam

NJ: Okay. Now, air embolus. How does an air embolus kill somebody? What is the mechanics of it?
DE: The mechanics is pretty straightforward. It interferes with the blood supply to the heart and lungs, to the lungs, and so the mechanism is the same as a clot from a -- that goes into the lung, what we know as a pulmonary embolus. It blocks off blood supply and kills you.

Fundamentally, there were no symptoms whatsoever that pointed at venous air embolism being the causes of deaths (and in one case IIRC a collapse). The appeal court failed to understand that the theory of air embolism rested entirely on the erroneous interpretation of the Lee and Tanswell paper. And if erudite judges can make this mistake, so can a jury.

Well sudden collapse and a previously stable baby needing resuscitating out of nowhere is a symptom for a start. Dewi Evans knew it was air embolism before anything about rashes or Lee's paper. I think the jury understood completely. I think the only people not understanding are her supporters and Shoo Lee.

NJ: Yes. Now, you have heard the evidence from the witnesses concerning what I'll paraphrase as a "flitting rash". I'll give no further description than that.
DE: Yes.
NJ: In the context of what happened to [Baby A], what in your view is the reason for his collapse and death?
DE: Right. At the time I prepared my report, of course, I was not aware of, you know, the rash. It was much -- I knew nothing about the rash.
NJ: It's not in the notes, is it?
DE: No, there's nothing in the notes. I have heard all of this over the last couple of days, but it wasn't in the notes. So but I heard very I heard the descriptions of this rash and, in my opinion, I think the rash can be [Baby A]'s collapse fits together and go with a is sufficient to make a diagnosis that his collapse was the result of an air embolus. In other words, air had somehow got into his circulation.
I'd formed this opinion without knowing about the rash. I'd formed this opinion without anybody suggesting to me that anyone had made any -- expressed any concerns about air embolism at all, you know, in this case or any of the others.
NJ: Yes. I'll deal with air embolus in a second. But so far as other potential causes of death, was there anything that was, so far as you were concerned, a credible explanation for what had happened?
DE: Cause of collapse rather than cause of death?
NJ: Yes, sorry.
DE: We're always on the lookout for sepsis, for infection in babies, because prem babies are at risk of infection. There was no evidence of infection.
Hypoxia, lack of oxygen. There was no evidence of that. His sats, in other words his oxygen saturations, could not have been better, high 90s. So there was no evidence of that.
He was breathing well. You know, that's fine. And there was a bit of hiatus with regard to the fluid. You know, there was a period of about 4 hours, I think, where he didn't have fluid. His fluid rate at the time was 4ml an hour. So he lost 16ml -- potentially 16ml of fluid, but that in a baby, who was otherwise well, would not cause a sudden onset unexpected collapse.

Ignore the bits that are crossed out I think MN did that by accident.

Nothing in that gives any reason to believe the child had suffered venous air embolism. It doesn't make any difference when Evans heard Dr Jayaram's claims about the "flitting" rash, since it is not a symptom of air embolism. Giving a (pretty vague) description of the mechanism of air embolisms does not equip the jury in any way to assess Evans's misguided claims.

Regarding that extract from Dr Evans's testimony: while the police investigation leaks haven't been verified as authentic, that I know of, it may interest people to know that they show Dr Evans first coming up with a list of possible / imaginary suspicious events not including air embolism as a cause, and then being shown Dr Jayaram's description of baby A's rash (apart from his original notes, where it wasn't given).

https://lucyletbyinnocence.com/leaks/op_hummingbird_leaks.pdf (78)

Well he'd ruled everything out so what else could it be? Some mystery illness affecting only these babies in this one unit in the country, never seen before or since?

It doesn't make any difference when Evans heard Dr Jayaram's claims about the "flitting" rash, since it is not a symptom of air embolism.

Yes it does because the whole "he misinterpreted Shoo Lee's paper" completely falls apart when he already knew it was Air Embolism before he heard about rashes or looked up that paper.

Giving a (pretty vague) description of the mechanism of air embolisms does not equip the jury in any way to assess Evans's misguided claims.

And what makes you able to assess them as being misguided...