A spokeswoman for the Department of Justice has insisted Dr Jaber’s resignation will not prevent the prosecution of criminal cases where medical examinations have been carried out by him in his capacity as deputy State pathologist, saying he can still be called as a witness for the prosecution.
However, Dr Jaber said that, after being locked out of his office, he no longer has access to his case files, at least six of which have yet to be fully completed.
Legal sources suggest that the current crisis within the office of the State pathologist could affect criminal prosecutions in two ways:
nIn relation to the evidence of State Pathologist Marie Cassidy, any evidence she might give could be challenged by lawyers for the defence as it is no small matter that her deputy has implied she is unqualified for the office she holds.
Dr Jaber has made much of the fact that his former boss does not possess a certification in forensic pathology, a sub-speciality of pathology that determines the cause of death by examining a corpse.
In a letter to the DPP, Dr Jaber described Prof Cassidy as “only a general pathologist with interest in forensic pathology, and not a professional who holds specific credible certification in the sub-speciality of forensic pathology”.
In an earlier letter to the Royal College of Physicians of Ireland, Dr Jaber questioned her suitability for the job. “The lead person in charge of the national forensic pathology service must be certified in forensic pathology distinctly.”
While her qualifications have never been an issue before, Dr Cassidy’s evidence has been challenged in two high-profile trials.
The first concerned the slaying of Cork schoolboy Robert Holohan in 2005. In the trial of Wayne O’Donoghue for the boy’s murder, Dr Jack Crane, state pathologist for the North, contradicted the findings of Dr Cassidy concerning the amount of force used by the accused to subdue 11-year-old Robert.
Commenting on injuries to Robert’s mouth that Dr Cassidy said could have been attributed to a blow, Dr Crane described the injuries as trivial. “I do not think you can attribute any significance to them. You would be speculating.”
Dr Cassidy referred to rib injuries consistent with the possibility of someone sitting astride the boy’s chest. Dr Crane commented: “The injuries she describes to the chest would not be injuries I would expect to find if an assailant was kneeling on this boy’s chest.”
O’Donoghue was subsequently convicted of the manslaughter of Robert Holohan and served three years in jail for the offence.
A year later, several leading medical consultants questioned Dr Cassidy’s “highly fanciful” findings in her review into the death of 18-year-old Brian Murphy outside Anabel’s Nightclub in Dublin.
Dr Cassidy contradicted the findings of her predecessor when she was asked to review John Harbison’s report into the death of the Dublin teenager in 2000.
She concluded that the young man’s injuries were relatively minor and the most likely cause of death was alcohol-induced apnea.
Dermot Laide, one of four young men charged in connection with his death, was three days away from a retrial for manslaughter when Dr Cassidy submitted her review. The DPP subsequently dropped the case in light of her review.
Consultant chemical pathologist Dr Bill Tormey, from Beaumont Hospital in Dublin, said he could not understand how Prof Cassidy reached her conclusions. “Her findings were highly speculative,” he said. “I couldn’t imagine anyone concurring with her.”
A Department of Justice spokes-woman said: “Minister Shatter has full confidence in the State Pathologist Dr Cassidy and all of the staff at the Office of the State Pathologist.”
nIn relation to the evidence of Khalid Jaber, even if he is allowed access his files, Dr Jaber’s appearance as witness for the prosecution in any criminal trial may depend on him remaining in Ireland where he could, if necessary, be compelled to attend trial.
So far, Dr Jaber has indicated he is committed to giving evidence in trials linked to postmortems he has already completed.
However, if he decides to leave Ireland, there is no legal mechanism by which he could be forced to return to take the witness stand. Dr Jaber recently applied for a position as chief medical examiner in El Paso, Texas. He was not successful but is understood to be considering similar positions elsewhere.
Dr Jaber has not had a happy relationship with staff at three mortuaries, dating back to 2010.
As a result, corpses that were the subject of garda investigation were no longer brought to Cork University Hospital, Our Lady’s Hospital in Navan and Dublin City Mortuary if Dr Jaber was on call.
It is probable that staff at those hospitals would be called to give defence evidence in any case involving Dr Jaber’s conclusions.
Dr Jaber’s evidence has already been questioned by Dr Cassidy herself. She wrote to the DPP expressing ‘serious concerns’ about the quality of his evidence in a pending murder trial. She has asked that another pathologist re-examine the evidence as Dr Jaber’s evidence did not reflect the fact that the cause of death was ‘complex and most likely multi-faceted.’
Prof Crane made complaints to the Department of Justice, calling Dr Jaber’s evidence into question after the conviction of Colm Deely, 41, for the 2011 murder of 43-year-old Deirdre McCarthy in Ballyvaughan, Co Clare. Prof Crane described Dr Jaber’s finding that Ms McCarthy had had her eyes gouged out as ‘bizarre’.
A judge ordered the retrial of a murder suspect last month after doubts emerged regarding Dr Jaber’s evidence. Mr Justice Barry White told a jury “certain concerns” had arisen relating to the medical opinion of Dr Jaber.
In the meantime, Dr Jaber has said that he believes the Office of the State Pathologist needs to be brought into line with modern services in North America, Germany, France and the UK.