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Autopsy Cites ‘Intentionally Removed’ Plug in Ruling Kayaker’s Death a Homicide
Vincent ViaforeCredit Reuters

The medical examiner’s conclusion is clear: Vincent Viafore, who the police say was killed by his fiancée during a kayaking trip on the Hudson River this past spring, was a victim of homicide caused by a “kayak drain plug intentionally removed by other.”

But the lawyer for the fiancée, Angelika Graswald, said the medical examiner’s office had overstepped its bounds with that determination. He said it was based on police speculation, not an examination of Mr. Viafore’s body.

“Clearly, the Orange County medical examiner failed to conduct any meaningful investigation of her own and relied on false information provided by the New York State Police,” the lawyer, Richard A. Portale, said on Thursday, referring to Jennifer L. Roman, who performed the autopsy for the medical examiner’s office in Orange County, N.Y.

“She ruled this a homicide without a scintilla of medical evidence,” Mr. Portale added.

Physical Evidence Scant, Focus Is on Statements in Kayak CaseMAY 29, 2015

Vincent Viafore

Kayak Suspect Moved Paddle Away as Fiancé Died, Prosecutors SayMAY 26, 2015

Autopsy Cites ‘Intentionally Removed’ Plug in Ruling Kayaker’s Death a HomicideCouple’s Kayak Trip on Hudson Included Mistakes, Experts SayMAY 20, 2015Autopsy Cites ‘Intentionally Removed’ Plug in Ruling Kayaker’s Death a HomicideA Kayak Trip on the Hudson, Ending in Death and an ArrestMAY 12, 2015Autopsy Cites ‘Intentionally Removed’ Plug in Ruling Kayaker’s Death a HomicideKayak Suspect Said She ‘Felt Good’ Fiancé Would Die, Prosecutors SayMAY 13, 2015The search for Vincent Viafore on the Hudson River on April 20.Murder Charge for Woman Who Said Fiancé’s Kayak Capsized in Hudson RiverAPRIL 30, 2015

He argued that the reference to the kayak plug in the autopsy report could prejudice a jury.

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Since May, when Mr. Viafore’s body was pulled from the Hudson, prosecutors have declined to identify a cause of death or release the autopsy.

A copy of the report was obtained by The New York Times. It was unsurprising in some of its conclusions. It lists the cause of death as drowning (Mr. Viafore, 46, who was not wearing a life jacket, capsized in 46-degree water, cold enough to quickly cause hypothermia). The toxicology results attached gave his blood alcohol concentration as 0.066 percent, close to the legal limit of 0.08 and consistent with Ms. Graswald’s account that the couple, who shared an apartment in Poughkeepsie, paddled to Bannerman Island on April 19, where Mr. Viafore had a few beers.

The autopsy offers a grim, methodical accounting of Mr. Viafore’s body, which was recovered from the middle of the river on May 23. His face and abdomen were bloated, the report says, and marked by a mottled red and green discoloration.

Besides evidence of drowning, the only injuries noted in the report are a two-inch abrasion on the left torso and bruises on the lower chest and arm, also on the left side. The police have made no reference to a possible struggle between Mr. Viafore and Ms. Graswald, 35, while they were in their kayaks, though they have said Ms. Graswald moved his paddle out of his reach after he went in the water.

Some legal experts agreed with Mr. Portale’s contention that the medical examiner’s conclusions had gone too far. Jeanine Pirro, a former district attorney in Westchester County who now hosts “Justice With Judge Jeanine” on Fox News Channel, said medical examiners typically gave the manner of death, whether accident, suicide, homicide or undetermined, without elaborating.

“That is a very unusual way of describing manner of death,” Ms. Pirro said in a phone interview. “It’s rare that you get something next to the manner of death that is so outside the analysis of the body.”

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Autopsy Cites ‘Intentionally Removed’ Plug in Ruling Kayaker’s Death a Homicide
Mr. Viafore and his fiancée, Angelika Graswald, were kayaking to Bannerman Castle in the Hudson River when his kayak capsized. Ms. Graswald was later charged with murder.Credit Mike Groll/Associated Press

“Let’s assume that the drain plug was removed,” she added. “It doesn’t mean it’s a homicide. It could mean that it was removed by accident. What does that have to do with the drowning? If that’s what the medical examiner thinks, she’s going to have to back that up on the stand.”

The medical examiner’s office referred questions about the report to the Orange County executive’s office.

The county executive’s office defended the medical examiner’s actions. Justin Rodriguez, a spokesman for the county executive, Steven M. Neuhaus, said a medical examiner could use facts outside of the autopsy, citing a state law that addresses determinations about cause and manner of death.

“Obviously this statute envisions that the autopsy is only one aspect of the medical examiner’s examination into the cause of death,” he said. “If medical examiners were limited to basing their conclusions solely on a physical examination of the body, there would be no coroner inquests. The coroners and medical examiners have been doing this for over 100 years.”

The case has captivated residents of the Hudson Valley and beyond, for both its puzzling circumstances and the defendant’s behavior. For more than a week after Mr. Viafore’s drowning, the police described it as an accident. Ms. Graswald, meanwhile, was posting numerous photographs and videos to Facebook that showed her smiling broadly, doing cartwheels and kayaking.

After Ms. Graswald was charged on April 30, the police said she had implicated herself in the killing. At a bail hearing later, they quoted her as having said, among other things, that it “felt good knowing he was going to die.”

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Autopsy Cites ‘Intentionally Removed’ Plug in Ruling Kayaker’s Death a Homicide
Ms. Graswald at a bail hearing in May. The police quoted her as saying, among other things, that it “felt good knowing he was going to die.”Credit Pool photo by Allyse Pulliam

Mr. Portale, her lawyer, said his client’s statements to the police had been coerced.

Complicating matters is the assertion by Mr. Portale that the kayak’s drain plug had been missing for some time. Kayaking experts have said that a missing plug would not necessarily cause a boat to sink because the hole it closes, at the top of the vessel, is so small. (Mr. Viafore’s kayak did not sink to the bottom of the river, and was later found near shore.)

Such plugs, kayaking instructors say, are designed to make it easy to rid the kayak of excess water by flipping it over on dry land. In very choppy conditions, water can splash directly into the cockpit, causing the kayak to ride low in the water and making it unstable.

Lawrence Kobilinsky, a forensics expert and chairman of the department of sciences at John Jay College of Criminal Justice in Manhattan, also found the reference to the kayak plug troubling, particularly the description that it was “intentionally removed by other.”

Calling the reference a “red herring,” Dr. Kobilinsky said that medical examiners can and do consider police reports and other information besides the physical examination in arriving at a manner of death. However, he said, the leap from ruling a death a homicide to suggesting it was murder is not one a medical examiner should make.

“That’s not something the medical examiner should be writing down,” he said of the reference to the plug’s intentional removal. “It already presumes it’s a murder. Homicide can be justified or not justified, or it can be an accident. It simply means that one person causes the death of another.”

“The way it was written,” he added, “sounds like the medical examiner was saying it’s clearly a murder based on pulling the plug. But that’s a big hop, skip and a jump, and in a courtroom, all of this stuff will get dissected to the finest detail.”

Correction: September 10, 2015

An earlier version of this article misstated the date on which the police say Angelika Graswald killed her fiancée, Vincent Viafore, during a kayaking trip. It was April 19, not April 10.

Read more http://rss.nytimes.com/c/34625/f/640350/s/49bdfae3/sc/7/l/0L0Snytimes0N0C20A150C0A90C110Cnyregion0Cin0Eautopsy0Ereport0Emedical0Eexaminer0Esays0Ekayaker0Ewas0Evictim0Eof0Ehomicide0Bhtml0Dpartner0Frss0Gemc0Frss/story01.htm


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