A cautionary tale

Citation

Cartwright, D. (2002), "A cautionary tale", European Business Review, Vol. 14 No. 2. https://doi.org/10.1108/ebr.2002.05414bab.007

A cautionary tale

Dean Cartwright

This tale unfolds the first person true story of two tragedies – the death of a disabled English tourist in Spain, and the Spanish maximum-security incarceration and murder trial of an innocent American.

I am an American citizen who has lived and worked in the UK for some 30 years. I present conferences involving humanitarian and ethical issues, one of which brought me into contact with boys inflicted with Duchenne Muscular Dystrophy. As far back as 1991 I found myself drawn into voluntary work with them. I came to Spain in February 1998 with my fiancée Ms F. Macintosh, who also felt a strong sympathy with the Duchenne children, since she too, was physically disabled and thus understood what it means to know the experience of walking and running and having control over one's movements, but then to lose such precious capacities. The trip to Spain was meant to be therapeutic for us, but also we wanted to investigate the feasibility and safety of a pilot project of cross-cultural visits for the disabled children between Spain and Britain. We wanted to bring six DMD boys to Spain in the summer of 1998 and then six Spanish boys to England the following year, at my expense, and of course with the cooperation of the DMD families and the Muscular Dystrophy Association.

However, the night before leaving for Spain, Ms Macintosh fell from her bed and bruised her right ribcage. I was not present at this occurrence, but after taking medical and friendly advice, she and her son made the decision for her to proceed with the journey. Then the high altitude flight aggravated the injury, so that she both heard and felt her ribs crack. Therefore upon landing at Malaga airport I immediately telephoned for a doctor and we were met by a man with a dirty smock who appeared to be intoxicated. Nevertheless, in spite of the reluctance of Ms Macintosh and the fact that he did not wash his hands nor wear gloves, the "examination" commenced. But it soon turned into a tussle involving piercing screams and a violent physical contest, resulting in the allegation of physical abuse, and her storming out in her wheelchair. The doctor suggested the need for an X-ray, to which I agreed. Soon afterward, Ms Macintosh began hyperventilating and suffering scorching pain concomitant with panic attacks. She maintained that the doctor had actually pushed her ribcage into her own lung. Hours later at Lorca hospital, her view was proven to be true. A second doctor at a second examination cast her into shock, waving a grotesque x-ray showing five broken ribs, two of them penetrating her right lung precisely as she said. The lung was filling with fluid, and the doctor predicting that she would "die in Spain" if she did not stay in his hospital. But she was terrified of doctors with a knack for worsening pain and threatening her life. She refused. Forty-five minutes later he was proved right. I respected her wishes to telephone our doctor in England for advice, but on the way we picked up a nail in our car tyre and stopped to change it. In icy pain, without life-giving breath, and tortured by a mind drawn toward death, she got out of the car and pelted uncontrolled in her wheelchair 50ft and over the side of a cliff edge that was not visible in the black night. I pursued her down into the darkness and found her alive but unconscious. My resuscitation and rescue attempts floundered inept, so I scrambled to the top and drove for help, soon returning with the Red Cross. In their ambulance she drowned on the fluid in her lung.

I had no opportunity to reconcile the emotional incision from such a devastating tragedy. The authorities immediately recognised Spain's possible liability for the accident. They realised that:

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  the behaviour of the doctors was causally contributory;

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  there exists no ARMCO barrier to stop such a fall, even though they have been paid enormous EU grants to install them;

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  the legal parking area slopes toward the cliff;

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  there are no lights in any direction for five miles;

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  there are no warning signs or indications that the area is dangerous (though we now know that there is a long history of accidents at this exact spot!).

They needed a scapegoat. So as a way of deflecting liability for the death, the second tragedy was levelled at me.

A female gypsy judge presided over all affairs. She established complete control over proceedings by announcing a device that was a hangover from the Inquisition – a "secret sumario". Through this implement, only she and the police know what they are investigating so they can select only what they choose to be evidence and then interpret that evidence as incriminating for the build up of sufficient layers of "legal truth" (as opposed to actual truth). The defence are not allowed to challenge witnesses and statements, or to have any "parallel investigations", which could throw up evidential facts supporting innocence. I was threatened to sign declarations in Spanish, which I could not read, with no English-speaking solicitor or translator present to convey to me what they said. When I refused to sign I was threatened with "contempt of court" and immediate imprisonment. The judge included statements that I had not said, and were blatantly untrue. She entirely refused to include the fact of the Malaga doctor's infliction of wounds that ultimately caused the death. To this day, he has never been interviewed. In order to blame me for the death, she used local doctors with no forensic experience nor training whatsoever, to carry out an autopsy. They found no evidence of a crime, nor signs of violence, so she instructed them to perform a second autopsy. This time she instructed them to produce indications of a crime and a cause of death compatible with her accusation that I pushed Ms Macintosh over the cliff in her wheelchair. In order to comply, they said that blood in the body which had been dead for 20 days, moved without the heart pumping it, upward, against gravity, from the back of the head to the face, and this could indicate that I hit her on the head in order to push her off the cliff without any signs of struggle. They claimed that she died instantly from a broken neck on the rocks below. (Of course this did not accord with statements from both the Red Cross and myself that she was still alive when we found her, but this little fact was brushed over.) The judge ordered the body to be buried in Spain, so that an exhumation and a third autopsy could be later done if necessary. However Ms Macintosh's son objected and flew the body back to England. He was unaware that many vital organs were never sent with the body, which ensured that no English doctors could challenge the findings. Those organs are still missing.

The accusation was upheld by some track marks in the sand near the point of fall. The police seized upon these "semi-parallel" marks, claiming that they were made by the wheelchair tyres "changing trajectory, and clearly show that someone was thrown off of a cliff". I knew for a fact that the marks derived from the Red Cross trolley bed from the ambulance. I explained this carefully, and asked the police to take a plaster cast of the marks for analysis. My request was refused.

The next nail in the prosecution case came from a bogus reconstruction of the incident, wherein the judge refused to use the same type of "attendance only" wheelchair. This chair has four air-inflated wheels all of the same size, which on their own, do not turn left or right. The junta used a chair with solid, huge, hard rubber back wheels and tiny, "twister" wheels in front. It never rolls straight unless deliberately guided, and this fact was known to the police through preliminary testing. So when the demonstration time came, the police chair swerved either to the left or right, and so did not roll to the cliff edge. (Following this bogus event, my son brought another "attendance only" chair from England and filmed it rolling the entire distance in 14 seconds, but three appeal courts refused me the right to a correct reconstruction because they have a policy of never overturning the presiding judge's judgment.)

All statements, reports, and declarations were in Spanish, so if you cannot read Spanish extremely well, you do not know what they contain, and so what the evidence is against you. Therefore, as a foreigner, until you can find some way of deciphering every statement, with utmost accuracy, the accusations lever against you unbearably. The Convention of Rome Treaty states that all evidence should be presented in the accused person's own language, but the Spanish laugh at such niceties. In my case the judge needed a report to explain that I deliberately punctured my car tyre in order to have a reason to stop and kill the person I had loved for 12 years. Therefore around this pre-determined conclusion the police drafted the accusation that I hammered a nail into the tyre prior to the killing! Of course no such hammer was found, and they ignored the fact that 11 other nails were scattered in the road, as well as a piece of wood showing where the nail from my tyre had broken away from it.

The police found a map of Andalusia in the car that was marked in Ms Macintosh's handwriting with the words "picnic", "national park", "video spot" etc. This was following the advice of the Spanish National Tourist Office who recommended that we mark such a map in order to have a reference for our pre-arranged meeting with the Spanish authorities to determine whether or not Andalusia was safe for the visiting children. The police found this very suspicious and accused Ms Macintosh and myself of being serial killers who wanted to kill children at all these spots marked "picnic"! After this they calmed down and merely decided that "picnic" might be a code word for spots where I wanted to kill my fiancée. Then they lost the map, so that they could refer to it in testimony against me, but I could not prove that the handwriting was not mine.

On this evidence the prosecutor asked the court for a sentence of 17-and-a-half years! I was completely doomed. You can't see past 17-and-a-half years in prison conditions. It's a black hole that you cannot see through; it's too big to see around, and too thick to see through.

After 32 months (without bail or a habeas corpus hearing) I was forced to a murder trial in a foreign language on hearsay, circumstantial evidence, based upon the event of the fall off the cliff, which did not cause the death. Then I was denied the right to use my defence documentation from England (precisely because it was English!), such as medical records proving Ms Macintosh's disabilities; proof that I was not the beneficiary of the small estate; proof of our registration to be married; testimonies from disabled people that I have worked with, and all character references.

The newspapers started writing leaders a full month before the trial, saying that an evil American committed homicide by walloping a defenceless little lady in a wheelchair and then throwing her off a cliff. Nicely objective, I thought.

However, I was redeemed by "New" Spain. Jury trials are only a recent "experiment" in Spain and are only used for cases of murder and terrorism. The magistrates do not like them because they cannot achieve their 95 per cent conviction rate through them, as they do through the usual tribunal of magistrates. However, my lawyer rose to the occasion and drew a character out of himself equal to the task. He brought in expert toxicologists from the University of Seville who had already firmly determined from the evidence that I had been framed for the alleged crime, and they personally could not let "Old" Spain prevail. They too were on a mission and it was about more than me – it was about social conscience. It was about a Spain that wanted truth. They were patriotic in their quest for the authentic, the genuine, and the real, so they led the jury through demonstrations of every single wound on Ms Macintosh's body and showed how it was caused by her hitting objects, not objects hitting her – except for the insertion of her own ribs causing her death.

The police were caught out in contradictions; the bogus forensic specialists were forced to admit their error regarding the cause and time of death. When the prosecution tried to forestall a valid reconstruction of the accidental fall, they jury revolted and insisted upon the whole court attending the accident site. At the site they witnessed a wheelchair of the same type roll the entire distance without being pushed, as I claimed. Then they each tried to hammer a nail into the same type of tyre but found it an impossible task. They determined that I was not the beneficiary of the estate and therefore had no motive for murder. The judge sensed a possible upset, so she tried to trap the jury into a conviction by formulating questions which had both a yes and a no answer in the same question, so that either answer could be interpreted as supporting a conviction. Again the jury revolted, by refusing to answer the questions. Instead, they wrote out another set of statements in longhand so that their verdict of "innocent" could not be misconstrued.

I leave it to the reader to interpret this story personally, sociologically, or in terms of the debate over the future of Europe. But I beg him or her not to take for granted the following canons of any just society:

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  presumption of innocence;

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  the right of habeas corpus;

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  documentation in a language that the accused can read;

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  the right to all means of defence;

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  speedy process of law.