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Dr. Thomas Bennett

Dr. Thomas Bennett, a forensic pathologist, describes the path of bullets that Martin Jon Pond Jr. fired at Allen Douglas Alderman. Bennett testified Tuesday at Pond's sentencing for mitigated deliberate homicide.

A Billings doctor who was ordered to refrain from doing autopsies on infants said Tuesday he never worked for the state of Montana as a forensic pathologist, and that his work was exemplary.

"As a private pathologist, I worked for the coroners and our counties," Thomas Bennett said in a letter to the Missoulian and Billings Gazette. "Dr. (Gary) Dale never appointed me to any position during his tenure as the state medical examiner.

"I didn't work for him or the state, so the appointment and 'un-appointment' claims are quite disingenuous. I never had a contract with the state, so it is an error to say any contract was not renewed."

The July 27 letter was addressed to Scott Darkenwald, chief deputy for Attorney General Tim Fox, and it was copied to the Missoulian and Billings Gazette.

In the letter, Bennett defended his record; he described comments from former chief medical examiners Gary Dale and Walter Kemp as stemming from "anger and bitterness."

Bennett also thanked the people of Montana for the opportunity to serve coroners, courts and attorneys for 17 years.

Dale and Kemp recently resigned in quick succession. Both left after Dale's concerns about Bennett's autopsies on children came to a head in September 2014 at the Montana Attorney General's Office.

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In Montana, the attorney general appoints a head medical examiner. Up until recently, the head examiner has appointed an associate to do autopsies for county coroners in eastern Montana.

Bennett was the only forensic pathologist appointed to work in eastern Montana for many years. Records show Dale repeatedly prohibited Bennett from conducting autopsies on infants, citing problems with such autopsies when Bennett worked in Iowa.

Bennett, however, disavows in his letter any subordinate relationship to the head medical examiner. Instead, he argues he worked as a consultant to counties and provided services for a fee, performing more than 200 autopsies a year for coroners as requested.

"The authority and responsibility for investigations into deaths that affect the public interest has always been with each county's coroners," Bennett said. "The state medical examiners and associate medical examiners served as consultants and by performing the autopsies the coroners requested and authorized.

"By Montana statute and convention, the coroners had the authority to make their choice of pathologist.

"The Montana Board of Medical Examiners (which is totally separate from the State Medical Examiner's Office) is the agency responsible for licensing physicians and regulating the scope of medical practice, our legislature recognizing that a board's reasoned decision using guidelines and due process is preferable to a single individual's choice."

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Bennett did not directly address in his letter any communication he and Dale had about the medical examiner's directive that Bennett avoid performing autopsies on infants.

However, Bennett noted he performed numerous autopsies for organizations including the Shodair Children's Hospital. He also said he sent his reports to the state medical examiner's office in Missoula as requested.

"Ideally, this could have led to discussions and consultations over the various issues that will inevitably arise in death investigations," Bennett said. "This is the beauty of consultations and second opinions in medicine. 

"... From the clash of differing ideas comes the spark of truth. It is unfortunate that personality clashes led to 'less than optimal' communication, and to no feedback to me on these cases for many years."

In a short phone call, Bennett said he told coroners of Dale's wish he not do infant autopsies. However, he said coroners and county attorneys wanted him to conduct those autopsies.

"I just honored the request of those coroners, recognizing that I work for them and not Dr. Dale," Bennett said.

In his letter, Bennett also said he disagrees that attorneys general were at fault in failing to enforce limitations set by the head medical examiner. According to him, the statutes "have been reinterpreted."

"The statutes have been reinterpreted to center the death investigation authority in their one appointed state medical examiner, which is more than just to serve as a consultant to the coroners," Bennett said.

"It is unfair criticism of past practices, in that Montana had previously respected that the authority and responsibility for death investigations centered in each county's elected coroner or coroner-sheriff."

He also said the criticism of prior attorneys general are "rather obvious examples of the politicizing and posturing that can accompany upcoming elections."

In the phone call to the Missoulian, Bennett said he did not know which attorney general had reinterpreted the statute. However, he said he was informed of the change by the current Attorney General's Office. 

Attorney General Fox recently said he was changing the structure of the medical examiner's office so the deputy is a state employee who reports directly to the chief medical examiner.

In a statement, the attorney general's communications director said the AG's position on state statute has remained consistent.

"Our position has always been in accordance with MCA 44-3-201, 44-3-211, and 46-4-103 that the attorney general appoints the state medical examiner, the state medical examiner is responsible for the appointment of the associate medical examiner(s), and all autopsies requested by county coroners and county attorneys must be conducted by one or the other," said John Barnes, communications director.

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In his letter, Bennett also defended his work on children. He said the investigation of an infant death is difficult and controversial, and theories around those deaths are still evolving.

"We, as forensic pathologists, offer the best we can of the current and evolving knowledge in death investigations," Bennett said. "We bring this to the criminal justice system, and must defend our opinions in the courts when asked.

"The standards for court testimony are strict and stringent, and allow for the due process for those accused."

Bennett came to Montana after numerous authorities in Iowa called into question his work on infants. At least one infant autopsy performed by Bennett led to the imprisonment of both parents; they later were exonerated due to "false or misleading forensic evidence."

In the phone call, Bennett said he did not have much more to offer than the statements in his letter.

"It's just unfortunate it's been run out there in the press lately, but I don't have many statements. The letter, I hope, speaks for itself," Bennett said.

He initially declined to comment on the reason Dale's concerns escalated last fall. In a brief subsequent phone call, Bennett said the change was that a lawyer who did not want Bennett to testify in court had approached Dale, and the situation "led to some bad feelings."

He did not know how the matter affected the Attorney General's Office.

Dale resigned in April; his successor, Walter Kemp, resigned earlier this month, noting he had been forced to reappoint Bennett, but would leave him un-appointed when he left.

One result of the structural change Fox instated is Bennett will no longer conduct autopsies for coroners in eastern Montana.

The change will take effect once the new medical examiner comes on board in August.

"As soon as we were made aware of Dr. Gary Dale's concerns, we took immediate action to understand the full scope of his concerns and were in ongoing communication with him," Barnes said. "Our evaluation was thorough, professional, and fair to all parties involved.

"It was a complicated issue, and we are in the process of resolving it."

***

In his letter, Bennett comments on the departures of the head medical examiners as well as on the "evolution of our state's system of medical examiner coverage and authority."

"The many frustrations these two felt can be seen in their subsequent statements of anger and bitterness," Bennett said. "Doctors are human, and they have egos. We couldn't do our work without that drive.

"Seeing how much Montana has had to add to salaries and staffing to attract replacements witnesses how underfunded the old system was."

Bennett had done work for counties through his private practice in Billings, Forensic Medicine and Pathology. He said Tuesday he will continue to work in Montana in private practice.

"I do not want to leave Montana with a 'scorched earth' farewell, lashing out at whatever wrongs I may perceive," Bennett said in his letter. "We should be better than that.

"Instead, I thank you all for the over 17 years I have had the opportunity to work and share with you all. My fondest wishes go with you."

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