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NO. 6985-C IN THE 251ST DISTRICT COURT IN AND FOR RANDALL COUNTY, TEXAS STATE OF TEXAS vs. DOUGLAS NATHAN PALMER STATE'S MOTION FOR JUDGE TO DISQUALIFY OR RECUSE TO THE HONORABLE JUDGE OF SAID COURT COMES NOW, the State of Texas, and files this motion for the trial judge to disqualify or recuse himself from this case, and would show the following: I. Judge Patrick Pirtle is the district judge of the 251st District Court of Randall County, Texas, and this case, a capital murder case, is on the docket of that Court. There are also five companion cases pending in the same Court. II. Judge Pirtle should be disqualified or recuse himself from presiding in this case because the State intends to call Judge Pirtle as a witness concerning the qualifications and credibility of Dr. Ralph Erdmann, the pathologist who performed the autopsy in this capital murder case. It has been made known to the State that defendant's counsel will attack the qualifications of Dr. Erdmann to testify at all, and, even if allowed to testify, that his credibility will be severely challenged. Therefore, the State intends to offer the testimony of Judge Pirtle under the authority of TEX.R.CRIM.EV. 702, concerning whether Dr. Erdmann is qualified to give an expert opinion as a pathologist, and under the authority of TEX.R.CRIM.EV. 608(a)(2), concerning Dr. Erdmann's credibility as an expert witness in pathology. This motion is predicated in part on opinions of Dr. Erdmann expressed by Judge Pirtle to David Stevens, a regional editor, for the Amarillo Globe-News newspaper, and shown by the following excerpted opinions and comments by Judge Pirtle to David Stevens on the qualifications and credibility of Dr. Erdmann published in the Globe-News on or about February 26, 1992: Some area lawyers and officials say they have questioned Ralph Erdmann's credibility as a forensic pathologist for years, but they doubt the courts will become bogged down with the retrying of cases as a result of Erdmann's indictment in Levelland. A Hockley County grand jury Monday returned two indictments against Erdmann, indicating that enough evidence exists to try him on discrepancies in a Dec. 23 autopsy report. But 251st District Judge Pat Pirtle of Amarillo said while the has "heard such complaints before" from area defense attorneys, he believes Erdmann remains a qualified witness. "A number of defense counselors didn't like Dr. Erdmann because he always seems to be an expert on everything," Pirtle said. Pirtle was asked to disallow Erdmann as an expert witness during a capital murder case in January. Pirtle denied the motion by the defense attorney for Johnny Rey and said Tuesday that Erdmann's indictment did nothing to change his mind. "You've got to understand the function of a pathologist," Pirtle said. "In any case in which the cause of death is a critical issue, yeah, that (pathologist's testimony) could be a consideration. But in cases where you have a gunshot wound or a blunt force trauma, it's never going to be questioned."(Emphasis added). The Johnny Rey case to which Judge Pirtle refers in the article, is State v. Johnny Lee Rey, No. 6989-C in the 251st District Court, Randall County, Texas. Judge Pirtle presided in that case and heard defense counsel's extensive and thorough challenges to the qualifications and credibility of Dr. Erdmann. Judge Pirtle refused all such challenges and held Dr. Erdmann qualified to testify as an expert in pathology. Because the Rey case is one of the companion cases to this case, and because the victim, Hilton Raymond Merriman, Sr., is the same victim in this case, as in the Rey case, Judge Pirtle's importance as a witness for the State is enhanced. This is because Judge Pirtle heard, in the Rey case, an attack upon the very autopsy by Dr. Erdmann that will be attacked again in this case. Additionally, Judge Pirtle has presided over one other capital murder case, State v. Larry Eugene McPherson, No. 7338-C in the 251st District Court, Randall County, Texas, wherein Judge Pirtle allowed Dr. Erdmann to testify as an expert in pathology. Thus, Judge Pirtle, to back up the opinions he has expressed concerning the qualifications and credibility of Dr. Erdmann, including testimony and exhibits concerning the very autopsy that will be attacked in this case. Since the attacks on Dr. Erdmann are destined to continue, Judge Pirtle, by his status as a District Judge, and having extensive knowledge of Dr. Erdmann's qualifications and credibility, and the challenges thereto, is uniquely qualified to aid the State in the further prosecution of any case wherein Dr. Erdmann was the pathologist. That includes this case. Consequently, Judge Pirtle is a necessary and material witness for the State. Under TEX.R.CIV.P. 18(b)(2)(f)(iii): A judge shall recuse himself in any proceeding in which: he . . . is to the judge's knowledge likely to be a material witness in the proceeding. Although there is no comparable criminal rule or statute to civil rule 18, the Court of Criminal Appeals has held that the civil rules on disqualification apply unless there is legislative intent indicating otherwise. See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983). Because there is no legislative intent otherwise, rule 18(b) should be applicable here. III. Further, even if this Court holds that the civil rules do not apply, it is recognized in criminal cases, by court holding, that in the event that a judge is a material witness in a case, he should recuse or disqualify himself from presiding in that case. See Wilson v. State, 242 S.W. 229, 230 (Tex. Crim. App. 1922) (since trial judge had said that he had no knowledge of any facts in the case, and since he was never called to testify by either side, there was no reason to disqualify judge); State v. Bennett, 520 So.2d 1095, 10997-98 (La. Ct. App. [3rd Cir. ] 1987) (defendant was entitled to have judge recused because judge presided at co-defendant's plea of guilty and approved details of co-defendant's plea agreement; therefore, because co-defendant was set to testify in defendant's case, and co-defendant's credibility and motive for testifying would be key issue in defendant's case, judge was a material witness and should have recused himself from defendant's case); State v. Kelley, 128 So.2d 18, 21 (La. 1961)(judge should have recused himself where his testimony was material to key issue in case and as a character witness for defendant). IV. Because the Texas Government Code [TEX. GOVT. CODE ANN. § 74.059(c)(3)(Vernon 1988)] requires it, Judge Pirtle should request the Presiding Judge of this administrative district to assign another Judge to hear the State's recusal motion, and the Presiding Judge should then assign another judge to hear the State's motion. PRAYER WHEREFORE, the State prays that the Judge of this Court immediately request the Presiding Judge of this administrative district to assign another judge to hear this motion, and that upon such hearing the Judge of the 251st District Court be disqualified or recuse himself from presiding in this case. Respectfully submitted RANDALL L. SHERROD CRIMINAL DISTRICT ATTORNEY RANDALL COUNTY, TEXAS S / JOHN L. DAVIS JOHN L. DAVIS Asst. Crim. District Attorney Randall County Courthouse Canyon, Texas 79015 (806) 655-6230 FAX (806) 655-4827 SBN 05515700 VERIFICATION THE STATE OF TEXAS COUNTY OF RANDALL BEFORE ME the undersigned authority personally appeared Randall L. Sherrod, Criminal District Attorney, Randall County, Texas, a person known to me, who after being first duly sworn, stated on his oath that he had read the foregoing motion and stated that he had personal knowledge of the matters contained therein and that these statements therein are all true and correct. SIGNED this the 27th day of March, 1992. S / RANDALL L. SHERROD RANDALL L. SHERROD CRIMINAL DISTRICT ATTORNEY RANDALL COUNTY TEXAS SWORN AND SUBSCRIBED TO before me the undersigned authority this 27th day of March, 1992. S /Gaye Wineinger NOTARY PUBLIC STATE OF TEXAS My commission expires: 11-21-93.
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