There are egregious legal, constitutional, and moral infirmities existing in the criminal justice system of this court.  This motion is to address these legal, constitutional and moral infirmities as are affecting justice for Douglas Palmer.

                An overview of some of these injustices are as follows:

                1.                •Randall Sherrod is using his position as District Attorney for political purposes.  This is a conflict of interest that should disqualify him from acting as prosecutor in this case.

                2.                •Randall Sherrod is an irresponsible spendthrift with the money of Randall County.  If Randall Sherrod continues his ways the cases involving the death of Hilton Merriman, Sr. will cost the government over $500,000.00 before it is resolved, when it could have been equitably resolved for less than $10,000.00.

                3.                •Indigent persons accused of crimes, even in death penalty cases such as Douglas Palmer's, are not timely given adequate funds and resources to properly present issues to the court; while Randall Sherrod has money to waste on witnesses such as Dr. Erdmann.  Judge Patrick A. Pirtle exercises line item veto of funds for indigent persons on trial and Randall Sherrod has carte blanche use of county money.

                4.                •Randall Sherrod, in his official position as District Attorney, discriminates against persons who are not white.  Douglas Palmer is a person who is not white against whom Randall Sherrod is discriminating.

                5.                •Randall Sherrod is sponsoring and encouraging false, perjured and inaccurate testimony of witnesses to further his political goals, i.e., the long-standing use of Dr. Erdmann as a forensic pathologist/expert witness.

                6.                •Judge Patrick A. Pirtle has allowed Randall Sherrod's prosecutorial misconduct to go unchecked, even though he has been informed of this misconduct on numerous occasions.

                7.                •The Governmental Authority of Randall County has attempted to restrain the irresponsible spendthrift actions of Randall Sherrod; however, this court has intervened in an attempt to enjoin the restraints of the Randall County Governmental Authority.             

                8.                •Judge Patrick A. Pirtle issued an order restricting statements to the media by all counsel; he failed and refused to enforce the order against Randall Sherrod.

                9.                •Judge Patrick A. Pirtle is wasting and consuming a large amount of time of counsel for Douglas Palmer, i.e., requiring counsel to replead motions and continually deal with Randall Sherrod's misconduct.  Judge Patrick A. Pirtle fails and refuses to deal with Randall Sherrod's direct disobedience of court orders and allowed Dr. Erdmann, a person he knew to be unreliable, to testify as an expert witness during the trial of Johnny Rey, a co-indictee in this case.

                10.                •Until this date, Judge Patrick A. Pirtle has either lacked the ability or desire to control the prosecutorial misconduct of Randall Sherrod.

INTRODUCTION

                11.  Randall Sherrod, the District Attorney, has engaged in so many acts of prosecutorial misconduct and has such an immoral and unconscionable agenda for the employees of his office that the constitutional functions of this Court as entrusted to Judge Patrick A. Pirtle have utterly failed.  Immediate relief is necessary to end Randall Sherrod's continuous abuse of the powers of his office. 

                12.  The nature of this motion is necessarily broad.  In order to understand the issues raised and to fashion appropriate relief, it is necessary to present a holistic picture of the actions of Randall Sherrod and Judge Patrick Pirtle in response to the various issues that have surfaced in connection with this case. 

                13.                It is also necessary to delve into issues that do not directly involve this case, but reveal the motivations that underlie Randall Sherrod's willingness to commit prosecutorial misconduct in pursuit of the death penalty for Douglas Palmer. 

                14.                Additionally, these actions cannot be understood without placing them in a historical context.  Such an approach to the law was pioneered by Louis Brandeis, contending that the law cannot be understood outside the social context in which it is created.  While counsel for Douglas Palmer cannot hope to write as fluently as Justice Brandeis, and this motion is written with the intent of explaining both legal and social issues that are depriving Douglas Palmer of equality.[1]

District Attorney Randy Sherrod Acted In Contempt Of This Court By Defending His Own Misconduct On National Television, While Douglas Palmer's Lawyers Were Unable To Respond

                15.                On April 8, 1992 Judge Patrick A. Pirtle entered an "ORDER CONCERNING TRIAL PUBLICITY".  Accompanying this order was a statement concerning the intent of the court and specific threats.  The order is made a part of this motion as Appendix A; the accompanying letter is made a part of this motion as Appendix B.

                 16.                The April 8, 1992 Order of Judge Patrick Pirtle was entered  concerning trial publicity without giving counsel an opportunity to be heard or present evidence.  The order stated that counsel can no longer make "extrajudicial statements to the media that relate to the character, credibility, reputation or criminal record of a party or witness, or that relates to the expected testimony of a party or witness."

                17.                Judge Pirtle accompanied the order with a letter to the Attorneys of Record that was even more restrictive than the order.  In his letter, Judge Pirtle declared that counsel  must not only refrain from making any further extrajudicial remarks to the media concerning any party or witness in the case, but that council must also refrain from making any further "disparaging remarks" to the media concerning opposing counsel.

Randall Sherrod And His Office Violated The Order

                18.                In April of 1992, Randall Sherrod's office leaked misleading information about the results of the new autopsy to the press.  A copy of this news report is made a part of this motion as Appendix C.  This act was a blatant violation of the Court's order concerning trial publicity.  According to the leak, the new autopsy confirmed Dr. Erdmann's original findings.  That was a lie:  the new autopsy proved that Dr. Erdmann falsified his diagnosis of cerebral edema and failed to perform a complete autopsy, as he had done in numerous other cases.  It is beyond the scope of this motion to discuss the meaning of the new autopsy, but it is clear that Dr. Erdmann botched the old one and committed crimes in the process.

                19.                On April 21, 1992, tens of millions of Americans saw Randall Sherrod on NBC's "Today Show," defending his decision to use Dr. Erdmann to do autopsies.  Sherrod admitted that he has known for some time that Dr. Erdmann made "mistakes" and reached "questionable" conclusions in his autopsy reports.  When the "Today Show" asked Sherrod why he knowingly allowed Erdmann to perform autopsies that might affect the liberty or life of innocent people, Sherrod said, "What can you do . . . the West Texas area is not conducive to getting pathologists."  Sherrod told millions of viewers that Dr. Erdmann was so inept that he literally did not know his left from his right.  Sherrod still insisted that he was justified in using Erdmann and prosecuting cases that Erdmann may have botched.  He raised the specter of 150 murderers getting off Scot free, if Erdmann's errors were fully exposed.

                20.                Randall Sherrod's comments to millions of Americans on the "Today Show" clearly violated the Court's order.  Sherrod used this platform to speak about the most important issue that is related to the expected testimony of a witness:  his own misconduct in allowing Dr. Erdmann to perform botched autopsies. 

                21.                Douglas Palmer has plainly stated in motions that Randall Sherrod knew that Dr. Erdmann was not competent to dissect a frog, let alone a human being.  Douglas Palmer has further informed this court in motions that Randall Sherrod made a conscious decision to ignore Dr. Erdmann's gross incompetence because Randall Sherrod is more interested in winning convictions and death sentences than he is in seeking accurate and just convictions and sentences.  Randall Sherrod's comments on the "Today Show" directly addressed these statements by counsel, which will be proved with the testimony of witnesses.

                22.                Judge Patrick A. Pirtle's order concerning trial publicity allowed the statements of Randall Sherrod to go unanswered by counsel.

                23.                Counsel realizes the appearance of Randall Sherrod on the Today Show could have been taped before the order concerning trial publicity was issued.  If it was taped earlier, Randall Sherrod talked to the Today Show after the order.  If taped earlier, Randall Sherrod had the obligation to reveal this to counsel in order that counsel could have had an equal opportunity to present their side of the issue.

                24.                There has been no statement by Randall Sherrod as to when the Today Show's segment was taped.

                25.                If Judge Patrick A. Pirtle has made any inquiry about the Today Show appearance of Randall Sherrod, these inquiries have been without the knowledge of counsel for Douglas Palmer.  If an inquiry has been made by Judge Pirtle, such an ex parte inquiry would be constitutionally and professionally impermissible.

                26.                Judge Patrick A. Pirtle had one constitutional recourse once the news reports came to his attention -- issue a show cause order as promised.  He failed to act.

The Order Concerning Trial Publicity Of Judge Patrick A. Pirtle Is Unconstitutional As It Violates The First, Sixth, Eighth And Fourteenth Amendments To The United States Constitution And the Constitution And Laws Of The State Of Texas

                27.                When counsel received the order and letter of Judge Pirtle restricting their conversation with the media about Randall Sherrod and Dr. Ralph Erdmann, counsel felt the order concerning trial publicity was unconstitutional and grossly unfair.  The order silenced counsel at a critical moment when counsel was about to reveal crucial information about the misconduct and abuse of power of Randall Sherrod. 

The Order Concerning Trial Publicity Of Judge Patrick A. Pirtle Was Doomed For Failure Because It Was Entered Without Counsel For Douglas Palmer Being Given An Opportunity To Be Heard Before The Order

                28.                Judge Patrick A. Pirtle uses the term "sua sponte" in describing the proceeding before the order concerning trial publicity was issued.  The problem of "sua sponte" may not be understood by the general public, but lawyers and most judges know sua sponte for what it is.

Sua Sponte Is An Action By The Court Without Counsel Being Given An Opportunity To Be Heard

                29.                The first rule of being a fair judge is to "Let both parties be heard."  Judge Patrick A. Pirtle did not let counsel for Douglas Palmer be heard.  This was a major mistake and a great infraction of justice.

Press Coverage, i.e., Public Information, Is Crucial To The Process Of Justice

                30.                Press coverage of criminal trials has long been recognized as an effective deterrent to official misconduct.  The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse . . . Without publicity, all other checks are insufficient:  in comparison of publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. In re Oliver, 333 U.S. 257, 270-71 (1948).

Gag Orders Only Have Limited Application

                31.                Only in rare cases, where the benefits of public knowledge and debate about an ongoing criminal case may interfere with the defendant's Sixth Amendment right to an impartial jury, can a trial judge impose restraints on the free speech of attorneys.  Gentile v. State Bar of Nevada, 11 S. Ct, at 2742.  A gag order should be the last resort, and the court is obligated to try other means to protect the defendant's right to an impartial jury.   Empirical research suggests that the prejudicial impact of trial publicity can in most cases be avoided with a continuance, change of venue, voir dire, challenges for cause and instructions from the court. Id. at 2734.

There are Two Simple Guidelines For Gag Orders   

                32.                Gentile gives states two guidelines for gag orders.  First, a gag order must be "narrowly tailored to achieve" the objectives of obtaining an impartial jury and a verdict based solely on the evidence presented in court.  Gentile v. State Bar of Nevada, 111 S. Ct. at 2745.  The test is whether there is a substantial likelihood that an attorney's extrajudicial statement will have a materially prejudicial impact on the ability of the parties to find an impartial jury or the ability of the jurors to base their verdict on the evidence presented in court. Id.

                33.                Secondly, a gag order must also give the attorneys constitutionally sufficient notice of the extrajudicial statements that it prohibits.  Otherwise, it is void for vagueness and unenforceable.  Gentile v. State Bar of Nevada, 111 S. Ct. at 2731-32.  The test is whether the gag order "is so imprecise that discriminatory enforcement is a real possibility." Id. at 2732.

 Judge Patrick A. Pirtle's Gag Order In This Case Was Unconstitutional Under Both Of The Gentile Guidelines.     

                34.                The order concerning trial publicity in this case was unconstitutional under both prongs of the Gentile test.  It imposed a prior restraint on speech that was not likely to result in a biased jury or a verdict based on extrajudicial facts.  Further, the order was so vague that it invited discriminatory enforcement and leaves counsel confused about its exact meaning.

Judge Patrick A. Pirtle's Gag Order Is Unnecessary

                 35.                It is extremely unlikely that extrajudicial statements made by the counsel concerning this case would affect the impartiality of prospective jurors or the jury's verdict.  No date has been set and the Court has informed counsel that a trial may not take place for a year. Since it was possible to find an impartial jury to try Oliver North in Washington D.C. after that community was saturated with publicity about his inadmissable testimony before the congress, it should be easy by comparison to find an impartial jury in this case.

                 36.                In fact, it is likely that Judge Pirtle's gag order will actually reduce Doug Palmer's chance to obtain an impartial jury because it will prevent Doug Palmer's lawyers from correcting rumors and responding to vicious attacks from the prosecutors whose political careers may be destroyed by an inquiry into the truth about Dr. Erdmann.  The gag order  discriminates against Doug Palmer and his lawyers.  It has already silenced Doug Palmer's attorneys while the District Attorney was trumpeting his case to millions of Americans of national television.  There is no way to cure the egregious harm that resulted from this unconstitutional discrimination.  Even if the Court holds Randy Sherrod in contempt, that will not give Doug Palmer equal time to explain Randall Sherrod's wrongdoing, nor will it halt the prosecutorial misconduct of Randall Sherrod.

 The Order Concerning Trial Publicity Is  Extremely Vague

                37.                The Court's order is so vague that Doug Palmer's lawyers must guess at its meaning and limits.  There is a discrepancy between the order itself and a letter regarding the order that Judge Pirtle sent to the Attorney's of Record.  Judge Pirtle's order was concerned only with the extrajudicial statements regarding the parties and the witnesses of the case.  The order did not limit in any way the extrajudicial statements made to the media by counsel regarding the opposing counsel.

                38.                However, in an April 8, 1992 letter to the Attorneys of Record,  Judge Pirtle stated quite clearly that one of the intents of the order was to restrain counsel from making extrajudicial statements to the media about opposing counsel.  In his letter, Judge Pirtle insisted that "counsel refrain from making any further disparaging remarks concerning any party, witness, or opposing council."  The discrepancy between the letter and the order itself leaves everyone concerned wondering exactly what Judge Pirtle was trying to achieve with his order.

                39.                The vagueness of the order is further compounded by the language used within the order itself.  The order prohibits any extrajudicial statement that is related to the expected testimony of a witness.  The terms "related" and "expected" are "both classic terms of degree. In the context before us, these terms have no settled usage or tradition of interpretation in law." Gentile v. State Bar of Nevada, 111 S. Ct. at 2731.

                40.                Counsel for Douglas Palmer, the prosecutors and the Court may each have different expectations about what a witness will say or even whether a witness will appear.  Judge Pirtle's letter implies that Dr. Erdmann will be a witness when truth and reality inform us that Dr. Erdmann will not be a witness. 

                41.                Counsel for Douglas Palmer, the prosecutors and the court may each have different beliefs about the relevance of an extrajudicial statement to the expected testimony of a witness.  Counsel for each side do not know what the other side will ask their witnesses on cross-examination and the Court does not know what the lawyers will bring out on direct examination of witnesses.

                42.                The vague parameters of the order concerning trial publicity could create a conflict of interest between counsel's duty to represent Doug Palmer and their desire to avoid being punished for contempt.  Counsel might be tempted not to call an important witness after they had made an extrajudicial statement about him or her.  An even worse risk is that pro hac vice, pro bono counsel would leave the case rather than continually be subjected to Judge Patrick A. Pirtle's whims.

                43.                Counsel for Douglas Palmer has only one way of determining for certain how the order will be applied and enforced.  Counsel knows Randall Sherrod appeared on national television to discuss his conduct and Dr. Erdmann's involvement in the proceedings, and that Randall Sherrod's actions which seem to clearly violate the order concerning trial publicity has been tacitly sanctioned by the Court. 

                44.                •Randall Sherrod's actions, coupled with his continuous prosecutorial misconduct has been such an affront to justice, counsel for Douglas Palmer was sure that Judge Pirtle would act true to the words of his order:

" . . . Cross that line and your rights will be the subject of a Show cause hearing.  To be forewarned is to be forearmed."  Pirtle, April 8, 1992.

                45.                •Judge Pirtle failed to keep his word.  Counsel for Douglas Palmer, in order to protect the rights of Douglas Palmer that have been ignored by this court, is now forced to seek justice outside the forum of this Court.

                46.                If counsel, Douglas Palmer, and the people of Texas are to have justice, they must minimize the prosecutorial misconduct of Randall Sherrod.  We can not serve the needs of justice unless people are given access to information unfiltered by the politically motivated restraints of a judge and a prosecutor.

                47.                •The constitutional functions of this court as entrusted to Judge Patrick A. Pirtle have utterly failed.  The prime function of any court is to ensure that all persons using the court will have a fair trial.  This function also requires that counsel practicing before the Court will be treated fairly and not deprived of constitutional rights as basic as the freedom of speech. 

Douglas Palmer Was Irreparably Harmed By District Attorney Randall Sherrod's Contumacious Defense Of His Own Misconduct On National Television

                48.                Douglas Palmer was irreparably harmed by Randall Sherrod's Machiavellian violation of the Court's order concerning trial publicity.  The "Today Show" is arguably one of the most influential forums for expressing opinions about issues of great public concern.  Randall Sherrod has used that forum to plant the explanation of his own misconduct in the minds of millions of Americans.  Douglas Palmer is powerless to respond to this gross deception.  If his lawyers had spoken to the press, they would have risked being held in contempt.  Because of their silence, Sherrod was able to disseminate false information to the public -- prosecutorial misconduct as usual for Sherrod.

                49.                The Court's order concerning trial publicity is an implicit finding that public opinion may have a direct impact on the outcome of the case.  Gag orders are rarely, if ever, issued in cases like this one where a jury will not be selected for many months. 

Violation Of The Order Concerning Trial Publicity Is Only One Small Portion Of The Prosecutorial Misconduct Engaged In By Randall Sherrod

                50.                Another basic element to a fair proceeding is a proceeding free of prosecutorial misconduct.  Randall Sherrod is a habitual abuser of his prosecutorial ethical responsibilities.  He engages in prosecutorial misconduct even when ethical behavior would better serve his interests. 

                51.                •Randall Sherrod deceives, he lies and he sanctions the use of false information.  The electorate is entitled to receive information about Randall Sherrod's prosecutorial misconduct in order to make informed choices at election time.  The people's money should not be wasted on Randall Sherrod's prosecutorial misconduct.

A Chronological Blow By Blow Account Of Some Of The Acts Of Prosecutorial Misconduct By Randall Sherrod And His Lackeys

                52.                In 1989, Randall Sherrod attended a secret meeting of a group of prosecutors and peace officers from Randall and Potter Counties called "the Metro Board."  Potter County District Attorney Danny Hill informed the group that it was absolutely critical to find a new pathologist to replace Dr. Ralph Erdmann because he could not be trusted to perform accurate and impartial forensic autopsies and testify truthful in court.  Members of the Special Crimes Force had been assigned to monitor all of Erdmann's autopsies, but Hill concluded that these precautions were inadequate to prevent Dr. Erdmann from falsifying his findings.  Randall Sherrod agreed with Hill and the others that Dr. Erdmann should be fired, but Sherrod continued to use him.

                53.                In May of 1990, Randall Sherrod allowed Dr. Erdmann to perform the autopsy on the body of Hilton Merriman, Sr., even though Sherrod knew that Erdmann was hopelessly biased and incompetent.

                54.                •In July of 1991, the Court ordered Sherrod to turn over all of the evidence that was related to the autopsy.  In September of 1991, Randall Sherrod falsely promised in open court to immediately make the microscopic slides available for inspection by Dr. Riddick.  Sherrod did not have custody of the slides when he made that promise and he knew that he could not trust Dr. Erdmann to produce them.

                55.                •In November of 1991, Randall Sherrod violated the Court's discovery order to turn over all of the evidence that was related to the autopsy by intentionally withholding the x-rays of Mr. Merriman's skull.  When counsel became aware of the existence of these x-rays in January of 1992 and repeatedly demanded them, Sherrod refused to turn them over.

                56.                In December of 1991, Randall Sherrod's investigator called Dr. LeRoy Riddick, and secretly tape recorded the conversation.  The investigator asked Dr. Riddick a series of questions about skull fractures that were designed to create misleading impeachment material.  Dr. Riddick could not answer these questions intelligently because he did not know that Randall Sherrod had concealed x-rays of the skull from him.

                57.                •In December of 1991, Randall Sherrod secretly obtained a second opinion about the mechanism of Mr. Merriman's death from Dr. Linda Norton.  Dr. Norton told Sherrod that Dr. Erdmann's diagnosis of cerebral edema was obviously false.  Sherrod concealed Norton's exculpatory opinion from counsel.

                58.                •In January of 1992, Randall Sherrod learned that Dr. Erdmann substituted microscopic slides from another case for Mr. Merriman's slides.  Randall Sherrod concealed this outrageous attempt to thwart justice until April 2, 1992, even though he knew that the slides were critical evidence.

                59.                •In March of 1992, Lieutenant Wayne Randolph falsely assured counsel that he saw Dr. Erdmann remove all of Mr. Merriman's organs and place them on a scale.  Randolph knew that Dr. Erdmann did not remove any of the internal organs except the heart.

                60.                ••Worst of all, Randall Sherrod used Gestapo tactics to confiscate and conceal the microscopic slides after the Court promised to sign a defense subpoena for them and order DNA tests to determine whether they were authentic.  Counsel requested this subpoena because they feared that Dr. Erdmann would destroy or tamper with the slides.  The Court must have felt that counsel's fear was justified because it agreed on the record to sign the subpoena.  That night, Randall Sherrod secretly obtained a search warrant and used it to seize a set of slides from Dr. Erdmann that allegedly were made from Mr. Merriman's tissue.  When counsel learned that Sherrod had used his police powers to confiscate the evidence, they immediately objected in a written motion and asked him to turn the slides over to the Court.  Sherrod ignored that motion.  Counsel fears that he has either destroyed the slides or tampered with them, just as Dr. Erdmann attempted to do.

Randall Sherrod Is Trying To Cover For His Prosecutorial Misconduct By Intimidating Judge Patrick A. Pirtle

                61.                Randall Sherrod uses many different tactics to intimidate Judge Patrick A. Pirtle.  A prime example of Randall Sherrod's intimidation of Judge Patrick A. Pirtle is the motion to disqualify Judge Pirtle filed a few days before the last hearing in this case.  The disqualification motion is attached and made a part of this motion as Appendix D. 

                62.                Randall Sherrod withdrew the motion to disqualify Judge Pirtle the day before the hearing.  The disqualification motion was withdrawn after counsel for Douglas Palmer filed an answer attached to this motion as Appendix E.  The answer attempted to detail the motives of Randall Sherrod in filing the disqualification motion. 

                                •Judge Patrick A. Pirtle Is Afraid Of Randall Sherrod

                63.                Despite the gross acts of prosecutorial misconduct committed by Randall Sherrod, Judge Pirtle has failed to respond in any way.  Judge Pirtle has, however, been more than willing to respond to Defense counsel's writing style and interviews with the press.

                64.                An example of the disparity of treatment of counsel can be shown as follows.

JUDGE PIRTLE ALLOWED RANDALL SHERROD TO USE GESTAPO TACTICS TO CONFISCATE EVIDENCE THAT BELONGED TO COUNSEL FOR DOUGLAS PALMER

 Judge Pirtle Allowed Sherrod's Storm Troopers To Confiscate The Microscopic Slides On The Same Day The Judge Promised To Turn Them Over To Counsel for Douglas Palmer

                65.                In the Summer of 1991, the Court ordered Randall Sherrod to obtain the microscopic slides of Dr. Merriman's tissue from Dr. Erdmann and make them available for an inspection by counsel for Douglas Palmer's pathologist, Dr. Leroy Riddick.

                66.                •In September of 1991, Randall Sherrod assured counsel in writing that Erdmann had the slides and Dr. Riddick could inspect them at any time.  That was a flat out lie: Sherrod did not even attempt to obtain the slides from Erdmann until January of this year.

                67.                •In January, when Sherrod's office asked Dr. Erdmann for the slides that were made from Mr. Merriman's tissue, Dr. Erdmann gave him slides that were made from someone else's tissue.  The substitution was obvious to Randall Sherrod at the time because the slides had the wrong case number and Erdmann tried to forge the right one on them when the error was called to his attention.

                68.                •Between January and April, counsel notified Randall Sherrod again that the slides were crucial evidence and Dr. Riddick wanted to inspect them.  Sherrod deliberately concealed Dr. Erdmann's attempt to substitute different slides by stonewalling counsel. 

                69.                •On April 2, at the beginning of the hearing on the motion to exhume Mr. Merriman's body, Randall Sherrod's assistant, John Davis, finally revealed that Dr. Erdmann had substituted the wrong slides.  A few moments later, John Davis was seen in his office with tears streaming down his face.  Counsel feels obligated to mention this embarrassing situation only because it suggests that John Davis had a serious disagreement with the elected District Attorney, Randall Sherrod, about whether to disclose the truth. 

                70.                Later that day, Randall Sherrod, admitted to the press outside the courtroom that he had known since January of 1992 that Dr. Erdmann faked and substituted the slides.  This was a clear admission that Randall Sherrod and John L. Davis knew Dr. Erdmann had faked evidence about the autopsy of Hilton Merriman, Sr. before they offered Dr. Erdmann as an expert witness at the trial of the co-indictee, Johnny Rey.

                71.                •At the April 2 hearing, counsel argued that an exhumation of Mr. Merriman's body was necessary because a sample of his tissue could be used through DNA testing to authenticate the slides, if Erdmann still had them.  On the following day, after Randall Sherrod conceded that it was necessary to exhume the body, counsel asked Judge Pirtle to sign a subpoena for all of the microscopic slides that Erdmann possessed in his house and the Lubbock morgue, so that the DNA testing could be conducted. 

                72.                Randall Sherrod vigorously opposed counsel's request to subpoena the slides. 

                73.                Judge Pirtle rejected Randall Sherrod's argument and agreed to sign a subpoena for the slides. 

                74.                •On the night of April 3, 1992, Randall Sherrod asked Judge Sam Kaiser to sign a search warrant for the same microscopic slides that Judge Pirtle had promised to turn over to counsel that day.  Judge Pirtle was present when Judge Kaiser signed the warrant.  Judge Pirtle did not tell Judge Kaiser that the warrant effectively nullified his ruling on counsel's request for a subpoena.  Judge Pirtle did not even notify counsel, so that they could make a legal objection before Sherrod seized the slides. 

                75.                •On the night of April 3, 1992, Randall Sherrod called Dr. Erdmann's lawyer, State Senator John Montford, and told him about the search warrant for the slides.  Later that night, Senator Montford gave Sherrod a set of slides that were purportedly made by Dr. Erdmann from Mr. Merriman's tissue.  Dr. Erdmann's house and morgue were also searched, photographed and videotaped, but no other slides were seized. 

Judge Patrick A. Pirtle Gave Randall Sherrod An Opportunity to Destroy or Tamper With the Slides

                76.                On April 3, counsel learned about the seizure of the slides and called Judge Pirtle at home to protest.  Judge Pirtle promised to look into the matter and call back. 

                77.                •Judge Patrick A. Pirtle did not keep his promise.  When counsel called on April 6 to find out why, Judge Pirtle informed him that all future contacts with the court would have to be on the record or in writing. 

                78.                Counsel immediately filed a motion to have the court take custody of the slides and make them available to the defense, as it had promised on April 3.  Almost two months have elapsed since that motion was filed and Judge Pirtle has not acted on it.  Judge Pirtle's inaction gave Randall Sherrod plenty of time to destroy or tamper with the slides. 

Randall Sherrod's Agents Could Have Photographed Dr. Ralph Erdmann's Collection Of Nazi Memorabilia, Including A Lampshade Made Of What Appeared To Be Human Skin When They Searched His House

                79.                •On the night of April 2, a police officer informed counsel that one of Dr. Erdmann's closest associates had seen a collection of Nazi war memorabilia and a lampshade made of what appeared to be human skin in Dr. Erdmann's house.  This is not surprising.  Dr. Erdmann admitted in John Rey's trial that he was educated in the Alexander Van Humboldt School, which was a special school for the children of Nazi foreign agents in South America. 

                80.                After Randall Sherrod obtained the photos and videotapes of the inside of Dr. Erdmann's house a newspaper reporter entered the house and noted that Dr. Erdmann's collection of Nazi war memorabilia was still there.  In the middle of the interview, Dr. Erdmann brought about a box of medals adorned with swastikas and skulls and proudly displayed them to the shocked reporter. 

Three of the Slides Are Missing!

                81.                Dr. Erdmann testified in John Rey's trial that he made at least eight microscopic slides from Mr. Merriman's tissue. 

                82.                When Dr. Riddick performed the new autopsy on Mr. Merriman, he asked Randall Sherrod for the slides that had been seized from Dr. Erdmann.  Randall Sherrod gave him five slides.  That means that at least three of the slides are missing. 

Nothing Can Be Done By Counsel To Obtain A Meaningful Forensic Pathologist's Opinion Until We Know What Happened To The Missing Slides

                83.                It is no secret that counsel for Douglas Palmer have been concerned for months that Randall Sherrod and Dr. Ralph Erdmann conspired to destroy and fabricate evidence.  Indeed, most of counsel for Douglas Palmer's efforts have been directed towards preventing Randall Sherrod and Dr. Erdmann from engaging in acts of misconduct to thwart the course of justice.  In light of Dr. Erdmann's perjury in the John Rey case, his attempt to substitute the wrong slides in this case and Randall Sherrod's outrageous stonewalling and lying about the slides, the x-rays and his knowledge of Dr. Erdmann's incompetence, no precaution to prevent tampering with the evidence would be too great.

Dr. Erdmann Has A History Of Losing Body Parts

                84.                Moreover, Dr. Erdmann has a history of "losing" and destroying parts of bodies.  In Odessa, he inflicted a post mortem gash in the head of a corpse that made it appear as if the man had been beaten to death and destroyed the head of a shooting victim with a bullet in it that the police needed as evidence.  In Hale County, he tried to substitute the skeleton of a young male who was supposed to be buried in Missouri for the headless skeleton of a woman.  If we had to rely on the word of Dr. Erdmann, we could not even exclude the possibility that the wrong man was buried in Mr. Merriman's grave!

                85.                Because there is a very substantial probability that evidence in this case has been destroyed or tampered with, counsel for Douglas Palmer have instructed Dr. Riddick not to file a report about the new autopsy until all of the relevant evidence, including the critical slides, has been located and authenticated.  Dr. Riddick agrees that this is a very wise precaution. 

                86.                Counsel for Douglas Palmer cannot proceed with an opinion on the forensic pathology in this case unless and until the five slides that Dr. Riddick inspected are authenticated through DNA testing buy our expert, the court signs a subpoena for every other slide that Dr. Erdmann has in his possession, as it promised on April 2, and those slides are DNA tested to determine if any of them  were made from Mr. Merriman's tissue.  If those slides were not crucial, Randall Sherrod would not have gone to such lengths to conceal the fact that they were missing or used gestapo tactics to prevent counsel for Douglas Palmer from obtaining them.  It would be a gross miscarriage of justice to put Douglas Palmer on trial for his life, if Dr. Erdmann or Randall Sherrod had destroyed these slides.

Judge Pirtle Has Known About Randall Sherrod's Misconduct and Has Refused To Act To Correct The Situation

                87.                As of April 2, 1992, this information about the conduct of Dr. Erdmann and the concealing of this information from January to April by Randall Sherrod was obviously known to Judge Patrick A. Pirtle.

                88.                In an in-chambers off the record conference with all lawyers that took place after the admission of clear misconduct by Dr. Erdmann and Randall Sherrod, Judge Patrick A. Pirtle made comments about professional responsibility.

                89.                Judge Patrick A. Pirtle chose to condemn counsel for Douglas Palmer for the writing style and content of the "Gasp, Gasp, Gasp" answer rather than condemn either Dr. Erdmann or Randall Sherrod for real professional misconduct. 

                90.                Judge Pirtle knows Randall Sherrod has engaged in habitual prosecutorial misconduct and Judge Pirtle has not taken any action against Randall Sherrod. 

                91.                The delay of action and habitual procrastination by Judge Pirtle in correcting the prosecutorial misconduct is substantial proof of complicity in the use of prosecutorial misconduct in pursuit of the death penalty.

Just What Is The Real Reason Judge Patrick A. Pirtle Does Not Want The Public To Have Information About Randall Sherrod's Prosecutorial Misconduct And Dr. Ralph Erdmann's Botched And Faked Autopsies?

                92.                Judge Patrick A. Pirtle has made some serious judicial errors in allowing Dr. Ralph Erdmann to testify as an expert witness.

Judge Pirtle's Order Concerning Trial Publicity Is Particularly Egregious Because Judge Pirtle Knows Law Enforcement Officers In Lubbock County Have Been Ordered Not To Give The Public Any Information About Dr. Ralph Erdmann

                93.                In the sworn testimony at the April 2, 1992 hearing before Judge Patrick A. Pirtle, a law enforcement officer from Lubbock testified that Travis Ware, the District Attorney in Lubbock, had directed that no law enforcement officer in Lubbock release any information about Dr. Ralph Erdmann.  Since it is known that Travis Ware is trying to suppress information about Dr. Erdmann, it is even more detrimental to justice that Judge Pirtle should assist in the cover-up of the actions of Dr. Erdmann.