Dr. Ralph Erdmann Took The Fifth Amendment Each Time Counsel Asked Him Questions At The April 2, 1992 Hearing.  Now He Is Talking To The Media.

                94.                Dr. Ralph Erdmann is making disparaging remarks about counsel for Douglas Palmer in the media.  The order concerning trial publicity of Judge Patrick A. Pirtle restrains counsel from responding.  A copy of some of these news stories are attached as Appendix F.

Judge Patrick A. Pirtle Is Trying To Hide From The Public The Egregious Miscarriage Of Justice He Committed By Allowing Dr. Ralph Erdmann To Testify As An Expert Witness

                95.                In late 1991, counsel for Douglas Palmer advised this court in formal legal motions and orally in ex parte Ake v. Oklahoma evidence that Dr. Ralph Erdmann was not competent to perform forensic autopsies.  Without any question Judge Patrick A. Pirtle has known since that date that Dr. Ralph Erdmann would offer and present inaccurate information regarding forensic pathological work.

Judge Patrick A. Pirtle Should Have Taken Immediate Action Against Dr. Ralph Erdmann, But Judge Pirtle's Procrastination Allowed The Fraud Of Dr. Erdmann And Randall Sherrod To Continue

                96.                Instead of taking immediate action, Judge Pirtle procrastinated until April 2 before hearing evidence and has never provided counsel the necessary financial aid to investigate the motion adequately.

                97.                During the time between the filing of the motions dealing with prosecutorial misconduct and the April 2nd hearing, Judge Pirtle presided over the trial of Johnny Rey, a co-indictee of Douglas Palmer.

Johnny Rey, A Co-Indictee Of Douglas Palmer, Received A Death Sentence With The Testimony of Dr. Ralph Erdmann

                98.                Dr. Ralph Erdmann testified at the trial of Johnny Rey.  Dr. Ralph Erdmann gave false information to the jury while Judge Pirtle was presiding.  The information was so patently false that the Assistant District Attorney, John L. Davis, found it necessary to inform the Court of some of Dr. Erdmann's false statements.

After The Trial Of Johnny Rey, Judge Patrick A. Pirtle Made A Statement To The Local Newspaper In Support of Dr. Ralph Erdmann

                99.                After the trial of Johnny Rey, and while his case was pending before the Court awaiting a motion for new trial, Judge Patrick A. Pirtle made statements to the Amarillo Globe-News on or about February 26, 1992.  Part of the story in the Amarillo Globe-News was as follows:

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 he 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 Court Must Demonstrate By Taking Action Against Randall Sherrod; This Action Must Not Just Be Punitive, But Must Be Beneficial To Douglas Palmer

                100.                Randall Sherrod's actions have created the appearance that the Court is biased against Douglas Palmer and is engaged in protecting his political career. 

                101.                •At present Randall Sherrod is under fire for repeated abuse of his office as prosecutor of Randall County.  In an article in the Texas Lawyer, of May 25, 1992, he is described as "a bully who uses his size, aggressive personality and considerable political power to pummel into submission anyone who disagrees with him."  The article contends that his primary weapon is the grand jury where he routinely hauls or threatens to haul those who oppose his political will.  Because the public is just beginning to learn of Randall Sherrod's routine abuse of power his political future is shaky at best.  Such desperate times demand desperate measures. 

                102.                •Randall Sherrod seeks the death penalty in general, and against Douglas Palmer in particular, in a racially discriminatory, arbitrary and capricious manner in order to further his own political ambitions.  Randy Sherrod's actions are a manifestation of the racism prevalent throughout the Randall county community and judicial system. 

                103.                As an elected official, Randall Sherrod is motivated to adhere to community sentiment even when that sentiment is constitutionally impermissible especially when his position as an elected official is under fire.  Prosecutorial misconduct was not committed in this case in the pursuit of justice, but rather, to protect Randall Sherrod's political future.  Such a goal is clearly outside the ambit of a proper judicial forum free of discrimination. 

                104.                •Randall Sherrod's racist intentions have been repeatedly demonstrated by his willingness to commit acts of prosecutorial misconduct in pursuit of the death penalty for Douglas Palmer.

                105.                The racism which motivates Randall Sherrod in Douglas Palmer's case is multi-faceted.  It is necessary to look at the actions of Randy Sherrod as both overt acts of racism and as a subtle form of perpetuating racist community standards in the court room.  Whether overt or subtle the Constitution demands that our judicial process be free of racism.  Where racism is a motivating factor in pursuing the death penalty the court must act to protect the constitutionally protected Eighth and Fourteenth amendment rights of the defendant. 

Randall Sherrod Has Assistance In His Discrimination

                106.                As an example of the prevalence of racism in Randall county, one need look no farther than the proceedings involved in this motion.  Judge Patrick Pirtle has aided and abetted Sherrod in his pursuit of constitutionally impermissible goals by refusing to act promptly in putting an end to these racially motivated actions of prosecutorial misconduct while admonishing counsel for Douglas Palmer for titling their motion improperly.  Such a gross miscarriage of justice on the part of Randy Sherrod demands immediate judicial attention.  To demand that the motion previously submitted by counsel for Douglas Palmer requesting relief in this matter be repled to meet "judicial standards" when a young man's life is at stake and the Prosecutor has admitted violating court orders is a clear sign that the priorities of the court are misplaced. 

                107.                •Through inaction and misplaced priorities the court has tacitly approved the racially discriminatory acts of the prosecutor and the community.  The court seems to suggest that prosecutorial misconduct motivated by racism in pursuit of the death penalty is within the normal bounds of prosecutorial zeal.  Such a finding cannot possibly comport with the constitutional mandate that the judicial process be free of racism. 

                108.                This court must act immediately to constrain Randy Sherrod's discriminatory and unconstitutional abuse of prosecutorial discretion and prohibit the state from attempting to execute Douglas Palmer.  The decision to seek the death penalty against Douglas Palmer is an immoral, discriminatory, unconstitutional act.  Racial discrimination and political motivation should not play a role in determining what is to happen to Douglas Palmer.

                109.                In rejecting a broad attack on Georgia's death penalty in McClesky v. Kemp, No. 84-6811 (1987), the United States Supreme Court held the focus of a challenge alleging racial discrimination must pinpoint the target allegedly practicing racial discrimination and prove such discrimination by that decision maker. 

                110.                This motion follows the Supreme Court's directions in the McClesky decision by focusing on the constitutionally impermissible decisions and actions of Randy Sherrod in seeking the death penalty against Douglas Palmer.  This focus reveals that Randy Sherrod's actions in this case are motivated by racism and thus prejudiced against Douglas Palmer. 

                111.                From the public's perspective, it appears as if the Court gagged Douglas Palmer's lawyers at a pivotal moment, when they were about to expose the truth about Randall Sherrod's misconduct to the press, and allowed Randall Sherrod to defend himself on national television while Douglas Palmer's attorneys were gagged.  This apparent injustice will make it impossible for the Court to preside over Douglas Palmer's case, if it is not corrected immediately by granting Douglas Palmer relief from the order concerning trial publicity and the prosecutorial misconduct by Randall Sherrod.

                112.                The Court's interruption of the April 2, 1992 evidentiary hearing just as counsel began presenting evidence of Randall Sherrod's prosecutorial misconduct is another example of the Court protecting Randall Sherrod and his political base.

                113.                Douglas Palmer hopes that this appearance of gross judicial bias is misleading.  Douglas Palmer is fighting prosecutors from several counties and a State Senator.  If the Court has joined these powerful men in their racist attempts to conceal the truth in pursuit of their personal political goals, Douglas Palmer may as well inject himself with a dose of lethal poison instead of waiting for the state to do it.  Up until the time the Court imposed the order concerning trial publicity, counsel for Douglas Palmer felt the Court would act fairly.  Counsel even said this when the prosecutor moved to disqualify the Court.  When the order concerning trial publicity was imposed, Douglas Palmer's counsel gritted his teeth and gave the Court the benefit of the doubt.  Now it appears that benefit was misplaced.

The Only Appropriate Sanction For The Racist Prosecutorial Misconduct Of Randall Sherrod Including His Violation Of The Order Concerning Trial Publicity Is Restraining Him From Seeking The Death Sentence In This Case

                114.                Randall Sherrod's prosecutorial misconduct must be sanctioned in a way that benefits Douglas Palmer; not just in a punitive way.

The sanctions against Randall Sherrod must be sanctions that erode Randall Sherrod's political base and expose his conduct to appropriate ridicule.

                115.                Randall Sherrod knows that the case against Douglas Palmer is not an appropriate case for the death penalty.  Douglas Palmer and the other co-indictees in this case are Mexican American youths who are hardly old enough to shave; certainly not hardened criminals who should be executed.

                116.                Randall Sherrod will continue to seek the death sentence to further his political ambitions and because he is angry with counsel for Douglas Palmer for exposing his prosecutorial misconduct, together with the exposure of Dr. Ralph Erdmann's botched autopsies and fabricated expert testimony.

                117.                Randall Sherrod has felt free to execute his own brand of justice in the Randall County courthouse long enough.  If Randall Sherrod is restrained from obtaining the death sentence in this case his demeanor as a prosecutor must change.   It will send a serious message to all concerned that the law must be respected.  As long as the judiciary sit idly by, ignoring their responsibility to restrain Randall Sherrod from acts of gross misconduct and abuse of power, he will feel free to continue his corrupt politically motivated actions in the courtroom.  An order restraining Randall Sherrod from pursuing the death penalty in this case is a sanction that will effectively stop prosecutorial misconduct in this Court forever.

The Efforts Of Prosecutors Like Randall Sherrod To Obtain The Death Penalty Is Causing The Decay Of Major Institutions In Our Society Such As This Court

                118.                This Court's ideas about self-government have been tested.  The court, to date, has failed the test, primarily because the Court is assisting a corrupt prosecutor in hiding information about his behavior.

Randall Sherrod's Actions And Judge Patrick A. Pirtle's Inaction Leave Counsel For Douglas Palmer Few Choices

                119.                Counsel for Douglas Palmer is now forced to either forego justice or speak to the media about the gross miscarriage of justice in the courtroom with the risk of sanctions.  Because it is the life of a young man that is at stake counsel's efforts for justice must prevail over the risk of sanctions; however, relief from the risk of sanctions would make life for counsel more comfortable.

                120.                To preserve their personal credibility and protect the rights of other people counsel for Douglas Palmer must seek immediate relief and redress in this Court and in additional forums.

Notice Of The Original Motion And The Court Ordered Repled Motion, Together With Related Matters, Are Being Simultaneously Sent To The Honorable Ann Richards, Governor Of Texas, Dan Morales, The Attorney General Of Texas, And The United States Department of Justice

                121.                The problems addressed by this motion as ordered repled cannot be exclusively entrusted to this Court for a prompt and equitable solution.  However, the fact that counsel seeks relief in other forums should not be used by the Court as an excuse for not setting an immediate hearing on this motion.                 

                122.                This motion is being sent to the Honorable Ann Richards, the Governor of Texas; Dan Morales, the Attorney General of Texas; and the United States Department of Justice. 

Counsel Realizes In Seeking Help From The Attorney General Of Texas That It May Be The Equivalent Of The Chicken Asking The Fox To Help Watch The Chicken House

                123.                Counsel feels that even the office of the Attorney General of Texas will have to side against Judge Patrick A. Pirtle and Randall Sherrod in their efforts to tell only one side of the tragic events surrounding the use of Dr. Ralph Erdmann as a forensic pathologist and as an expert courtroom fabricator of faulty evidence.

Conclusion

                124.                •Randall Sherrod has joined Dr. Ralph Erdmann in fabricating evidence and ignoring the ethical responsibilities that are implicit in fulfilling his duties as a government agent.  Through a strange set of circumstances the Court has joined that partnership as well.  The Court has attempted to hide the complicit nature of its actions by concealing information from the public with its order concerning trial publicity.

                125.                In this case, there has been a betrayal of American democracy as guaranteed by the Constitution.

                126.                A trail of tears leads us to the relief requested.

                127.                There are tears in the eyes of the mother of Douglas Palmer and other members of the family because they do not understand this fight for a fair proceeding.  On a legal level, they do not understand.  On a practical level they understand full well that any time a lawyer angers a prosecutor or a judge the client is going to be the person that eventually pays the price.

                128.  There are tears in the eyes of Douglas Palmer because he just wants this over.

                129.                There are tears in the eyes of certain law enforcement officers who have courageously supplied information about Dr. Erdmann.  These officers fear for their professional careers.

                130.                There are tears in the eyes of John L. Davis, Assistant District Attorney, because he regrets the prosecutorial misconduct of Randall Sherrod and yet he and his spouse, also an assistant district attorney, cannot walk away from their professional careers.

                131.                So many tears, so many heartaches, so many injustices.

                132.                It is now time for courage and relief as requested.  Counsel would request an opportunity to present evidence on these issues in this motion and other issues relating to Douglas Palmer obtaining justice.

PRAYER FOR RELIEF

                WHEREFORE, for the reasons stated above Douglas Palmer respectfully requests that the Court:

a)                disqualify Randall Sherrod as prosecutor in this case due to his conflict of interest.  This conflict being in part his use of his office for political gain as opposed to the constitutional function of the office;

b)             grant sanctions against prosecutor Randy Sherrod's gross prosecutorial misconduct, restraining Randall Sherrod from seeking the death penalty in this case;

c)             hold a show cause hearing to determine the reasons for Randy Sherrod's disregard of Judge Patrick A. Pirtle's orders concerning trial publicity and the handling of evidence;

d)            dissolve at once the order concerning trial publicity which has been dissolved de facto by this Court's refusing to enforce it and making public statements in the media about the nature of the order after counsel for Douglas Palmer first moved for sanctions against Randall Sherrod because of his violation of the order;

e)                immediately provide funds to counsel for Douglas Palmer for payment of funds expended to date and for funds to continue to investigate acts of prosecutorial misconduct by Randall Sherrod;

f)             issue a subpoena for every slide and matter of evidence that Dr. Ralph Erdmann has in his possession and retain these items in the court's possession;

g)             provide funds to counsel for Douglas Palmer for DNA testing of those slides by an expert;

h)             provide counsel an opportunity to present evidence on this motion;

i)              provide such relief as is requested by this motion;

j)              issue an order requesting the U.S. Department of Justice to investigate the facts set forth in this motion and other acts of prosecutorial misconduct committed by Randall Sherrod;

k)             enter an appropriate statement of the court's judicial misconduct and a plan to restore equality of treatment to persons of all skin colors in this court;

l)              grant such other and further relief as justice may require.

  Respectfully submitted,

                S \  V. G.   KOLIUS     

                V. G.  Kolius

                State Bar No. 11667000

                301 E. 7th Street

                Amarillo, Texas 79101

                (806) 376-4266

                COUNSEL FOR DOUGLAS PALMER

                INDEX TO APPENDICES

                A.   "Order Concerning Trial Publicity"

                B.   April 8, 1992 letter of Judge Patrick A. Pirtle

                C.   April 24, 1992 newspaper article

                D.   State's Motion to Disqualify Judge Pirtle

        E.       Douglas Palmer's Answer to State's Motion to Disqualify  [Gasp, Gasp, Gasp . . .]

                F.    miscellaneous newspaper articles

G. May 5, 1992 Order to Replead of Judge Patrick Pirtle