Misconduct of Expert

NO. 6985-C

IN THE 251ST DISTRICT COURT

IN AND FOR RANDALL COUNTY, TEXAS

STATE OF TEXAS

vs.

DOUGLAS NATHAN PALMER

AMENDED AND CONSOLIDATED MOTION SEEKING RELIEF CAUSED BY THE DECEPTION, INCOMPETENCE, CORRUPTION, CONCEALMENT OF FRAUD AND OTHER MISDEEDS BY THE

STATE OF TEXAS

Preface

Douglas Palmer, the defendant, has filed several motions about the autopsy that was performed on the deceased in this case. These motions seek various forms of relief; they include: a motion for discovery of the x-rays taken during the autopsy of the deceased, a motion to exhume the body of the deceased in order to solve the material issues of intent and deliberateness, and a motion to impose sanctions against the state for the destruction of necessary evidence.

1. This Court has scheduled a bifurcated evidentiary hearing to address these issues. The first segment of this hearing is on April 2, 1992. The second segment of this hearing will be scheduled if full relief is not granted after the first hearing. The second hearing would require the testimony of an expert forensic pathologist paid for and provided under the relief requested at the April 2nd hearing.

2. Local court-appointed counsel, Bill Kolius, has been given assistance in this case by Steven Losch, a member in good standing of the New York State Bar, whose address is XX, office telephone XX, home telephone XX; and Millard Farmer, a member in good standing of the State Bar of Georgia, State Bar No. 255300, whose mailing address is P.O. Box 1728, Atlanta, GA 30301 (street location 151 Nassau Street, Atlanta, GA 30303), office telephone XX, and home telephone XX.

3. Bill Kolius has orally motioned the Court and has been granted permission for both Steven Losch and Millard Farmer to appear pro hac vice in the presentation of evidence on the issues in this amended and consolidated motion.

4. To more efficiently address the issues presented in the motions set for a hearing, we are consolidating and amending the motions to read as follows.

A CONCISE STATEMENT OF

THE FACTS

Douglas Nathan Palmer Is Accused Of Capital Murder -- The State of Texas Seeks to Have Him Executed.

5. DOUGLAS NATHAN PALMER is on trial for the capital murder of an elderly and well respected man, Hilton Merriman, Sr. Unknown to Douglas Palmer, Mr. Merriman had a history of medical problems, among which was a severely diseased heart.

Douglas Palmer and his co-indictees had conspired with John Peter Garcia to fraudulently take property from Garcia's mobile home so that he could avoid contributing a portion of his possessions to his divorced spouse. The six youths drove to what they thought was Garcia's home, but they turned left at the wrong automobile dealership and inadvertently arrived at the home of Hilton Merriman instead.

Douglas Palmer and two of his co-indictees entered the mobile home unarmed, believing that the house was unoccupied. When Mr. Merriman surprised them in the darkened house and hit Douglas Palmer with a flashlight, the three beat and kicked Mr. Merriman with their fists and feet. Mr. Merriman was still alive and breathing when they fled the scene. His body was discovered about 36 hours later.

Douglas Nathan Palmer, Is Known By His Friends As "Doug"

6. Doug Palmer is a Mexican/American teenager who grew up in extreme poverty. His father, Douglas Palmer, Sr., is an ex-Marine who physically abused Doug as a child. Doug's mother and father separated when he was young and Doug was shuffled back and forth between homes. Home with his father sometimes consisted of the back seat of a station wagon or an empty garage.

7. Doug's father was an alcoholic and a drug dealer. Doug was often forced to care for his father when Doug, Sr. was too drunk or high to care for himself. At 16, Doug left home and got a job cooking and waiting tables. He was forced to quit school, but has since obtained his GED.

8. Douglas Palmer is proceeding in forma pauperis in this Court as he is an indigent person who is incarcerated while awaiting trial in this case.

The State of Texas Knew It Was Investigating A Serious Crime From The Time It Discovered Mr. Merriman's Body.

9. Dr. Ralph Erdmann was ordered by the State of Texas to perform an autopsy on Merriman's body on May 13, 1990. Dr. Erdmann was told that Mr. Merriman was the victim of a crime and he certainly knew the cause, mechanism and time of death would be highly important and relevant in this case. The District Attorney was well aware that Dr. Erdmann would be performing the autopsy. Dr. Erdmann was doing all of the autopsies for Randall County at the time he was ordered to perform the autopsy of Mr. Merriman's body.

The Deceased, Hilton Merriman, Sr.

The Autopsy

10. The autopsy of Hilton Merriman, Sr. was performed by Dr. Ralph Erdmann at the Northwest Texas Hospital Morgue, probably less than 12 hours after the body was found. Lieutenant Wayne Randolph, Lieutenant William Smith, Officer Tom Procter, Officer B.J. White and Dr. Erdmann's assistant, Woodson Rowan, were present at the autopsy. Dr. Erdmann, according to statements from the State of Texas, dictated contemporaneous notes onto an audio tape and maintains he erased it after he filled out a standard autopsy protocol.

11. The State of Texas maintains that microscopic slides were made and one photograph of the brain was taken, after it was removed from the skull. These microscopic slides are of special significance and this subject is addressed separately in this consolidated and amended motion.

12. After concealing the existence of x-rays of the head for a long period of time, the State of Texas informed counsel for Douglas Palmer that, x-rays of the skull were taken and forwarded to a radiologist. After sending the x-rays to a radiologist, Dr. Erdmann never called the radiologist to determine the result before completing his autopsy report and findings. These x-rays are further discussed in other sections of this amended and consolidated motion.

Dr. Erdmann's Diagnosis of the Mechanism of Hilton Merriman's Death Was Wrong

13. As a forensic pathologist, Dr. Erdmann was required to diagnose the physical mechanism as well as the legal cause of Mr. Merriman's death. He stated in his autopsy report that blunt force trauma was the cause of death and severe cerebral edema was the mechanism of death. In layman's terms, this meant that Mr. Merriman's heart stopped beating and he stopped breathing because his brain became severely swollen when he was repeatedly struck in the head. Dr. Erdmann also noted that Mr. Merriman's heart was grossly enlarged and severely diseased, but he found that this did not directly or indirectly contribute to his death. In layman's terms, this meant that Dr. Erdmann found that Mr. Merriman's head injuries would have killed a man of his age with a healthy heart.

14. Three other well respected forensic pathologists have reviewed Dr. Erdmann's autopsy report. They all agree that there is not a shred of evidence to support Dr. Erdmann's diagnosis of cerebral edema as the mechanism of death. Dr. Erdmann's own photograph of the brain shows that it was barely swollen and he did not record the weight of the brain in his report. None of the other experts were able to rule out the possibility that Mr. Merriman would have survived his injuries but for his severe heart disease -- a factor that Doug Palmer and his co-indictees could not possibly have foreseen when they struck him during a vigorous struggle in a dark room.

Other Statement Of Facts

15. More detailed facts relating to these issues will be interspersed throughout this amendment and consolidated motion.

II.

A CONCISE STATEMENT OF PRINCIPLES OF LAWS INVOLVED IN THIS NOW ALLEGED CAPITAL MURDER CASE

16. In order for Douglas Palmer to be convicted of capital murder and executed, the State of Texas must prove he intentionally killed Mr. Merriman and deliberately engaged in a conduct with the reasonable expectation that it would cause Mr. Merriman's death. See, Article 19.03, V.T.C.A.; Article 37.071(b)(1), V.A.C.C.P. In a sentence, this is the black letter law that controls the legal issue that steers the relief requested here.

The State of Texas Cannot Execute Douglas Palmer Unless He Is Guilty Of Capital Murder.

17. Most of the forensic pathologists who have reviewed this case agree that Mr. Merriman was most likely the victim of a homicide, regardless of whether a heart attack contributed to the cause and mechanism of his death. However, there is a serious disagreement with Dr. Erdmann about facts that will probably determine what degree of homicide the defendant committed.

The Degree Of Homicide Is Determined By Intent Of

The Accused.

18. In order for Douglas Palmer to be convicted of a capital offense, the state must prove that he intended to kill Mr. Merriman or acted in concert with others to intentionally kill him. See Article 19.03, V.C.T.A. Penal Code. If the killing was reckless he would only be guilty of a felony murder. Santana v. State, 714 S.W.2d 1 (Tex. Crim. App. 1986).

19. In order to execute Douglas Palmer for a capital murder, the state must prove that he deliberately engaged in conduct with the reasonable expectation that it would cause Mr. Merriman's death. See Article 37.071(b)(1), V.A.C.C.P.

20. The jury will use some of the same evidence, including the proof of the deceased's injuries, to resolve both of these legal questions because the answers will depend on Doug Palmer's state of mind at the time of the offense.

The Mechanism And Time Of Mr. Merriman's Death Are Highly Relevant To Douglas Palmer's

Mens Rea

21. All of the experts who have reviewed this case agree that Mr. Merriman was the victim of a homicide, regardless of whether the mechanism of his death was a swollen brain or a heart attack, because blunt force trauma was undoubtedly the legal cause of his death. The dispute between Dr. Erdmann and the other pathologists about the mechanism of death is important because it may determine whether Douglas Palmer was guilty of a degree of homicide that carries the penalty of death. This is a subtle distinction, but courts in Texas and in other jurisdictions have long recognized that it may be crucial to the outcome of a murder trial.

22. Because the accused must take his victim as he finds him on the issue of causation, Griffin v. State, 50 S.W. 366 (Tex. Crim. 1899) (causation established, even though victim would not have died from being struck on head with beer glass if he did not suffer from a brain disease), Douglas Palmer is guilty of a homicide if Mr. Merriman had a heart attack because of the blows that he inflicted. Thompson v. State, 677 S.W.2d 73 (Tex. App. 9th Dist. 1983). However this simply means that he is guilty of "some degree of homicide." Pettis v. State, 150 S.W. 790 (Tex. Crim. 1912) (emphasis added).

23. To convict Douglas Palmer of capital murder, the state must prove beyond a reasonable doubt that it was his "conscious objective or desire" to cause Mr. Merriman's death. See Texas Penal Code, Sections, 6.03(a)(b). In practical terms, this means that the state must prove that Douglas Palmer expected that Mr. Merriman would die from the blows that he and his co-indictees struck.

24. The dispute between the experts about whether Mr. Merriman's heart disease contributed to his death is highly relevant to the issue of whether Douglas Palmer knew that he was striking fatal blows. The underlying principle was established in the common law more than 150 years ago in Rex v. Cheesman, 173 Eng.Rep. 203 (1836). Cheesman forced her tubercular niece to work 15 hours a day and beat her when she failed to do so. The niece died of tuberculosis, but the beatings hastened her death. Cheesman was charged with murder, but a plea of guilty to manslaughter was appropriately accepted when it was shown that she was unaware of her niece's illness.

25. In America, it was settled long ago that a defendant can be convicted of murder when his conduct caused death by aggravating the deceased's natural ailment, but only if he "knew or had reasonable cause to believe" that the ailment existed. Comm. v. Fox, 73 Mass 585, 588-90 (1856); see also, Moore v. State, 71 S.W.2d 531 (Tex. Crim. 1934) (defendant can be guilty of murder when he inflicted an injury "which, though not necessarily fatal, is the primary cause of death," provided that he had the requisite intent to kill).

26. In Frazier v. State, 98 S.W.2d 707 (Mo. 1936), this rule made the difference between a conviction for murder and manslaughter. Frazier assaulted a hemophiliac without realizing that he suffered from that disease. The victim died from a loss of blood, but his injuries would not have killed a healthy person. Frazier's ignorance of the victim's disease and the character of his injuries established that Frazier did not intend to kill him.

27. People v. Aponte, 82 Misc. 2d 283 (N.Y.Sup Ct. 1975) illustrates the application of the same rule to the facts of a case similar to this one. Aponte got into a fist-fight with an elderly man who had a very bad heart. Shortly thereafter, the victim had a heart attack that eventually proved to be fatal. Experts testified that Aponte could not possibly have killed a healthy man with the blows that he landed. Aponte's motion to dismiss a manslaughter charge was granted because he did not intend to seriously injure the deceased. 82 Misc. 2d at 287.

28. In Aguilar v. State, 221 S.W.2d 242 (Tex. Crim. App. 1949) (on rehearing), the defendant was convicted of murdering a man with a bad heart by hitting him over the head with a beer bottle. There was conflicting expert testimony about whether the victim's head injury would have killed a man with a healthy heart. The Court of Criminal Appeals held that this factual dispute was irrelevant to the sufficiency of the evidence of causation, but the defendant had a right to have it submitted to the jury as part of his defense of a lack of intent to kill.

29. In McDonough v. State, 178 S.W.2d 863 (Tex. Crim. App. 1944), the defendant was convicted of murdering a man by beating him with his fists and kicking him. The victim was unconscious, but alive when the defendant left him and none of his bones were broken. There was a considerable amount of blood on his face and blood coming out of his ears. The doctor who examined him initially believed that he would survive, but he died in the hospital from a brain injury and pneumonia. The Court of Criminal Appeals held that the evidence was legally insufficient to prove intent to kill because, the wounds inflicted particularly if reasonably visible to the assailant or to be contemplated by him, may be considered. 178 S.W.2d at 864 (emphasis added).The facts of this case are rather aggravating and yet there is a lack of any express intention to kill. There were no visible wounds indicating any serious nature, for the doctor who treated him and was called by the state so testified.

30. McDonough v. State and Aguilar v. State teach that the defendant in this case can establish a lack of intent to kill by having a pathologist testify that Mr. Merriman's blunt force injuries were not severe enough to kill a man with a healthy heart. If the jury finds that the defendant could not have reasonably contemplated that his blows would cause Mr. Merriman's death, the jury would be entitled to find that he did not intend to kill him. Therefore, it is quite clear that the dispute about the mechanism of Mr. Merriman's death is a material issue, notwithstanding the fact that all of the experts may agree that the defendant and his co-indictees caused Mr. Merriman's death.

31. The materiality of Dr. Erdmann's complete failure to estimate the time of Mr. Merriman's death is self evident. The time of death would have shown whether Douglas Palmer and his co-indictees allowed Mr. Merriman to remain alive, even though he was the only person who could have identified them. That would have provided powerful proof of a lack of intent to kill.

The Need For A New, Accurate,

And Complete Autopsy.

32. These cases illustrate why an accurate and complete autopsy of Merriman's body can produce exculpatory and highly relevant evidence. It is undisputed that Douglas Palmer and the other co-indictees did not know that Mr. Merriman had a bad heart. If Mr. Merriman's heart condition was a contributing cause of death, that may raise a reasonable doubt about Douglas Palmer's intent in striking the blows, or, alternately, the deliberate nature of his actions.

This Court Has The Authority To Order The Exhumation Of A Body And The Duty To Order An Exhumation Upon A Proper Showing

33. It is well settled that a trial court has the power and the duty to order the exhumation of the victim of a homicide, so that a defendant can have his own pathologist examine it. The rule was first recognized in the landmark case of Gray v. State, 114 S.W. 635 (Tex. Crim. 1908). Gray's murder conviction was reversed because the trial court refused to grant his motion to exhume the body. He contended that an autopsy would corroborate his testimony that he shot the deceased in self defense. The relatives of the deceased opposed the motion. The State argued that the motion was made for the purpose of delaying the trial. The Court of Criminal Appeals held that the Defendant had a right to have an expert examine the body.

34. In Fishbeck v. State, 225 S.W.2d 854 (Tex. Crim. App. 1948), an exhumation was required to re-examine the body of a murder victim. The initial examination revealed that the deceased was shot by his wife. She contended that he committed suicide. The body was exhumed and re-examined because the wife demonstrated that the initial determination of the cause of death was not conclusive.

35. An exhumation of the victim's body is required whenever it will solve an important or material issue in the case. Johnson v. State, 293 S.W. 173 (Tex. Crim. 1927). The Defendant must be permitted to present expert testimony to prove that an examination of the body will help his case. See Garcia v. State, 522 S.W.2d 203, 208 (Tex. Crim. App. 1975) (motion to exhume properly denied because Defendant declined offer to present expert testimony to support it).

The Request For Exhumation For The Purposes Set Forth Is Not Novel Or Unique In Texas Jurisprudence.

36. Smith v. State, 740 S.W.2d 503 (Tex. App. - Dallas 1987) demonstrates how an examination of Mr. Merriman's skull and brain can help the defense to rebut Dr. Erdmann's diagnosis. In Smith, the State's pathologist testified that "the damage to the deceased was consistent with her having been beaten with someone's fists and kicked with someone's feet." id. at 507. To support his opinion, he described a variety of specific injuries to the brain, spinal cord and scalp that were characteristic of a death caused by such a beating. Id. These tell-tale signs were notably missing from Dr. Erdmann's report.

37. Douglas Palmer's life may depend on the result of an independent, complete and accurate examination of Hilton Merriman, Sr.'s body. It would "cast a pall on the verdict obtained' if a State's pathologist with Dr. Erdmann's track record and baggage had the advantage of the only autopsy and other independent experts did not even have an opportunity to look at the body. See Ake v. Oklahoma, 470 U.S. 68, 70 (1985).

The Usage of Modern Technology and Experts In The Criminal Justice System By Indigent Defendants

38. In the landmark case of Ake v. Oklahoma, 470 U.S. at 68 (1985), the Supreme Court held that an indigent defendant in a capital trial must have access to a competent expert "who will conduct an appropriate examination and assist in the evaluation, preparation and presentation of the defense," when a scientific or technical issue is likely to be a significant factor in the trial. 470 U.S. at 86. Ake deals with a request for a psychiatrist, but the case applies to other kinds of experts as well. Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987) (en banc); see also Bradford v. United States, 413 F.2d 467, 474 (5th Cir. 1969) (fingerprint expert); Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980) (pathologist).

39. In Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980), a constitutional violation occurred because the trial court refused to provide the defendant in a murder case with the assistance of a forensic pathologist. In Williams, the victim was shot in the leg and died eight months later from a heart embolism. The state's pathologist found that the embolism was caused by a blood clot in the pulmonary artery. In his opinion, the clot formed in the victim's leg when she was shot and slowly traveled through her circulatory system to her heart. However, she suffered from cirrhosis of the liver, which can also cause a pulmonary embolism. The Fourth Circuit held that defendant was unable to effectively develop this alternative theory about the cause of death without the assistance of a pathologist.

40. Douglas Palmer's case is remarkably similar to the facts in Williams v. Martin. There is substantial evidence that the victim's death was caused, at least in part, by a natural disease, although there is no doubt that the defendant may have inflicted physical injury. This presents "substantial question requiring expert testimony." Id. 618 F.2d at 1026.

41. Indeed, Douglas Palmer's evidence will be much stronger than the offer of proof that was made in Williams v. Martin. In Williams, counsel's offer of proof was based on his own research and an interview of the medical examiner. He did not show that a qualified expert would agree with his conclusion that the medical examiner was mistaken about the cause of death.

Other Statements About Law

42. More detailed statements of the law will be included as necessary throughout this amended and consolidated motion and in a post-hearing memorandum of law and proposed findings of fact which will be filed with this Court at the appropriate time.

III.

DOUGLAS PALMER'S COUNSEL ENGAGED A PRIVATE INVESTIGATOR, XX, TO DISCOVER EVIDENCE ABOUT DR. ERDMANN. XX'S ASSISTANCE IS CONSTITUTIONALLY MANDATED, I.E., COURT-COMPENSATED.


	43. Many of the facts contained in this amended and consolidated motion were developed through the efforts of XX, the investigator assisting the attorneys of Douglas Palmer. Many of these facts come from official records, agents of the State of Texas and other sources available to anyone willing to exert the effort to investigate Dr. Erdmann's background. Some of these facts come from confidential informers. These confidential informers wish to remain confidential because they fear retaliation from Randy Sherrod, the District Attorney of Randall County and other agencies of the State of Texas. In fact, Randy Sherrod, the District Attorney, has known or should have known all the facts contained in this amended and consolidated motion for a longer period of time than have the attorneys for Douglas Palmer.

XX, The Investigator, Compiled The Facts Contained Here About

Dr. Erdmann


	44. It is important to disclose the existence of the investigation for Douglas Palmer's attorneys in order that the Court can know the source of the facts contained in this amended and consolidated motion.

Counsel For Douglas Palmer Seeks Funds For Payment Of The Investigator, XX And

Other Assistants


	45. It is important to disclose the use of XX and other assistants as a resource for obtaining the information contained in this amended and consolidated motion because reimbursement for these expenses is sought from the Court.

Randy Sherrod, The District Attorney, Has Known The Information Contained

In This Amended and Consolidated Motion And Has Attempted To Hide The Information From The Public And Counsel For Douglas Palmer


	46. The information disclosed by this investigation was within the knowledge of Randy Sherrod, the District Attorney. The District Attorney has many times the resources of this indigent young man. Instead of sharing his information in a search for the truth, Randy Sherrod, the District Attorney, has attempted to skew the truth by deceptive tactics and non-disclosure. The District Attorney has attempted to hide the ineptness, corruption, and dishonesty of Dr. Erdmann.

The Law Supports The Court Paying Funds Necessary For This Investigation


	47. While a State is not required "to purchase for the indigent defendant all the assistance his wealthier counterpart might buy," an indigent defendant must have the "basic tools of an adequate defense." Ake v. Oklahoma, 470 U.S. at 77.

In Order To Build An Effective Defense, Counsel Requires Funds For The Assistance Of An Investigator


	48. As is outlined in this amended and consolidated motion, the level of corruption in Randall County as it affects Douglas Palmer's case is vast. It starts in the backroom morgues and reaches as far as the offices of the District Attorneys and Chief of Police.


	49. The network of backroom deals, faked autopsies, withheld evidence, and perjured testimony has made it extremely difficult to discover the necessary facts to mount an effective defense. Funds for the past, present and future use of a competent investigator are vital to achieving this end.

IV.

DR. LEROY RIDDICK, AN EXPERT FORENSIC PATHOLOGIST HAS ASSISTED COUNSEL FOR DOUGLAS PALMER. DR. RIDDICK'S ASSISTANCE IS CONSTITUTIONALLY MANDATED, I.E., COURT-COMPENSATED.

50. In June of this year, counsel was referred to Dr. LeRoy Riddick, a forensic pathologist and Director of the Alabama Department of Forensic Sciences in Mobile, Alabama.

51. Dr. Riddick is a State Medical Examiner and one of the nation's leading scholars in the field of forensic pathology. He regularly testifies for the State of Alabama in major criminal cases and rarely works for defense attorneys.

52. Dr. Riddick was selected for his impeccable reputation, expertise, competency, independence, integrity, and unselfish dedication to his profession.

53. Dr. Riddick reviewed Dr. Erdmann's autopsy report and other evidence in this case. Initially he devoted a full day of study and research to the task and submitted detailed written findings and recommendations to counsel for Douglas Palmer. Dr. Riddick has, since his first detailed study in this case, been consulted with on numerous occasions.

Dr. LeRoy Riddick, A Nationally Recognized Forensic Pathology, Disagrees With Dr. Erdmann's Conclusion In His Autopsy Of

Mr. Merriman

54.. Dr. Riddick strongly disagrees with Dr. Erdmann's conclusion that Mr. Merriman's heart disease did not contribute to the cause of his death. Dr. Riddick believes that Mr. Merriman's blunt force injuries were too superficial to kill a healthy 72 year old man. In all likelihood, Mr. Merriman would have survived those injuries but for the fact that he had a badly diseased heart. Dr. Riddick found that Dr. Erdmann's own findings do not support his conclusion that Mr. Merriman's heart stopped beating because his brain was swollen. In short, Dr. Riddick found that Dr. Erdmann's anticipated testimony can be thoroughly impeached and rebutted.

55. Dr. Riddick also emphasizes the omissions in Dr. Erdmann's report. The victim's body weight is estimated. While Dr. Erdmann says that post mortem rigor was complete, the synopsis of Sgt. Wayne Randolph says that rigor was passed. The lungs and brain were not weighed.

Dr. Erdmann Failure To Weigh The Brain Of Mr. Merriman Was

Highly Incompetent

56. Dr. Riddick found it particularly troubling that Dr. Erdmann did not document the weight of Mr. Merriman's brain. Any competent pathologist would agree that this is the most important objective indication of whether swelling of the brain caused the victim's death.

What Did Dr. Erdmann Do With

The Brain?

57. If Dr. Erdmann followed the proper protocol, Mr. Merriman's brain may well be preserved in a condition that would enable a competent pathologist to determine now whether he died from cerebral edema. Dr. Erdmann should have "fixed" the brain in formaldehyde before he made the microscopic slides and placed it in the body after he completed the autopsy.

	58. Unfortunately, there is a disturbing probability that Dr. Erdmann only took a small plug from Mr. Merriman's brain and used this for the microscopic slide. This most likely was done before the brain was "fixed" in formaldehyde. Law enforcement officers from Odessa and Lubbock have seen Dr. Erdmann retain brains and other body parts without legal permission. Dr. Erdmann has told these officers that he was taking the organs for "training purposes."

Was The Heart Preserved?

59. Dr. Erdmann's autopsy report and photographs only contain minimal information about the condition of Mr. Merriman's heart. If the body was embalmed after the autopsy, the heart should still be preserved in the chest cavity. The District Attorney claims that the body was not embalmed

The Time Of Mr. Merriman's Death Is A Critical Unresolved Issue -- Dr. Erdmann Failed To Document The Time of Death.

60. Dr. Erdmann must have known that the time of Mr. Merriman's death was a crucial issue when he wrote his autopsy report. If Merriman died less than 36 hours before the autopsy, it would provide powerful proof that the intent of Doug Palmer and his co-indictees was not to kill Mr. Merriman, but merely to escape his blows.

61. We may never know the time of Mr. Merriman's death because Dr. Erdmann failed to do anything to document it. There is a big blank space in his autopsy report where the time of death should have been estimated. There is conflicting evidence about the degree of rigor mortis: Dr. Erdmann's report said that rigor was complete while Sgt. Randolph's report said that rigor had passed off. In layman's terms, Erdmann and Randolph disagreed about whether the body was stiff as a board or completely flaccid. Moreover, Erdmann did not record the temperature of the body, test the eye fluid for potassium, analyze the contents of the stomach, note whether the eyes were infested with insect larvae or discuss the degree of decomposition that he observed when he examined the microscopic slides.

62. An examination of the microscopic slides may provide valuable information about the time of Mr. Merriman's death, if those slides still exist and they can be authenticated. Dr. Erdmann has lost, destroyed, faked and mixed up similar evidence in so many cases that it will be necessary to take a DNA sample from Mr. Merriman's bones to verify that the alleged slides were really made from his tissue.

There Were Other Acts Of Incompetency Of Dr. Erdmann In Performing The Autopsy

63. The aorta and the cerebral arteries are not described; these blood vessels might indicate the degree of atherosclerosis. This omission is another tactic Dr. Erdmann used to emphasize conclusions that lack the underlying facts to support them.

64. One of the most troubling aspects of Dr. Erdmann's report was that he failed to keep a single note about the autopsy or his study of the microscopic slides. Dr. Erdmann erased the audio tape of his observations he made during the autopsy. Dr. Riddick found this "highly unusual. I cannot recall another major homicide case in which the pathologist destroyed his tape and made no notes about the autopsy or the slides."

65. The destruction of the autopsy tape is especially troubling, in view of the fact that Dr. Erdmann's autopsy report and photographs do not document any finding about the condition of Mr. Merriman's heart, skull, or brain that would enable a competent pathologist to rule out heart disease as a contributing cause of death. Without the information on the tape, it is virtually impossible to know whether Dr. Erdmann was simply careless or whether he was biased in favor of a result that would help the State to prove a case in which it could seek a capital murder conviction and a death sentence.

66. Because documentation is one of the essential components of a forensic autopsy, "(a)ll objective findings must be recorded by a written protocol" in great detail. Richard C. Froede, M.D. and Robert Goode, M.D., Medicolegal Investigation and Forensic Procedures: A Problem Oriented Approach, p. 3 accord George E. Ganter, M.D. and Michael Graham, M.D., Quality Assurance and the Medicolegal Autopsy Protocol, at p. 12. The pathologist must also make detailed "temporary and permanent notes" to preserve the information that is acquired during an autopsy. Froede and Goode, supra, at p. 7. In fact, a famous textbook warns forensic pathology students, "IF YOU DIDN'T WRITE IT DOWN, IT DIDN'T HAPPEN!"

In Order To Build An Effective Defense, Counsel Requires Funds For The Assistance Of An Expert Forensic Pathologist

67. Douglas Palmer cannot afford to pay for any of the costs of his defense. William Kolius was appointed by the court to represent Douglas Palmer. He has no training in pathology or any related science.

68. Defense counsel conducted a thorough preliminary investigation of the charges against Douglas Palmer to determine whether there is a viable defense. In the course of this investigation, counsel for Douglas Palmer reviewed a copy of the report that Dr. Ralph Erdmann prepared about the autopsy that he performed on the body of the deceased, Hilton Merriman, Sr., inspected numerous documents in the district attorney's file and interviewed many witnesses.

69. Counsel believes that he cannot possibly provide effective assistance without Dr. Riddick's assistance.

70. The "foregoing leads inexorably to the conclusion that, without the past, present and future assistance of a pathologist, the defendant will not be "fairly able" to present his case either pre-trial, or at trial. Ake v. Oklahoma, 470 U.S. at 82. Therefore, counsel asks that funds be provided to continue the services of Dr. Riddick; additionally, funds for Dr. Riddick's travel and other expenses necessary for his appearance at hearings should be provided.

DR. ERDMANN IS SLEAZY, DISHONEST, CORRUPT, UNPROFESSIONAL AND MANY MORE DEROGATORY TERMS -- EVEN AT HIS BEST, HE IS NOT RELIABLE ENOUGH TO MAKE AN EVALUATION THAT COULD DETERMINE IF DOUGLAS PALMER SHOULD BE EXECUTED BY THE STATE OF TEXAS. DR. ERDMANN'S BACKGROUND, TOGETHER WITH HIS BEHAVIOR IN THIS CASE SHOULD PREVENT HIM FROM BEING QUALIFIED AS AN EXPERT FORENSIC PATHOLOGIST.

71. The attorneys for Douglas Palmer are grateful to Mike Rohde, their investigator, for the information obtained about Dr. Erdmann which is included in this consolidated and amended motion.

DR RALPH RODNEY ERDMANN: A HISTORY OF INCOMPETENCE AND CORRUPTION

72. Few really know who Dr. Erdmann is or where he was born. His medical license says that he was born in Mexico, but his curriculum vitae gives Brownsville, Texas as his place of birth.

73. Dr. Erdmann testified in the Randall Hafdahl case that his elementary and high school degrees were earned in "German schools." He claims that he has a Bachelor of Arts Degree, but he is vague about where he obtained it. He testified in one case that it was earned in "German schools." In another he testified as follows:

Q. What school did you get your bachelors degree from?

A. Dutchover.

Q. Where is that located?

A. Alexandra. It's located in Mexico City and its for the colony -- the German colonies in South, Central and North America.

Q. Is that school accredited in the United States?

A. Well, I have a credit.

I didn't ask you that. I'm sorry. Is that school

accredited?

A. It's accredited, yes, sir.

74. Dr. Erdmann maintains he received a medical degree under the name of Rafaelo Meliton Rodriguez from the University of Mexico Medical College in April of 1952.

75. According to Erdmann's testimony in the Jack Wade Clark case, he "spent most of the time" between 1952 and 1962 "in the military", but that was clearly false. Dr. Erdmann began his internship in 1952 at St. Joseph's Memorial Hospital and remained their until January of 1958. Between January 1 and December 31, 1958, he did his residency in pathology at Dallas South West Medical School, presently known as the University of Texas School of Health and Science.

76. On January 19, 1959, Texas issued a license to practice pathology to Ralph Rodney Erdmann. His pathologist's license states that it was achieved "by examination." However, Erdmann testified in the Hafdahl case that he took his "boards in pathology" three years later, in 1962. Erdmann recorded his medical license with the Potter County Clerk in November of 1960.

77. Dr. Erdmann has testified that he first went into the Army in 1966, when he was 40 years old. In truth, however, in 1966, Dr. Erdmann stabbed his wife, Rose Martha, in Amarillo, after which he left town and headed for South Dakota. He has further stated as follows: He was stationed in Europe in 1974 and returned to Fort Hood in 1978. According to Dr. Erdmann's testimony in the Hafdahl case, in 1978, the Army sent him to do autopsies on the victims of the Jonestown massacre. After that incident, the Army sent him to obtain an advanced degree in forensic pathology from George Washington University. He then did a residency in forensic pathology at the Armed Forces Institute of Pathology in Washington, D.C. Dr. Erdmann additionally maintains he was board certified in forensic pathology in 1980.

78. From 1980 to 1990, Dr. Erdmann practiced forensic pathology in the Army, part-time, and on a contract basis with 41 counties in Texas, in the Panhandle and High Plains, including Potter, Randall, Lubbock, Hockley, Ector and Childress.

The First Reported Fake Autopsies

79. In the 1980's, Andy Nazarro, an investigator for the Lubbock County District Attorney, saw Dr. Erdmann perform many autopsies. Nazarro informed the media that Dr. Erdmann opened up the bodies and estimated the weights of organs without removing them.

Dr. Erdmann Left Potter and Randall Counties because there was general dissatisfaction with his work.

80. Randall and Potter Counties terminated their relationship with Dr. Erdmann because Dr. Erdmann was biased, did not perform adequate autopsies and for many other reasons.

Dr. Erdmann Was Forced To Resign

His Army Commission

81. In 1991, one of Dr. Erdmann's subordinates in the Army Reserves, Captain Damacio Hernandez, filed a complaint against him. Captain Hernandez showed that Dr. Erdmann was performing civilian autopsies at the same time that he was being paid for weekend drills in the Reserves. The charge against Dr. Erdmann was substantial and he was forced to resign his commission. This is just another taint to the credibility of Dr. Erdmann.

Dr. Erdmann Committed Perjury In The Trial Of Co-Indictee of

Douglas Palmer

82. In the trial of Johnny Rey, a co-indictee, it was proven that Dr. Erdmann filed a false autopsy report in the Terry Trosper case in Childress, Texas. Dr. Erdmann stated in his Trosper autopsy report that he weighed the organs. Dr. Sparks Veasey performed a second autopsy and found that the organs were never removed from the body. Dr. Erdmann testified falsely under oath about this horror story in Rey's trial, and the Assistant District Attorney, John Davis, was forced to tell the judge the truth.

Dr. Erdmann Has Been Charged Criminally For Performing A False Autopsy In Hockley County

83. On February 25, 1992, Dr. Erdmann was indicted by the Grand Jury in Hockley County for theft of government services and falsifying a governmental record. The indictment charged that Dr. Erdmann falsified an autopsy report on Craig Newman, on December 23, 1991, and billed Hockley County for services that he did not perform. The crime was discovered when a member of Newman's family read in Dr. Erdmann's autopsy report that Dr. Erdmann had weighed the spleen. Craig Newman's spleen was surgically removed several years before he died. The body was exhumed and it was discovered that Dr. Erdmann had never opened the body.

The Judiciary and Police Spoke Out About More Fake Autopsies By Dr. Erdmann

84. On March 1, 1992, the Lubbock Avalanche Journal reported that Ector County terminated its relationship with Dr. Erdmann due to the Hockley indictments. On March 7, 1992, the Dallas Morning News published a devastating story on page one about Dr. Erdmann's activities in the Midland-Odessa area. Ector County Judge Jim Jordan stopped asking Dr. Erdmann to do autopsies partly because Dr. Erdmann was biased in favor of the state, and he would not perform full autopsies.

Dr. Erdmann Treats Parts of Bodies He Autopsies Like A Junk Car Dealer Treats Old Car Parts. Dr. Erdmann Even Lost

the Head Of A Deceased Person In One of His Cases

85. Sgt. Snow Robertson of Ector County has admitted that a murder suspect was not prosecuted because Dr. Erdmann lost the head of the victim. Detectives from Odessa in Ector County wrote memos, pleading with the county to stop using Dr. Erdmann. These memos document that Dr. Erdmann took body parts without permission.

86. Justice of the Peace Keeth Jobe in Midland is quoted in the Dallas Morning News story as stating that he caught Dr. Erdmann red handed in trying to do a fake autopsy. Dr. Erdmann phoned in the results of an autopsy to Jobe, but when Jobe contacted the funeral home he found that the body was not cut open. When he confronted Dr. Erdmann about the fake autopsy. Dr. Erdmann claimed that he had diagnosed the cause of death by x-ray. The Justice of the Peace determined that this was untrue and forced Dr. Erdmann to perform the autopsy.

Dr. Erdmann Is Financially Benefiting From The Harvesting Of Bone And Human Tissues By Bone And Tissue Distributors

87. The investigator, XX, has further uncovered facts showing that Dr. Erdmann is financially benefiting from the harvesting of bone and human tissues that he is autopsying.

Dr. Erdmann's Spouse, Joan Erdmann, Receives Money From Companies That Obtain Human Corpses For Bone And

Skin Donations

88. Dr. Erdmann's spouse, Joan, has received kickback payments for these "donations." Dr. Erdmann notifies the companies selling tissue and body parts of their availability through his spouse, Joan, and if the company receives the parts, they pay Joan a fee of $200 per corpse. The function performed by Joan Erdmann in notifying the bone and tissue distributors of potentially available corpses is a function and a legal requirement of the morgue where the body is taken. In other words Joan Erdmann is only performing a task that is already the legal responsibility of Dr. Erdmann's facilities. The payment to Joan Erdmann is an indirect bribe to gain Dr. Erdmann's coorporation.

Dr. Erdmann's Autopsy Of Mr. Merriman's Body Is Part Of A Pattern Of Bad Autopsies And Bogus Autopsy Reports

89. The autopsy that Dr. Erdmann performed on Mr. Merriman's body is clearly in keeping with his history of biased, incompetent work. In the autopsy report on Mr. Merriman, Dr. Erdmann listed cerebral edema as the mechanism of death, but this finding is clearly perjured. The photograph of Mr. Merriman's brain clearly shows that there was no cerebral edema. This autopsy was done when Dr. Erdmann was physically exhausted and greatly overworked from all the many money making schemes he had.