Theresa Caballero
Attorney at Law
300 E. Main St., Suite 1136
El Paso, Tx 79901
915.565.3550
915.562.5250 fax
January 12, 2010
Mr Gerry Williams
TDFPS General Counsel
Mr. Trevor A. Woodruff
Appellate Attorney
Ms. Johnnie Beth Page
Director of Program Litigation
2401 Ridgepoint Dr., BLDG. H-2
MC: Y-956
Austin, TX 78754
Ms. Jo Anne Bernal
El Paso County Attorney
500 E. San Antonio St
El Paso, TX 79901
Re: Ethical obligations re: In the Interest of D.J.R., E.N.R., and A.D.R., Children, Cause no: 08-07-00354-CV/ 2006CM4085
Dear Counselors:
Candor Toward the Tribunal, Rule 3.03 of the Rules of Professional Conduct states in pertinent part:
(a) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
On August 13, 2007, the State of Texas, represented by the El Paso County Attorney’s Office, called Dr. Paul Shrode to testify in the above styled case. Under oath and in response to a question posed by your trial attorney, Assistant County Attorney Bruce Yetter, Dr. Shrode testified, “I passed my forensic pathology boards…” 2 RR 134.
You then filed a brief on behalf of the State of Texas in which you stated to the Eighth Court of Appeals, “Dr. Shrode…has passed the forensic pathology boards. 2 RR 134”
On January 6, 2010, The Eighth Court of Appeals rendered an opinion in which the Court stated, “[Dr. Shrode]…is board certified in forensic pathology.”
The El Paso Times, in an article published on November, 27, 2009, (herein enclosed) stated that “Fisher’s complaint comes about a year after Shrode’s standing to take the combined Anatomic Pathology and Forensic Pathology examination expired, according to the American Board of Pathology and a letter on the matter dated Oct. 19, 2009. Shrode’s eligibility for the exam, which lapsed in December 2008, means he either did not take or did not pass the board certification exam, the American Board of Pathology said.”
The article further states, “Dr. Cyril Wecht, formerly the medical examiner in Pittsburgh and one of the country’s more famous forensic pathologist’s, said he suspected that Shrode failed the exam. Wecht, a lawyer, physician and author, told the El Paso Times that Shrode probably lost his standing to take the pathology board exam because he flunked it before and did not want to fail it again.”
El Paso County Attorney by appointment and head of the office that called Dr. Shrode to testify, Jo Anne Bernal, is well aware of the above.
I am informing you that based on current, public discourse, information indicates that Dr. Shrode did not pass his boards in Forensic Pathology, that he is not board certified. I am asking you to comply with your ethical duties under rule 3.03, and to be Candid with the Tribunals, the 65th Judicial District Court and the Eighth Court of Appeals, by specifically informing them, in writing, that your client, the State of Texas by and through Ms. Bernal’s office, put a witness on the stand, Dr. Paul Shrode, who led both Tribunals to believe that he, Dr. Shrode, was board certified in Forensic Pathology, when he is not, an untruth you advanced to the Eighth Court of Appeals in your brief and an untruth the Court has now advanced in its above cited opinion.
I await your response to this most important issue. I too have my ethical obligations under the rules.
Sincerely,
Theresa Caballero