STUART L. LEEDS AND THERESA CABALLERO
September 30, 2011
To: Clara Hernandez
Public Defender of El Paso County, Texas
Hand-delivered
Re: Medical Examiner Issues
Dear Ms. Hernandez:

Across the state of Texas, i.e. Houston, Laredo, El Paso, Galveston, the press has reported that lawyers are attacking medical examiners in their respective counties for failing to have constitutionally required paperwork on file authorizing them to perform the duties of a medical examiner. An article came out in the Sept. 16, 2011 Houston Chronicle and there have been others in Laredo newspapers. One medical examiner’s office has actually been shut down. According to your employee who you sent to monitor our hearing of Sept. 28, 2011, you were unaware of the issue until Ms. Caballero’s recent blog on the matter.

As the El Paso County Public Defender, you handle approximately 50% of indigent cases in El Paso County. Approximately 70% of all criminal cases are indigent. Therefore, you are the attorney who handles and is responsible for the lion’s share of criminal cases in El Paso County. El Pasoans have also paid for you to a have dedicated capital murder unit. You represent people facing charges that if convicted, could go to prison for the rest of their natural lives or be killed by the state. The medical examiner is a crucial witness for the state in death cases. He/she opines on the cause of death. Attacking a medical examiner’s rulings, credentials, standing to issue an autopsy, credibility, and competence is not only fair game, but required of a defense attorney.

In 2006 El Paso County “hired” Dr. Paul Shrode to be the medical examiner. It did not “appoint” him as per statute. Were you aware of this? Did your capital murder unit investigate this? In 2007, we (Theresa Caballero) determined through cross-examination, that Dr. Shrode had lied on his resume claiming credentials he did not have; He did not have a law degree; He was not a member of the State Bar of TX; He was not board certified in forensic pathology.

Later, the El Paso Times reported that neither you nor anyone in your office has ever used Dr. Shrode’s false resumes against him at trial. There is much speculation that you have become complacent and do not want to rock the political boat. Is it to your client’s benefit to have a lawyer who does not want to rock the boat?

Shrode has since been fired due to our many efforts and the many efforts of lay members of the El Paso public and out-of- state attorneys. In fact, in one Ohio case, a death sentence was commuted to life partly because of Shrode’s lack of credibility.  An Ohio Federal Public Defender contacted us and subsequently used Shrode’s false resumes and testimony from El Paso to discredit Shrode in his client’s plea for commutation (Shrode had been a deputy medical examiner in Ohio).   No one, not one single attorney, from your office ever appeared before commissioner’s court demanding that Shrode be replaced.

We understand from your employee that you are not sure the medical examiner issues are “winning” issues and therefore are not sure that you want to “get involved.”  Is “winning” the criterion you employ in defense of your clients?  Are you not concerned about making an attempt to throw out an autopsy?  Making your appellate record?  Are you waiting for someone else to fight and win?  Fight and lose so you could say “Good thing we didn’t raise the issue”?  Is there not strength in numbers?  Should you not, as the single most powerful defense attorney with the most resources and clients at stake, be leading the charge, doing the research (you have an appellate division.  We don’t)?

You have a client on death row, David Renteria.  Dr. Juan Contin was the ME.  We attended Renteria’s first trial and witnessed your attorney, Jaime Gandara, when D.A. Esparza passed the witness to him, say the following: “We are well aware of Dr. Contin’s credentials. We have no questions.” Was Mr. Gandara really aware of Dr. Contin’s credentials? Mr. Gandara made no mention of Dr. Contin’s firing as the ME, of his being placed on probation by the Texas Medical Board for “engaging in activities likely to defraud and deceive the public” etc.  If your attorney was aware of these credibility issues, why did he not raise them in a death penalty, capital murder case?

We have requested Dr. Contin’s oaths of office from the ‘90s, (the time frame at issue in the Renteria case) and have been furnished with none.  The County did supply us with one from 2010.  So it seems these oaths of office are important and the County is now making sure that Contin has one on file.  But it’s too late.  Should you not raise this for Mr. Renteria while he waits to be killed?

At our Sept. 22, 2011 hearing, ADA Penny Hamilton asked the court for extra time to respond to our motion to suppress the autopsy and the ME issues, stating, “This is the most important issue facing the state today.”  We, for the first time ever, agree with Ms. Hamilton.

Ms. Hernandez, you represent many people whose lives (at least one on death row) would be greatly affected if there were a judicial determination that autopsies need to be thrown out because of faulty procedures employed by the ME’s office and the County.  If you are earnest about educating yourself on the issue and raising the issue on behalf of your client’s, and since your employees are subject to getting your approval before raising the issue, you personally are invited to contact us at sleeds1@msn.com. We have no time to go through intermediaries.  You are aware we are up against deadlines.  Attorneys across the state are fighting in their individual jurisdictions and all hands on deck are needed on deck as soon as possible to stymie weak and reluctant judges from ruling against the defense, case by case.

We earnestly hope on behalf of El Paso and your clients that you involve yourself in this matter.  The District Attorney is 100% involved to fight the ME issue.  One would think that would behoove you, the Public Defender, to get in on the other side. However, this would mean you will have to fight the very establishment that has appointed you for almost 18 years.  But isn’t fighting what the role of a true defense attorney is, win or lose?

Thank you.

Sincerely,

Stuart L. Leeds/Theresa Caballero