A legal challenge could unravel the validity of many murder cases in Texas, including some done in the past in Lubbock. Former Lubbock County Deputy Medical Examiner Paul Schrode faces just such a challenge for the work he did as Chief Medical Examiner in El Paso. In 2010, Schrode was fired from El Paso amid allegations that he falsified his resume while in Lubbock to get the El Paso Chief's job.The same issue was raised earlier this summer in an El Paso case over essentially similar allegations. Notably, the National Academy of Sciences singled out medical examiners as facing a major talent shortage, and as a last bastion of un-examined junk science. While the oath of office may seem like a technicality, it does speak to the loosey-goosey way in which medical examiners are regulated in Texas, or rather, how they are not. The Fort Worth Star Telegram reported in 2009 that the field had come under fire for a "lack of performance standards, poor documentation, a shortage of qualified personnel and lax oversight."
This newest challenge is not an allegation of lying but rather a failure to complete paperwork for public officers in Texas. Schrode did not execute a written oath of office nor a bribery statement. The Texas Constitution demands such paperwork for all public office holders.
Therein lies the rub. Is a Medical Examiner a public office holder?
If so, the lack of such documentation could be used to challenge autopsies done by Schrode both in El Paso and in Lubbock. Countless criminal cases involving an autopsy could suddenly be subject to tough legal questions.
Medical Examiners in Dallas, Tarrant, and other counties have recently executed written oaths of office and bribery statements.
By contrast, the Harris County Medical Examiner's Office said on Wednesday, "The Chief Medical Examiner serves at the pleasure of Commissioners court. This is not a constitutional office; therefore, neither Chief Medical Examiner nor his appointed Assistant Medical Examiners are required to take an oath of office."
The man who has instigated some of these challenges statewide, David Fisher, is a document specialist who often works for defense attorneys.
Fisher says, "According to the state Constitution, all state and county elected and appointed officials must execute the bribery statement before taking the oath of office." He also says, "Any public official who controls any portion of state sovereignty is subject to this requirement and this includes medical examiners."
Fisher cites an Attorney General legal opinion in support of his claims. He also says, "It could affect 90 percent of the people on death row."
Besides Dallas and Tarrant, the medical examiner in Webb County (Laredo) also filed an oath and bribery statement just last week, though she's been in office since 2007. The Webb County Attorney had declared that "Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void." Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they "void" as well? I can see why the Harris County medical examiner stuck to their guns: Filing the oath now implies the ME agrees they should have done so earlier, which potentially calls into question all their old cases. What a Grade A mess it will be if courts decide those cases are invalid. And yet, if Fisher's interpretation of the AG opinion is correct, that seems to be the law. The El Paso case will likely be the first place the theory is tested.
UPDATE: In the comments, David Fisher pointed to this document (pdf) from the Texas Association of Counties giving guidance on who must have an oath on file, and it includes county medical examiners. He also pointed to this AG's opinion (pdf) which declared, "Local officers must sign the statement and retain it with the official records of the office," though the opinion doesn't specifically address medical examiners. The court precedent Fisher relies upon to claim medical examiners are public officers (Prieto Bail Bonds v. State) similarly doesn't specifically mention medical examiners, but it does read: "An individual is a public 'officer,' within meaning of constitutional provision requiring oaths of appointed officers, if any sovereign function of the government is conferred upon that individual to be exercised for the benefit of the public largely independent of the control of others; public officer is one who is authorized by law to independently exercise functions of either an executive, legislative, or judicial character.." I'd have to agree with Fisher that it'd be hard to conclude the state has not conferred upon medical examiners a "sovereign function of the government" that is "largely independent of the control of others." The courts will have to decide - and the pragmatic aspects of this issue may end up trumping - but Fisher's seems like a strong argument.