Dr. Roberto Bayardo: Texas: KXAN reporters David Barer and John Hinkle present a remarkable portrait of a controversial chief medical examiner with failing memory, now over 80, who examined thousands of sudden, violent and unusual deaths in Travis County and dozens of other smaller Texas counties and can still be called to court to testify - even decades later to testify. Great heading for the KXAN story: "Body of Evidence: Forgotten Forensics." As chief medical examiner for nearly 30 years, Dr. Roberto Bayardo examined thousands of sudden, violent and unusual deaths in Travis County; KXAN..."“I’ve been losing my memory,” Bayardo said. “If you don’t show me something that was written or said, I can’t tell you if it was true or not.” According to records obtained from 45 counties around the state, the McKinney case was among at least seven murder or manslaughter cases Bayardo has testified in since his 2006 retirement. It is not clear if, or to what extent, prosecutors have examined Bayardo’s memory since his retirement. However, according to Sam Bassett, a veteran Central Texas defense attorney, using Bayardo’s testimony at this point could present problems in court. Bassett, who chaired the Texas Forensic Science Commission, said key testimony could be at stake if a witness's memory is compromised while giving testimony. A faltering memory could lead to inaccuracies and a jury being misled on important scientific opinion and data, he said. “The risk of a failing memory is it basically eliminates that person’s testimony, as to the events at the time he testified.” — Sam Bassett “The risk of a failing memory is it basically eliminates that person’s testimony, as to the events at the time he testified,” he said.
STORY: by David Barer and John Hinkle,
published as a KXAN in-depth investigation, on August 16, 2016."
"As chief medical examiner for nearly 30 years, Dr. Roberto Bayardo
examined thousands of sudden, violent and unusual deaths in Travis
GIST: "Mildred McKinney’s daughter discovered a
grisly murder scene in her mother’s Williamson County duplex in November
of 1980. She found McKinney, 73, lying halfway out of her bathroom with her
hands and feet bound. McKinney had been brutally sexually assaulted,
beaten and strangled. Her home was ransacked and burglarized, according
to an arrest affidavit and autopsy report.
Former Travis County Chief Medical Examiner, Dr. Roberto Bayardo,
performed McKinney’s autopsy. Nobody knew it at the time, but the
homicide case would run cold. More than 30 years passed before officials
singled out a suspect, Steven Alan Thomas, a pest control serviceman
for the victim. Nobody knew, either, that Bayardo would go on to make critical
missteps, walk back autopsy findings and have an unexpected impact on
several major murder cases in the years to come. And nobody knew Bayardo
would keep testifying in court after his retirement, and that his
memory could potentially present problems in court. As chief medical examiner for nearly 30 years, Bayardo examined
thousands of sudden, violent and unusual deaths in Travis County and
dozens of other smaller Texas counties. A medical examiner’s
determination of the cause and manner of death can significantly impact a
homicide case, and they can be called to testify in court on their
findings.After a medical examiner retires, he or she can still be called back
to court to testify, even decades after performing an autopsy. That’s
what happened in October of 2014, at Thomas’ trial. Thirty-four years
after conducting McKinney’s autopsy, Bayardo returned to speak about it,
and he went beyond simply reading off the report. Bayardo, now over 80, explained his background and education. He
spoke about the autopsy process, and he elaborated on his impression of
the autopsy findings, according to a court transcript obtained by KXAN. At trial, an attorney asked: “In your 15,000 autopsies, have you seen injuries like these before?” This is the worst injury I’ve ever seen, yes,” Bayardo answered, regarding sexual trauma to McKinney’s body. But in a 2015 interview with KXAN, less than a year after that
testimony, Bayardo did not recall major cases in which he was involved.
In particular, he said he did not remember his role in the landmark 2011
exoneration of Michael Morton, who was wrongfully convicted of killing
his former wife, Christine, in Williamson County in the mid-80s. “I’ve been losing my memory,” Bayardo said. “If you don’t show me
something that was written or said, I can’t tell you if it was true or
not.” According to records obtained from 45 counties around the state,
McKinney case was among at least seven murder or manslaughter cases
Bayardo has testified in since his 2006 retirement. It is not clear if,
or to what extent, prosecutors have examined
Bayardo’s memory since his retirement. However, according to Sam
Bassett, a veteran Central Texas defense attorney, using Bayardo’s
testimony at this point could present problems in court. Bassett, who
chaired the Texas Forensic Science Commission, said key
testimony could be at stake if a witness's memory is compromised while
giving testimony. A faltering memory could lead to inaccuracies and a
jury being misled on important scientific opinion and data, he said.
“The risk of a failing
memory is it basically eliminates that person’s testimony, as to the
events at the time he testified.” “The risk of a failing
memory is it basically eliminates that
person’s testimony, as to the events at the time he testified,” he said.
The Forensic Science Commission investigates allegations of
professional negligence and misconduct that can affect an accredited
laboratory’s forensic analysis, among other duties. Former Gov. Rick
Perry appointed Bassett to the commission in 2005, and he served as
chairman through 2009. A medical examiner’s testimony, Bassett added,
can be some of the most impactful to a jury. “The jury gives special
importance to a medical examiner’s
testimony,” said Bassett, who said he has tried 10 murder cases. “He or
she is viewed as particularly credible because they are providing
information that is really important and jurors really look up to those
witnesses, in my experience, as being special, objective
aside, Bayardo has walked back and recanted his autopsy findings in
several high-profile Texas murder cases. In 2007, Bayardo said, contrary
to his original 1995 autopsy
findings, he could not determine whether baby Brandon Baugh’s head
injuries were caused by abuse or an accident, according to a sworn
statement. His statement played a role in altering the trajectory of
Cathy Lynn Henderson's sentence, after she pleaded guilty to murdering
Baugh while babysitting. In 2012, Bayardo stated his estimate of the
time of death of
bride-to-be Stacey Stites should not have been used as a scientifically
reliable opinion at trial, according to a sworn statement. Since then,
the Texas Court of Criminal Appeals postponed the execution of Stites’
convicted killer, Rodney Reed. A previous KXAN investigation
also found Bayardo regularly performed double, and in some years nearly
triple, the nationally recommended number of examinations per year. He
appeared to have a financial incentive. Bayardo took a personal fee for
performing out-of-county autopsies.
Though it is not unusual for larger urban counties to perform autopsy
services for smaller counties, one former Travis County commissioner
said he had never seen such a fee arrangement for an appointed medical
examiner anywhere else. A KXAN analysis found Bayardo earned more than
$2.6 million during his 30-year career through out-of-county autopsy
fees. Bayardo told KXAN he was simply performing important work that
needed to be done, and he did it to the best of his ability. “I had the
capacity to do it,” Bayardo said. “I had the professional knowledge.”
Since retirement, Bayardo has earned about $2,500 testifying in court
on autopsy findings in six cases originating outside Travis County.
Records obtained by KXAN show those counties paid Bayardo between $300
and $600 for his testimony. Bayardo also testified twice in Travis County since 2006, but he was
not paid, according to records requested from the DA’s office. And Bayardo could testify again. He has been listed as a possible witness in the upcoming murder trial of Mark Alan Norwood.Norwood—already
imprisoned for killing Christine Morton—now stands
accused of killing Debra Masters Baker in 1988. Bayardo conducted
Baker's autopsy. Bayardo’s 1986 autopsy of Morton became a key factor in
conviction, as it established Christine’s time of death. In 2011,
Bayardo told Morton’s defense attorney the time of death opinion, which
Bayardo had based on the digestion of stomach contents, was not a
scientific way to make a determination. If Bayardo is called to testify
again, Bassett said the former
medical examiner’s state of mind should be evaluated, and both the
prosecution and defense should be made aware of any issues. He also said
it’s possible that the cases in which Bayardo testified recently should
be reviewed. In an email to KXAN, Bayardo said that if he is called to
testify he will “be testifying from the autopsy report exclusively.”"
See related post by the Death Penalty Information Center at the link below; "A recent investigaton by the Fort Worth Star-Telegram uncovered a series of mistakes by medical examiners in Texas.
“Medical examiners have goofed up eye color and gender. They’ve made
mistakes on the locations of scars or tattoos, described gallbladders
and appendixes that had long since been removed – even confused one body
for another,” noted the story. Webb County Chief Medical Examiner
Corinne Stern was criticized for an autopsy she performed on an infant
while she was working in Alabama. Her report indicated that the infant
was suffocated, but other experts concluded “her finding was based on
junk science and that the [baby] was stillborn.” Following the experts'
report, the capital murder charge against the baby’s mother was
dropped. In 2007, former Travis County medical examiner Roberto Bayardo
recanted his original testimony that helped convict Austin baby-sitter Cathy Lynn Henderson of capital murder and placed her on death row for
the death of a baby. Twelve years earlier, Dr. Bayardo had testified
that the baby’s cause of death was from receiving intentional blows. His
new testimony said it was unclear what had happened and Henderson may
have accidentally dropped the child. "The work of the medical
examiner's office is just so slipshod," said Tommy Turner, the former
special prosecutor who put a Lubbock medical examiner behind bars for
falsifying autopsies. Former Harris County Medical Examiner Joye Carter’s mistake regarding
a victim’s time of death led to the wrongful conviction of an ex-con.
Carter reported that the victim had been dead for 25 days, while
forensic pathologists claimed the victim could not have been dead for more than two weeks. The defendant could not have committed the crime if
the victim had been dead for the shorter time because he was in jail.
The convicted man’s execution was postponed because of the discrepancy.
"The state does not keep track of MEs in any shape, form or fashion,"
Bexar County Chief Medical Examiner Randall Frost said. The state
doesn't even know how many certified forensic pathologists work in
government offices, he added.
I am monitoring this case. Keep your eye on the Charles Smith Blog for reports on developments.
Toronto Star, my previous employer for more than twenty
incredible years, has put considerable effort into exposing the
harm caused by Dr. Charles Smith and his protectors - and into
pushing for reform of Ontario's forensic pediatric pathology
system. The Star has a "topic" section which focuses on recent
stories related to Dr. Charles Smith. It can be found at:
My interest in forensic pathology began with my Toronto Star investigative reporting into once famed since disgraced former doctor Charles Smith. I began this Blog after retiring from the Star in 2006 in order to follow the aftermath into the independent Goudge inquiry into many of Smith's cases. I have now begun to focus on cases involving flawed forensic science no matter where they occur (the recent Amanda Knox prosecution in Italy, for example) and am fascinated by the interest in the Blog from people in countries throughout the world. In another development, my interest in "junk science" "pseudo-experts" and the miscarriages of justice they all too often cause has drawn me deeply into the on-going U.S. death penalty debate where so many troubling cases involve issues relating to DNA and other developments in the world of forensic science. For all of this I rely on my experience as a reporter at the Toronto Star, my work as a lawyer in Ontario's criminal courts, and my abhorrence of injustice. Please send cases and developments which may be of interest to this Blog to firstname.lastname@example.org. Read on! Harold Levy.