Bullet Proof

The D.A.'s office gets under the skin of an accused robber

Keith McCloud was bleeding from four gunshot wounds when he was unceremoniously dumped in front of St. Joseph Hospital's emergency room around 2:30 a.m. on July 16. The two men who brought him there fled before they could introduce themselves to police.

McCloud had an explanation for investigators, though it was somewhat short on detail: he said he had been carjacked and kidnapped, then shot by his kidnappers at a convenience store whose name and location he couldn't remember.

Two of the bullets had gone clean through McCloud; the other two remained in his body. Doctors at St. Joseph sewed up the 19-year-old but did not venture to remove the offending lead, determining that such surgery was not a "medical necessity."

But after Charles Anderson, a firearms identification expert for HPD, checked x-rays showing a bullet lodged in the area of McCloud's right clavicle, McCloud suddenly became a prime candidate for surgery, courtesy of the state of Texas.

The HPD diagnosis? The bullet reposing in McCloud's upper torso appeared to be intact and about the same size -- between .38 caliber and .357 caliber -- as those a Gulfgate Mall-area homeowner had fired at a gun-wielding man who had broken into his Carlisle Street home and endangered his wife and four-year-old son only 20 minutes before McCloud arrived at nearby St. Joseph.

HPD wanted that bullet, figuring it would bear markings from the homeowner's 9mm pistol.

There was a Texas precedent for such an invasive procedure: three years ago in El Paso, a man suspected of shooting himself in the rib cage to cover up his murder of his wife underwent court-ordered surgery to remove the slug. A state appellate court later ruled that the operating-room evidence was properly procured. Assistant district attorney Dan Rizzo cited the El Paso case in obtaining a search warrant from state District Judge Ted Poe for the bullet in McCloud's shoulder.

Poe agreed to the warrant after being assured by McCloud's attending physician at St. Joseph that the surgery would cause the suspect "minimal pain and discomfort" and would pose no threat to his life or health. Those conditions were in keeping with a 1985 U.S. Supreme Court decision that was the basis for the El Paso appellate ruling. Ironically, in that case the high court forbade the removal of a bullet from the shoulder of a Virginia robbery suspect because the operation would require hours of surgery and a general anesthetic and thus could endanger the man's life. The justices also ruled that the government must demonstrate a "compelling need" for the embodied evidence and not have enough other evidence available.

Rizzo acknowledges that, even without the bullet, there was a considerable amount of circumstantial evidence against McCloud: the suspicious timing of his arrival at St. Joseph, his sketchy explanation of how he got shot and the fact that no one else with multiple gunshot wounds showed up at any other local hospital in the 18 hours after the break-in.

Based on the results of testing at a New Orleans lab, police also had established a DNA match between McCloud's blood and a blood sample taken by police at the crime scene. But the match itself was not a clincher, since one in 10,080 African-Americans could have the same DNA blood type.

"I was a biology major in college," says Rizzo. "I would not want to try a case with one-in-10,000 odds." He viewed the DNA match and the circumstantial evidence as merely good "probable cause" for the state-sponsored surgery. The bullet, Rizzo said, would help the state make its case against McCloud beyond a reasonable doubt.

Before requesting the search warrant, District Attorney Johnny Holmes contacted Dr. James "Red" Duke, chief of Hermann Hospital's emergency services, to ensure there would be a surgeon willing to cut into McCloud in pursuit of the evidence. Holmes says he didn't want his office to end up in a position similar to that of child molester Larry Don McQuay, who wanted to be castrated but initially couldn't find a doctor willing to grant his wish.

"I called Red to ask if they'd do it. I conceded that we don't have the authority to order a doctor to perform surgery," says Holmes, though the search warrant did specifically order Hermann's Dr. Neal Ware to carry out the surgery or direct another doctor to do so.

After being arrested on September 16 and charged with aggravated robbery, McCloud signed a consent form for the surgery, which was performed two days later. The bullet was near the skin surface, so the operation took just ten minutes and required only a local anesthetic and an inch-long incision.

According to HPD robbery investigator Greg Gladden, McCloud was glad to be rid of the bullet, saying it was bothering him when he tried to sleep. No attempt was made to extricate the other shot, which is still lodged in McCloud's chest area near the back.

Charles McCloud, the suspect's father, describes his son as a community college student studying accounting who had never been in trouble before his arrest. He says the state should not have been allowed to force his son to undergo surgery.

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