By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
First, in January, Carter and two other pathologists in her office became the focus of a criminal investigation by the Harris County District Attorney's Office after it was learned that Carter may have allowed a physician unlicensed in Texas to perform dozens of autopsies at the county morgue -- thereby possibly compromising the integrity of several homicide investigations. Next, a Harris County civil court jury this month found Carter and one of her assistants guilty of violating the free speech rights of the former head of the morgue's DNA laboratory who successfully sued the county for $315,000 under the state whistle-blower act.
It was enough, no doubt, to test even the usually unshakable resolve of Kay Scarpetta, the hard-drinking, murder-solving forensic pathologist extraordinaire who is the fictional heroine of the crime novels of best-selling author Patricia D. Cornwell. But, like the constantly trouble-bound Scarpetta, it now appears that Carter may prevail.
Carter's biggest recent dilemma centered on the free fall of her relationship with one of her main benefactors, Harris County District Attorney Johnny Holmes. Holmes says while there's a chance that criminal charges could eventually be brought against Carter and others in the ongoing criminal investigation of the medical examiner's office, he doubts the public interest would be served by such action.
"If she can accomplish what she hopes to accomplish, she'll be a great medical examiner," says Holmes. The comment could signal a warming of the relationship between the district attorney and the medical examiner -- a relationship that just a few months ago was frigid at best, even though Carter had been Holmes's first choice to fill the chief medical examiner's post vacated by the retirement of the legendary Dr. Joseph Jachimczyk.
Carter, however, is apparently taking no chances. According to a high-ranking county official, Carter has hired a private attorney to advise her on everything from the criminal investigation to what papers to sign to what phone calls to return. Carter did not return calls from the Press last week. The county official, who asked not to be named, also suggests that Holmes may be putting a good face on his dealings with Carter in order to avoid appearing biased against her in the event criminal charges are filed.
Carter took over as the chief medical examiner of Harris County in July 1996, 11 months after the retirement of Jachimczyk. During his more than 30 years as county coroner, Dr. Joe, as he was known, had cultivated a larger-than-life image through his forensic work and testimony in high-profile cases such as the society murder of Dr. John Hill, made famous in the Tommy Thompson novel Blood and Money. But while Jachimczyk became a cult of personality, the fact that the medical and ethical standards inside the building named after him had begun to suffer went either ignored or unchallenged by county authorities.
Shortly after Jachimczyk's retirement in August 1995 came revelations of botched autopsies and illegal tissue harvesting from cadavers at the county morgue ["Autopsy", Houston Press, January 25, 1996]. It was also discovered that assistant pathologists at the medical examiner's office were padding their incomes by tens of thousands of dollars each year by conducting postmortems for other counties in the area. Given the sizable backlog of autopsies that existed at the time in pending Harris County criminal cases, county prosecutors accused the pathologists of giving preference to the more lucrative out-of-county moonlighting.
Not surprisingly, the district attorney had a keen interest in the selection of Jachimczyk's successor and, indeed, Holmes played a large role in the decision to hire Carter. It was a somewhat odd alliance from the beginning. Holmes was the often profane but always colorful hang-'em-high district attorney with a signature handlebar mustache and privileged River Oaks upbringing. Carter was a young black woman who sometimes wore her hair in corn-rows while serving as the chief medical examiner in the urban war zone of Washington, D.C.
But even though Carter was Holmes's and first choice to succeed Jachimczyk, she was not number one with the rest of the selection committee. Last spring the job was, instead, offered to Ross Zumwalt, a pathologist from Albuquerque, New Mexico. According to members of the selection committee, Zumwalt turned down the position because the offer did not include a job for his wife.
Nor was Carter the second pick of the committee. After Zumwalt turned them down, county officials turned to Jonathan Arden, the deputy chief medical examiner of New York City. Arden was favored by some members of the committee because of his expertise in pediatric forensic pathology -- a discipline that critics said had been severely lacking during the Jachimczyk reign. County commissioners appeared set to hire Arden, that is, according to Holmes, until he and Captain Richard Holland of the Houston Police Department's homicide division, both members of the selection committee, intervened on Carter's behalf.
According to Holmes, he and Holland favored Carter because she seemed well-grounded in the basics of forensic pathology: things like gunshot holes and knife wounds, the nuts and bolts of determining how someone was killed. Secondly, she could perform well on the witness stand. Holmes says Carter also shared the two lawmen's concerns in other areas. She was appalled that Harris County pathologists were being paid extra to perform autopsies for other counties. She also opposed the long-held practice of allowing funeral homes to transport the bodies of homicide victims to the morgue, risking the possible destruction of evidence in the process.
But somewhere along the road to forensic bliss, the relationship between Holmes and Carter took a U-turn and Johnny and Joye were no longer the happy crime-fighting duo.
First, HPD homicide detectives complained that Carter was restricting their access to bodies at both crime scenes and the morgue. Holmes also contends that Carter was under the impression that she could send any of her assistant pathologists to testify about autopsies during murder trials even though the district attorney's office would subpoena the specific doctor who had done the cutting.
Additionally, after Carter took over as medical examiner, county commissioners raised the rate Harris County charged other counties for autopsies from $900 to $1,200. (Under Jachimczyk, assistant pathologists had been allowed to pocket $400 of the $900. The commissioners also voted to end that policy.)
Last fall, however, Carter went back to the commissioners with a proposal to reduce the rate from $1,200 to $1,000. Carter attempted to justify her recommendation by citing statistics showing that since the rate increase, the demand for outside autopsies had declined significantly. But since there was still a backlog of in-county autopsies to be performed, Carter's plan infuriated the district attorney, and county commissioners eventually voted to keep the rate for out-of-county autopsies at $1,200.
Nor was Holmes pleased with what he says was Carter's plan to destroy all tissue and blood samples that were over a year old because of a lack of storage space at the morgue. Holmes admits he went ballistic during one meeting with Carter while trying to point out to her that she couldn't go around destroying evidence for cases just because the material was a year old and she didn't have a place to put it.
"Suppose the case isn't solved," says Holmes. "But I said something like, 'do whatever you want to do. You're the fucking medical examiner, but don't ask us to sign off on it,' and I left. I still didn't consider it personal."
But according to whom you believe, Carter apparently did. The Houston Chronicle quoted Carter as describing Holmes as "unprofessional" and a member of "the old boys club." But while giving her deposition in the whistle-blower case last November, Carter denied ever having made the statements attributed to her by the Chronicle.
"That's not accurate," Carter testified during the deposition when asked about the story.
Likewise, Holmes maintains that the problems between himself and Carter have been exaggerated -- the current criminal investigation into the practices of her office notwithstanding. That's why, says Holmes, he has distanced himself from the probe that is being led by Assistant District Attorney Keno Henderson.
Specifically, Holmes says Henderson and his two investigators are trying to determine if anyone at the medical examiner's office has engaged in the unauthorized practice of medicine -- a Class A misdemeanor.
Last month, Holmes confirmed that his office was investigating allegations that Dr. Delbert Van Dusen -- who was licensed to practice medicine in Georgia but not in Texas -- was being paid $90,000 a year to perform autopsies at the Harris County morgue. At least 15 of the autopsies performed by Van Dusen are believed to have been conducted on suspected homicide victims, although in each case another pathologist signed the death certificate. So far, no legal challenges from defense attorneys have been mounted against any of the autopsies involving Van Dusen. But, since Texas law requires that a doctor establish the cause of death, and the cause of death is vital to proving a murder case, those homicide investigations could now be in jeopardy.
"This is a major screwup," says Holmes, who concedes he's having a hard time getting a handle on the facts of the case and whether or not a law has been broken. The district attorney says while the state's medical practice act apparently allows a licensed physician to have certain persons working under his supervision and performing what would otherwise require a medical license, the question is, "what is supervision?"
"Does it mean that the person is standing there watching what he's doing?" asks Holmes. "Or does it mean that he's there in the office? Does it mean he's in the building? Or does he even have to be there? That's going to be a more difficult task in determining what the facts are, because I've personally talked with people who have different views of what supervision is."
The district attorney also acknowledges that there is precedent for doctors licensed in another state, but not in Texas, to perform autopsies here. For example, in the 1970s, during the John Hill case, Dr. Jachimczyk had a pathologist from New York travel to Houston to inspect the brain of Hill's dead wife, Joan, whom Hill was suspected of having murdered.
But in the current situation, says Holmes, the question involves someone who is living in Texas and being paid to dissect bodies and render an opinion as to the cause of death.
"Do they need to be licensed?" asks the district attorney rhetorically. "Unquestionably, they do. But if they are being supervised by a licensed physician, can that licensed physician sign off on their death certificates and opinions? It's not as easy as looking at whether someone has stolen money or hijacked a bank."
Holmes says he can't yet say whether any charges will be filed against Van Dusen for performing the autopsies or against Carter or any of her other assistants for allowing Van Dusen to practice medicine without a license. Last week, Carter was formally interviewed by investigators from the district attorney's office. Holmes says others in Carter's office will be questioned in the near future.
The use of unlicensed physicians to perform autopsies is not, however, a dilemma unique to the Harris County Medical Examiner's Office. In fact, recently the Washington Post published a series of reports about problems in the District of Columbia morgue -- which Carter used to head -- that parallel the Harris County controversy.
In January, one of D.C.'s forensic pathologists was fired after it was learned he had been performing autopsies without being licensed by the District of Columbia. (The physician, it should be noted, had only worked at the D.C. morgue for the past year and had come on board there after Carter's departure.) One week later, the head of the D.C. health department ruled that a second pathologist who had been performing autopsies after his medical license had expired last year (also after Carter left for Houston) would be allowed to return to work after renewing his license. That announcement was then followed by the news that the health department chief, himself, was also not licensed to practice medicine in the nation's capital.
Ironically, Dr. Jonathan Arden, who lost out to Carter in the competition for the job as chief medical examiner of Harris County, is now the front-runner for Carter's old job in D.C.
As for the local criminal investigation, what the doctors say, says Holmes, will determine the next step. He adds that he doubts prosecution would accomplish much since the problem has now been rectified, although the case will be presented to a grand jury.
Nevertheless, Holmes maintains that the rift between himself and Carter has been "blown out of proportion." He says that Carter has been making improvements in the operation of the medical examiner's office -- most importantly, a reduction in the backlog of pending autopsy reports. According to a report by the Harris County budget office, the backlog of cases as of January stood at 217 compared with more than 1,000 cases in September. Holmes says Carter's long-term goal is a seven-day turnaround on autopsy reports. Before Carter's arrival, it was not uncommon for prosecutors to have to wait more than 90 days for the postmortem results.
"What she's wanting to do is exactly why she was high on my list -- the highest on my list -- at the screening," says Holmes. "She thought just like I did and wanted to accomplish what I thought needed to be accomplished. I've kept telling the staff around here: Be patient, she's trying."
But, apparently, Holmes's own patience with Carter was wearing a bit thin last fall. In October, during his deposition in the whistle-blower case, Holmes's testimony indicated that the district attorney was no longer Carter's biggest fan.
"I'm embarrassed by the fact that I supported her, okay?" said Holmes in response to a question during the deposition taken on October 28, 1997. "It is fair to say that if I was voting again, she would be very far down on the list."
Holmes says what he actually meant was that he was embarrassed that he was having to defend Carter so often to members of his staff.
Regardless of what he meant, such testimony could not have helped Carter during the trial. In fact, neither the medical examiner's office nor the district attorney's office has come out looking very good after jurors in two trials involving Dr. Elizabeth Johnson, the former head of the county's DNA lab, have sided with Johnson in the past nine months.
Last month, a Harris County civil court jury awarded $315,000 to Johnson. In reaching their decision in the whistle-blower lawsuit, the jurors concluded that Johnson had been fired in retaliation for her own public clash with the Harris County District Attorney's Office when her analysis of blood samples in a capital murder case did not implicate the prosecution's prime suspect.
In April 1995, Pasadena police arrested Joe Durrett for the bludgeoning deaths of his estranged wife and sister-in-law. Durrett was charged with capital murder after initial tests by the M.E.'s office determined that tufts of hair found in a bloody clump in one of the victim's hands were likely from Durrett.
But the plan to prosecute Durrett hit a major snag when Johnson's analysis of evidence showed that the initial testing had been faulty. Johnson's test revealed that the hair was not Durrett's. She also determined that blood found in Durrett's home was Durrett's rather than either of the victims'. Although the results didn't prove that Durrett was innocent, they certainly didn't connect him to the case, either. In September 1995, Pasadena police seized the evidence and had it double-checked by an independent laboratory in Maryland. Johnson's results were verified by the lab two months later and the charges against Durrett were dropped. But the prosecutors in the case still seemed determined to find fault with Johnson's techniques.
In February 1996, Johnson's records in five investigations in which her findings had contradicted the prosecution's theory -- including the Durrett case --were subpoenaed by a Harris County grand jury. The records were then turned over to two local independent DNA experts for review. Once again, neither of the reviewers could find a problem with Johnson's work.
Undeterred by the lack of scientific evidence against Durrett, in December 1996, prosecutors were able to have their prime suspect reindicted for capital murder. That same month, five months after Carter had taken over as chief medical examiner of Harris County, Johnson was fired from her job as head of the M.E.'s DNA lab. Johnson took a job with a laboratory in California but returned to Houston to testify as a defense witness in Durrett's trial. On May 13, 1997, Durrett became the only defendant in Harris County to be acquitted of capital murder charges during Holmes's almost 19 years as district attorney.
A second Harris County jury also sided with Johnson when, last month, it concluded that Johnson had been fired from the medical examiner's officer in retal-iation for failing to keep quiet about her findings in the Durrett case. The jurors awarded Johnson $315,000 plus attorneys' fees. She had been seeking $1.5 million. The county plans to appeal the jury's verdict.
One of Johnson's attorneys, criminal defense lawyer Dick DeGuerin, believes the district attorney's office made a mistake by challenging Johnson's test results.
"What they should have done was rally around her and say 'our results are our results, take it or leave,' " says DeGuerin. "Instead, she had to go through what she went through."
DeGuerin also believes the investigation could give Holmes leverage over Carter. The defense attorney points out that before her dismissal, Johnson had notified the district attorney's office that she believed someone had intentionally contaminated some of the chemicals she used for conducting tests in the DNA lab. Rather than have his office investigate the allegation, Holmes turned the matter over to the Federal Bureau of Investigation.
"By the same token," says DeGuerin, "when it appears that Joye Carter has allowed an unlicensed doctor to practice there, Holmes starts an investigation right away. Because he can influence Joye Carter by threatening her with some kind of criminal investigation."
As for the performance of Carter herself, DeGuerin believes the new medical examiner had an opportunity to do great things when she first came on board. But he fears that opportunity has been missed.
"What she should have done was a housecleaning of all the deadwood in that office," says DeGuerin. "But what's happened is she's let the deadwood remain and take over."
Harris County Commissioner El Franco Lee takes a much different view of Carter's performance. Lee, an African-American, is the only minority and Carter's biggest backer on Commissioners Court, the governmental body to which Carter answers. Lee concedes he has been concerned about trouble between Carter and Holmes, but he believes some of that friction is the result of problems such as the backlog of autopsies that Carter inherited, which take time to remedy. Lee also sees nothing wrong with Carter hiring her own attorney, calling it a "a prudent thing to do, given everything that is at stake."
The commissioner also maintains that the Houston medical community, especially the Texas Medical Center, is extremely pleased with Carter, who, unlike Jachimczyk, has opened up the county morgue to the pathology departments of the TMC's teaching facilities. Spokespersons for Baylor College of Medicine and the University of Texas Medical School say their pathology departments are in the process of setting up programs to allow pathology department residents the option of taking an elective rotation at the morgue, where they will be allowed to observe autopsies and case evaluations.
But Carter's relationship with other members of the Houston medical community is not quite so collegial, according to copies of correspondence between Carter and the past chair of the Houston/Harris County Child Fatality Review Team obtained by the Press. Before Carter became the county's chief pathologist, members of the review team had complained that the medical examiner's office had terminated that office's participation in the group comprised of various local health and law enforcement agencies concerned with the Houston area's high child mortality rate. Although Carter has re-established the M.E. office's participation in the activities of the review team, the abrasive wording of some of her letters has occasionally given the impression that she has little use for its members.
In a July 1997 letter to the then-chair of the review team, Harris County Health Department epidemiologist Cindy Kilborn, Carter flatly suggested that the review team might better serve a public-relations role as opposed to an investigative one. The medical examiner also made it clear that she didn't really care if her opinions rubbed some members the wrong way.
"I have learned that team members were offended by the distribution of my previous letter," concluded Carter. "I remind you and the other members that I am a government worker and this review team is not a private club."
In her response, Kilborn noted that, the month before, a pathologist at the M.E.'s office had determined that sudden infant death syndrome had been the cause of a child's death. Kilborn added that the pathologist who made the ruling changed it to asphyxia after the review team informed him that the adult responsible for the baby had consumed a large amount of alcohol and was sleeping with the child at the time of the baby's death.
"Sometimes it might be valid to question the rulings of the medical examiner's office," wrote Kilborn.
Kilborn's letter evokes memories of the case of Claudette Kibble. In September 1995, Kibble was charged with three counts of murder in connection with the deaths of her three infant sons on separate occasions over a four-year period. While law enforcement and child welfare authorities had pushed for rulings of homicide, it was not until after Kibble confessed to her mother that she had suffocated her three children that the medical examiner's office agreed to change its rulings as to the cause of the little boys' deaths.
To her credit, Carter has, on occasion, demonstrated a willingness to take a second look at controversial cases. Last summer, Carter ordered the exhumation of the body of Donald Wayne Chaline, a former police informant, drug dealer and gambler who had died under questionable circumstances. A second examination of Chaline confirmed the results of the first: that Chaline had died as the result of an accidental fall. However, in February 1997, after another exhumation, Carter overturned an earlier cause of death ruling by her office when she determined that Paul Beauchamp of Montgomery County had died of gunshot wounds to the head rather than drowning. Beauchamp's murder is still under investigation.
And, at least for now, Carter appears somewhat secure as the county's chief medical examiner. In addition to Commissioner Lee, Carter's support on commissioners court is backed up by Harris County Judge Robert Eckels. The judge volunteers that he is concerned about the $315,000 civil judgment against the county in the whistle-blower lawsuit and says that Carter's first 19 months have been rockier than he would have anticipated. But, overall, says Eckels, he is pleased with Carter's performance.
Of course, if a grand jury decided to indict Carter, all bets would be off.
Last July, Carter wrote a letter to members of the Harris County Commissioners Court. In the letter, Carter noted that since her arrival in Houston the previous July, she had been renting, and she wanted to know if it would be okay for her to purchase a home outside of Harris County. At the time, one county official only half-jokingly suggested that, considering the way things were going at the medical examiner's officer, Carter should continue to rent. If she hasn't purchased a home already, maybe now she should. Maybe.