Did medical examiner’s office withhold murder evidence?

goff@charlotteobserver.com March 15, 2014 

  • Notes from the medical examiner

    In his 2011 autopsy report, Dr. Clay Nichols, a former state pathologist, notes the existence of a bullet fragment in the head of Terrell Boykin. Handwritten notes refer to exit and entrance wounds as well as the word “abrasion.”

  • Timeline of events

    May 8, 2011: Terrell Boykin, 19, and Rodriguez Harris, 23, were shot and killed in a Fayetteville-area mobile home park.

    May 10: Dr. Clay Nichols, a state pathologist, performed an autopsy on Boykin. Afterward, morgue manager Kevin Gerity reported finding a bullet lying next to Nichols’ cutting board. Gerity gave the bullet to Nichols. But Nichols did not turn the bullet over to detectives.

    July 28: Gerity spoke with N.C. Chief Medical Examiner Dr. Deborah Radisch, according to an email. He told Radisch he believed the Boykin autopsy report was inaccurate and that evidence was mishandled.

    Aug. 17: The medical examiner’s office closed Boykin’s case. The autopsy report said, “No bullet is recovered.”

    Sept. 9: Gerity reiterated his concerns in a letter to Radisch and Dr. Lou Turner, a top official with the N.C. Department of Health and Human Services.

    October, 2013: A tipster reportedly told the SBI that evidence had been mishandled. During the investigation, Nichols gave the bullet to SBI investigators.

    Nov. 5: Nichols lost his job as the state's Deputy Chief Medical Examiner.

    Nov. 15: Orange County District Attorney Jim Woodall said the SBI investigation did not prove a crime occurred.

    December: Gerity retired.

    Today: The murders of Boykin and Harris remain unsolved.

    Source: N.C. medical examiner data, emails and autopsy reports

  • Sunshine Week

    This is Sunshine Week, when advocates of open government celebrate the value of freedom-of-information laws. Watch for more coverage this week. This story relied on an Observer request for emails made four months ago. Only after the Observer threatened legal action in late February did the state release the public documents.

A dispute in the state medical examiner’s office over a bullet fragment could lie at the heart of an unsolved murder.

For more than two years, the bullet remained tucked away in a desk at the N.C. Office of the Chief Medical Examiner, while detectives near Fayetteville searched fruitlessly to find who killed 19-year-old Terrell Boykin.

Like any mystery, this one raises many questions, but the most important is this: Why didn’t officials, including N.C. Chief Medical Examiner Dr. Deborah Radisch, tell detectives about possible evidence in a double homicide?

It was only after a tipster notified the State Bureau of Investigation late last year that the bullet finally reached detectives. They are trying to match it to guns or shell casings in hopes of closing the Cumberland County sheriff’s only unsolved double-murder.

After the SBI probe, a prosecutor ruled that no one in the medical examiner’s office committed a crime involving possible evidence. But the pathologist who performed Boykin’s autopsy and the technician who said he discovered the bullet and prodded his bosses for months to investigate it no longer work there .

To unravel the story behind what happened, the Observer requested emails about the case four months ago. The state, which first argued they were confidential personnel records, provided them on March 3.

The office’s turmoil over the bullet follows other concerns, including heavy autopsy caseloads and a 40-day wait for the completion of blood tests after two people died last year in a Boone hotel. The tests revealed carbon monoxide poisoning, but the information was not made public until after an 11-year-old boy died in the same room.

A misplaced bullet?

Boykin and his childhood friend, Rodriguez Harris, 23, were shot and killed around 4 a.m. May 8, 2011, during a gun battle at a mobile home park near Fayetteville. Detectives questioned several people but made no arrests. They appealed to the public for help.

Two days after the shooting, Dr. Clay Nichols, 59, performed Boykin’s autopsy in the state lab in Chapel Hill. The medical examiner’s main office has since moved to Raleigh.

Nichols, who joined the department that year, was one of the state’s busiest pathologists. In 2012, he conducted more than 400 autopsies – 60 percent more than the nationally recommended standard.

According to his autopsy report, a bullet entered the left side of Boykin’s skull. Nichols described the wound as “perforating,” meaning the bullet or part of it passed through Boykin’s head.

“No bullet is recovered,” wrote Nichols on Boykin’s report.

But technician Kevin Gerity, who cleaned the morgue after the autopsy, later wrote that he found a bullet lying near Nichols’ cutting board. He said the bullet “appeared to be the same piece of metal” visible in an X-ray taken of Boykin’s head.

Gerity, a 21-year veteran of the office, said he put the bullet in a plastic evidence bag and gave it to Nichols.

He later complained to Radisch that the autopsy report was wrong. Four months after the autopsy, Gerity felt strong enough to put his concerns in writing.

Gerity, 57, declined to be interviewed. His account of events is outlined in the September 2011 letter to Radisch and Dr. Lou Turner, the state’s deputy chief of epidemiology.

Gerity said he believed a mistake was made – and nothing was done to correct it.

“I feel our office has an obligation to be as thorough as possible in performing autopsies, as well as being as accurate as possible in the reports we release,” Gerity wrote. “Releasing a report that we know is inaccurate, not only puts me in a precarious position personally, but also puts this entire office in jeopardy.”

In an interview last week, Nichols defended his handling of the bullet fragment. He said Gerity broke the chain of custody by collecting the evidence himself. Nichols said he couldn’t be certain the fragment came from Boykin’s body.

Gerity should have called him into the autopsy room to gather the bullet, said Nichols, acknowledging that the medical examiner’s office did not have written protocols for such situations.

“A fragment was delivered. Not labeled, not sealed, not identified. It was done without my supervision,” Nichols said. “I can’t turn over evidence that I can’t attest came from that person.”

The discovery of the bullet came on a slow day for the medical examiner’s main office. Boykin’s body was one of two autopsied at the state lab that day, data show. The second involved the natural death of a 54-year-old woman.

SBI tipster

It’s unclear what – if anything – Radisch did to address Gerity’s concerns in 2011.

The same day she received his letter, she emailed Nichols: “So, he’s been waiting for you to do something, and is armed with the attached (letter) … So, I will need to speak with you and learn what happened.”

Nichols, the state’s deputy chief medical examiner at the time, said he never saw Gerity’s letter and did not recall meeting with Radisch about the case.

If the chief medical examiner doesn’t discuss such a case with a pathologist, “that’s a problem,” said Dr. Gregory Hess, chief medical examiner in Pima County, Ariz.

Two years passed before a tipster told the SBI that evidence in the case was mishandled. Nichols gave the bullet to state investigators and it was finally turned over to the Cumberland County Sheriff’s Office.

Lt. Bobby Reyes said he was surprised to receive the evidence so late. He said law enforcement experts have since compared the bullet fragment to ones from other cases in an attempt to catch Boykin’s killer.

Reyes declined to say whether any evidence matched the bullet, though he said the murder case remains open.

Said Billy West, Cumberland County’s district attorney: “My concern was that if there was any evidence that could shed light on this unsolved case, that we have it. It’s unfortunate that we didn’t get it from the beginning.”

Pathologist’s departure

Nichols, who earned more than $192,000 annually, lost his job in November during the SBI investigation. Gerity retired a month later.

State officials will not say why either left, contending the reasons for their departures don’t fall under North Carolina open records laws.

A state spokesman said Gerity’s letter “reveals only one side of this situation.”

“As a result of the DHHS personnel investigation in this matter, appropriate personnel action was taken and protocols within the Office of Chief Medical Examiner (OCME) have been strengthened and are being incorporated into new written policies and procedures,” said Kevin Howell, a spokesman for the Department of Health and Human Services.

In a recent interview, Radisch said the office is understaffed but state pathologists are not overworked “to the point of making serious errors.” She declined to answer specific questions about the bullet fragment, including whether she investigated Gerity’s complaints in 2011 and why no one alerted detectives.

Radisch, who earns $217,000 annually, joined the medical examiner’s office in the 1980s and had been chief for a year when the controversy emerged.

Nichols is now a contract pathologist for East Carolina University, where the medical examiner’s office sends some of its cases to be autopsied.

Nichols said he’s not certain why he was forced out. His last job evaluation was excellent, he said. But he suggested the Boykin case may have played a role.

“You can’t ignore the timeline,” Nichols said.

Jim Woodall, the Orange County district attorney who reviewed the SBI’s findings late last year, said no one at the medical examiner’s office altered, destroyed or stole evidence connected to Boykin’s case. Such actions could be considered crimes.

But Woodall said the case raised questions about how the medical examiner’s office documented evidence, adding that it was incumbent on DHHS to review the process.

Wrong to ‘sit on evidence’?

Two pathologists interviewed by the Observer said they would have turned the bullet fragment over to authorities if they thought there was any potential it could be used as evidence in a criminal case.

“To sit on evidence seems wrong if you think it is from this body,” said Dr. Victor Weedn, a forensic pathologist and professor at George Washington University.

Dr. Greg Davis, professor of pathology at the University of Kentucky, said: “If it were my case, I would have photographed (the bullet), thanked the technician and called the detective and said, ‘This may or may not be of value, but you probably should come get it.’ 

If there were questions about where the bullet came from, DNA testing might have helped answer them, said Gregory D. Lee, a California criminal justice consultant and retired supervisory special agent with the U.S. Drug Enforcement Administration.

As a detective, Lee said, “It would irritate me to no end” to receive a bullet after such a long delay. “You just pissed away two and a half years.”

Reporters Ames Alexander and Elizabeth Leland contributed.

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