Reprinted with permission of The Knoxville News Sentinel

Deathly Silence

Autopsies reach crisis point in upper East Tennessee; Family of dead man lives with uncertainty, as do others in region.

Byline  By J.J. Stambaugh, News-Sentinel staff writer

Run Date  7/21/2002

Body Text  GREENEVILLE

It's been nearly 14 months since Robert C. Bird III was found slumped over in the front seat of his beloved Land Rover, dead of an apparent gunshot wound to his head.

According to his family, it's been nearly 14 months of nagging questions, frustration and a growing sense of disgust with a criminal justice system that still hasn't given them any answers about the death of the man they lovingly called "Bobby."

Although an autopsy was performed within 24 hours of Bird's death, the two forensic pathologists employed by the James H. Quillen College of Medicine in Johnson City still haven't released their findings to the state medical examiner or the district attorney general's office.

Amazed that an autopsy report hadn't been filed despite the passage of more than a year, Bird's relatives began to check around and were shocked to learn that such long waits aren't uncommon when autopsies are performed at the college, which is attached to East Tennessee State University.

They were also surprised that turnaround times for autopsy reports in other parts of the state are usually measured in weeks rather than months.

Without an autopsy report, it's impossible for Bird's family to know whether he killed himself or was the victim of a homicide. If he was killed by someone else, his family says, there's no way for his killer to be prosecuted until the report is finished.

"It's totally unacceptable, and I just don't understand," said his sister, Catherine Bird. "It's been unbearable."

On May 29 the Bird family transformed their frustrations into action by filing a lawsuit against the two pathologists employed by the college - Drs. Gretel Harlan and Ellen B. Wallen.

According to the complaint, the family isn't seeking money or specific damages, only answers to their questions. The lawsuit asks the Washington County Chancery Court to force the pathologists to perform "their statutory, nondiscretionary duties" under Tennessee law.

"Supposedly, the (Quillen) forensics center is just all backed up," Bird said. "We've heard that they don't have enough space, that they don't have enough people. But it's been over a year. ... When we ask them just how far along they are, their answer is that they don't have any idea."

If it were an isolated incident, the ramifications of the Bird case wouldn't stretch as far as they do. Forensics centers are often underfunded and understaffed, and autopsy reports are sometimes held up by unforeseen circumstances. For instance, backups at the Tennessee Bureau of Investigation lab in Nashville - which performs chemical analyses - caused many delays before a recent restructuring of operations cut the wait down to only a few weeks.

But the plight of the Bird family is far from unique, and the entire criminal justice system in upper East Tennessee is beginning to pay the price.

Bobby Bird, a 41-year-old Greene County native who worked a vending machine route, loved motorcycles and was widely regarded as an outspoken, friendly man, according to Catherine Bird.

"He didn't have any strangers. He spoke to everybody," she said. "He was just that kind of guy."

Another sister, Lura Bird Brothers, said he'd never been motivated by a desire for wealth or status.

"He wasn't into making money," she said. "He was a happy-go-lucky person. He was happy with small things. He liked to camp."

In fact, on the morning of May 22, 2001, Bird was making final preparations for a camping trip with his favorite nephew, according to relatives. He also had purchased a 90-day supply of vitamins and had just made a payment to boat insurance.

At some point in the day, Bird began drinking alcohol. His family has been conducting their own investigation into the case, and they claim to have found witnesses who saw him being driven around by an unidentified person in the hours leading up to his death.

"Bobby didn't let anybody drive his car," said Catherine Bird. "He loved his Land Rover and didn't let a lot of other people drive it. The last time he was seen, someone else was behind the wheel."

Just before midnight, Greeneville Police Department officer Dale Estepp was dispatched on a report of a possible shooting victim at Bird's house on West Main Street. Estepp was met in the driveway by Bird's wife, Alison, who was standing beside Bird's 1994 Land Rover.

Estepp wrote in his offense report that he found a pale Bird slumped in the driver's seat of the Land Rover. There was blood on the side of Bird's head, on his chest and on the driveway.

"There was a small handgun lying on his chest in his hand," Estepp wrote in his report.

Although the case was initially labeled a suicide, the investigation into Bird's death remains open, and police detectives are still gathering information.

"We're still interviewing and talking with people as far as this case is concerned," said Detective Sgt. Michael Ottinger. "At some point, after we get the autopsy report back and we've talked to everyone, we'll present the case to a grand jury."

Dr. Ronald Franks, dean of medicine and vice president for health sciences at ETSU, is well aware of the problem with delayed autopsy reports. He also says he's pretty much helpless to do anything about it.

"Everyone, including us, is dissatisfied it's taking this long," Franks said. "But there's no other alternative, given the current facility."

Drs. Harlan and Wallen performed 327 autopsies last year in a laboratory that only has enough refrigerated space to handle two bodies at a time, he explained. The facility was originally built to handle only 30 autopsies a year, and there simply isn't enough money available in the state's current budget climate to build another one.

"We're doing well over 10 times the amount we were built for," he said. "The problem is that you just can't push that many people through these facilities even if you had an additional pathologist. ... We've had strong support from the governor's office, from the county executive, county attorney, DAs, and legislators, all of whom want to give us a new facility."

The region's congressional delegation has secured $500,000 in federal funds for a new center, but the state simply doesn't have the money to spend on capital projects to pay its share of the bill, Franks said.

"We understand this is one of their highest priorities," he said. "We have a new facility in the planning stages, and we have a building available."

When asked why another state office couldn't help with upper East Tennessee's caseload, Franks replied: "No one wants to transfer autopsies to another area of the state because our quality is outstanding and because it's difficult to get somebody to come up to the scene of a crime. If they're from Knoxville or Nashville it's particularly problematic since they have to come back and testify. If they're not in the area, it makes it very hard to coordinate."

The college has contracts with eight counties in upper East Tennessee. None of the counties pays for individual autopsies. Instead, they pay a flat annual rate and the center performs all the autopsies that are needed.

The center performed 236 autopsies in 1997. The number was 229 the following year but jumped to 263 in 1999. In 2000, 323 autopsies were performed by the two pathologists.

According to information provided by ETSU in response to a News-Sentinel request under the Public Records Law, Harlan draws an annual salary of $152,770 and Wallen makes $127,310. Their salaries aren't factored into the center's annual budget, which is currently $231,000.

As for the Bird case, Franks said the hospital prioritizes cases depending on whether a crime appears to have been committed.

"There's a need to move criminal cases to the front of the line," he said. "The indications are that this is not a criminal case, so it's not at the front of the list. Both our forensic pathologists and the police information that was shared with me suggest this is not a criminal case."

Harlan and Wallen declined to be interviewed.

Under state law, pathologists must submit copies of autopsy reports to the state medical examiner's office in Nashville as well as to the local district attorney. The law doesn't spell out how long the process should take, and officials say turnaround times differ drastically from one region to the next.

"It seems that some cases (from Quillen College) are getting to us within the period of six to 12 months after the autopsy is performed," said state Medical Examiner Dr. Bruce Levy. "I would say there are other practitioners that are running about that time, and many others that are a lot shorter than that. We have a mix."

Levy said he's received complaints about the long wait for reports in upper East Tennessee and it's his understanding that the facility "is completely inadequate" for the complicated procedures required in a full autopsy.

"Basically, you start with actually performing the autopsy and releasing the body to the family," Levy said. "That takes a day or so. Then you're going to have tissue that needs to processed and examined under a microscope. You're going to send out various blood tests to laboratories to look for the presence of, for instance, drugs and alcohol or maybe different chemicals.

"When you have to wait for the results of those tests to come back, you sometimes end up having to wait for another lab to complete its work before you can complete yours. ... When you finally get the results back, you have to go back through your report, correct it and make sure it contains everything that's pertinent.

"In some cases, you get back the initial information, and then you have more questions. Sometimes the answers you get pose more questions . . . and more testing needs to be performed."

In addition to overseeing forensic services across the state, Levy also heads the medical examiner's office for Davidson County. The four pathologists employed at the Nashville center handle autopsies for 18 counties and have an average turnaround time for autopsy reports of six to eight weeks.

"Some come out earlier than that, and some come out later," Levy said.

Knox County Medical Examiner Dr. Sandra Elkins said her office will probably perform about 300 autopsies this year, plus 1,500 "death investigations" where a full postmortem exam isn't necessary. The office also handles about 50 autopsies a year for the University of Tennessee Medical Center.

"As you can see, a lot goes on around here besides just the autopsies," Elkins said.

Elkins is one of two full-time pathologists working for Knox County. Her office also has contracts with 14 other East Tennessee counties and has an annual budget of around $450,000.

The turnaround time for an autopsy report in Knox County is approximately six weeks, she said.

Law enforcement officials in upper East Tennessee are quick to acknowledge the scale of the problem at the Quillen College of Medicine. Like Franks, they lay the blame squarely on inadequate funding from the state and point to the facility's shortage of personnel and aging laboratory facilities.

"Basically, the two pathologists are working as hard as they can with the resources they have available to them," said Assistant District Attorney Victor Vaughn of the First Judicial District, which encompasses Carter, Johnson, Washington and Unicoi counties. "It's to the point where it's more than they can handle."

Homicide trials have been postponed because of the long delays at the forensics center, he explained, although the damage done to the system isn't as great as some might suppose.

"As a practical matter, from the time an incident happens - particularly in a homicide case - until you get through the preliminary hearing and it's bound over to a grand jury for indictment, you're normally talking about three to four months, minimum," he said. "Normally it's not a problem. But there are incidents, like a vehicular homicide case that I had ... I also believe there was a homicide in Mountain City where the case had to be continued because the autopsy report hadn't been filed."

Berkeley Bell, district attorney for the region covering Greene, Hamblen, Hancock and Hawkins counties, said the problem has caused a major problem for the region.

"It delays us going to trial, mainly," he said. "I guess that's the principal delay that we have because we like to set our cases early and dispose of them early. If we don't have an autopsy report - which we many times don't have when we set a case (for trial) - we have to ask for a continuance."

He also said the circuit court system that's in place in rural areas exacerbates the problem because cases are prosecuted by county on a rotating basis.

"We're not in one location all the time," he said. "We're only there (in any one county) for three months."

Like Vaughn, Bell stressed that he doesn't think the pathologists in Johnson City are responsible for the delays. "They do everything they can to provide us with the information we need to determine the cause of death," he said. "I don't see how they take it. It's just such a tremendous job, and they are so limited."

As the chief prosecutor for the district where Bird lived and died, Bell is preparing to take the case before a Greene County grand jury but can't go forward until the report is received.

"Although they (the pathologists) have told us over the phone what they're findings were, there's a question of whether it's a homicide or a suicide," Bell said. "It's a big issue. Of course, having the autopsy report would be beneficial, not only to us but to the family as well."

The problems caused by the lack of timely autopsy findings aren't just logistical. They could conceivably threaten the integrity of the whole criminal justice system, according to First Judicial District Public Defender David Bautista.

"There is a saying that justice delayed is justice denied, and in some cases that's true," Bautista said. "It is indeed a serious problem because the wheels of justice are going to grind to a halt unless something can be done."

One key issue is the constitutional right to a speedy trial that all criminal defendants can invoke. Conceivably, a long enough delay between indictment and trial could be used as a reason to toss out a charge or even a conviction if the courts believe a defendant's right to a speedy trial has been compromised.

While judges are generally sympathetic to the needs of prosecutors and are therefore unlikely to throw out a case due to an overdue autopsy report, a long enough delay can present insurmountable difficulties for both sides, Bautista said.

"With the passage of time, memories grow short, witnesses die or move away or just disappear," he said. "It just creates all kinds of problems for the prosecution and the defense. The longer the case drags on, the more problems can arise."

While the public defender for Bell's district, Greg Eichelman, said the situation hasn't grown severe enough for the speedy trial rules to become an issue, he pointed out that circumstances might arise in the future where they could become central to a case.

"I don't know what the future's going to be," he said. "There could be a case where the cause of death is dramatically different from what the prosecution expects. ... But if the choice is between an autopsy or a toxicology report done well and one that's done sloppily to satisfy a time limit, I believe I'd rather have the good work."

Not having an autopsy report can have fallout on civil lawsuits as well as criminal proceedings. Everything from life insurance claims to wrongful death lawsuits are affected if a cause of death can't be established.

Without a death certificate, for instance, it's impossible to collect on many life insurance policies, according to the Bird family's lawyer, C.J. Gideon of Nashville.

"The autopsy reports are of critical importance in civil litigation," Gideon said. "If the report is accurate, it identifies the manner of injury and the cause of death, and that is a central issue in all personal injury and wrongful death litigation."

As a matter of law, death certificates often can't be filed unless a cause of death is confirmed through a complete postmortem exam, said Levy.

"If the cause of death is awaiting the results of an autopsy, then you wouldn't be able to complete a death certificate until you had a cause of death available," Levy said.

Ed Sempkowski, a trial attorney in Hamblen County with extensive civil litigation experience, was dismayed to learn of the situation at ETSU's facility.

"The autopsy is just critical to the preparation of a plaintiff's case in a wrongful death case," Sempkowski said. "You're going to have to prove that the death of the plaintiff's (next-of-kin) was proximately caused by some event. Without the autopsy report, you have no expert proof of that requirement."

Because there's a 12-month statute of limitations on most civil actions, Sempkowski said the best move for an attorney faced with such a dilemma would be to go ahead and file a lawsuit without the report.

"It certainly means there's a distinct possibility the case will be continued and delayed," he said. "You always want to go to trial as quickly as you can. ... It certainly impacts your ability to present the case to a jury as expeditiously as you would like."

Gideon says it's sometimes easy to forget the emotional pain inflicted on individual families when discussing the abstract legal repercussions of the situation at ETSU.

"There's another issue, one that's personal," he said. "That issue is closure for the families. They want to know why their family member died."

That is where the Bird family finds itself, with no option but to keep waiting and hoping that the courts provide them some relief. Knowing the ins and outs of the college's financial woes are at best cold comfort to them.

Their list of questions grows longer with each passing day. They wonder if the police paid enough attention to the case at the beginning or if key pieces of evidence were overlooked. They even wonder if the Quillen Medical Center isn't trying to somehow force the state to cough up money for a new facility by triggering a crisis.

"I think the police wanted to sum it up as a suicide from the beginning," Catherine Bird said. "They didn't tape the area off. They didn't check the inside or outside of the house, nothing."

Bird's relatives pointed out that no suicide note was found, and are skeptical of suggestions that he might have been depressed or intoxicated enough to take his own life.

"The neighbors weren't even questioned after he died, so we went around and questioned them," said Lura Bird Brothers. "There's not a person in this town who thinks he killed himself.

"We don't know why he would commit suicide. We don't know if the police botched the scene. We just don't know any answers at all. Nothing's making any sense at all."

J.J. Stambaugh may be reached at 865-342-6307 or [email protected].

Publication  Knoxville News-Sentinel