AUSTIN (KXAN) — 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, 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.
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 witnesses.”
KXAN asked officials with the Travis County District Attorney’s office if they have concerns about using Bayardo’s testimony at this point.
Buddy Myer, trial bureau director in the DA’s office, said Bayardo’s memory is a concern, but “it is a concern that we will deal with.”
The DA’s office would not put Bayardo on the stand without making sure his findings are scientifically based and he is able to recall his autopsy, Myer said.
“If he could refresh his memory with the notes and reports and he can recall that, then that would not prevent him from testifying,” Myer said.
If Bayardo is deemed unfit to testify, Myer said, the DA’s office could call on an outside expert to come in, review the autopsy report and offer testimony.
Memory 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 her husband’s 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.”
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SOURCE: Travis, Williamson, Kerr, Ector, Victoria and Falls county auditors.