Author’s note: This is the last article in this three-part series looking into how Jaime Esparza handled capital murder cases and why it may have led to a political whisper campaign against the current district attorney. There are many other issues surrounding Jaime Esparza’s tenure as the district attorney which we plan to cover in future articles.

The medical examiner conducts autopsies and makes determinations about the manner of death of the individual they examine. It is their testimony in trial that the jury uses to decide on the guilt of an accused and sometimes the type of punishment an individual is punished with. This is especially important in capital murder cases where the penalty can be death. According to the El Paso Times in 2009, “a flawed investigation (autopsy) could let a violent criminal walk free or put an innocent man in prison.” [16]

The prosecution lawyers rely on the medical examiner to offer truthful testimony about the cause of death of a victim. It is that expertise that determines the prosecution of a defendant. As an expert witness the court must rely on the truthful testimony of the medical examiner. But what happens when a medical examiner is proven to be a liar? What happens when a prosecutor takes advantage of the lying?

Paul Shrode – The Lying Medical Examiner

Paul Shrode was hired as the medical examiner by El Paso county commissioners on October 31, 2005. [14] [19] In 2001, prior to working in El Paso, Shrode was “officially reprimanded by his supervisor in the Houston medical examiner’s office for reaching an erroneous cause of death determination.” [1] That was not enough to stop El Paso’s county commissioners from hiring him anyway.

Issues with Shrode’s qualifications as El Paso’s medical examiner were first raised in 2007, two years after he was hired. [13] During cross examination by defense attorney Theresa Caballero, [14] Shrode admitted, under oath, that he had lied on his resume. Shrode had added to his resume that he held “a law degree,” which he did not. [16] In addition to his lying on his resume, Shrode’s work as a medical examiner was being “discredited in numerous cases.” [13]

Although Shrode was shown to have lied about his credentials in 2007, the county commissioners refused to remove him from his position as the medical examiner for three years, even though the testimony he offered in criminal cases required that the jury believe Shrode to be a credible witness. Jaime Esparza publicly supported Shrode before the county commissioners.

On November 19, 2007, because of the ongoing controversy over Shrode’s quality of work and his truthfulness, the county commissioners took up the issue of Shrode’s future with the county. Veronica Escobar told the El Paso Times that she “was concerned he does not meet the minimum requirements established by the job description.” However, Escobar added that “she was not looking to fire or sanction Shrode,” but was “simply wanting more information.” [17] The county commissioners agreed to keep him as the medical examiner even though he had been proven to have lied on his resume. Veronica Escobar told the El Paso Times that she felt “good about the fact that we addressed the concerns head-on in a public and transparent way.” Escobar added that she “supports” Shrode. Escobar also said that “the issue of claiming a graduate degree in law on his résumé was not intentional misrepresentation.” [20]

Even after his falsified resume was exposed in 2007 and he told the county commissioners that it was a mistake, Shrode submitted an updated resume that again mischaracterized his credentials. In the updated resume he submitted to the county’s human resources department, Shrode clarified, “degree in law (graduate school of political science); Not a law degree.” However, the El Paso Times was unable to verify the claim of a “degree in law” and Shrode refused to answer questions about his academic history. [18]

In November 2009, a medical examiner watch dog, David Fisher, filed a complaint with the Texas Medical Board alleging that Shrode was unqualified to serve as El Paso’s medical examiner. Fisher alleged that Shrode “violated state law by falsifying his résumé to obtain the job of chief medical examiner of El Paso County.” [16]

Another issue pointed out by Fisher’s complaint is that that when the county hired Shrode in 2005, the position required that the candidate must be “board eligible in anatomic and forensic pathology.” Shrode’s eligibility expired in 2008 because Shrode did not take or failed the required exams. [16]

From 2007 through most of 2010, county commissioners refused to fire Shrode numerous times, because as then-county commissioner Dan Haggerty said, “it may be political.” Theresa Caballero was running against Jo Anne Bernal for Bernal’s county attorney seat. It was Caballero who first exposed Shrode’s credibility problems. [14] Supporting Shrode publicly during this period was then-District Attorney Jaime Esparza. Esparza told the El Paso Times in 2009 that Shrode “had proved himself to be a reliable witness.” [16]

Late in 2010, Shrode was fired. [13] After Shrode was fired by the county, the El Paso public defender’s office reviewed the cases that that Shrode testified in. Other jurisdictions where Shrode worked also began to question his credibility. Shrode’s testimony in an Ohio capital murder case forced the Ohio board of pardons to recommend overturning the death sentence of an inmate. [21]

Justice Served?

On January 19, 2016, Richard Masterson was executed by lethal injection [2] for the murder of Darin Honeycutt. [1] Originally Masterson had confessed to the murder as soon as he was arrested. However, during the trial Masterson recanted his confession. The day before Masterson was to be executed, attorney Gregory Gardner argued to the court that the execution should be delayed until a new hearing could address whether the medical examiner, Paul Shrode’s death determination “was skewed by his knowledge of the confession.” Gardner added that Shrode “missed some very basic medical principals” in the autopsy on January 28, 2001. Pathologist Dr. Christina Roberts reviewed the Masterson case file and determined that “the pathologist (Shrode) appears to have relied on the ‘confession’ and not on any independent scientific observation.” [1]

In his petition to the Texas Board of Pardons, shortly before Masterson’s scheduled execution, his attorney applied to have the pardon board commute Masterson’s sentence. In the application, the attorney representing Masterson wrote that the “state’s expert witness, Paul Shrode, is a fraud.” [15]

James Montoya and Denise Butterworth

On June 9, 2016, Denise Butterworth was forced off a capital murder case because defense attorneys convinced the judge that Butterworth had improperly become a witness by attending the interview of one of the witnesses. Prosecutors are not allowed to put themselves in the position of having to testify in court about a case they are prosecuting. [3]

However, on November 30, 2016, the Texas Eighth Court of Appeals reversed the judge’s ruling and reinstated Butterworth to the prosecutor’s team. The Court ruled that “Butterworth’s presence at the interview and limited participation” did not “amount to a violation.” [4]

On May 21, 2018, an El Paso judge amended a prosecutors’ dismissal order on an aggravated murder case because the original dismissal order “was vindictive”. The dismissal order stemmed from the case of a Fort Bliss soldier that was accused of killing an El Paso constable in 2014. Prosecutors were forced to dismiss the case after failing twice to convict the former soldier. In both court cases, the jury was deadlocked 11 to one in favor of acquittal, according to the defense counsel. Unable to convict the soldier, prosecutors submitted a dismissal order that made it impossible to expunge the prosecution from the soldier’s criminal record in the future. [10]

Defense attorney Adolfo Quijano, Jr. told the judge that the “motion to dismiss basically states that they (prosecutors) are unable to convict our client and so they want to make sure that he can never expunge this case and he will have to live with a capital murder charge over his head for the rest of his life.” [10]

Quijano added that “there were 22 people in this community who believed there was insufficient evidence to convict” the former soldier, “but the DA doesn’t want to listen to that.” Quijano went on to add that the “district attorney has been in office way too long…he has a great amount of power and he ultimately comes to believe that everyone is guilty.” [10]

The two prosecutors who tried the case were James Montoya and Denise Butterworth. Butterworth told the El Paso Times in 2018 that “a hung jury does not mean that there were jurors saying he was not guilty.” She was talking about the case. Montoya said during the trial that “I want to hurt him (the soldier being tried by him)…I want to make sure he never gets an expunction, because you know that we can’t win in trial, so what we will do is punish him,” according to Quijano. The dismissal order was changed to allow for a future expunction of the case. [10]

The Brady Letter

The United States Supreme Court ruled in Brady v. Maryland (373 US 83, 87 – 1963) that a defendant has the right to know about anything that would show their innocence. Under Brady, prosecutors are required to notify the defense lawyers of any material that could potentially prove the defendant’s innocence. In addition to evidence, prosecutors are required to disclose any misconduct by them or anyone helping them with the conviction.

Brady letters are usually used to report police officers who have credibility issues testifying in court. For example, prosecutors must report a police officer who has lied in previous court testimony to the defense lawyers. However, Brady letters are also used to notify defense attorneys of anything that can benefit the defendant.

After spending 25 years in jail, Andre Hatchett was exonerated for a murder he did not commit in 2016. Among the prosecutor’s misconduct used to prove Hatchett’s innocence was that the prosecutors never told the defense lawyers “that the only eyewitness to the crime initially identified someone other than Hatchett as the perpetrator” of the murder. Terry Williams, who committed murder in another case, used Brady to have his death sentence vacated after Williams proved that the prosecutors “concealed evidence of the extensive history of sexual abuse” he endured as a child. [5] The Williams case shows that Brady material can also be used to mitigate the penalty against a defendant, whereas the Hatchett case demonstrates that Brady can be used to exonerate someone convicted of murder.

Thus, Brady material not only can be used to prove innocence but can also be used to mitigate the punishment. In either case, the prosecutors are duty bound to report anything that favors the defendant.

In 2010, the El Paso Public Defender’s Office received a letter from two assistant district attorneys alleging that a colleague had committed misconduct in a capital murder case. (State of Texas v. Felipe Devora 20090D03931, 384th Judicial District Court) The letter alleged that the assistant district attorney had the ability to influence what the medical examiner, Paul Shrode, wrote in the autopsy report about the cause of death in a capital murder case. The cause of death not only is used to prove a crime was committed but is also used to apply the death penalty.

Who was the prosecutor? It was Denise Butterworth.

Readers will remember that in our previous article we noted that Denise Butterworth was one of the assistant district attorneys prosecuting Daniel Villegas for the third time after a judge had ruled that Villegas was “factually innocent”. The second was James Montoya.

The Brady letter was basically saying that Denise Butterworth was alluding that she could get the medical examiner to issue an autopsy report with the elements she wanted on it. In other words, Butterworth was alleging that she had the ability to have the medical examiner make the determination she wanted on any case she was inclined to prosecute or ignore.

The allegation was that the medical examiner was no longer the determiner of the facts behind a crime but was now conspiring to create autopsy reports that supported the prosecutors’ cases.

The Brady letter against Butterworth was sent by Assistant District Attorneys Diana Meraz and Amy Monsivais, two prosecuting attorneys working in the same office as Butterworth.

The case that Meraz and Monsivais were prosecuting was a capital case that the district attorney’s office was seeking the death penalty on. According to a deposition of Meraz on August 18, 2010, it was Butterworth who initially handled the case for the district attorney’s office. It was Butterworth who indicted the defendant in the death penalty case.

Meraz said in her testimony that the prosecutors were discussing whether to reindict the defendant because there were inconsistencies with the autopsy report. As the prosecutors were discussing this with Butterworth, Butterworth told them that she “was real careful” when she made the indictment and explained how she discussed the autopsy report with Shrode. According to the testimony, Butterworth told Shrode that he couldn’t put his proposed finding on the autopsy report because “that will screw us”. Butterworth explained to the two prosecutors that she “steered” Shrode in “the right direction” for the autopsy report.

The medical examiner that Butterworth was accused of being able to influence was Paul Shrode, the lying medical examiner.

Ten Years Later

It took over ten years for the community to learn that a prosecutor in Jaime Esparza’s office was accused of serious wrongdoing by two other prosecutors in the same office. Readers should take note that the allegation of serious wrongdoing by Denise Butterworth in a capital murder case involving the death penalty only came to light after a new district attorney took office. Butterworth continued to prosecute criminal cases for Jaime Esparza for years after she alluded to two other prosecutors that she had influence the autopsy reports that Paul Shrode produced.

As readers will note, Shrode has been proven to have lied. Questions about Shrode’s ability to conduct autopsies have been raised as well. Combined with the allegation that a prosecutor, Denise Butterworth, could influence Shrode’s reports raises the question of how many other cases, especially capital murder cases, were influenced by Shrode’s questionable autopsies or by Butterworth’s “influence” over him. In other words, how many more Daniel Villegas sit in prison today because of the allegation?

The Political Whisper Campaign

When Jaime Esparza announced that he was not seeking reelection, four individuals ran in 2020 to replace him as the district attorney. They were James Montoya, an assistant district attorney in Esparza’s office, Roger Montoya, Karen Dykes and Yvonne Rosales. “A majority of employees of the El Paso County District Attorney’s Office” donated to James Montoya’s campaign, including Denise Butterworth. [9]

Jaime Esparza, the outgoing district attorney, started on January 1, 1993. His last day was December 31, 2020. Denise Butterworth worked for Esparza for 20 years of the 27 years that Esparza worked as the district attorney. [11]

Yvonne Rosales won the 2020 District Attorney race by defeating James Montoya. On December 2, 2020, James Montoya posted a video on Facebook stating that “over 50 employees of the District Attorney’s Office were notified that they would be terminated” by incoming District Attorney Yvonne Rosales. James Montoya told viewers that he did not reapply for his job as a prosecutor because during the campaign he realized that “Rosales and I have very divergent prosecution philosophies and values and very different ideas about what we would change at the DA’s office.” Montoya opined that the “massive turnover” would cause cases to “fall through the cracks”. [7]

It appears that it is this video from where a sustained news media campaign was started scrutinizing the work of the district attorney’s office under Rosales. A few days after Montoya posted his farewell speech, on December 7, 2020 the El Paso Times reported on the departures of 25% of the office’s staff that would not be returning when Rosales took over in January 2021. In addition to Montoya not reapplying for his position, two other attorneys, who supported his campaign, also did not reapply. Denise Butterworth was one of them. [6]

Author’s comment: In politics, context is important to understanding why certain issues are raised and others are ignored. All elected officials should be scrutinized, especially those who have the power to incarcerate individuals or send them to their deaths. Who is targeted for scrutiny must be weighed against the context of why they are targeted. What is the agenda?

Editor’s note: The narrative about the ability for Denise Butterworth being able to influence the autopsy report signed by Paul Shrode, the medical examiner, is derived from two oral depositions on August 18, 2010 of Amy Susan Monsivais and Diana Estela Meraz. We are making the testimony available as downloadable files below so that readers can read the testimony for themselves.

Click to download the Oral Deposition of Diana Estela Meraz, August 18, 2010
Click to download the Oral Deposition of Amy Susan Monsivais, August 18, 2010

Footnotes:

1. Jordan Smith, “Did A Dubious Confession Sway A Medical Examiner’s Autopsy In A Death Penalty Case?,” The Intercept, January 19, 2016.
2. Jolie McCullough, “Texas Conducts First Execution of the Year,” Texas Tribune, January 20, 2016.
3. Aaron Martinez, “Judge recuses prosecutor in capital murder case,” El Paso Times, June 9, 2016.
4. Aaron Martinez, “Court orders prosecutor reinstated in capital case,” El Paso Times, December 1, 2016.
5. Jason Kreag, “Disclosing Prosecutorial Misconduct,” 72 Vanderbilt Law Review, 297, 2019.
6. Aaron Matinez, “El Paso District Attorney’s Office to lose 25% of staff as Yvonne Rosales takes post,” El Paso Times, December 7, 2020.
7. James Montoya, 2020 Candidate for District Attorney, Facebook video posted on December 2, 2020.
8. The State of Texas v. Daniel Villegas, Court of Criminal Appeals (PD-0053-17), January 20, 2017.
9. Aaron Martinez, “Lawyer Karen Dykes holds slight lead in donations for El Paso district attorney seat,” El Paso Times, January 18, 2020.
10. Aaron Martinez, “Charge dropped against former Fort Bliss soldier accused in El Paso constable’s death,” El Paso Times, May 21, 2018.
11. Aaron Martinez, “Esparza seeks to head US Attorney’s Office of West Texas after three-decades as DA,” El Paso Times, December 23, 2020.
12. Aaron Martinez, “Luis Solis-Gonzalez pleads guilty in 3 murders, gets life in prison, avoids death penalty,” El Paso Times, July 12, 2018. (used for case reference)
13. Jeffrey Hardin v. Ohio, “Brief of the Innocence Network As Amicus Curiae in Support of Petitioner,” Supreme Court of the United States, No. 14-1008, March 23, 2015.
14. David Crowder, “El Paso medical examiner to keep his job,” El Paso Inc., January 18, 2011.
15. Amended Application For Commutation Of Sentence Or, In The Alternative, A Reprieve, re: Richard Allen Masterson, January 5, 2016.
16. Darren Meritz, “EP medical examiner’s credentials questioned,” El Paso Times, November 27, 2009.
17. Erica Molina Johnson, “Medical examiner under review,” El Paso Times, November 19, 2007.
18. Darren Meritz, “Questions surround EP medical examiner,” El Paso Times, December 20, 2009.
19. Erica Molina Johnson, “EP hires Lubbock coroners,” El Paso Times, November 1, 2005.
20. Erica Molina Johnson, “Medical examiner is qualified, court says,” November 20, 2007.
21. “Review of ex-official’s cases widens,” Fort Worth Star Telegram, June 7, 2010.

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