Callery's behavior could jeopardize homicide cases

• One case already has been resolved with a plea deal and prosecutors are trying to rescue the others
• Use of a surrogate for expert testimony is being challenged by defense lawyers and there is no clear precedent

WILMINGTON – In addition to thousands of drug prosecutions imperiled by the Delaware Medical Examiner's Office scandal, at least five homicide cases could be at risk because now-fired Chief Medical Examiner Dr. Richard T. Callery can't testify.

One case already has been resolved with a plea deal and prosecutors are trying to rescue others where Callery was the assigned pathologist by attempting to have an outside forensic expert review his work and testify to the findings.

In addition to the five cases, there could be others where Callery performed an autopsy in an as-yet unsolved homicide that could be difficult to prosecute once the killer is apprehended.

Defense attorneys are challenging the state's attempt to fix things by bringing in a surrogate, charging that doing so violates the defendants' constitutional right to directly confront witnesses against them.

Callery was suspended in February amid revelations that drug evidence had been tampered with or stolen from the medical examiner's office. He was fired earlier this month.

The scandal's impact ranges beyond just drug cases.

In at least one case argued before Superior Court Judge John A. Parkins Jr. on Wednesday, Callery's finding that a death was a homicide is key to the entire prosecution.

Initially, police believed the November 2012 death of Sean Sumner was an accident, that he was intoxicated after he left a Pike Creek bar, fell and suffered a fatal blow to the head that later killed him.

Days later, however, police became aware that as Sumner was leaving the bar he quarreled with Terence Young – an incident captured on video. Sumner was knocked to the ground. Callery determined that Sumner died of blunt force trauma and that the death was a homicide. Young was charged with criminally negligent homicide.

In court Wednesday, Young's attorneys, Eugene Maurer and Allison Mielke, suggested Callery's work was sloppy and that Sumner may not have suffered his fatal injury in the confrontation with Young but in a fall some hours later.

Sumner did not die until more than 12 hours after the incident at the bar and Maurer suggested that, if Callery had done standard tissue testing, he could have narrowed the time of death to show if the fatal blow came at the bar or hours later at the house where he was found.

The defense argument, Maurer told Parkins, is that Callery's autopsy "was so deficient that it shouldn't be relied upon" by the state's new expert, Professor Dr. Victor W. Weedn of George Washington University.

In court papers, attorneys also argued that Weedn would not be able to answer questions about observations Callery made, like the status of rigor mortis or the condition of the body at the time of the autopsy.

Weedn testified that in reviewing autopsy photos and other materials he independently came to the conclusion that Sumner's death was a homicide, but he said some facts from Callery's report helped support that opinion.

In Callery's dismissal letter, state officials charged he was guilty of "misconduct," misused state resources and neglected his duties as a manager.

He was in charge when drugs were stolen from the Medical Examiner's Office drug testing lab. Callery also is the focus of an ongoing criminal investigation for allegedly misusing state resources to conduct his private business as an expert pathologist for hire.

Deputy Attorney General Steven Wood said in court Wednesday that even if Callery could be brought into court to defend his autopsy, he would be subject to cross-examination, and if he refused to answer certain questions could prompt a mistrial.

Wood said it was nearly certain that the defense would ask questions related to Callery's behavior and problems at the lab, as a way to raise questions about his credibility. Wood said it was also nearly certain that Callery's private attorney would advise him not to answer because of the ongoing criminal investigations.

At the close of the hearing Wednesday, Wood told the judge that the case law regarding the use of a surrogate for expert testimony is mixed and there is no clear precedent that he could find.

Parkins did not immediately rule on the defense request to bar Callery's autopsy report, and bar Dr. Weedn from testifying.

Contact Sean O'Sullivan at 302 324-2777 or sosullivan@delawareonline.com or on Twitter @SeanGOSullivan