Defense attorney questions empty chair when Dr. Sam Andrews fails to show up to testify

A defendant is acquitted of murder, but her attorney believes her constitutional rights were...
A defendant is acquitted of murder, but her attorney believes her constitutional rights were violated by not being able to cross examine the doctor who performed the autopsy in the case.
Updated: Feb. 21, 2019 at 3:52 PM CST
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LUBBOCK, TX (KCBD) - In a Travis County district courtroom, defense attorney Brian Erskine turned to an empty chair where he had hoped to question the forensic pathologist who performed the autopsy in the murder case.

Dr. Sam Andrews, now the Lubbock County Chief Medical Examiner, had previously worked as a medical examiner in Travis County, where he performed the autopsy on Bradley Sullivan, who died on December 31, 2017.

“The willful absence of Dr. Andrews, who conducted Mr. Sullivan’s autopsy, made our case incredibly difficult,” Erskine said.

Erskine was representing Sullivan’s fiance, Charity Ellis, who was charged in his shooting death.

Sullivan told the jury she was defending herself and her daughter when she shot and killed Sullivan.

Ultimately, the jury acquitted her of murder and all other charges on Friday, February 15, 2019

“The outcome of the trial is what we want, but it didn’t even need to get that far,” Erskine said.

Erskine said the defense and the state subpoenaed the author of the autopsy, Andrews, to testify in the case.

Erskine said they began the trial on February 11th, but they announced for trial on the 7th.

“Interestingly enough, the prosecutor’s office here (Travis County) did not let us know about Dr. Andrews’ issues until February 6th, so literally the evening before we were announcing we were ready for trial,” Erskine said.

Prosecutors reportedly told Erskine they had learned Andrews was under investigation by the Texas Rangers and the Texas Medical Board.

As the KCBD Investigates Team has previously reported, these investigations began after complaints were filed when Andrews and the company who employs him, National Autopsy Assay Group Pathology Labs out of San Diego, took over the Lubbock County Medical Examiner’s Office in August 2018.

“Our understanding, or at least what was told to me, was there were issues about him collecting fetal tissue for his own research as well as falsifying reports and letting unqualified individuals perform parts or all of autopsies. Honestly, I am not sure about the specific allegations; I was just given general statements,” Erskine said.

After learning about these allegations, Erskine said the state decided against putting Andrews on the stand.

Instead, Erskine said the state brought in another forensic pathologist who reviewed Andrews’ work and served as an expert witness as to the cause of death in the murder.

“It fundamentally impedes the fairness in the judicial process. Quite frankly, for the state to do that, knowing that this individual wasn’t there, that is a poke in the eye in due process and fundamental fairness,” Erskine said.

Erskine said he exhausted every effort to put Andrews on the stand, but the court ruled for the trial to continue without the testimony of the forensic pathologist who performed the autopsy in this case.

“Cause of death is an important subject for jurors to hear about, and if that person who made that determination’s credibility is in question, that is even more important for a jury to consider,” Erskine said. “Our inability to confront his specific bad acts and misconduct and talk about the investigation further handcuffed our defense’s strategy.”

Erskine believes his client’s constitutional rights were violated due to the inability to question the person who performed the autopsy.

“I can’t cross examine a piece of paper," Erskine said.

During his closing argument, Erskine pretended to question Andrews.

“Dr. Andrews, can I ask you few questions?” Erskine asked the empty witness chair before the jury.

“Obviously the silence that emits in that room speaks volumes to the jury about what is absent and what is necessary to prove beyond a reasonable doubt a crime like murder. That was essentially the only effective way we could really address the elephant in the room, which was Dr. Andrews’s absence,” Erskine said.

While this Travis County case proceeded without Andrews, another case in Travis County is delayed.

The defense attorney in that capital murder case filed a motion for continuance after learning of the allegations out of Lubbock County and reading the transcript from a previous Travis County murder trial where Andrews changed the cause of the death during the trial.

The judge granted that attorney’s motion for continuance.

Meanwhile, the Lubbock County District Attorney’s Office is not trying any cases involving the current medical examiner’s office until the Texas Rangers have completed their investigation.

FULL COVERAGE: KCBD Investigates Lubbock County Medical Examiner’s Office

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