We have an intoxication manslaughter that occurred ten days ago in our county. We just found out that the JP pronounced the defendant dead at the scene and saw no need for an autopsy. Has anyone dealt with this before? It seems that we should have the body exhumed and an autopsy performed ASAP.

Any help would be greatly appreciated.

[This message was edited by JSH on 09-30-10 at .]

Brian Baker in our office tried an intox manslaughter last year without an autopsy. Guilty and 4 years to do with a deadly weapon finding. Give him a call before you exhume. He's at the Brazos County District Attorney's Office at 979-361-4320.

Shane is right. It can be done.

I know no one wants to add a quasi-circumstantial element such as the cause of death since no autopsy to an IM case, but I doubt any sort of meaningful autopsy could be performed if the body has been embalmed.

I'm guessing your officers did not take pictures of the scene and the decedant which could help prove the cause of death?

In addition to Shane's recommendation, email Clay the dwi guru and John the appellate guru. That's what they're there for.

Meanwhile, you might want to meet with your JP's and explain to them the purpose of an autopsy.

I have talked to the family and they are fine with doing an exhumation. The cause of death is clearly blunt force trauma. It is obvious from the photos. I just hate to leave an element of the crime open to attack, however absurd.

Glad they got pictures.

Ask your ME about decomposition and about the chemicals used in embalming fluid(s) and what their effect on the tissue, organs, and skin, etc will be based on any effect of chemicals and on the amount of time since the death. I'm pretty sure that with embalming, it may be difficult or impossible to test for various purposes.

Also, does victim have any recent medical exams, a regular family doctor who was familiar with his general health, a yearly physical or any documentation by medical professionals that would show but for the accident, he had no health conditions that would have killed him immediately before the accident?

I could imagine a few disingenuous defense attorneys arguing "What if he had a heart attack a few seconds before this accident happened, before he knew (if he did) that he was going to be in a bad collision". Worse, I could imagine a juror or jurors buying that dribble.

Also, I'd recommend taking all of the scene photos, accident and police reports and any medical history you could gather on your victim to the ME to see what certainty he could testify that the cause of death was because of this instance BRD.

You probably did this stuff already, but I thought I'd throw it out there.

I have seen across the State a number of such cases without an autopsy. Talk to your ME before you exhume, have the funeral home send records to ME, give them photos. No need to put the family through that unless the ME says there is some value. The ME will then be able to explain to the jury why or why not.

As to the JP, teaching time! This has been an issue they have recieved training on for the last 5 years. Numerous articles, classes and conversations have been had. Now due to deliberate stupidity they endanger citizen's chance to have justice in a case. Make sure there is not a next time. If you say nothing there certainly will be one.

Because of the liability issues in auto wrecks, perhaps a JP should have duty to obtain an autopsy or at least to secure the collection of samples in lieu of a full autopsy. Since JPs need not be lawyers, it is surprising to learn that they have so much discretion. See CCP art 49.10.