Current Maricopa Co. forensic pathologist was reprimanded by Navy

A Maricopa County forensic pathologist got into some serious trouble with the United States Navy and why some are questioning his judgment.

A former Navy doctor’s past revealed: He insulted the memory of a dead Marine by bringing one of his internal organs home for "Show and Tell" with his family.

Recent investigations have uncovered a number of employees at the Maricopa County Medical Examiner's Office with questionable pasts -- many of whom serve as expert witnesses for the state in high-profile murder cases.

The latest is Dr. Mark Shelly, whose past conduct is raising questions about his hiring in Phoenix. 

RELATED: 

• Records show improper conduct, policy violations by Maricopa Co. Medical Examiner employees

• Lab director's criminal record uncovered; what does it mean?

Heroes who put their lives on the line for the country deserve dignity and respect in death from all Americans.

But especially from the person tasked with handling a service members remains. Forensic pathologists perform autopsies to determine causes of death, sign death certificates and provide expert testimony in criminal and civil court cases.

Shelly is now a forensic pathologist who works for the Maricopa County Medical Examiner's Office.

What did the county know when they hired him?

A forensic pathologist’s past

Shelly doesn't want to talk about what he did in 2011. He was transporting a Marine Corps sergeant's brain for further examination when he failed to follow protocol – something that got him in serious trouble with the United States Navy and has some questioning his judgment.

A decorated commander in the United States Navy, Shelly was commissioned with the Navy Reserve at the Bureau of Medicine in Bethesda, Maryland, in 1994.

He detached in June 1998 and went directly to the Navy Reserve Personnel Command, serving until 2006. From there he did his post-graduate professional training in St. Louis, Missouri, until September 2007. He immediately went to work at the Armed Forces Institute of Pathology in Washington, D.C., staying until August 2009. In October 2009, he went from Navy Reserve to Active Duty.

His last assignment – where he would get into trouble – was as a military medical examiner for the Naval Medical Center in Portsmouth, Virginia. There he handled autopsies for military members up and down the Southeast coast.

According to his service records, Shelly received several awards, including the Joint Service Commendation Medal, Meritorious Unit Commendation, National Defense Service Medal and the Global War on Terrorism Service Medal.

On December 20, 2011, Shelly was at the Marine Corp base in Camp Lejeune, North Carolina, performing an autopsy on a sergeant who was found dead in his home.

After the autopsy, Shelly was tasked with retaining the Marine's brain for future neuropathological examination. He drove the brain, stored in a stock jar, back to Virginia.

Shelly was supposed to take it the Portsmouth Naval Hospital where he worked. But he took a detour to his home.

Records show he removed the sergeant's brain from the jar, held it and allowed his young children to handle the brain while his wife took photographs.

Shelly delivered the brain to the Portsmouth Naval Hospital the next day.

An anonymous caller reported his actions to the police.

The Virginia Medical Board launched an investigation into allegations Shelly may have violated the law and regulations. The doctor ultimately entered into a consent order with the board on June 25, 2012, without admitting guilt. He was reprimanded and ordered to pay a $2,500 fine for his alleged misdeed.

Investigative documents from the Virginia Medical Board reveal that the neuropathologist who autopsied the brain confirmed that Dr. Shelly's actions did not impact on his ability to determine the cause of death of the Marine Corp sergeant.

“Further the neuropathologist was unable to tell by examination that the decedent's brain had been touched in anyway,” records said.

In the agreement, Shelly neither admitted or denied the truth and agreed not to contest the findings of the Virginia Medical Board’s investigation.

Meanwhile, the Navy launched an investigation. Shelly was put on desk duty, his hospital privileges were suspended, and he was not allowed to do anything clinical.

Navy records show Shelly received a written reprimand for dereliction of duty for failing to maintain control of evidence in the investigation into the Marine's death.

Shelly also failed to get permission to have an off-duty job as a local medical examiner and was reprimanded for making "false official statements" to the Navy about that off-duty job, records show.

The off-duty job was with the Office of the Chief Medical Examiner in Norfolk, Virginia. According to records, Shelly worked eight hours a week taking calls to determine which cases fell under the medical examiner’s jurisdiction.

According to Navy records, he failed to disclose in a November 2009 employment questionnaire for Portsmouth Naval Hospital that he had been employed as a local medical examiner for the Tidewater Region of Virginia. He was terminated from the Tidewater Region job on January 20, 2012, after the chief medical examiner learned about the incident with the Marine’s brain.

On December 6, 2012, the head of Medical Staff Services at Naval Medical Center Portsmouth Patricia K. Saunders wrote, "Issues concerning his failure to maintain control of evidence were referred to a peer review panel which resulted in a recommended adverse privileging action. That action is pending review at Navy Medicine Headquarters."

Records further show that in June 2012 the Commanding Officer of the Portsmouth Naval Hospital recommended that Shelly's privileges be revoked for the alleged unprofessional behavior. However, a final decision was pending from the Surgeon General of the Navy.

On October 12, 2012, Shelly wrote to Kathy Fowkes, with the Arizona Board of Osteopathic Examiners, that his clinical privileges as both a forensic and anatomic pathologist were suspended in January 2012. He wrote, 'Since January, I have dealt with both legal and administrative Navy issues, looked for civilian jobs, gone to interviews etc. I have remained in my office at the Naval Medical Center in Portsmouth, VA but have not been allowed to do anything clinically."

Shelly added in the letter that he would be out of the Navy within three to four months. 

What did Maricopa County know?

Shelly wrote the Arizona Board of Osteopathic Examiners in late 2012 because he had a conditional offer for a position with the Maricopa County Medical Examiner's Office, but needed a license from to work in this state.

He disclosed what he'd done on his application. 

In a letter to the board, Shelly said his children expressed an interest in his job so he showed the brain to them. He explained what the different parts of the brain and how it works.

READ: Shelly's full letter to the Arizona Board of Osteopathic Examiners

He gave some insight into the deceased Marine Corp sergeant’s death, that the Marine was found unresponsive at his home near Camp Lejeune and couldn’t be resuscitated. The autopsy, Shelly wrote, demonstrated coronary artery disease as the likely cause of death. In addition, Shelly wrote that the Marine had a medical history significant for multiple sclerosis and other conditions which is why Shelly retained his brain for future neuropathological examination at Dover Air Force Base.

Shelly wrote that he allowed his children to gently feel the brain while wearing plastic mittens and that he "emphasized respect for the decedent the entire time we examined the brain, which was no more than approximately 3 minutes."

But he didn’t disclose that he allowed his wife to take pictures.

Shelly wrote that he exercised extremely poor judgment and he deeply regretted the pain he caused the sergeant’s family.

Board members questioned Shelly about the incident, but the meeting wasn't recorded and minutes from the meeting were not taken.

The board has Ottmar and Associates, a court reporting service, transcribe the minutes. But the company confirmed they were told not to transcribe this case. The board’s Executive Director Jenna Jones confirmed they have different policies in place now with regards to transcription.

Without a recording or minutes, there’s no way to know what Shelly was asked or how he answered.   

Two of the seven board members voted against him – Dr. Douglas Cunningham and Dr. Mary Ann Picardo – but Arizona granted him his medical license despite the incident.

In June 2013, Maricopa County hired Shelly and he's worked there ever since. 

Maricopa County says Shelly disclosed the incident with the Marine’s brain to the chief medical examiner and director at the time he was hired.

Shelly also let them know he had been terminated from his off-duty job – the job the Navy reprimanded him for making false statements about – saying only that he was fired due to Naval legal issues.

His file doesn’t further explain his record with the Navy and he was unwilling to speak with us when 12 News approached him.

Maricopa County declined our request for an interview, saying the incident was fully investigated by the Navy, Shelly was honorably discharged and he disclosed the investigation during the interview process.

Maricopa County Director of Communication Fields Moseley released a full statement on behalf of the county.

Statement from Maricopa County:

"Dr. Shelly disclosed this information to the chief medical examiner and department director at the time of his hiring — and it is well known to current management. He has shared this information in legal proceedings when asked about it. Dr. Shelly has paid a public price for one instance of poor judgment and has not repeated it during his time with Maricopa County. The high quality of his work since his hiring in 2013 justifies his position on our team.

“The Maricopa County Office of the Medical Examiner faces the same challenge that ME offices across the country are encountering: a shortage of forensic pathologists. The pool of qualified medical examiners is approximately 500. Maricopa County alone has 15 positions, 11 of which are filled. We expect to fill those remaining positions with exemplary talent. 

“No employee is perfect. We do not expect perfect pasts. What current management does expect is integrity, hard work, and professionalism from the moment a person starts working here. That is what we have seen from Dr. Shelly and the other 10 forensic pathologists on our team."

County records show that since Shelly took the position with the Maricopa County Medical Examiner’s Officer, his disciplinary history has been spotless.

When asked for a statement about our investigation, a spokesperson for the U.S. Navy issued the following response:

"Navy Medicine honors the trust to provide the best care possible to America's sons and daughters and we hold our professionals to the highest quality and safety standards to ensure our service men and women are receiving world-class medical treatment."

The records custodian for the Maricopa County Attorney's Office confirmed Shelly is not on its Rule 15 Disclosure Database, formerly known as the Brady List.

This is a list of police officers and others who offer expert testimony who have marred credibility, lied under oath and have engaged in misconduct. The MCAO has a duty to disclose to criminal defendants when those on the list might be called to testify.

The MCAO said it became aware of Shelly’s past more than two years after he was hired and reviewed the incident.

According to a spokesperson, “the matter was reviewed on 8/31/2015 and the decision was made not to place him in the R15DD."

The MCAO provided a list of cases for which Shelly was listed as a potential witness. Of the 24 criminal cases, most are murder cases, including one high-profile case of Phillip "Mitch" Brailsford. Brailsford is charged with second-degree murder and expected to stand trial in the fall. Shelly performed the autopsy on the victim in the Brailsford case.

Lindsay Herf, the executive director of the Arizona Justice Project, which seeks justice for the innocent and the wrongly imprisoned issued this statement on the investigation: 

“The role of an independent medical examiner's office is crucial to a fair and functional criminal justice system.  This includes conducting autopsies and forming opinions based on science and medicine. This also includes honesty from the employees at the medical examiner's office that are handling the investigations of the deceased throughout this county.  Upon hiring, a potential county employee must undergo a background check.  It is the duty of the agency to conduct a thorough background check and disclose those results.

“The criminal justice system is supposed to provide a level playing field.  Under Arizona law, any misconduct - including a felony conviction or job related malfeasance - by an employee who may be a witness in a trial shall be disclosed to the opposing party. 

“When these rules are not followed, the criminal justice system suffers.” 

Copyright 2017 KPNX


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