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Defense Medical Expert in Chauvin Trial Faces Heat Back in Maryland

mortuary-table
By Richard Dahl on April 30, 2021 12:59 PM

Former Minneapolis police officer Derek Chauvin's primary medical witness, former Maryland chief medical examiner David Fowler, failed to convince a jury that the defendant did not murder George Floyd.

And by testifying that Floyd's death should have been classified as “undetermined," Fowler created a possible legal mess for himself. On April 24, the offices of the Maryland governor and attorney general announced they will be launching an investigation of Fowler's 17-year career as chief medical examiner which ended in 2019.

That action was a response to an April 20 letter signed by hundreds of physicians calling for an investigation of “possible ethical violations" involving “death in custody" diagnoses during his time as chief medical examiner. The letter also calls for a review by an outside panel of forensic pathologists of all deaths in police custody investigated by his office over that span.

Fowler testified that he believed Floyd died of cardiac arrest due to an underlying heart condition and suggested that other contributing factors, such as drugs in his system and carbon monoxide from the police car, may have contributed.

This assessment stands at odds with several offered by the prosecution. Pulmonologist Dr. Martin Tobin testified that “a healthy person subjected to what Mr. Floyd was subjected to would have died." Dr. Jonathan Rich, a cardiologist, testified that while Floyd had high blood pressure, his heart was “exceptionally strong."

Physicians Sound Alarm

Fowler's testimony caught the attention of Washington, D.C.'s former chief medical examiner Dr. Roger Mitchell Jr., who wrote the letter, calling for fellow physicians to co-sign it online. In four days, 458 physicians signed the letter.

“The cause of death opinion, particularly the portion that suggested open-air carbon monoxide exposure as contributory, was baseless, revealed obvious bias, and raised malpractice concerns," the letter stated.

It also raised another issue: Fowler is a defendant in a lawsuit, filed in December, by the family of a young Black man who died in police custody in circumstances that resemble those of Floyd. The family sued Fowler for questionable certification that the cause of death was indeterminate, and Mitchell's letter says that this “raises the concern of a pattern of bias in practice."

In that case, 19-year-old Anton Black of Greensboro, Maryland, died when he was pinned to the ground by police outside his home on Sept. 15, 2018. Prior to his death, police had reports that Black was trying to abduct a 12-year-old boy (later identified as a cousin) with whom he was roughhousing.

When the police approached the two, Black ran away, police gave chase, and detained him outside his home. A police bodycam video details the events, showing an officer smashing the driver-side window of a car in which Black was hiding, and then Tasing him.

The events included oral acknowledgment by one of the officers that Black was known to have mental-health issues. Though Black was unarmed, several police held him down as he struggled in an obvious panicked state.

Then he stopped moving. The officers called for an ambulance that carried him off to a hospital, where he was pronounced dead.

Fowler said the death was accidental, and in December Black's family filed suit, saying that he “covered up and obscured police responsibility for Anton Black's death."

Assessing Responsibility for Deaths in Police Custody

Maryland state data from 2013 to 2019 show that 30% of the deaths involving law officers that were investigated by Fowler's office found that they were “accidents," “undetermined," or “due to natural causes." Those conclusions were disputed in “at least two of those cases," where forensic investigators concluded that those deaths were really homicides, according to The Intercept. Meanwhile, forensic pathologist Dr. Judy Melinek told The Intercept that, in her opinion, the death of Anton Black “should have been called a homicide."

The difficulties of successfully suing police officers for use of excessive force are well known because of the protections they enjoy from “qualified immunity." This is a legal principle that provides police officers and other public officials legal protection from civil lawsuits unless they have clearly violated someone's statutory or constitutional rights.

That same protection applies to medical examiners, and that is precisely what the Maryland Attorney General's office claimed in a motion to dismiss the Black lawsuit against the state, Fowler, the current medical examiner, and the assistant medical examiner who performed the autopsy on Black. (Although the AG's office is defending Fowler and the others from the medical examiner's office, it is offering to coordinate an independent review of the deaths in police custody during Fowler's tenure.)

That motion stated that the AG's office has been unable to locate a single case “where a medical examiner's opinion on the cause or manner of death resulted in an individual's federal constitutional access to court rights being violated."

Are Relationships Between Medical Examiners and Cops Too Close?

So, if medical examiners are protected by immunity, does that mean they are immune from other influences – like, say, those of the police?

Justin Feldman, an assistant professor of epidemiology at New York University School of Medicine, emphatically says no. On the contrary, he argued in a Washington Post op/ed piece that medical examiners and police departments are far too close and that change is needed to separate them.

Feldman mentions a study that he and a group of other epidemiologists conducted matching police killings reported in the media with death certificate summaries. “We found that coroners and medical examiners throughout the United States routinely report findings that minimize the responsibility of the police," he wrote.

The study identified 71 people who died in police custody following Taser shocks, chokeholds, being transported in police vehicles, being denied water while in detention, and the like. In 47 of them, the cause of death was attributed to accidental injury, respiratory disease, or mental illness.

There is also evidence that law-enforcement agencies pressure medical examiners to minimize police culpability.

So, Now What?

Is Fowler one of them? Maybe the new investigation in Maryland will shed some light and maybe so too will the Black family's lawsuit.

But as Feldman points out, what we really need is a system where we are better able to take medical examiners at their word.

“Medical examiners and coroners' findings serve as important evidence in legal proceedings against police officers who kill civilians, and their reporting on death certificates can help researchers track patterns of police violence across the United States," he wrote. “If we want the truth about the deaths of Floyd and other people like him, we have to make sure that death investigators are free to seek it out and speak it publicly."

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