In 2021, the world watched as Dr. David R. Fowler, one of the country’s top forensic pathologists and the former chief medical examiner of Maryland, testified in a Minneapolis courtroom. He said that a police officer’s knee had not caused the death of George Floyd, who had been pinned down on the street by three officers for more than nine minutes as his cries for help subsided into silence.
Rather, Dr. Fowler blamed Mr. Floyd’s pre-existing medical conditions, drug use and even, he theorized, emissions from the squad car’s tailpipe as factors in his demise.
Dr. Fowler’s assertions in defense of the officer on trial, Derek Chauvin, were roundly rejected by the jury, which pronounced Mr. Chauvin guilty of murder. They also caused a round of soul-searching in Maryland, where new questions were raised about dozens of deaths in police custody that were investigated during Dr. Fowler’s 17-year tenure.
More than 400 medical experts signed an open letter contending that Dr. Fowler’s testimony in the Chauvin case had revealed “obvious bias” and raised “malpractice concerns” about how his office had handled similar cases.
State officials announced this week that experts will now review the autopsy files of about 100 people who died in law enforcement custody to see if medical examiners exhibited racial bias or were slanted in favor of law enforcement. State Attorney General Brian Frosh said the review could lead to changes in how the state handles forensic death investigations.
Asked if it could also lead to criminal charges against police officers, a spokeswoman for Mr. Frosh said the question was “far too speculative at this point.” Any such decision would most likely fall to individual prosecutors.
The review is at least a partial vindication for families who have long blamed the state medical examiner for failing to hold law enforcement officers accountable for deaths in their custody. The medical examiner’s office attributed the death of Anton Black, a 19-year-old athlete who was chased and pinned down for more than six minutes, to congenital heart abnormalities — even though his parents said there had never been any sign of such problems in the many physicals that Mr. Black had been required to take for track and football teams.
Mr. Black’s family received a $5 million settlement in a case against the three police departments whose members were involved in his arrest, but the family and a coalition of supporters have also taken the unusual step of suing the state medical examiner’s office, the pathologist who conducted the death investigation and Dr. Fowler.
“There are families that for years and years and years were saying the medical examiner got it wrong, to anyone who would listen,” said Sonia Kumar, a senior staff lawyer at the American Civil Liberties Union of Maryland, which is assisting with the case and applauded the state review. “If we’re not able to tell the truth about those deaths, we can’t prevent the tragedy from reoccurring.”
Many deaths involving law enforcement have clear-cut causes: a prison inmate dies of cancer, or the police fatally shoot a suspect. But deaths involving restraint, like the facedown hold to which Mr. Floyd was subjected, are among the most contested cases dealt with by medical examiners. The primary legal issue in the murder case against Mr. Chauvin, the officer who knelt on Mr. Floyd’s neck, was whether that action was what killed Mr. Floyd.
Time and again, deaths that occur during or after restraint have been attributed to other factors like drug use, heart conditions, and a constellation of symptoms known as excited delirium, which the company that makes Tasers has long put forth as an alternative to blaming their stun guns for in-custody deaths.
Last year, the American Medical Association rejected the use of excited delirium as a diagnosis, saying it was “disproportionately cited in cases where Black men die in law enforcement custody.”
Most experts agree that restraint, particularly hogtying and other forms of facedown restraint, can cause death by restricting oxygen intake, even when the subject of the force is still able to speak.
But some medical examiners have relied heavily on a series of studies by researchers in San Diego that found that prone restraint is not life-threatening. The studies have been discredited by many experts because they excluded subjects who were obese, drug users, mentally ill or suffered from a variety of medical conditions — all factors that could cause police restraint to become potentially lethal — and otherwise failed to replicate the real-world conditions of pursuit and arrest.
In Maryland, a committee made up of forensic pathologists as well as some of the leading critics of bias in forensic science was asked last year to determine which of the 1,300 in-custody death cases handled when Dr. Fowler oversaw the department should be reviewed, and how. It has identified 100 cases where police restraint may have played a role in a death.
Independent experts will now review the files to see if they agree with the cause of death, whether the opinion was based on an adequate investigation, and whether the practices of the Office of the Chief Medical Examiner need to be changed.
In particular, the investigators will look at what steps the original death investigators took to determine the nature, duration and severity of the restraint, and whether they followed a standard known as the “but for” rule in determining a cause of death. The rule says that even in cases with multiple contributing factors, the medical examiner must determine whether the subject would have died had it not been for the restraint.
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