36 deaths in police custody in US' Maryland should have been called homicides

Medical examiners in Maryland miscategorized dozens of deaths that happened in police custody over the past two decades, according to a report released by state officials Thursday.

At least 36 of those deaths should have been called homicides, the report said. Instead, medical examiners had classified them as accidental, or as a result of natural or undetermined causes.

The report, 70 pages long, capped a yearslong audit that revisited medical examiners' reports over 17 years ending in 2019 -- a time period matching Dr David R Fowler's tenure as Maryland's chief medical examiner -- and found evidence of racism and pro-police bias.

Anthony Brown, Maryland's attorney general, said at a news conference Thursday that medical examiners had been less likely to call a death a homicide if the person who died was Black, or if he or she had died after being restrained by police officers.

"These findings have profound implications across our justice system," Brown said. "They speak to systemic issues rather than individual conduct."

Fowler did not immediately respond to a request for comment Thursday. He was not solely responsible for the decisions made by medical examiners during his tenure, and in the past he has defended the work of the pathologists in his office.

The audit was prompted in part by the police killing of George Floyd in Minnesota in 2020. Floyd, a 46-year-old Black man, had been pinned down on the street by three officers for more than nine minutes before he died -- a struggle that was captured on video and led to nationwide protests against racism and police killings.

The officer who had a knee on Floyd's neck, Derek Chauvin, was found guilty of murder in 2021. During his trial, Fowler, who had a history of involvement with high-profile police use-of-force cases, testified as an expert witness.

He argued against calling Floyd's death a homicide. Instead, he pointed to Floyd's preexisting medical conditions and drug use as factors in his demise.

The jury disagreed, and Fowler's testimony raised new questions about the dozens of deaths in police custody that had been investigated during his tenure in Maryland.

More than 400 medical experts signed an open letter that year arguing that Fowler's testimony in the Chauvin case had revealed "obvious bias" and raised "malpractice concerns" over how his office had handled similar cases.

A committee made up of forensic pathologists as well as experts concerned about the possibility of bias in forensic science was then asked to determine which of the 1,300 in-custody-death cases handled during Fowler's tenure should be revisited.

Ultimately, the committee identified 87 cases that fit the criteria for further review.

Each of those cases was then examined by three forensic pathologists who had to decide whether they agreed with the listed cause of death, and whether any practices of the Office of the Chief Medical Examiner needed to be changed.

In 36 cases, all three reviewers concurred that the deaths should have been considered homicides, but were not. In five others, two of the three reviewers reached that same conclusion.

The audit found that "excited delirium," a state of extreme agitation that some medical experts have identified as a cause for many deaths in police custody, was cited in nearly half the reviewed cases. The American Medical Association has rejected the use of excited delirium as a diagnosis, saying it was "disproportionately cited in cases where Black men die in law enforcement custody."

The report noted that while a homicide determination "means that someone's actions contributed to the death of the individual," that finding did not necessarily point to police misconduct or criminality.

"It does, however, suggest that the case should be reviewed to assess whether additional investigation is appropriate," the report said.

Gov. Wes Moore, a Democrat, called the audit's findings "deeply concerning" and signed an order directing the attorney general to determine whether any of the cases mentioned in the report warranted criminal charges.

"This is not an attack on the many remarkable people in law enforcement," he said. "This is about the need to initiate a thorough and systemic review that will help us to create a more just and transparent system."

Dr. Roger Mitchell, who once served as the chief medical examiner in Washington, DC, and is now the president of Howard University Hospital, said that other states should follow Maryland's lead.

"There's an opportunity here for other agencies to look at the excited-delirium diagnoses that have been provided over the years, and to audit them in the same way," said Mitchell, who was a writer and signatory of the open letter that questioned Fowler's work in 2021.

Maryland's report was 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.

Among the cases reviewed in the audit was the death of Anton Black, a 19-year-old athlete who was pinned down by police officers for about six minutes before he died in 2018. The death was originally classified as an accident and attributed to congenital heart abnormalities, even though his parents said there had never been any sign of such problems.

During the audit, all three reviewers of the case concurred that the death should have been called a homicide.

Black's family had previously received a $5 million settlement in a case against the police departments involved in his arrest. They had also taken the unusual step of suing the state medical examiner's office, the pathologist who conducted the death investigation and Fowler. That lawsuit led to another settlement outlining reforms for transparency and impartiality at the medical examiner's office.

Jeff Kukucka, a psychology professor at Towson University in Maryland who managed the audit, said at the news conference Thursday that he hoped the report would "provide a blueprint for other states to conduct similar audits."