An unprecedented independent audit found that 36 deaths in police custody over a two-decade span in Maryland should have been ruled homicides by the state’s top medical examiner, a stinging rebuke of Maryland‘s past efforts to investigate the deaths of those once held by law enforcement.
The yearslong audit, shared exclusively with The Baltimore Banner ahead of Thursday’s release, cited a likely reason behind the massive failure: racial and pro-police bias in the work of the state’s Office of the Chief Medical Examiner, which had been led for nearly 20 years by Dr. David Fowler.
Before the audit, the deaths had been classified as accidents, natural causes or simply undetermined. But many of them involved police restraining people during arrests or shocking them with Tasers. The affected cases were spread across the state with the most — 12 — connected to Baltimore.
The recommended reversals include some of the state’s most controversial and high-profile in-custody deaths. Anton Black, 19, died while being restrained by officers on the Eastern Shore in 2018. Tyrone West, 44, died after struggling with Baltimore Police in 2013. And Dondi Johnson, 43, was paralyzed in 2005 and later died after what he described as what’s known as a “rough ride” in a Baltimore Police transport van.
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After reviewing the audit, Gov. Wes Moore ordered the state, led by Attorney General Anthony Brown, to reinvestigate the 36 cases plus five others flagged by the audit and explore whether criminal charges were now warranted.
Moore and Brown, both somber and serious, announced the findings during a State House news conference Thursday afternoon.
They underscored that they believe this is the first audit of its kind in the nation, and that the review was necessary after Fowler’s credibility was called into question.
“I do want to say at the top: The findings of this audit are deeply concerning,” said Moore, a Democrat.
The audit grew out of widespread concerns about the past work by Fowler and his team once he appeared on the national stage.
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In a stunning fall from grace four years ago, more than 400 medical professionals lambasted Fowler for his high-profile testimony for the defense at the trial of Derek Chauvin, the Minneapolis officer convicted of murdering George Floyd in 2020.
Fowler, who served as Maryland‘s top forensic pathologist from 2003 to 2019, testified that he would not have ruled Floyd‘s death a homicide. Instead, according to Fowler, it was the result of heart problems with drug use and possibly car exhaust as contributing factors and that he would have classified the case as “undetermined.”
Outrage over video showing Chauvin pinning his knee on Floyd‘s neck spurred law enforcement reform across the country. And outrage over Fowler’s testimony in 2021 gave rise to the audit released Thursday, which called into question his office’s ability to rule appropriately on cases involving law enforcement.
The Banner reached out to Fowler on Thursday, but he did not immediately return a request for comment.
The audit released Thursday found that in nearly half of its now-disputed cases, the medical examiner’s cause of death cited the “discredited concept of ‘excited delirium,’” a term long debunked by many experts but heartily embraced by Fowler and his team that avoided a homicide ruling.
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The term “excited delirium” has its origins in the review of a string of police-custody deaths that happened in Florida in the mid-1980s. The controversial phrase — now discontinued for use in Maryland — has been used to describe someone in a “potentially fatal state of extreme agitation and delirium, often combined with aggressive behavior, heightened pain tolerance and extreme physical strength.”
The impact of the audit’s findings could be substantial, further changing the way law enforcement and prosecutors investigate the deaths of those in custody.
Officials in the Moore administration also say that the audit and upcoming reforms could serve as a possible blueprint for other states, a reform model that could offer new hope for victims’ families and advocates who have long complained about a death review process that they say unfairly tilts towards those in uniform.
The audit will not immediately reclassify the deaths, or lead immediately to criminal charges against law enforcement personnel involved in those cases, if at all. A medical determination of homicide means that someone caused the death, and not that a crime was committed. Some of the cases have already been extensively reviewed and litigated.
The audit found that medical examiners “persistently misclassified” the manner of death for people who had been restrained by police, said Brown, a Democrat. And the audit identified “patterns that are consistent with the possibility of both racial bias and pro-police bias,” Brown said.
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Brown was clear, however, that the bias may not have been intentional.
“These findings are troubling, but this report does not suggest intentional or malicious conduct on the part of any Maryland medical examiner,” Brown said. “Implicit biases run throughout our system of justice, not just in Maryland, but across the United States.”
In a letter as part of the report, Brown also commented on the audit results and the role of law enforcement officers.
“Addressing these concerns benefits everyone in our system of justice — including the vast majority of law enforcement professionals who perform their duties with integrity and deserve clear, consistent standards,” Brown said.
The audit involved three experts separately evaluating cases then comparing findings. In 36 cases, they unanimously agreed that deaths had been misclassified or downgraded — and should be ruled homicides.
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In five additional deaths, two out of the three expert forensic pathologist said they should be ruled homicides. Those cases will also be rereviewed in an effort led by the attorney general.
After Fowler’s testimony in the Chauvin case, then-Attorney General Brian Frosh stood up a panel of experts to comb through more than 1,300 deaths that occurred in police custody across the state during Fowler’s 17-year tenure. By 2022, they had zeroed in on 87 cases for a closer look.
In most cases flagged in the audit, the medical examiner’s office had ruled the manner of death to be “undetermined.” That was a ruling Fowler favored when he believed there was not enough information to make a firm conclusion. Other cases questioned by auditors were labeled accidental or natural deaths.
The audit found that the state’s medical examiners had “more often failed to acknowledge restraint as a potential contributing factor” when restrained by police and “more often failed to appropriately classify homicides” when the people who died were non-white.
“These findings are of great concern and demand further review,” Moore said in a letter accompanying the report.
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Prosecutors, not medical examiners, determine whether officers’ actions were legally justified or whether they merit criminal charges. But it’s the medical examiner’s ruling that sets the stage. Without a homicide classification, it is almost impossible to bring criminal charges.
All of the deaths auditors found to be misclassified occurred prior to 2023. That was the year lawmakers gave Maryland‘s attorney general exclusive jurisdiction to investigate police custody deaths, rather than local state’s attorneys in each jurisdiction.
Since then, the attorney general’s office has brought charges in two cases involving fatal vehicle pursuits in Anne Arundel County.
In addition to the 12 cases listed in Baltimore, five cases have been flagged for further review in Baltimore and Montgomery counties, four in Prince George’s County, and three in Frederick County. There were additional cases from Anne Arundel, Carroll, Talbot, Washington (2) and Wicomico (2) counties.
The report released Thursday did not detail deficiencies in individual cases, and it stops short of calling for cases to be formally reclassified. But it is likely to boost hopes for the dozens of families who have been demanding more scrutiny for their loved ones’ deaths.
Deputy Attorney General Zenita Wickham Hurley said officials have tried to temper expectations with families.
“We hope we’ve earned families’ trust — that knowing someone is taking a serious, honest look at the facts will be meaningful to them, even if there’s no guarantee we’ll find criminal wrongdoing or decide that further investigation or prosecution is warranted,” she said in an interview.
State officials told The Banner that reforms at the medical examiner’s office have been underway for years, largely prompted by a settlement with the family of Anton Black. The 19-year-old with severe bipolar disorder was chased by officers who then tried to restrain him outside his family’s home in rural Greensboro, Maryland, in 2018.
Officers handcuffed Black and shackled his legs before he stopped breathing. The medical examiner’s autopsy report listed Black’s death as accidental and said a congenital heart condition, mental illness and stress from the struggle likely contributed to his death.
As part of the lawsuit, a cardiologist at Johns Hopkins University concluded that asphyxiation was the cause of Black’s death. The family reached a $5 million settlement in August 2022 with three Eastern Shore municipalities.
In a separate settlement with the state, officials agreed to institute new policies requiring impartial investigations. Anyone outside of the medical examiner’s office was prohibited from providing input about an autopsy.
The National Association of Medical Examiners guidelines were adopted for determining how such deaths are investigated and how examiners determine cause.
The standards are clear: If a person would not have died “but for” the intentional conduct of another, that death is a homicide, the ACLU said.
Prior to that, in 2020, the medical examiner’s office had updated its standards of practice and discontinued use of the term “excited delirium,” five years before the national medical examiner’s association disavowed the term, state officials said.
During a briefing with Banner reporters on Wednesday, Jeff Kukucka, a Towson University professor who helped facilitate the audit and legal psychologist who specializes in wrongful convictions, said he believes the Maryland audit likely points to systemic problems that could be uncovered in other states.
“No one has undertaken a project of this scope of this rigor, and we developed the methodology in a way that we knew that we were providing a blueprint for other states to hopefully follow so that in the future, states will look back at Maryland and say we are we are emulating their example,” Kukucka said.
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