Maryland will review about 100 in-custody police death cases for possible signs of bias

Concerns over testimony in the George Floyd trial prompted the audit.

October 21, 2022, 6:52 PM

Maryland will review about 100 autopsies of people who died in police custody in response to concerns over the former state medical examiner's alleged pattern of "pro law-enforcement" bias during his leadership, the state's attorney general announced.

The audit comes more than a year after the 2021 trial of former Minneapolis police officer Derek Chauvin for George Floyd's murder, when Dr. David R. Fowler, one of the country's top forensic pathologists and the former chief medical examiner of Maryland, testified in Chauvin's defense.

At the time, Fowler said Floyd, who had been pinned down on the street by three officers for more than nine minutes, did not die from Chauvin's knee on his neck. Rather, Fowler cited Floyd's "pre-existing medical condition," drug use and emissions from the squad car's tailpipe as possible causes of death.

The jury rejected Fowler's claims, finding Chauvin guilty of murder.

But following the trial, more than 400 medical experts signed an open letter to Maryland Attorney General Brian Frosh asserting that Fowler's testimony raised malpractice concerns and serious questions over a potential record of bias during Fowler's 17-year tenure helming Maryland's State Office of the Chief Medical Examiner.

PHOTO: Maryland Attorney General Brian Frosh walks on the House of Delegates chamber floor before the annual State of the State address on Jan. 30, 2019, in Annapolis, Md.
Maryland Attorney General Brian Frosh walks on the House of Delegates chamber floor before the annual State of the State address on Jan. 30, 2019, in Annapolis, Md.
Patrick Semansky/AP, FILE

The letter accused Fowler of deviating from standard medical practice in classifying the manner of Floyd's death as "undetermined" rather than "homicide," calling his cause-of-death opinion "baseless" and "highly questionable."

The experts called for an investigation into whether the dozens of in-custody death determinations under Fowler's leadership exhibited bias or failed to follow appropriate practices and protocols.

In September 2021, Frosh appointed an Audit Design Team to develop the process for the probe. The seven-person committee of forensic pathologists and behavioral scientists narrowed down the scope of the review after looking at about 1,300 autopsies conducted, presenting their report to Frosh last month.

Frosh's office will now recruit additional independent forensic pathologists and other experts to perform a detailed review of OCME's files, examining what role restraint played in each death and whether the determinations were affected by potential bias.

Fowler wrote in a statement to ABC News on Friday that he "look[s] forward" to examining the proposed design and methodology for the audit.

"As I have said, since this effort was announced in May of 2021, I am proud of my seventeen years of service as Maryland's Chief Medical Examiner, and I am confident that any fair review will confirm that the Office met or exceeded all applicable professional standards," Fowler wrote, "I have offered my full cooperation with the audit, and that remains the case today."

The open letter to Frosh claimed Fowler's testimony in Chauvin's trial was not an "isolated incident" within the criminal justice system.

Fowler is currently named in a lawsuit filed against him and the medical examiner's office by the family and supporters of Anton Black, a 19-year-old athlete who died in police custody in 2018 after officers fired a stun gun at him and pinned him down for almost six minutes.

PHOTO: Antone Black, left, and his wife, Jennell, pose for a photograph after an interview with The Associated Press in their home in Greensboro, Md., Jan. 28, 2019.
Antone Black, left, and his wife, Jennell, pose for a photograph after an interview with The Associated Press in their home in Greensboro, Md., Jan. 28, 2019.
Patrick Semansky/AP, FILE

The state medical examiner's office attributed his death to congenital heart abnormalities. His parents said Black's mandatory physicals for his track and football teams never indicated any signs of such problems.

A response from Fowler to the family's lawsuit said that his and his office's actions were "reasonable and legally justified." The response stated Fowler is not liable for Black's death and neither are the officers involved.

The medical examiner's office declined to comment when contacted by ABC News.

Physical restraint, particularly extreme measures like hogtying and other forms of facedown or "prone" restraint, has been shown to be dangerous and even cause death, sometimes by asphyxiation.

Still, cause-of-death determinations in cases involving restraint are often highly contested, especially when investigators say there could be multiple contributing factors, including drug-use and pre-existing medical conditions.

However, when making determinations in such cases, medical examiners apply a standard known as the "but for" rule, which says that even in cases with multiple contributing factors, they must determine whether the subject would have died had it not been for the restraint.

Last year, the American Medical Association also rejected the use of excited delirium — characterized as a potentially fatal state of extreme agitation and delirium — as a valid medical diagnosis, saying it was "disproportionately cited in cases where Black men die in law enforcement custody."

Axon Enterprise, the manufacturer of TASER Energy Weapons, has presented the controversial diagnosis in the past as the cause of certain in-custody deaths, instead of their products.

Responding to the new AMA policy, an Axon spokesperson wrote in a statement to ABC News on Friday that the company defers to medical and scientific experts on whether "excited delirium" is a medically recognized diagnosis.

"Because individuals who suffer this condition will display erratic, unpredictable, and often violent behaviors, law enforcement personnel may be required to use some measure of force to safely gain control of these subjects," the spokesperson wrote. "Axon is committed to providing law enforcement with less-lethal tools that will further its mission to protect life in these scenarios."

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events