Judge doubts cause of death in Summit jail case

August 8, 2008
By Ed Meyer, Beacon Journal

Prosecutors failed to prove that Mark D. McCullaugh Jr. died from asphyxiation after his 2006 struggle with Summit County sheriff's deputies at the county jail, a judge said. Deputy Stephen Krendick, 35, was found not guilty of one count of murder by visiting Judge Herman F. Inderlied Jr., who heard the case in Summit County Common Pleas Court without a jury.

Inderlied announced the verdict at 4 p.m. Wednesday after a three-hour recess following closing arguments. He left the bench immediately afterward. The judge made public the reasoning behind his decision in a two-page court entry filed in the county clerk's office at 10:51 a.m. Thursday.

It stated: ''The state failed to prove beyond a reasonable doubt that any conduct of the defendant, Stephen Krendick, caused the death of Mark D. McCullaugh, knowingly or otherwise. More specifically, the state failed to prove that Mark D. McCullaugh died from asphyxia as opined by Dr. Sterbenz and Dr. Levy.''

Ryan Miday, a spokesman for Cuyahoga County Prosecutor Bill Mason, said Inderlied did not inform the two assistant county prosecutors who handled the case — John R. Kosko and Brian M. McDonough — that lesser charges were considered. But Kosko and McDonough both interpreted the decision's reference to ''any conduct'' as an indication that Inderlied did consider lesser charges, Miday said. In pretrial records, Kosko wrote that ''the facts may support the consideration of involuntary manslaughter or reckless homicide as lesser included offenses of murder.''

Inderlied's decision went on to say: ''It is more likely that Mark D. McCullaugh died from sudden cardiac death following his struggle with Summit County deputies and due to the adverse impact of that struggle on his pre-existing severe arteriosclerotic cardiovascular disease prior to the use of drugs or the use of [pepper] spray by the defendant.''

Arteriosclerotic cardiovascular disease is a medical term for hardening and thickening of the walls of the coronary arteries.

Defense's argument

Defense attorney James M. Kersey, in his closing argument, said McCullaugh's bad heart resulted in a fatal ''haywire heartbeat'' from the stress of the struggle. There was no evidence McCullaugh's airways were obstructed and, therefore, he could not have died from asphyxiation, Kersey argued.

But George C. Sterbenz, the county's chief deputy medical examiner, testified during the eight-day trial that McCullaugh died of asphyxiation from the combined effects of chemical, electrical and mechanical restraints on his airways. McCullaugh, 28, was pronounced dead at Akron General Medical Center at 7:46 p.m. Aug. 20, 2006 — one hour and 15 minutes after the beginning of the struggle in his 11-by-7-foot cell in the jail's mental health unit, prosecutors contended.

According to testimony, McCullaugh's hands were cuffed behind his back, his legs were shackled and he was injected by jail nurses with a drug cocktail in a further effort to calm him. One of those nurses, Denise Walsh, testified that McCullaugh's leg shackles were attached, in turn, to a bull ring in the cell floor.

With the cell door closed, Krendick then shot McCullaugh through a flap in the door with a 16-ounce can of pepper spray. Moments before, deputy Adam Crolley testified that he heard Krendick saying he was ''going to let him cook.''

Sterbenz testified that the fatal injury — severe burns to the windpipe from inhaling the pepper spray — caused McCullaugh to choke to death within minutes.

Those findings were corroborated by testimony from a second forensic pathologist, Dr. Bruce Levy, chief medical examiner of the state of Tennessee. Levy reviewed Sterbenz's findings and agreed with asphyxiation as the principal factor in the death.

The defense, however, presented two forensic pathology experts of its own — Werner U. Spitz, a former chief medical examiner in Wayne County in Michigan, and Michael Graham, chief medical examiner for the city of St. Louis.

Spitz and Graham both testified that McCullaugh, who was 6-foot-2 and 290 pounds, according to the autopsy, had severe heart disease and died of a rapidly accelerated heartbeat from the stress of his violent struggle with the deputies.

Spitz, 81, who testified in the congressional investigations into the assassinations of President John F. Kennedy and Dr. Martin Luther King Jr., concluded from his review of the Sterbenz autopsy that McCullaugh's death was from ''natural causes.''

Spitz testified that he found no obstruction in McCullaugh's windpipe, nor any evidence of swelling — a sign of restricted airflow — in that area.

Graham testified that he, too, reviewed Sterbenz's autopsy and found the evidence showed McCullaugh died from a condition he called ''schizophrenia-induced excited delirium,'' with heart disease as a contributing factor.

Excited delirium is a legal term for sudden death from an accelerated heartbeat in cases of suspects who resist being taken into custody.

Mental illness cited

Inderlied also said in his decision that the struggle ''was precipitated by Mark D. McCullaugh due to his well-documented mental illness.''

Krendick did not testify, but on Wednesday morning when the defense wrapped up its case, five Akron police officers testified that they were involved in bizarre incidents with McCullaugh in the weeks leading up to his death.

In one incident, McCullaugh head-butted an officer. In the other, he kicked a paramedic in the chest, the officers said.

Inderlied also said in his decision that he made ''no findings with regard to the conduct of any person(s) other than the defendant, Stephen Krendick.''

Four other sheriff's deputies were indicted in the case. They are scheduled to go to trial before Inderlied later this year.

After the verdict, Jennifer L. Fox, McCullaugh's mother, left the courtroom in tears. Jonathan Stock, of Medina, said his mother was too distraught to comment on the verdict.

Sheriff Drew Alexander, meanwhile, said Krendick will be back on the job ''when he's ready.''

Alexander extended his condolences to McCullaugh's family, but also said he was ''happy for the sheriff's office.''

''The agency's been under a lot of scrutiny for the last two years, and I felt two years ago as I do now,'' he said. ''My deputies acted appropriately.

''They did not go into that cell to kill that man. They went in to that cell to subdue him and stop him from hurting himself, and this is the end result.''

Inderlied handled the case under appointment by the Ohio Supreme Court.