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Thursday, April 02, 2009

Appeals court finds judge errors - Ruling says wrong to remove parts of inmate's autopsy report

April 2, 2009
By Ed Meyer
Beacon Journal staff writer

A retired Summit County judge erred in ordering the medical examiner to remove four specific factors from its findings that asphyxiation caused the 2006 death of jail inmate Mark D. McCullaugh Jr., an appellate court has ruled.

In a lengthy written decision released Wednesday, a three-judge panel of Akron's 9th District Court of Appeals found that visiting Common Pleas Judge Ted Schneiderman overstepped his bounds by ordering the medical examiner to remove specific language from McCullaugh's autopsy and death certificate ''that pertained to chemical and mechanical restraint, beating and anal penetration.''

The medical examiner, Lisa J. Kohler, ruled in October 2006 that McCullaugh's death was a homicide caused by asphyxia from multiple blunt-force blows and the ''combined effects of chemical, mechanical and electrical restraint,'' including an unspecified anal injury.

Kohler said she read the 34-page appellate decision but declined to comment about what impact it might have. She said she intended to discuss the findings with legal counsel before making any additional comments.

McCullaugh's family members could not be reached for comment.

Medina County Prosecutor Dean Holman, who handled the 9th District appeal on behalf of the Summit County Prosecutor's Office, said he was unsure of the impact it might have on future litigation.

McCullaugh's mother and father — the administrators of his estate — filed a wrongful death lawsuit in federal court in Akron on Aug. 1, 2007. It named numerous sheriff's deputies and many other personnel allegedly involved in the care and treatment of McCullaugh at the county jail, court records show.

Meanwhile, the 9th District decision was a victory for Taser International Inc., because the court ruled that Schneiderman was not wrong in ordering Kohler to remove specific Taser references from McCullaugh's autopsy and death certificate.

McCullaugh, 28, died Aug. 20, 2006, after what Summit County sheriff's records described as a ''violent struggle'' with deputies in his cell in the jail's mental-health unit.

Deputies used a Taser stun gun, shackles and a full can of pepper spray during the struggle, and a jail nurse injected McCullaugh with drugs in a further effort to calm him, according to sheriff's records.

But after a four-day civil trial last spring, Schneiderman ordered Kohler to change the autopsy and death certificate, saying there was ''simply no medical, scientific, or electrical evidence to support the conclusion that the Taser . . . had anything to do with the death'' of McCullaugh or with two other unrelated deaths involving confrontations with area police.

Kohler's findings had been challenged in a lawsuit brought by lawyers from Taser International and the city of Akron. Schneiderman, who was appointed to handle the case after retiring from the Common Pleas bench, heard the evidence without a jury.

Later, in a criminal trial last year, another visiting judge found a sheriff's deputy not guilty of murder in connection with McCullaugh's death.

Special prosecutors from Cuyahoga County then moved for dismissal of charges against four other deputies indicted for the death, and the motion was granted by visiting Judge Herman F. Inderlied Jr.

Inderlied, a retired judge from Geauga County, heard the criminal case without a jury.

The appellate decision was written by former 9th District presiding Judge Lynn C. Slaby, who has retired. Judge Beth Whitmore concurred with Slaby's opinion. Judge Donna Carr dissented.

In finding that Schneiderman did not err in his decision regarding the Taser, Slaby wrote that he considered ''the voluminous record'' in the civil trial as well as testimony from a variety of expert witnesses who said the stun gun ''did not contribute in any way'' to the deaths of McCullaugh and the others.

Kohler, Slaby stressed, was unable to testify, with ''a reasonable degree of scientific certainty,'' about how the Taser contributed to the three deaths.

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