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.

Taser Ruled Partial Cause of Ohio Man's Death

February 23, 2005
AP News

The medical examiner in Akron has ruled that the police use of a Taser electronic restraint contributed to the death of a drug-using man who struggled with officers in a home invasion. The ruling came yesterday in the January 5th death of 30-year-old Dennis Hyde of Hartville.

In a separate ruling, the prosecutor said the use of the Taser against Hyde was justified.

The medical examiner says other factors in the man's death include his use of methamphetamine and the loss of blood from a cut suffered from a home break-in. When police arrived, Hyde said he was the devil and threatened to kill the officers and the homeowner.

Tasers fire metal barbs attached by a wire that deliver 50,000 volts of electrical charge for five seconds. The idea is to temporarily immobilize suspects so that officers can gain control.

Tasers have also been in the news in Lucas County. Sheriff James Telb suspended his department's use of Tasers, just weeks after a man was shocked nine times by authorities and died within minutes of the final jolt. Jeffrey Turner, 41, of Toledo, died Jan. 31 after he was shocked five times by Toledo police and four times a few hours later by sheriff's correction officers at the jail.

Lucas County Sheriff James Telb said that he also wants a policy requiring any suspect shocked by a Taser to pass a medical examination at a hospital before being booked into the county jail.

"Many times we do that now," said Richard Keller of the Lucas County Sheriff's Department. "If an inmate is injured when they come in here prior to booking we have our nurses look at them and if it's a medical decision, we still have the arresting officer take that person to a medical facility. But I think that's the direction, way we're gonna go."

Telb said the device will not be used until he receives more results from safety studies. He said his officers have used Tasers about a dozen times since they went into service last year.

Telb said no policy violations were committed in Turner's death and no administrative or criminal charges would be filed by his office. The Lucas County coroner's office said the cause of death remains inconclusive pending the results of toxicology tests and further investigation.

The family of Jeffery Turner reacted strongly about the new procedures in Lucas County concerning Tasers. Turner's brother Shawn Turner said the new policy is a step in the right direction but it's two weeks too late and more can be done. "I think [Sheriff Telb] should have pulled those Tasers immediately instead of waiting two more weeks," said Shawn.

Shawn told News 11 he's done research on Taser-related deaths around the country and in the world. He says he's done some math about his brother being hit nine times at 50,000 volts a pop. "When I see that, that's over the limit, that's extreme. That's excessive, that's ridiculous," he told us.

Shawn likens the sheriff's new policy on Tasers to recalls on bad cars. "Now it's a problem, so they bring it to the public and recall the car. Just like these people, these people are dying, too many people dying in a short amount of time. I think we have a problem now we should look into it," he said.

Meanwhile, the Toledo Police Department will continue using Tasers at least for the time being. Police Chief Mike Navarre tells us he has sent two letters out, one to the president of the International Association of Chiefs of Police, and the other to the attorney general. Both letters ask for an independent study into the safety of Tasers. The department has used Tasers at least 225 times to subdue suspects in Toledo.

Amnesty International said in a report last November that at least 74 people have died in the United States and Canada in the past four years after being shocked with Tasers. The manufacturer, Scottsdale, Arizona-based Taser International Inc., has said the device is among the safest ways to subdue a violent person.

Taser International, Inc. has said all along it has done extensive research, its products are safe and have never been the sole reason someone has died.