Local social justice advocates say they are “outraged but not surprised” that the causes of five police-custody deaths that occurred in Montgomery County from 2007 to 2019 were reclassified from accidental or undetermined to homicide following an independent audit commissioned by state officials.

The findings of the Maryland Office of the Attorney General’s independent audit of the Maryland Office of the Chief Medical Examiner were announced Thursday by Attorney General Anthony G. Brown in a press release.

The audit examined 87 cases statewide handled by Dr. David Fowler, the former chief of Maryland’s Office of the Chief Medical Examiner, and found that case reviewers disagreed with the office’s ruling on the manner of death in 44 cases, according to the release. In addition, the audit found patterns of racial disparities in death classifications and documented the use of diagnoses such as “excited delirium,” which has been discredited by leading medical organizations.

In June 2021, the American Medical Association Council on Science and Public Health concluded that current scientific evidence did not support the use of “excited delirium” as a valid medical diagnosis, according to the audit. The National Association of Medical Examiners and the American College of Emergency Physicians issued statements in 2023 indicating their opposition to the use of the term as a cause of death.

Of the 87 audit cases, 42, or 48.3%, mentioned “excited delirium” in the Office of the Chief Medical Examiner’s cause-of-death statement.

“The failure to call these deaths what they were — homicides by police — has led to the absence of justice for the victims and their families and the perpetuation of harmful practices and policies,” said Joanna Silver, speaking on behalf of the Silver Spring Justice Coalition.

County Councilmember Kristin Mink (D-Dist. 5), a member of the council’s Public Safety Committee, said Monday in a statement emailed to Bethesda Today that the audit “confirms” what community advocates had been telling county leaders for years: “We still do not know the full extent of violence against disproportionately Black and brown individuals at the hands of police over the past decades.”

“But we know it’s more than what we’ve been told,” Mink said.

Earl Stoddard, Montgomery County’s assistant chief administrative officer, said Monday in a statement to Bethesda Today that the county was “actively reviewing the full audit and its findings.”

Stoddard noted that any future actions regarding the county’s cases – such as whether they are reopened – will be handled by the attorney general’s office with the county’s state’s attorney’s office.

“County Executive [Marc] Elrich is appreciative of the work that went into this audit —spanning both the [Gov. Larry] Hogan and Moore administrations as well as the tenures of Attorneys General Frosh and Brown and hopes that lessons can be learned that improve transparency and accuracy in future cause of death determinations,” Stoddard said.

The Montgomery County Department of Police declined Tuesday evening to comment, saying it was continuing to review the audit.

Why the audit was conducted

The audit came about in 2021 after Fowler testified for the defense that the 2020 death of George Floyd in police custody was “undetermined” during the murder trial for Minneapolis police officer Derek Chauvin. Following his conviction, Chauvin, who is white, was sentenced to 22½ years in prison for the murder of Floyd, a Black man.

More than 450 medical examiners then signed an open letter to then-Maryland Attorney General Brian Frosh asking him to investigate the practices of the medical examiner under Fowler’s tenure from 2003 to 2019.

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The Office of the Chief Medical Examiner (OCME) is the “statewide agency that is designated by law to investigate deaths that are sudden and unexpected, result from injury, occur under unexplained or suspicious circumstances, or when a person is not attended by a physician,” the office’s website states.

Maryland Attorney General Anthony Brown said in a Thursday press release that the audit’s findings “pave the way for meaningful reform in how medical examiners approach death investigations and propose changes that could address systemic inequities that have persisted for too long.”

Brown said the audit is the first of its kind in the U.S. and will give other states a blueprint on how to “safeguard” their investigations from bias, ensure accountability and “guarantee” that in-custody deaths are “handled to the highest professional standards of fairness and impartiality.”

An international Audit Design Team, which is made up of forensic pathologists, psychologists and research scientists, undertook the independent examination of OCME’s rulings on deaths that occurred during or shortly after restraint, the release said. The audit team selected 87 cases from a pool of 1,300 in-custody death investigations by OCME.

In addition, the Office of the Attorney General hired 12 independent forensic pathologists to review the cases, the release said. The pathologists were blinded to the individual’s race and the original OCME manner of death ruling. Three reviewers were randomly assigned to review each case and made their own determinations of the manner of death.

Jeff Kukucka, a professor of psychology at Towson University who managed the audit, said in the release that the audit is a “groundbreaking collaboration between social scientists and forensic medical experts.”

“We have the utmost confidence that its findings can and will improve the quality of medicolegal death investigations, advance social justice and reduce the risk of preventable deaths,” Kukucka said.

According to the release, when medical examiners determine a death is a homicide, it means that someone’s actions contributed to the death of the individual. The determination that the manner of death is homicide “does not automatically indicate police misconduct or suggest criminal culpability,” the release said. The determination does confer that the case should be reviewed by the attorney general’s office to assess whether additional investigation is needed.

State, county response

In response to the audit, Gov. Wes Moore (D) signed several executive orders that grant the Office of the Attorney General the authority to review the cases in which the manner of death was concluded by case reviewers to be homicide, according to the release. The executive order also established the Maryland Task Force on In-Custody Restraint-Related Death Investigations to evaluate the audit’s policy recommendations for OCME and develop a plan to implement the policies.

According to a letter in the audit from Brown, the attorney general’s office will review the cases that were reclassified in consultation with local state’s attorney’s offices to “assess whether further action is appropriate and identify areas for improvement.

“The path forward requires collaboration,” Brown said in the letter. “[State] officials, medical professionals, law enforcement agencies, impacted families and communities must work together to ensure that when someone dies in custody, the cause is determined fairly and accurately.”

In the coming months, Mink said her office would monitor the state’s efforts in reexamining the cases, review the updates to the Maryland Department of Health policies and follow the efforts of the Maryland Task Force on In-Custody Restraint Related Death Investigations.

“As a community and County, we must look unflinchingly at these hard truths and take the actions needed to bring these unacceptable practices to a hard stop,” Mink said.

Councilmember and chair of Public Safety Committee Sidney Katz (D-Dist. 3) declined to comment on the audit Monday. And councilmember Dawn Luedtke (D-Dist. 7), also a member of the committee, did not respond to Bethesda Today’s requests for comment.

Silver of the Silver Spring Justice Coalition noted that as recently as Christmas Eve, Marvin Salamanca Garcia, 35, of Gaithersburg, died after he was restrained by several Gaithersburg police officers .

Silver said the coalition hoped the audit would result in a “closer examination” of Garcia’s case and the practices and policies – including state and county use of force statutes – that “have allowed so many to die after being restrained by police.”

The Maryland Office of the Attorney General’s Independent Investigations Division continues to investigate Garcia’s death. The division’s investigations focus on the potential criminal culpability of the officers involved in the incident. In late January, the division released body-camera footage from the officers involved in the incident. When the investigation is complete, the division will announce whether the officers involved in the incident will be charged.