On Tuesday, June 14, Dr. Michelle Jorden stood in front of Santa Clara supervisors. She had a concern she needed to voice:
“In certain cases, the sheriff's office has impeded the examiners from receiving evidence.”
Jorden is one of three medical examiners who determine the cause and manner of unattended, unusual, violent or accidental deaths in the county -- including deaths in jails or at the hands of law enforcement officers.
And at the supervisors’ meeting in June, Jorden asked the board to remove the sheriff’s control of the medical examiner’s office.
“I urge you to do the right thing,” she said. “Allow us to have full independent control of our office and operate the office to the highest, highest standards possible without the potential for perceived law enforcement influence.”
Jorden’s accusations are especially disturbing in a county where, just last year, Michael Tyree, an inmate with a mental illness, was allegedly beaten to death in the Santa Clara County Main Jail.
At the preliminary hearing in that case, medical examiner Joseph O’Hara said the inmate died from blunt force trauma -- and that he’d sustained injuries equivalent to being hit by a car or falling off a roof.
That testimony was part of what convinced a Superior Court judge that there was enough evidence for three deputies to stand trial for Tyree’s murder.
The county is investigating Jorden’s claims -- and is studying a proposal to remove the medical examiner’s office from the sheriff’s control.
Sheriff Laurie Smith called the accusation of interfering “absolutely false.”
Murky Autopsy Standards
At a time when fatal shootings of civilians have increased mistrust of law enforcement and other public institutions, there’s growing concern over how to protect and empower the person determining how that shooting victim died.
“Everyone needs to feel confident that the autopsy report is an objective report, done by people qualified to do the autopsy,” said state Sen. Richard Pan (D-Sacramento), adding, “that those findings are not going to be unduly influenced or even suspected of being unduly influenced in any way.”
Pan, a doctor, introduced a bill this year to do just that -- in part driven by a recent scandal involving the medical examiner in Ventura County that exposed a weakness in state law.
On a number of occasions, the former chief medical examiner in Ventura County ordered unqualified staff to conduct autopsies while he was out of the country. Critics say that calls into question the findings of those autopsies and raises the potential for litigation against the county. Ventura officials terminated Dr. Jon Smith but they could not prosecute him for committing a crime.
A report by the Ventura County District Attorney’s Office observed that “there is no California statute which defines what constitutes an autopsy, differentiates between an autopsy and a partial autopsy, or mandates who is authorized to conduct an autopsy.”
In response, the district attorney urged the state Legislature to set specific standards and requirements.
And lawmakers responded. The Legislature passed SB 1189 in August. Gov. Jerry Brown has until the end of September to veto or sign the bill, which mandates that all autopsies in California are performed by a licensed physician and surgeon.
It also requires law enforcement to provide all information about the death to the person conducting the autopsy before completion of the investigation -- the complaint Jorden made to Santa Clara County officials and one echoed by Dr. Judy Melinek, a forensic pathologist who lobbied for the bill.
“People who are trying to do an independent evaluation of the death are requesting agency reports: witness statements, police reports, information from body cameras or from other physical evidence from the scene, scene photos, things like that,” said Melinek. “If there’s an ongoing criminal investigation or an internal affairs investigation, the law enforcement agency may not be forthcoming with that information.”
Melinek said the bill will give forensic pathologists more leverage and crack down on misconduct.
Differing Systems by County
All counties are required to investigate unattended, unusual, violent or accidental deaths, and all deaths of jail inmates, prisoners or people killed by law enforcement to figure out what caused the death and whether the death was by suicide, homicide, accidental, natural or undetermined.
In San Diego, San Francisco and Ventura counties, a medical examiner is in charge of those findings. Physicians who are typically board-certified forensic pathologists determine both cause and manner of death, based on autopsies they conduct and investigative reports from law enforcement.
In nearly all other counties in California, a sheriff-coroner makes the final determination of the manner of death based on an investigation by a deputy coroner -- a sworn peace officer with specialized training -- and by an autopsy conducted by a forensic pathologist.
Melinek says while all doctors conducting autopsies are subject to outside pressure, that pressure tends to be greater on forensic pathologists who work within the sheriff-coroner office.
Melinek is one of the lead authors of the position paper of the National Association of Medical Examiners (NAME), which asserts that the objectivity of forensic pathologists’ findings depends on freedom from political influences and the threat of litigation. The paper was based in part on the findings of a 2011 member survey.
NAME found that 18 percent of forensic pathologists working for a medical examiner reported they were pressured to change their findings. In coroner’s offices, that increased to 30 percent who felt pressured.
Even more striking, the survey found that 43 percent of forensic pathologists who worked in a coroner system reported that the coroner had changed the cause on a death certificate in a way that conflicted with the autopsy findings.
Melinek said the study also found that prosecutors tended to view the forensic pathologist within a coroner's office as part of the prosecutor’s team.
But Melinek said the person conducting the autopsy is presenting scientific findings.
“My job is to speak for the deceased individual and what I find on their body,” she said. “I'm not going to couch my statements based on whether it's going to help one side or the other.”
Building in Checks and Balances
The head of the California State Coroners Association, Rocky Shaw, acknowledged people sometimes have questions like, “ ‘How can we be certain that you are not doing something that is incorrect and everything that you are doing is transparent?’ ”
Shaw said one way to ensure public confidence in death investigation findings is to turn those over to another county whenever the death involves law enforcement officers.
Shaw said that’s the policy in San Bernardino, where he works as a supervising deputy coroner. Neighboring Riverside County handles autopsy and death investigations of officer-involved deaths.
Shaw said in those cases where there’s a disconnect between what the deputy coroner and forensic pathologist find, San Bernardino calls in more help.
“If there’s any conjecture, if there’s any discussion as to, ‘you know I’m kind of edgy about this detail,’ or if we want oversight, we have panel reviews.” Shaw said. “Or we’ll sit down with not only the deputy coroner and pathologist, but we’ll bring investigative law officers in that were out on the case as well, and we’ll all have a part in making determination as to manner.”
Professionalism Best Way to Prevent Bias
Shaw and Melinek agree that what matters most is the professionalism of the organization: the level of training and funding and the management.
“It's not so much the structure of the department. It's how it's run,” according to Melinek. “So you can have a medical examiner who is incompetent and doesn't run a department well or you can have a coroner who's incredibly competent and hard-working and gives the doctors working under him or her autonomy and independence and all the material and information they need.”
Melinek draws from her own experience. She used to work for the medical examiner in Santa Clara until the county fired the chief medical examiner for mismanagement and put the office under the sheriff’s control. Melinek quit over concerns that doing so would compromise death investigations.
Next she went to work for San Francisco’s medical examiner -- an agency that has struggled with backlogs and alleged misconduct. Melinek now works as an independent contractor for the Alameda County Sheriff-Coroner’s Office, where she says no one has pressured her and she’s treated with respect.
Shaw says it only makes sense for the coroners to work closely with the forensic pathologist conducting the autopsy. While the sheriff-coroner decides the manner of death -- for instance, saying whether a death is a suicide or perhaps, an accidental overdose -- without significant input from the forensic pathologist it is a waste of talent and good information.
“If they’re just producing a cause of death -- they are just doing an autopsy and writing down the cause of death and that’s it, and they’re not involved with the investigation -- there’s a real disconnect,” he added.
Shaw said the goal of every sheriff-coroner office in California is getting it right.
“Ultimately you’re making a decision that is very, very important that you’re correct, and getting it wrong can not only be very difficult to a family member but could cost a lot of money,” he said.
In Santa Clara, county officials are moving forward with their own plans to protect the independence of the medical examiner’s office by separating it from the sheriff’s office.
The change would add $800,000 a year to the county’s budget for death investigations, primarily to pay for a chief medical examiner.
Santa Clara County Executive Jeff Smith said he’s calling for the change “to assure there’s not perception of -- or reality of -- inappropriate influence of enforcement on the decision-making of the medical examiner.”
A subcommittee will discuss the proposal next month before putting it up for a vote by the full Board of Supervisors.