Audit finds Maryland OCME undercounted homicides in many restraint-related deaths; task force, case reviews ordered

Attorney General Anthony Brown told the House Judiciary Committee that an independent audit found systemic problems in the Office of the Chief Medical Examiner’s (OCME) classification of deaths that occurred during or soon after restraint, and that state officials would move to review the cases and change policies.

The audit, conducted by an independent team and described in a 70-page report presented to the committee, reviewed more than 13,000 deaths during Dr. David Fowler’s tenure and selected 87 cases judged to resemble restraint-related deaths (sudden deaths during or soon after application of restraint). The review used 12 independently contracted forensic pathologists who examined each case blind and in panels of three; reviewers initially made determinations without autopsy photographs or OCME’s original findings and could later revise after photos were revealed.

The audit found substantial disagreement between OCME’s original manner-of-death classifications and the independent reviewers’ unanimous opinions. Dr. Jeff Kukuka, the audit’s case manager, told the committee that reviewers unanimously judged 48 of the 87 audited cases to be homicides while OCME had certified only 12 of the same 87 as homicides. "We hired 12 independent forensic pathologists to conduct blind reviews," Kukuka said. The auditors identified 36 cases in which all three reviewers agreed the death should have been classified as a homicide even though OCME had categorized them as undetermined, accidental or natural; five additional cases showed two-thirds reviewer agreement that OCME’s classification was incorrect, producing 41 cases the report describes as evidence of systemic misclassification.

The audit also identified disparities associated with race and with who applied restraint. Of the 48 audited cases the reviewers unanimously judged to be homicides, the report found that OCME certified a homicide 44 percent of the time when the decedent was white but only 16 percent of the time when the decedent was Black. Similarly, among those 48 cases OCME certified 54 percent of incidents involving nonpolice restraint as homicides, but only 14 percent of incidents involving police restraint. Kukuka cautioned the committee that a retrospective audit cannot definitively prove bias but said the statistical patterns are consistent with racial and pro-police influence on determinations.

The auditors also flagged frequent use of the discredited concept of "excited" or "agitated delirium." The audit says OCME invoked that term in roughly 42 of the audited cases and often certified those deaths as undetermined; independent reviewers judged most of those same cases to be homicides. The National Association of Medical Examiners and the American Medical Association have disavowed the excited-delirium concept, the report notes; AG Brown told the committee that OCME has since abandoned use of the term.

The report recommended a package of administrative and procedural changes: stop using "excited delirium," adopt National Association of Medical Examiners (NAME) certification and the "but-for" principle for classifying homicides, improve autopsy photography and documentation, standardize procedures, expand external peer review (including race-blind review options), increase training on the physiological effects of restraint, and involve mental-health specialists and crisis-response teams to reduce need for physical restraint. The audit also recommended reexamining the cases identified as potential misclassifications so prosecutors can determine whether reinvestigation is warranted.

Governor Wes Moore (referenced in the audit briefing) issued an executive order that, according to AG Brown’s briefing, established a Maryland task force on in-custody restraint-related death investigations, directed the Maryland Department of Health to review audit recommendations, and instructed the Office of the Attorney General to collaborate with local state's attorneys on file reviews. Brown told the committee the task force will include state officials, legal professionals and community advocates and will recommend permanent statewide oversight structures for future in-custody deaths. "Accurate death classification is nonetheless fundamental to our justice system," Brown said.

Committee members asked how the audit’s findings would affect families, whether legislation is needed to preserve reopened investigations, and which agencies would investigate if files suggested criminal conduct. AG Brown and Dr. Kukuka said the audit does not itself change OCME’s official determinations; official manner-of-death changes remain with OCME. Brown said the Office of the Attorney General will meet with state's attorneys to review files and that, under October 2023 legislation referenced in the briefing, the attorney general has authority to investigate and prosecute certain police-involved deaths, though he emphasized that authority does not equate to a presumption of criminal liability. The audit team and AG’s office also said that the Independent Investigations Unit (IIU) (as referenced in committee questions) does not automatically have authority under the cited legislation to take these particular reviews, but the OAG has broader investigative authority that it can use in coordination with local prosecutors.

Committee members also questioned reviewer selection and safeguards against bias. The AG’s office said reviewers were vetted for conflicts and public statements; names were kept confidential at reviewers’ request and for standard research anonymity protocols, and panels were composed to include U.S. and international reviewers and racial and gender diversity. The audit’s procedure redacted personally identifying information and race from initial reviews; photographs were revealed only after reviewers recorded their first determinations and changes after photos were rare (about 3 percent of reviews), the report says.

Next steps identified in the briefing are: the governor’s task force will draft recommendations and progress reports as required by the executive order; the Maryland Department of Health will work to align OCME with national standards; and the OAG will work with state's attorneys to decide whether any files warrant reinvestigation. The auditors recommended a five-year follow-up audit to assess implementation; Kukuka told the committee the five-year interval was chosen to allow sufficient new data but is not fixed in stone.

The audit was presented as a factual, methodological review and the presenters repeatedly emphasized it did not assess motives or criminal culpability. The attorney general furnished the briefing materials to committee members and offered to share the full report and a link to the document. Committee members indicated they expected to revisit the issue during the next legislative session and asked for follow-up on implementation details and family notifications.