[B]URLINGTON — A decision by city officials to contest the medical examiner’s finding that the death of a man days after being punched by a Burlington police officer was a homicide has raised questions about the medical examination process and the specifics of the case in question.
Douglas Kilburn, 54, was found dead March 14, days after being punched by Burlington Police Officer Cory Campbell in an altercation at the University of Vermont Medical Center. Campbell said that Kilburn had punched him first, and that he punched Kilburn in order to subdue him.
Police chief Brandon del Pozo and Mayor Miro Weinberger contested Chief Medical Examiner Steven Shapiro’s finding in an email to Health Commissioner Mark Levine hours before the Vermont State Police announced the finding.
Scott administration officials believed del Pozo and Weinberger’s decision to question the decision to Levine was not appropriate.
The Vermont State Police are investigating the case.
While Burlington officials and the Department of Health declined requests releasing Kilburn’s autopsy, public records obtained by VTDigger shed more light into Shapiro’s decision and del Pozo and Weinberger’s questions about that decision.
The case has also drawn increased attention to the responsibilities and practices of the usually under-the-radar chief medical examiner.
As a result of Campbell’s punches, Kilburn suffered skull fractures and was treated at the UVMMC. He was released the next day but was found dead later that week.
The Vermont State Police announced that Shapiro had determined Kilburn’s manner of death was homicide April 10.
Cause and mechanism of death
Before determining a manner of death, medical examiners investigate the cause and mechanisms.
The cause of death, according to a guide from the Vermont Department of Health, is the “disease or injury responsible for starting the lethal sequence of events, which ultimately led to death.”
For example, causes of death include hypertensive cardiovascular disease, Alzheimer’s disease and blunt trauma.
The mechanism of death is “the altered biochemistry or physiology whereby the cause exerts its lethal effects,” according to the guide. The mechanisms are not specific, and cannot be a replacement for cause of death.
For example, respiratory failure, congestive heart failure and liver failure are mechanisms of death.
Jonathan Arden, the president of National Association of Medical Examiners, said he could not speak about the specifics of the particular case but discussed the roles of medical examiners generally.
He said medically speaking, the cause of death is the specific issue that starts a sequence of events that culminate in the death of the individual, while the mechanism of death is the final step in that sequence of events, or the immediate cause of the death.
In the case of a gunshot wound to the chest, the gunshot wound would be the cause of death and exsanguination, the scientific word for bleeding to death, would be the mechanism.
In the Kilburn case, the official cause of death was “undetermined terminal mechanism due to multiple underlying conditions.”
The conditions included a skull fracture suffered March 11 after being struck by Campbell. Other conditions listed include hypertension, cardiac and cerebral vascular disease, obesity and diabetes.
Shapiro was unable to determine the mechanism of death.
Ben Truman, spokesman for the Department of Health, said Shapiro could not comment on the Kilburn case because of the ongoing investigation, and that no representatives of the Office of the Chief Medical Examiner would be available to speak generally about the office’s work because it “is closely associated with the elements and findings relevant to this active case.”
While requests for the full autopsy have been rejected by the City of Burlington and Department of Health, the Governor’s Office did not redact the portion of the autopsy del Pozo cited in his email to Levine.
Shapiro wrote that Kilburn’s autopsy demonstrated features of Kilburn’s natural diseases and injuries but “no single catastrophic, anatomic cause of sudden death.” The autopsy notes that mechanisms that may explain his death include irregular heartbeats caused by either natural disease or medications, seizure and/or respiratory distress, all of which Kilburn had risk factors for or had experienced in the past.
“Pain and stress are also known to have physiologic effects on the body, particularly on the cardiovascular system,” Shapiro wrote. “Each of these possible terminal mechanisms would have been a physiologic event that leaves no anatomic trace to be discovered at autopsy.”
Arden said the “undetermined terminal mechanism due to multiple underlying conditions” finding was uncommon, but not unheard of.
“There are times when the mechanism may not be apparent, but you can reach a conclusion on cause with reasonable medical certainty,” he said.
Levine told VTDigger last month that he could not speak for Shapiro in discussing the ruling in the Kilburn case, but said the state’s medical examiner follows Center for Disease Control and Prevention guidelines.
Levine used an example of a case of an individual who dies from a heart attack with an abnormal heart rhythm to illustrate how specific mechanisms may not always be clear in autopsies.
Since the interval of time between the abnormal heart rhythm — the mechanism of death— and individual’s death could be short, evidence of that rhythm may not be apparent in the autopsy.
“When the autopsy is done, you may not actually see much in the way of evidence for what you think happened because you don’t see evidence of the heart rhythm abnormality that actually caused the death,” he said. “You may see the person had heart disease and had a blockage in one of the coronary arteries, but you don’t see evidence for the rhythm problem which is what actually killed the person.”
In this case, the medical examiner would have to hypothesize that the abnormal rhythm caused the death because it wouldn’t be evident in the autopsy, Levine said.
“That mechanism may not actually be something that the autopsy could show you, it’s something that you postulate is what happened as a result of what you did see on the autopsy, which is a blockage of a coronary artery, which was going to lead to a heart attack,” he said.
Manner of death
After determining the cause of death, medical examiners determine the manner of death.
The manner of death “describes the circumstances surrounding the death,” according to the Vermont guide. There are only five possible manners of death in the state: natural, accident, suicide, homicide and could not be determined. Medical examiners can also select “pending Investigation.”
Natural deaths are “due solely or nearly totally” to disease and/or the aging process, according to a guide from NAME. Homicide “occurs when death results from a volitional act committed by another person to cause fear, harm, or death.”
While intent to cause death is often an element of a homicide ruling, it is not required for the homicide classification.
“Homicide for the purposes of death certification is a ‘neutral’ term and neither indicates nor implies criminal intent, which remains a determination within the province of legal processes,” the guide states.
The “undetermined” manner can be used “when the information pointing to one manner of death is no more compelling than one or more other competing manners of death in thorough consideration of all available information.”
According to the CDC, when trauma is either the underlying or contributing cause of death, the manner of trauma must be indicated.
“The trauma must have been initiated by an accident, a suicidal venture, or a homicidal event,” the CDC guidelines state. “It may be impossible for the certifier to determine which of these three fits the particular case at hand, in which case it may be necessary to state that the manner of death could not be determined.”
In Vermont, if injuries contribute to a death it cannot be considered natural, according to the Health Department guide.
“If an injury in any way contributes to the person’s death, no matter how long ago that injury was sustained, the death is not considered natural,” the guide states.
In cases where an individual had major diseases and minor trauma, the death could be classified as natural “if it is thought that death was about as likely to have occurred when it did had the trauma not existed,” according to the NAME guide.
“For example, a person in sickle cell crisis might sustain a minor injury that could exacerbate the crisis, yet the crisis is severe enough that it may well have been fatal on its own,” the manual states.
But death caused by law enforcement officers’ efforts to subdue individuals may be classified as a homicide, the NAME guide states.
“In such cases, there may not be intent to kill, but the death results from one or more intentional, volitional, potentially harmful acts directed at the decedent (without consent, of course),” the guide states. “Further, there is some value to the homicide classification toward reducing the public perception that a ‘cover up’ is being perpetrated by the death investigation agency.”
The autopsy could not differentiate which mechanism or mechanisms occurred, but Shapiro wrote Kilburn’s death was due to his underlying health issues, one of which was the recent trauma.
“Due to the inclusion of trauma as a contributor to the death, the manner of death is not natural,” Shapiro wrote.
Shapiro’s homicide ruling — and his decision to list trauma as one of the contributing factors in the death — means that Shapiro found Kilburn would not have died without the injuries he sustained from Campbell.
“By including the injury that occurred during the altercation … if an injury received at the hands of another person causes death or is part of causing death, that’s the very definition, that’s the reason for a manner of death being homicide,” Arden said.
Standards of proof
Del Pozo was not satisfied with Shapiro’s explanation, and his email to Levine states that he and Weinberger do not believe that Kilburn’s autopsy supported Shapiro’s conclusion that the manner of death was homicide.
“Again, we understand that unlike cases of accidental deaths, natural deaths and suicides, which are ‘more likely than not’ or ‘preponderance of evidence’ cases, the standard of belief in the practice of medical examiners is ‘beyond a reasonable doubt,” del Pozo wrote to Levine. “Our concerns is (sic) that the report of the autopsy does not support a conclusion of homicide based on any of these standards.”
While “reasonable probability” is the standard needed in most categories, “clear and convincing evidence” is the standard that is required or recommended for homicide, according to the NAME guide.
Arden said “beyond a reasonable doubt” is not a standard used by medical examiners. In his experience, medical examiners generally use the “reasonable medical certainty” standard in determining all manners of death.
Del Pozo reached out to Jason Graham, the first deputy chief medical examiner in New York City’s Office of the Chief Medical Examiner, and sent him an excerpt from the autopsy report the morning of the VSP’s announcement.
“This is helpful and explanatory; also, it helps make the case for lack of ‘certainty beyond a reasonable doubt’ as to whether or not these non fatal injuries contributed directly mechanistically to death which, if this burden of proof were met, would make the death rightly classified as a homicide,” Graham replied to del Pozo.
Graham wrote that it may be “more likely likely than not” that Kilburn’s injuries were a source of physiologic stress contributing to his death, especially since Kilburn had underlying natural diseases that put him at a risk of sudden death. But the burden of proof for a homicide is higher, Graham wrote.
“The degree to which the injuries contributed mechanistically to death is unknown; manner of death undetermined,” he wrote. “The cause and manner of death are ultimately a medical opinion provided by the medical examiner in charge of the case, and these types of cases are often challenging.”
Del Pozo wrote a memo to Weinberger, his staff and deputy city attorney Justin St. James after internal Scott administration discussions criticizing their decision to contact Levine became public. The memo was completely redacted in a records request from VTDigger, but portions were unredacted upon appeal.
Del Pozo wrote that Shapiro could not determine a cause of death “with any certainty,” could not differentiate which possible mechanisms of death occurred and “could not determine if any particular mechanism of death occurred at all, including ones that might have been caused by trauma.”
Del Pozo also noted that of “all of the possible terminal mechanisms, including those that may have been caused by trauma, would not have produced physiologic evidence that he could point to in order to show that any of them actually happened.”
Arden said that del Pozo’s characterization that Shapiro could not determine a cause of death was not accurate. There isn’t always only one cause of death, Arden said, and medical examiners are able to “invoke other contributory causes of death if they are necessary to explain how that death occurred that way, that time, that place.”
Arden said that while del Pozo was correct that Shapiro could not differentiate which mechanism occurred, medical examiners are not required to make such a determination before ruling on the cause and manner of death.
“The absence or the inability to determine a mechanism of death does not negate the ability to conclude with appropriate certainty for cause of death,” he said.
Truman said Kilburn’s death certificate “speaks for itself” and that the Health Department declined to speculate what del Pozo said or meant in that memo.
The job of a medical examiner isn’t easy, Levine said.
“It’s very challenging, and there are cases where people have underlying diseases and then superimposed on those underlying diseases some acute stress occurs,” he said. “They may have some horrific event that they hear about or witness, or they may have a painful situation occur, something that causes enough stress that a lot of those sort-of adrenaline-like hormones start to get secreted in their body, which stresses out their underlying disease.”
Levine said he stands behind the medical examiner’s decision and said Shapiro has a “very, very strong track record.”
“If they’re postulating a mechanism and cause of death, I would certainly be inclined to agree with that because of the excellent judgment they’ve exercised in the past,” he said.
Weinberger said he thought the public would better understand his and del Pozo’s decision when more details of the autopsy become available after a charging decision has been made.
“I think it will be clear that the chief and I were seeking the truth, and seeking fairness,” he said. “It’s hard for people to see that given the information that’s protected currently, but when it’s out, I think … questions or uncertainty people have about our actions, the intent behind them and the integrity behind them will be clear.”
While Shapiro’s homicide finding means that he believes Kilburn’s death would not have occurred without Campbell’s actions, Arden stressed it was not a legal determination.
“There’s nothing in our manner of death definition that decides responsibility or criminality or intent,” he said.
Attorney General TJ Donovan will decide whether Campbell will face charges in the incident after the conclusion of the investigation by the state police.