From the Akron Beacon Journal, August 8, 2008: “Prosecutors failed to prove that [inmate] Mark D. McCullaugh Jr. died from asphyxiation after his 2006 struggle with Summit County sheriff’s deputies at the county jail, a judge said. [The judge’s] decision went on to say: ‘It is more likely that Mark D. McCullaugh died from sudden cardiac death following his struggle with Summit County deputies and due to the adverse impact of that struggle on his pre-existing severe arteriosclerotic cardiovascular disease prior to the use of drugs or the use of [pepper] spray by the defendant.’” |
In this week’s C1 Exclusive, columnist Ken Wallentine helps shed light on a recent court case involving the death of an inmate who was in the state of excited delirium.
The recent trial and acquittal of Deputy Stephen Kendrick presented a classic case of dueling experts. The evidence ultimately accepted by the court failed to support the prosecution’s theory that Mark McCullaugh died by asphyxiation caused by a dose of oleoresin capsicum (“OC”) spray. Reputable physicians testifying for the defense found no evidence of swelling in McCullaugh’s airways.
A decade ago, extensive research and medical studies showed just how unlikely it is that OC spray could cause death by respiratory failure.
The defense showed that McCullaugh was in a state of excited delirium. Though much has been written and said about excited delirium in the past few years, there is still much that we don’t know. At this point, the American Medical Association and the Diagnostic and Statistical Manual of Mental Disorders do not recognize excited delirium as a discrete medical condition or event.
Other medical professionals, such as internationally-renown Dr. Vincent De Maio, recognize excited delirium as a syndrome and have written extensively on its symptoms and potential prevention.
I served as the expert witness in a case of excited delirium where the suspect died following a struggle and application of OC spray, much like the McCullaugh case. My own interview of the medical examiner about the suspect’s various injuries and my study of the autopsy findings convinced me that the OC spray had nothing to do with the death.
The suspect had been sprayed with OC, which had no effect whatsoever, and he had been struck in the upper body, and even the head with an baton, also to no effect. He’d also been given intramuscular Haldol and Valium. Only after a protracted and exhausting struggle with several physically fit officers and firefighters was the suspect handcuffed.
What we do know
There is still much to be learned about excited delirium. I am often consulted on this issue, and I find it interesting to hear the certainty expressed by others who stretch hypothesis to fact. I can’t conclusively say in this case whether the irritation of the throat tissues was a causal factor in the death, though the best medical evidence strongly suggests that it was not. OC can cause respiratory irritation in asthma patients.
The studies that I’ve used in my research and litigation show that the OC-induced asthmatic wheezing resolves quickly with exposure to fresh air, water and breathing treatments, and is not life-threatening.
OC often has no discernable effect on excited delirium subjects. We don’t know much about excited delirium, but we do know a few things:
- Urgent medical care is indicated, though often made impossible by the subject’s combative force
- Rapidly cooling the subject’s hyperthermia is vital
- There is a sudden, unpredictable escalation in heart rate, into the most extreme ranges, that precedes death
- Even rapid intervention by paramedics is often not successful
- We see more cases from May to September
- Excited delirium subjects are generally males, early adult age, often physically large and well-muscled, with some prior mental health events, and chemical imbalances are often implicated (I am personally aware of one case where a severe nutritional chance may have contributed to an excited delirium event)
- There may be little warning
- By the time police are called, let alone arrive, the excited delirium symptoms may be on an irreversible track to death
What we don’t know
One of the best steps to avoid or reduce liability is to “talk nice, think mean.” The deputy was accused of saying that he was going to “let [McCullaugh] cook” in the pepper spray. If true, the statement was unnecessary and added complications to the litigation. It may be that allowing a suspect a brief period of time in a pepper spray cloud or fog before entering a cell for a forced cell extraction is a reasonable corrections tactic in certain limited circumstances. However, a statement like this just plain sounds bad and complicates issues in court.
As one often called to consult and to testify about police use of force, I don’t see much precedential value in the case. However, this is a case that illustrates something that I’ve been saying for three or four years. We just don’t know much about the physiology and cause of excited delirium. Many great folks, such as the RCMP’s Chris Lawrence, are doing wonderful research work. Even so, we’re a long way from good, hard science on this phenomena.
Perhaps a closer look at “what we don’t know” by those responsible for charging Deputy Kendrick would have saved the pain and expense of a trial that ultimately brought no comfort to McCullaugh’s family and needlessly caused pain and expense for Deputy Kendrick and his family.About the author
A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. He may be contacted at KenWallentine@Utah.gov. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press. You can read more from Ken Wallentine on Police1.com.