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Lawyers for Summit deputies cite court ruling that changed autopsy findings to 'undetermined'
By Ed Meyer
Beacon Journal staff writer
Published on Thursday, May 15, 2008
Lawyers for five Summit County sheriff's deputies facing trials in the 2006 death of a jail inmate have asked a judge to dismiss the charges after a recent civil court ruling changed the autopsy findings from ''homicide'' to ''undetermined.''
Citing the May 2 ruling of visiting Judge Ted Schneiderman, lawyers for Deputy Stephen Krendick, 34, argued in court briefs that the autopsy changes ''tainted'' the evidence presented to the grand jury when the indictments were returned last September.
The defense singled out the grand jury appearance by Deputy Summit County Medical Examiner George Sterbenz, who testified with ''a reasonable degree of medical certainty,'' according to the dismissal motion, that the manner of death was homicide.
''It is certainly fair to argue that the decision of the . . . grand jury to return an indictment against defendant Krendick and four other deputies was in large part based upon the testimony of Dr. Sterbenz,'' the defense motion stated.
Visiting Judge Herman F. Inderlied Jr., who is presiding over the criminal case, ordered prosecutors to file a response by today.
Prosecutors replied in court briefs filed late Wednesday that all charges should stand because there is case law saying juries are not required to consider only the testimony of an expert witness such as the medical examiner.
In cases ''where the victim's [injuries] are so severe,'' prosecutors argued, ''even a lay juror'' can decide those injuries ''caused the victim's death.''
But J. Dean Carro, appellate law professor at the University of Akron and president
of the Akron Bar Association, said there could be some weight to the defense argument.
''Courts are historically reluctant to become involved in grand jury proceedings because of the privacy of those proceedings,'' Carro said. ''But there are examples in cases where, if the evidence was critical to the grand jury indictment and was false, the grand jury indictment has been re-examined.''
Carro said the case against the deputies also could present an entirely different challenge for Inderlied because the defense argument is not based on ''false or fraudulent'' testimony.
''It is now incorrect testimony, so that makes it kind of an unknown area [for the judge to consider],'' Carro said.
Inmate Mark D. McCullaugh Jr., 28, died on Aug. 20, 2006, after what was described in sheriff's records as a ''violent struggle'' with deputies in his cell in the jail's mental health unit.
Deputies used a Taser stun gun and a full can of pepper spray on McCullaugh, according to sheriff's records, and a jail nurse injected him with two drugs, Geodon and Ativan, which are used to treat anxiety and mood disorders.
Early this month, after a four-day civil trial in Summit County Common Pleas Court, Schneiderman ruled that the manner of death must be changed on the official autopsy and death certificate from ''homicide'' to ''undetermined.''
And he ordered that all references to the Taser must be removed from those findings.
Schneiderman wrote that there was ''simply no medical, scientific, or electrical evidence to support the conclusion that the Taser . . . had anything to do with the death'' of McCullaugh or two other unrelated deaths involving confrontations with police.
The civil suit prompting that decision was filed by Taser International Inc., along with the city of Akron, against Lisa J. Kohler, the county's chief medical examiner.
Assistant Cuyahoga County Prosecutor John R. Kosko, who is handling the government's case by special appointment, bolstered his argument against dismissal by listing nine areas of significant injuries in the McCullaugh autopsy.
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
Lawyers for five Summit County sheriff's deputies facing trials in the 2006 death of a jail inmate have asked a judge to dismiss the charges after a recent civil court ruling changed the autopsy findings from ''homicide'' to ''undetermined.''
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