Attorney asks for DA's Help in Inmate Death Case

Dear Mr. Daneri:

             This letter constitutes my formal request to you to conduct a criminal investigation into the death of Mr. Austin.  Based upon my initial inquiry into the facts and circumstances surrounding Mr. Austin's death at the infirmary at SCI-Albion during the early morning hours of January 1, 2012, I believe that a good faith basis exists for the initiation of such action.  As the chief law enforcement officer in and for Erie County, I urge you to give serious weight to this request.  As a courtesy to you and your office, I am providing you with the results of my own private investigation to date, all as set forth below. 

 Mr. Austin (hereafter, "Decedent") was incarcerated at the State Correctional Institution, Albion, PA (SCI-Albion) for alleged offenses (sexual assault) and for a conviction he suffered in Erie County sometime in the early 1990s.  At the time of death, the Decedent had been incarcerated for approximately 21 years.  Decedent had been previously diagnosed with lung cancer, and reportedly was at Stage IV when he died.  Prison officials have ascribed the cause of death as the cancer, although no autopsy was ever performed.  The family was notified of the death sometime during the morning of January 1, 2012.  According to the Decedent's sister, although Decedent had been diagnosed as terminal, he was "stable" at the time of death and had been confined to the prison infirmary for several months preceding his death.  Certain records obtained from a civilian cancer treatment facility indicate that the Decedent was advised by prison medical officials sometime during the summer of 2011 that he had "1 - 2 years" to live.  According to eyewitness relatives, the majority of the nursing care for Decedent was being provided by fellow prisoners with no apparent medical training or licensures.  Relatives report that in the several weeks prior to death, a strong, rotten odor emanated from in and around the

 Decedent as he lay in bed in the prison infirmary.  Relatives also report that Decedent was not being fed regularly (especially during the evening), that he appeared to be severely dehydrated (drinking 7-8 cups of "Tang" powdered drink given to him by relatives during visits) and that Decedent felt extremely hot to the touch and feverish.  When relatives attempted to pull back bed sheets that covered the Decedent while visiting, prison guards in the room rushed over and prevented family members from examining his body underneath the sheets, telling the family that because Decedent was a convicted "sex offender", it was prohibited.  I am presently unaware of any such stricture, either by law or regulation.  Relatives also report that Decedent told them that "they" (prison personnel) were "killing (him)" or words to that effect.  The Decedent had been receiving some care for his cancer at outside medical facilities, including a cancer care facility in Erie, PA.  I have gathered selected medical records from that facility.  Requests to the prison and corrections officials for complete and accurate records maintained by corrections officials have been denied, citing alleged privacy concerns.  This despite validly executed waivers from family members, next-of-kin and from Decedent himself prior to his death.      

 Post-mortem, the Decedent's body was released to the custody of a local funeral director.  In a January 1, 2012 document entitled, "Embalming Report" written by embalmer Mark A. Davis, Mr. Davis reports inter alia, "(n)umerous ulcers (Bedsores) on left leg, back (Lower, center and upper), shoulder, right ear, and left elbow."  This report goes on to state:  "Severe drainage and stench from ulcers on lower back and calf of left leg."  Relatives report that the funeral director told the family that Decedent's body had to be wrapped in "Saran Wrap" in order to keep embalming fluid inside Decedent's body.  According to the funeral director's conversations with family members, Decedent's case represented "one of the worst cases of bedsores he'd ever seen" or words to that effect.   The embalmer reports that he treated the sores with "syngel" and "Dryene" and placed "pads" on the ulcers on Decedent's back "for absorbency."  According to the embalmer, the Decedent's "(b)ody was severely emaciated prior to preparation", noting that Decedent "had terminal cancer."

             When told about the condition of Decedent's body, Decedent's sister asked the funeral director to take photographs of the observed ulcers.  The funeral director complied and took ten (10) graphic, color photos of the wounds suffered by the Decedent.  In addition to the narrative above, the wounds shown involve others not described in the embalming report.  The photos depict prima facie evidence of severe, prolonged inattention and neglect, and they shock the sensibilities of anyone with any humanity whatsoever.

             Outraged over the obvious neglect suffered by the Decedent, family members demanded answers and took their concerns to the press.  The family also asked for an autopsy.  The family was told that unless they paid for the autopsy, none would be performed.   The family (with no money to do so) was unable to come up with the funds needed to conduct such a procedure and it was never conducted.  After notifying local media of the events surrounding the matter and providing copies of the photos to the press, several local media outlets published stories, and the

 Huffington Post ran an article on the case.  In the Huffington Post article, the local Erie County Coroner (Lyell Cook, an elected official) remarked (after viewing the photos with no apparent further inquiry):  "'(t)he care was appropriate and as good as you would find anywhere else."  The coroner further stated:  "(a)dmittedly, they (the ulcers) looked very bad, but we found no evidence to indicate any kind of neglect."  Such a public statement appears to fly in the face of the photographic evidence, and seems "lock-step", reckless and irresponsible in light of the fact that absolutely no investigation whatsoever was undertaken by the coroner's office, save for a mere viewing of the photos, which even to the untrained eye, demonstrate severe, prolonged neglect.  As an example of the graphic nature of the photos, the Huffington Post published a warning to readers, to wit:  "WARNING:  GRAPHIC PHOTOS OF DENNIS AUSTIN."   In any event, it is imminently clear at this point that the Erie County Coroner's Office has already taken an official, public position not scientifically verified by a proper and thorough investigation, including an autopsy.  In this regard, it is my position that Mr. Cook and his office should be recused from any further participation in this matter.  Furthermore, the Coroner's apparent lack of due diligence in pursuing a proper inquiry appears to be in violation of Pennsylvania law requiring that a coroner "shall investigate the facts and circumstances concerning deaths . . . for the purpose of determining whether or not an autopsy should be conducted or an inquest thereof should be had, in the following cases:  . . . deaths occurring in prison or a penal institution. .  .  the purpose of the investigation shall be to determine the cause of death and to determine whether or not there is sufficient reason to believe that any such death may have resulted from criminal neglect . . . ."   (Emphasis supplied).   As such, I am hereby requesting that you take appropriate and swift measures to enlist the services of a neutral, detached and independent medical examiner to conduct whatever tests and an autopsy of Decedent's now-interred body with a view toward finding the truth.  Anything short of such measures will severely undermine any inquiry, and will damage the public's perception and confidence in the process.  As the chief law enforcement officer of this county, you have the power and the duty to do so.  While this may not be politically expedient, it is the right thing to do under the egregious facts of this case. 

             In response to media reports about the case, several citizens wrote and made comments to the editor of the local newspaper, The Erie Times-News.  One comment from a local nurse with many years of long-term care experience related:  "As a nurse for more than 27 years, I was appalled by the Jan. 9 news story on WJET-TV of the deceased prisoner at the Albion prison covered in bedsores.  Yes he was in jail.   Yes he did something to put him there.  But does that give anyone the right to ignore the deplorable condition of his body.? . . . I have never seen such outright neglect . . . for the pathologist to call this care 'adequate' is atrocious. If this were his loved one, good or bad, would he feel the same way?  I truly doubt it. . . . . (The Decedent) should never have been left to lie there and literally rot."   (Emphasis added).

            As you know, 18 Pa. Cons. Stat. Section 2504 defines "involuntary manslaughter" as follows:

(a)     General rule. - A person is guilty of involuntary manslaughter when

as the direct result of  the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly

negligent manner, he causes the death of another person.  

             Assuming arguendo that a proper investigation (including, inter alia, a full, unbiased  autopsy) concludes that the Decedent died as a result of the neglect amply proven by the photos and the facts of this case, then it would appear that a prima facie case of involuntary manslaughter under Pennsylvania law would be a viable one.  Furthermore, experts consulted by me have opined that even assuming a finding that the Decedent died from his cancer, it is quite probable that the neglect amply shown may have hastened his death, given documented evidence from SCI-Albion personnel indicating that he had "1-2 years" to live.   This notion is further bolstered by reports from family members that untrained, convicted prisoners were the day-to-day primary care givers to the Decedent, to include the apparent illegal dispensation of controlled substances to him.  In this regard, there is evidence suggesting that at least one identified prisoner may have been dispensing narcotics, including a "pain patch" noticeably appearing on the Decedent's body in one of the photos taken by the funeral director.  Furthermore, both the Decedent's father and sister were eyewitnesses to one prisoner giving the Decedent oxygen while he lay immobile in his infirmary bed.  This dispensation included the prisoner adjusting the intake, flow and amount of oxygen given to the Decedent.  Under Pennsylvania and Federal law, such activities by unlicensed medical providers are not only prohibited by regulation but constitute criminal activity, all at the behest and under the apparent direction of the prison medical staff.  The "pain patch" evident in one photo appears to be a topically applied and administered medication to relieve pain (i.e., Duragesic or some similar narcotic, apparently an opiate).  This type of drug is a "controlled substance" under the law, and is a Schedule II opiate agonist.  Because this was an opiate, medical care experts consulted to date have advised that it is quite probable that this drug was being administered in conjunction with other controlled substances.  Given the facts known at this time, it is quite probable that fellow prisoners may have been administering this and other controlled substances to the Decedent without proper training and licensure under the law.  An examination of medication administration records retrieved to date indicates that the Decedent was receiving a topical patch of Duragesic (25 mg) every three (3) days.  Decedent was also prescribed Vicodin (5/500 mg); Valium (5 mg orally every 12 hours); Remeron (60 mg at bedtime) and several other medications.  The listed drugs are all controlled substances under the Pennsylvania Drug, Device and Cosmetic Act.  Given what I presently know, I strongly suspect that one or more of these medications may have been dispensed at times pertinent by fellow prisoners.  If this is true, then a whole new set of circumstances presents itself, including the possibility that a conspiracy to administer and deliver controlled substances existed at SCI-Albion.  Examining these facts, the question arises whether or not this activity occurred in other cases.  In any event, your office has an affirmative duty to investigate such misconduct.  As a former federal narcotics prosecutor with a working knowledge of Drug Enforcement Administration (DEA) procedures, I am confident in stating that these concerns are valid ones and should be investigated by unbiased law enforcement.

             In addition to the foregoing, I have consulted with the former chief physician at a federal, out-of-state medical center who was provided with copies of the photos of Decedent's body and who was briefed on the facts of the case.  The M.D. consulted is also well familiar with medico-legal issues.  According to the doctor consulted, he was "offended by what (he) saw" in the subject photos, and further that the photos represented evidence of "criminal neglect."  According to this physician, the "clear neglect" found in the photos alone "seal the deal" and that he had "never seen a case this bad."   According to the doctor consulted, it is "very, very probable" that the Decedent died from "sepsis" and infection from the massive ulcers found on the Decedent's body.  The physician consulted remarked that the case was "horrendous" and that the Decedent's nutritional and hydration needs were clearly not being met by SCI-Albion personnel.  As a result, the expert consulted has informed me that the Decedent "died in agony" as a result of the criminal inaction exhibited by SCI-Albion officials.  Referring to the fact that the Decedent's case involved a "nursing" issue, the physician consulted opined that the standard of care was grossly unmet in this case.   Given the massive nature of the deep,  highly infected ulcers covering the Decedent's body, the doctor consulted again opined that prima facie, there was clear evidence of "criminal" culpability that very probably caused the Decedent's death.  According to this expert, the Decedent's cancer affliction is irrelevant to the evidence of gross negligence in this case.  A review of the nursing standards of care for the care, prevention and treatment of decubitus ulcers like the ones here reveals that "(i)t remains true that decubitus ulcers are generally considered preventable and the development of decubitus ulcers is evidence of some form of neglect (nutrition, hydration, positioning, infection control, etc.).   The standards of care further tell us that "the development of massive decubitus ulcers is evidence of some form of neglect.  Generally, the neglect is in more than one area, i.e., hygiene and nutrition.  It would be a very rare exception for this not to be true."   "Massive weight loss, massive deep wounds over Stage II and chronic infections continue to be an unacceptable standard of care.  Massive wounds are a strong indication of negligence . . . ."  (Emphasis supplied).  Here, it should be noted that the wounds depicted in the photos are all Stages IV and V, i.e., deep, infected and surrounding-tissue spreading wounds.  Clearly, they are signs of gross neglect.   Under the common law definition of res ipsa loquitor, such negligence is easily inferable from the mere facts as we presently know them, given that 1) the character and circumstances surrounding this case lead reasonably to the belief that in the absence of negligence, these severe wounds would not have manifested themselves, and 2) the circumstances surrounding the Decedent's custody and care by prison officials is easily shown to have been under the exclusive management of corrections officials and their medical staff, who had both a legal and moral duty

either helped to hasten the Decedent's death or have caused it outright through pure, inexcusable neglect and deliberate indifference.   Prosser, Torts 212 (4^th ed. 1971).   Given this, a burden now

shifts to prison officials, who must now be necessarily required to come up with evidence to refute the presumption of gross negligence that has been clearly and convincingly warranted by these gruesome facts.

             As you're more than likely aware, on November 7, 2011 a California jury convicted Dr. Conrad Murray of involuntary manslaughter under the California Penal Code in the death of Michael Jackson, the former pop star who died of cardiac arrest on June 25, 2009.  In that case, the jury found that Dr. Murray's conduct was reckless enough to be viewed as criminally negligent manslaughter under California law, which is remarkably similar to the strictures found in the Pennsylvania involuntary manslaughter statute cited, supra.  Even though there was no intent to kill, the jury found that Dr. Murray as a provider exhibited an utter disregard for his patient which in the jury's mind amounted to culpable recklessness and indifference under the law.  Here, the evidence available to the naked eye leaves no doubt that the Decedent died under conditions that can only be described as barbaric and inhumane.   Such reckless indifference to the Decedent's needs is clearly evidenced by the facts. 

             Clearly, prison officials and their medical staff owed a duty to the Decedent, both from the standpoint of custodian and under the medical/nursing-patient nature of their relationship.  Both aspects of this duty required SCI-Albion officials and medical/nursing staff to act in a manner befitting their profession.  Next, it is clear that the duties owed were severely breached, and that the standards of care associated with a case like this were grossly ignored.  There are several ways in which the putative defendants here breached their duties to the Decedent.  First, they allowed untrained, unlicensed fellow prisoners to attend to the Decedent's care and to apparently administer controlled substances and other treatments (i.e., the administration of oxygen) to the Decedent.  Second, it is clear from the evidence that basic nursing practices were not followed, all leading to the conclusion that the standards of care in a case like this were completely ignored.   Such unorthodox and criminal practices are not what reasonable health care professionals would have done under the circumstances, and lead to the inescapable conclusion that the Decedent died as a direct result of gross and deliberate indifference.  Next, it is crucial to determine causation, in this case direct harm to the Decedent that either caused his death outright or was a contributing factor to it.  I have already given you the opinion of experts I've consulted on the subject, who opine that it is probable that the Decedent died from sepsis brought on by the massive ulcers depicted in the photos and described in the embalming report.  This brings me to my last point, the need for a professional, unbiased, thorough autopsy by a qualified, disinterested medical examiner.  As I've already stated - Mr. Cook's office is no longer in a position to provide such a role, all for the reasons set forth.

             I've consulted the expert literature in the area which opines that in cases involving severe decubitus ulcers such as the ones here, autopsies are extremely important in rebutting self-

serving arguments made by facilities like SCI-Albion who claim that a victim like the Decedent here died as a result of an underlying medical condition.   With an autopsy, an unbiased

pathologist can make a medical determination as to the cause of death, which here appears highly likely to have occurred as the result of complications brought on by infection and sepsis.

             Given the foregoing, I am asking you in the strongest manner possible to conduct a criminal investigation into what has occurred with the circumstances surrounding the death of Mr. Austin.  In this country, we are a nation of laws and not men.  Bias, prejudice and unsupported supposition must yield to evidence, fact and detached evidentiary review.  Without such an inquiry, the family will be left with the unsettling knowledge that their pleas for answers were left unheard by a government that breached its duty to them.  In tandem, the public that you serve will similarly be left to wonder whether or not responsible prison personnel got away with criminal homicide.  Given the apparent attendant lawless that occurred with this man's so-called "care", this cannot be left unaddressed.

             Please let me know if I can provide you with anything further.  I have attached a series of color photos depicting the ghastly wounds that covered Mr. Austin's body.  One look at these, and I am sure you'll see that something was and is terribly (and possibly criminally) wrong here.

                                                                                    Respectfully submitted,

                                                                                    ________/S/_________________

                                                                                    Jeffrey J. Del Fuoco, Esquire

                                                                                    PA Bar No. 38445

                                                                                    P.O. Box 244

                                                                                    Fairview, PA  16415

                                                                                    delfuocolaw@gmail.com

                                                                                    (727) 267-8718