George's Note:
This fight for the Rainey family to get information is, in a nutshell, an example of one of the many failings of this supposedly "great country." Why does it seem like the first instinct of these governmental agencies is to cover up their inadequacies instead of admitting there is problem? Is it any wonder how our mistrust of government has grown to monumental proportions?
JULY 02, 2017 4:01 PM
A piece of evidence the size of a postage stamp is the focus of an upcoming court hearing in a federal civil rights lawsuit brought by the family of Darren Rainey, an inmate who died after he was locked by guards in a hot shower at Dade Correctional Institution.
Miami-Dade County officials have not complied with a subpoena requiring them to send a skin tissue specimen, gathered during Rainey’s autopsy, to an expert hired by Rainey’s family, court records show. County attorneys, citing a provision of the Florida Administrative Code, say that any inspection of tissue samples has to be done in the medical examiner’s office, where the examination would be supervised.
The expert hired by the family, Dr. Werner Spitz, is a nationally renowned forensic pathologist based in Michigan. Rainey family attorneys filed a subpoena in federal court on May 23 demanding that the county medical examiner produce certain specimens, or “re-cuts,” of tissue samples that at are embedded in paraffin in a glass slide to preserve them. The subpoena requests that the medical examiner send the re-cuts to Spitz in Michigan.
It is a common practice by forensic pathologists to request re-cuts of various autopsy slides in civil and criminal cases in order to verify the cause and manner of death, according to Spitz.
Miami-Dade’s medical examiner, Dr. Emma Lew, ruled Rainey’s death an accident, caused by a combination of factors, including his mental illness — he was severely schizophrenic — heart disease and “confinement to a shower.’’ Lew said there was no evidence that the shower was too hot, and that his skin — despite massive peeling — showed no sign of thermal injuries or burns.
Her findings have been questioned by multiple forensic pathologists, including Spitz, who has written what is widely considered the “bible of forensic pathology’’and has practiced for more than 60 years.
Spitz said can’t ever recall having to go to court to ask a judge to enforce a subpoena for a re-cut of a slide in a closed criminal case. Rainey’s case was closed in March, when Miami-Dade State Attorney Katherine Fernández Rundle wrote a memo concluding that there was insufficient evidence to prove that corrections officers turned the water up to scalding temperatures.
The shower was rigged so that the controls were in an adjacent mop closet accessible only to guards. Multiple inmates said that it had been used by officers in the prison’s mental health ward to punish unruly prisoners by exposing them to unbearably hot water and steam. Rainey was locked in the shower for more than 90 minutes, records show.
Spitz has worked on some of the most high-profile cases in U.S. history, including the deaths of President John F. Kennedy, Martin Luther King Jr., Nicole Brown Simpson and JonBenet Ramsey.
“What we are all trying to get to is the truth,’’ Spitz said. “Why can’t this be done like gentlemen and ladies? This is not necessary to go to court. This is something that’s done all the time.’’
The county also declined to permit an independent review of the slides by Dr. John Marraccini, the former medical examiner in Palm Beach, who offered to do it at no charge as a public service, given the questions that have been raised about Lew’s findings.
Marraccini remains puzzled by the roadblocks placed by the county. He said he has been routinely mailed “re-cuts’’ from the Miami-Dade medical examiner’s office — and has never been forced to review them in their office.
“I get re-cuts mailed to me from Miami-Dade all the time and I’ve never had to come look at them under their supervision,’’ he said.
In their court motion, Rainey’s attorneys attached a copy of a letter from Darren J. Caprara, director of operations for the medical examiner, citing a provision of the Florida Administrative Code that he said prevented the office from sending out re-cuts. The provision, F.A.C. 11G-2.004, says “an independent examination and analysis of physical evidence and embedded tissue is permitted only under the supervision and control of the Medical Examiner.’’
Unlike statutes, which are passed by the Legislature, provisions of the administrative code are adopted by regulatory agencies.
Another expert, Dr. Michael Baden, has disputed Lew’s findings after reviewing the autopsy file and photographs, which show large swaths of Rainey’s skin peeling off his body, revealing areas that paramedics said appeared to be second- and third-degree burns.
Baden, who was on New York State’s prison medical review board for 40 years, said skin slippage such as that indicated in the photos is “hot water trauma” caused only by prolonged exposure to elevated water temperature.
Lew has said the damage involved post-mortem decomposition in a moist environment, and is not an indication that the shower water was inordinately hot.
“I have not heard of a medical examiner office ever refusing to send microscopic slide re-cuts to to the next of kin’s pathologist, especially after the criminal investigation was closed,’’ Baden said.
The motion on the slides is scheduled to be heard in federal court on July 7.
In the motion, Rainey’s attorney, Milton Grimes, contends that the re-cuts are part of routine discovery in any case — and that they are “easily divisible” and “will not affect the preservation or quality of the remaining tissue.’’
He also asserts that the rule cited by the county is not applicable because the case is being heard in federal court.
As part of a public records request, the Herald received more than 100 emails from the medical examiner’s office pertaining to the Rainey case. According to the emails, re-cuts of slides were provided to the FBI, which has expressed interest in the case.
The emails also revealed that the lead prosecutor in the case, Kathleen Hoague, didn’t know until a few months ago that a slide of Rainey’s skin tissue was even collected by the medical examiner. The state attorney’s office began investigating the case in 2014 — two years after Rainey’s death — when the Miami Herald began requesting public records.
Marraccini said that the slides are a critical part of any autopsy because they will show conditions that are not visible to the naked eye. He said the skin sample taken by Lew would be kept indefinitely and re-cuts do not affect the integrity of the original sample. Theoretically, hundreds of re-cuts can be taken from a single slide, he said.
“The real risk for the medical examiner of doing a re-cut is that you may discover something new that you didn’t see from the initial sample,’’ Marraccini said.
In the case of burns, a medical examiner would look for a cellular reaction that may or may not be present in the hours after a victim’s death.
“If you don’t see a reaction and you hang your hat on that and say it’s fresh and the result of post-mortem injuries — and then you take a re-cut and you see a reaction to the injury, then you have a problem. It shows that the injury is not post-mortem,’’ Marraccini said
“In our business, a medical examiner has to be flexible enough to change the cause and manner of death based on the information that becomes available,’’ he added. “In this case, there is no point of keeping specimens if they find excuses not to allow them to be analyzed.’’
The medical examiner’s office did not respond to a request for comment. The Herald also reached out to Miami-Dade’s mayor, Carlos A. Giménez, who oversees the medical examiner, but he was not available.
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George Mallinckrodt