[B]urlington Police Chief Brandon del Pozo contested Chief Medical Examiner Steven Shapiro’s finding that the death of a Burlington man days after an altercation with a police officer was a homicide in an email to Shapiro’s boss hours before the Vermont State Police announced Shapiro’s findings.
In an email to Health Commissioner Mark Levine, acquired by VTDigger through a public records request to the Department of Health, del Pozo said that he and Burlington Mayor Miro Weinberger were concerned that the autopsy of Douglas Kilburn did not support Shapiro’s homicide finding. The police chief asked for an explanation, “if the ruling of a manner of death is not to be amended.”
Kilburn, 54, was found dead March 14, days after an altercation with Burlington police officer Cory Campbell in the ambulance bay at the University of Vermont Medical Center. Police say Kilburn punched Campbell in the face during a March 11 interaction, which lead Campbell to punch Kilburn before subduing him.
Kilburn was treated at UVM Medical Center and released the next day, but was found dead in his home later that week.
Shapiro had ruled Kilburn’s manner of death a homicide. The official cause of death was “undetermined terminal mechanism due to multiple underlying conditions.”
One of these conditions was a skull fracture suffered March 11 after being struck by another person. Other conditions include hypertension, cardiac and cerebral vascular disease, obesity and diabetes.
In his email to Levine, del Pozo questioned the standard Shapiro used in determining 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.”
Levine called del Pozo after receiving his email. Levine said in an interview Wednesday that when he spoke to del Pozo, the two mostly discussed the difference between legal and medical findings of homicide.
“I said … that I respected the judgement of our medical examiner and that I wouldn’t get involved because that’s an independently operating part of our government and it would not be appropriate for me to intervene,” Levine said.
Del Pozo told VTDigger Wednesday that he reached out to Levine because he wanted to better understand the medical examiner’s process and findings.
“Both the death certificate and the correspondence with Levine made us intellectually curious about how medical examination and death certification works, because it is a matter that really affects Vermonters,” del Pozo said.
The police chief denied that he was trying to get the medical examiner to change his findings.
“I think that one echelon of government asking another echelon of government to explain its rationale about a decision it is going to make isn’t meddling, it’s democratic accountability,” del Pozo said.
Levine said that when he spoke to del Pozo on the phone, he did not feel any pressure from the chief. But, he said, people should “draw their own conclusions” on whether the email del Pozo sent was an attempt to influence the medical examiner’s determination.
“I think he wanted me to hear what investigating he had done in terms of how medical examiners do these things,” Levine said. “I think he just wanted a set of ears for that, but I didn’t have any pressure applied, at all.”
The Vermont State Police is investigating Kilburn’s death at the request of the Burlington Police Department. The Vermont Attorney General’s Office will conduct an independent review of the VSP investigation when it concludes.
Del Pozo wrote to Levine that the need to “clarify” the matter was “urgent and acute.”
“It will bear greatly on the career and life of a police officer who was attacked by the decedent as the decedent blocked traffic in the Ambulance bay of the UVMMC Emergency Department,” del Pozo wrote. “It will also cause people to impugn the quality of care offered by Vermont’s flagship hospital, which treated and released the decedent after caring for him overnight. It will also imply that the police used homicidal violence on the decedent regardless of the legal outcomes.”
Examiner standards
According to the National Association of Medical Examiners, case law or prudence requires or recommends “clear and convincing evidence” for a medical examiner to rule a death a homicide.
The possible manners of death a medical examiner can select are: natural, suicide, homicide, accident, could not be determined, or pending investigation.
Del Pozo wrote that he and Weinberger did not believe that the standards of “beyond a reasonable doubt,” or even “more likely than not,” were met in determining Douglas Kilburn’s manner of death.
“The medical question is whether or not it is beyond a reasonable doubt that but for some act by a person, the decedent would not have died from the causes by which he died,” del Pozo wrote, adding that he believed it was also not clear how that “but for” standard was met.
The medical examiner did not determine the mechanism of the death, but did determine that the causes of death were the combination of the underlying medical conditions laid out in the death certificate.
Levine said Wednesday he trusted Shapiro’s judgment.
“Certainly I stand completely by our medical examiner who has years and years of experience with this, and has had a very, very strong track record,” Levine said. “If they’re postulating a mechanism and cause of death, I would certainly be inclined to agree with that because of the excellent judgement they’ve exercised in the past.”
Questioning appropriate?
Levine said that this is the first time he has had law enforcement question the findings of the medical examiner in the slightly more than two years he has led the health department.
“I think it’s appropriate to reach out in terms of trying to gain understanding and some clarification and understanding, but anything beyond that, no,” Levine said.
Weinberger said that he and del Pozo reached out to the health department to ensure the release of information about the findings was transparent and accurate. The mayor said he didn’t think the question of whether the email was an effort to influence the medical examiner’s findings was a “yes or no question.”
“It was an attempt for us to make sure this report was getting the proper attention so it was clear, that it had clear explanations, that the standards being used were laid out clearly, and fundamentally, that the report be correct, because we knew that a report that was incorrect would have long, significant consequences that would be difficult to reverse,” he said. “That’s what we are attempting to do.”
Given the ongoing investigation, Weinberger said he and the city were reviewing available information and he could not comment on whether Shapiro’s finding was correct.
Weinberger said he does not recall reaching out to the health department in this manner in the seven years he’s been in office, and said the case was also the first of its type during his mayorship.
On Wednesday, del Pozo wouldn’t directly answer whether his concerns were addressed in his conversation with Levine.
“We want to be sure we understand the practice well enough before we make any determinations on that,” he said. “We recognize this is a specialized field, and although the work of the medical examiner profoundly affects our lives, it’s work that requires a certain amount of expertise and understanding, and I’m not going to give an opinion before I feel like we have that level of understanding.”
While del Pozo’s email to Levine makes it clear that he and Weinberger were concerned that the autopsy did not support Shapiro’s conclusion of homicide, the chief said Wednesday he did not have an opinion on whether Shapiro made the right determination.
“I have no opinion on that right now, nor will I comment,” del Pozo said.
Read the full text of Del Pozo’s email to Levine here:
Dear Dr. Levine,
Thank you for finding the time to talk soon. This email outlines the concerns that led us to ask to talk to you.
Dr. Shapiro has concluded in his report of autopsy that he has been unable to determine the cause of Douglas Kilburn’s death, concluding that could have been from one of many possible causes, the actual combination of which remains unknown. This is from his report:
[Redacted]
I have conferred with the mayor and we are in agreement in requesting clarification of these findings before they are made public. It does not appear to be the case, by any means, that a standard of either beyond a reasonable doubt, or even more likely than not, was met in the determining Douglas Kilburn’s. it is also not clear from the report how the “but for” standard it met. This is especially so since the ME has not been able to go as far as to determine the decedent’s cause of death.
The standard for ruling a death a homicide, based on the City of Burlington’s conferral with experienced, supervising medical examiners in New York and California, is that the manner of a person’s death is a homicide because it is beyond a reasonable doubt that but for the homicidal acts of a person, the deceased would not have died due to the causes by which he is determined to have died.
Whether the person committed the acts or not, who that person was, and whether the acts were a crime, is understood to be a legal matter. The medical question is whether or not it is beyond a reasonable doubt that but for some act by a person, the decedent would not have died from the causes by which he died.
Again, we understand that unlike cases of accidental deaths, natural deaths, and suicides, which are “more likely than not” or “preponderance of the evidence” cases, the standard of belief in the practice of medical examiners is “beyond a reasonable doubt.” Our concerns is that the report of autopsy does not support a conclusion of homicide based on any of these standards.
In other words, it does not seems possible to rule a death a homicide by either standard of proof in the medical profession — either the one used as a standard for homicides, or the lesser one — if one cannot determine why a person died.
The need to clarify this is urgent and acute, because it will bear greatly on the career and life of a police officer who was attacked by the decedent as the decedent blocked traffic in the Ambulance bay of the UVMMC Emergency Department. It will also cause people to impugn the quality of care offered by Vermont’s flagship hospital, which treated and released the decedent after caring for him overnight. It will also imply that the police used homicidal violence on the decedent, regardless of the legal outcomes.
If the ruling on manner of death is not to be amended, we believe we need an account of the rationale, the standards of proof used in formulating beliefs about this manner in the case at hand and in Vermont generally, and why they were satisfied in this case, and why they resulted in the classification of Mr. Kilburn’s death as a homicide.
The Vermont State Police are planning on sending out a press release that Kilburn’s death was a homicide in a few hours.
Sincerely,
Brandon del Pozo
Chief of Police
Burlington, Vermont
@OneNorthAvenue
Please note that this communication and any response to it will be maintained as a public record and may be subject to disclosure under the Vermont Public Records Act.