Dr. J.C. Upshaw Downs, forensic pathologist, says "it's hard to make a call" about child abuse sometimes. jlmarshall@star-telegram.com
Dr. J.C. Upshaw Downs, forensic pathologist, says "it's hard to make a call" about child abuse sometimes. jlmarshall@star-telegram.com

Special Reports

Ruling deaths ‘undetermined’ isn’t wrong, but that doesn’t make it right

May 31, 2017 12:01 AM

Dr. J.C. Upshaw Downs recalls a colleague once telling him that there is no harm in calling a death “undetermined.”

“I can see the logic in that. It does seem to make sense because that way you can’t be wrong,” said Downs, a noted author and consultant who previously served as forensic director and chief medical examiner in Alabama and as coastal Georgia’s first regional medical examiner.

But a case Downs worked years ago changed his way of thinking.

The deceased — a 4-month-old boy with multiple old and fresh breaks in his ribs — clearly had been asphyxiated, Downs said. But just how the asphyxiation had occurred was unclear, and Downs ultimately ruled the manner of death undetermined.

Downs said he implored the detective to dig more into the case and come back with additional information that could warrant him changing the manner to homicide.

That never happened, he said.

Years later, a different detective with the same agency called Downs to inquire whether the boy could have died from being placed under a mattress, with his father on top of it — an explanation that Downs answered made perfect sense.

There are victims out there that could never be victims if it’s all stopped before it starts.

Dr. J.C. Upshaw Downs, medical examiner

Downs learned that the father of the dead baby had been accused of similar incidents with two other children who survived. He ultimately changed his ruling to homicide, and in 2015, the father was convicted of involuntary manslaughter and cruelty to children and sentenced to 15 years in a Georgia prison.

The case, Downs said, taught him a valuable lesson — “there is harm in calling something undetermined when the answer is there.”

“There are the survivors,” said Downs, who now operates his own consulting business in Georgia. “... The other two children didn’t need to suffer and they suffered solely because the first case hadn’t ended it. There are victims out there that could never be victims if it’s all stopped before it starts.”

‘It’s not a homicide’

When a person dies in Tarrant County under certain circumstances, it is up to the Tarrant County medical examiner’s office to conduct examinations of the body to determine what caused the death and the manner of death — how the death came about.

Manners of death fall under five categories: homicide, accidental, natural, suicide and undetermined.

Typically, the undetermined rate for manner of death for a medical examiner’s office falls between 2 and 5 percent, Downs said.

“If it’s a higher than 5 percent undetermined rate, why aren’t they making calls there,” Downs said. “If they’re making them significantly less than 1 or 2 percent, that’s almost too good to be true.”

In Tarrant County, 3.9 percent of deaths in 2015 were ruled undetermined in manner, according to medical examiner statistics.

Undetermined rulings can stall a criminal investigation, making prosecution challenging, if not impossible.

“It doesn’t automatically shut it down but it puts it on hold because, obviously, we need more than whatever was presented to the medical examiner to get that threshold to homicide and we might not have much,” said Sgt. Wade Walls, supervisor of the Fort Worth police’s Crimes Against Children Unit.

If they rule the case undetermined, it’s not a homicide. And it’s very difficult to prosecute a case where it’s not ruled a homicide.

R. Dale Smith, with DA’s Special Victims Unit

R. Dale Smith, chief of the Tarrant County district attorney’s Special Victims Unit, said prosecutors rely heavily on the expertise of the medical examiner’s office.

“If they rule the case undetermined, it’s not a homicide,” Smith said. “And it’s very difficult to prosecute a case where it’s not ruled a homicide.”

A path for prosecution

At times, investigators have sought a different path forward in filing charges.

Though both the cause and the manner of 3-month-old Jaylen Blackwell’s death were ruled undetermined, Fort Worth police still pursued lesser charges against the baby boy’s father.

Jaylen had been found unresponsive in his crib — with suspicious bruises on his back — on July 7, 2016, after his mother returned home from work.

In an autopsy report with the Tarrant County medical examiner’s office, Dr. Tasha Greenberg wrote that Jaylen had multiple cutaneous blunt force injuries, including bruises, that were “inconsistent with injuries expected in an infant of this age.” She also noted internal blunt force injuries and rib fractures.

Still, she ruled the boy’s cause and manner of death as undetermined.

Though his son’s death was ruled “undetermined” in cause and manner, Devonte Blackwell stands charged with injury to a child in the case.
Fort Worth police

Police continued their investigation, consulting with a doctor trained in child abuse with the CARE Team at Cook Children’s Medical Center about the autopsy findings.

“The doctor said that the hemorrhage near the kidney was caused by force from behind and matched the bruising on Jaylen’s back,” according to the arrest warrant affidavit.

In a subsequent interview, Devonte Blackwell, Jaylen’s father, told investigators varying accounts of what happened to his son, according to the arrest warrant affidavit.

First, he told Detective B.W. Kesler that his son had been “laughing and smiling, just like a normal baby” when he put the boy down for a nap that afternoon.

Later, he said he’d been giving Jaylen a bottle when the family’s aggressive Chihuahua-Pomeranian mixed dog, Snowball, began messing with his foot, causing him to drop the baby onto his foot. Blackwell told the detective that the boy was crying after the fall so he put him in bed, according to the affidavit.

When told by the detective that he did not believe such a fall could account for all the boy’s injuries, Blackwell agreed. But when asked to tell what really happened, the father asked to reschedule the interview, left, and never returned, the affidavit states.

‘Try to find the truth’

Though the undetermined rulings essentially precluded murder charges in the case, police did later obtain a warrant against Blackwell for injury to a child/bodily injury, a third-degree felony, for allegedly injuring the boy by hitting or kicking him.

Blackwell was charged in the case March 22 and is currently free on bond.

Blackwell’s defense attorney, Benson Varghese, said his client “is suffering the unspeakable tragedy of losing a child.”

“Throughout this investigation, Mr. Blackwell fully cooperated with law enforcement in an effort to determine the truth behind his son’s death,” Varghese said. “Eight months later, he was arrested. At this time, we are conducting our own investigation into the facts and circumstances of this case.”

Downs, who reviewed Jaylen’s autopsy at the Star-Telegram’s request, said he believes the baby boy’s injuries point to a likely homicide, with evidence of strangulation and abdominal trauma. That the Tarrant County medical examiner’s office ruled it undetermined is troubling, he said.

Tarrant County Chief Medical Examiner Nizam Peerwani declined to discuss the baby’s autopsy, citing the pending criminal case.

Downs said police and medical examiner’s offices depend heavily on each other on child death investigations. But they also can hinder each other when investigators won’t move forward without a clear diagnosis of abuse and the medical examiner’s office doesn’t want to say certain injuries have to be attributed to abuse.

“It’s hard to make the call sometimes, I recognize that. There are times that I can’t make the call, and believe me, I want to. But then there are times when it’s obvious what happened. So what do you do? You try to find the truth as best you can.”

Deanna Boyd: 817-390-7655, @deannaboyd

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