Annette Garcia Jobe, Kenwin's mother, talks about his death as his father, Kelvin Garcia, listens.

Police experts said the troopers’ actions after Garcia broke the second window and was restrained were risky, perhaps excessive, considering his unusual behavior, the heat that day, his complaints about trouble breathing and his repeated requests for water.

“The troopers should have had every reason to believe that he was mentally ill and should have begun that thought with some of his answers about walking on the highway,” said Dennis Kenney, a professor at John Jay College of Criminal Justice in New York and a former police officer. “Police who are trained in handling the mentally ill are trained to recognize those kind of signs and not take it as a threat to your machismo.”

Even if Garcia had suffered from excited delirium, the police actions did not follow best practices for dealing with the syndrome, according to a white paper published in April by the International Association of Chiefs of Police. The paper said that while the exact mechanism of death in excited delirium cases is unknown, officers should calm and contain the suspect and limit physical struggle.

“Officers should never attempt to control continued resistance by pinning the subject to the ground or against a solid object using body weight,” the paper said. “Instead, officers should position the subject on his or her side to assist breathing and remove any unnecessary weight or compression to the chest, neck, or head.”

Kenney said that once Garcia was handcuffed behind his back and at his ankles, and was on the grassy shoulder with a patrol car blocking the road and more than a half-dozen people on scene, there was no justification for troopers to continue to use force against him and hold him on the ground because there was no way he could run away.

“He can flop around like a fish but that’s about it,” Kenney said, adding that force was even less justified after hogtying him. “This guy’s not offering meaningful resistance at this point. He’s physically unable to offer meaningful resistance. He’s so secure that he can’t do anything else.”

Hogtying has been controversial because research has suggested it can inhibit breathing among already vulnerable suspects, including those on drugs or the mentally ill, and it has been banned by several police departments across the country, including in Los Angeles. A 10th Circuit Court of Appeals ruling in 2001 said the use of the restraint amounted to excessive force if an individual’s diminished capacity is apparent to the police.

“When you have an indication of some trouble breathing, and a person is still resisting, there have been a lot of controversies over hogtying,” said Samuel Walker, a national expert on police accountability who consulted for the federal government during its oversight of the State Police.

The Attorney General’s Office declined comment on its position on hogtying suspects.

The repeated use of pepper spray also may have inhibited Garcia’s breathing while he was on the ground, experts said. A 1999 study published in the North Carolina Medical Journal found respiratory exposure could cause shortness of breath, gasping and an inability to breathe or speak. Another study two years later by the University of California, San Diego, however, found pepper spray had no significant effect on breathing.

Harris, of the University of Pittsburgh, said the appropriate amount of force depended on how much Garcia was resisting and how much of a danger he posed. He said that considering the restraints used on him, “he’s not likely to be able to go anywhere.”

Regardless of the appropriateness of the amount of force, he said, the troopers’ actions were still “very risky.”

“We’ve lost count of the number of in-custody deaths caused by so-called positional asphyxiation; that’s what this is,” Harris said. “Once a person is in handcuffs on the ground and is no longer a danger, you’ve got to get that weight off the chest, because the compression will kill him.”

Sciarra, the troopers’ attorney after the incident, said they acted appropriately.

“If he was allowed to run into traffic and cause an accident killing innocent civilians the finger-pointing and second-guessing would have been extreme and intense,” he said. “Instead, he was subdued, held and then put into an ambulance for transport to a medical facility. He passed away as a result of an actual diagnosis (not uninformed speculation) related to his mental condition and, surprise surprise, the finger-pointing and second-guessing has been extreme and intense.”

SEVERE INJURIES

According to police reports, the investigation undertaken after Garcia’s death focused on his actions, family life, employment history and medical history.

“They were looking for a character that typically you would find in Newark,” said Boccia, an attorney for the family. “An African-American community, that they would try to establish that this guy had some type of history, but he was clean.”

Troopers and other state investigators attended the autopsy July 23, 2008, in Newark, autopsy records show. Some also later re-enacted portions of the incident at the request of the medical examiner, Perez, police records show. Though the Attorney General’s Office said investigating detectives routinely attend autopsies, it declined comment on what safeguards are in place to prevent them from influencing the medical examiner’s conclusions about the cause of death. Also, police experts said the conflicting accounts of what happened raised questions about the accuracy of the police re-enactments.

“I don’t think she can rely on them,” one expert, McCoy, said. “She’s probably doing it so she gets a perspective on the wounds that she’s observed or the injuries she’s observed. And that’s fine. But it’s not up to her to determine if that was exactly what happened.”

According to the autopsy records, Garcia’s injuries were severe and extensive: Three broken ribs, a broken breastbone and two tears to his right kidney. He had bled internally in numerous areas, including around his ribs, right lung, colon and groin, as well as over his liver, the records show. His abdomen contained about six cups of blood.

He had skin lesions on his left and right cheeks and a cut below his left eyebrow, the autopsy said, but no cuts on his scalp. His heart was a normal weight and showed no significant sign of disease, records show, and toxicology tests found no drugs or alcohol in his system.

The autopsy gave no opinion about how Garcia suffered the injuries.

On Aug. 14, 2008, Perez concluded he died from “excited delirium associated with blunt force trauma occurred during violent struggle while resisting arrest.” She ruled his death a homicide, which, by its basic definition, means the killing of one human by another. The ruling does not mean that a killing amounted to a crime, as some homicides can be justified. The medical examiner could have ruled, however, that the death was an accident, as happened in several of the other nine cases of excited delirium that have occurred in New Jersey during the past decade, arrest-related death records show.

“The fact they labeled this a homicide says something,” Kenney said.

Police reports said Perez based her finding of excited delirium in part on a book co-authored by Vincent Di Maio, one of the foremost experts on the controversial syndrome.

State authorities then went on to hire Di Maio and an expert on police practices related to excited delirium, David E. Hatch of Utah, to review the case, records show. Di Maio said he agreed with Perez’s finding of excited delirium. Hatch, who retired in 1997 after 27 years as a police officer with the Las Vegas Metropolitan Police Department, said, “with the training at that time, the officers acted as they were trained” but otherwise declined comment on the case.

Both reports were presented to the grand jury, records show. The Attorney General’s Office paid $7,200 to Di Maio and $1,050 to Hatch for their work, according to invoices released under the Open Public Records Act, though paying experts for reports is routine in criminal and civil cases. Both experts as well as the Attorney General’s Office declined to release their findings or final reports, citing court rules governing confidential grand jury material.

George Dekle – a legal skills professor at the University of Florida and retired prosecutor of 29 years for the state of Florida, during which time he investigated police-involved shootings and in-custody deaths – said he was not familiar with excited delirium and that the facts supported an asphyxial death.

The police on scene missed signs Garcia needed help and may have been too rough, Dekle said, but the known facts do not support malice toward him.

“Could they have handled it better? Yes, to the tune of about $700,000,” he said. “Did they intentionally inflict serious bodily injury on him resulting in his death? There’s no evidence they did that. It’s an unfortunate situation. They probably could have handled it much better.”

The grand jury ruled no troopers used excessive force. Police experts said that, in general, prosecutors sometimes use grand juries to deflect blame in sensitive cases.

“They might say, ‘I really don’t want you to be indicted, but I don’t want to be the one that makes that decision because it makes it look like we’re covering it up, so I took the evidence before an impartial grand jury and that’s what they decided,’” Kenney said.

Grand juries also are under the control of prosecutors and rely on the information presented to them, said Harris, of the University of Pittsburgh.

“Not having a grand jury indict does not mean no mistakes were made,” Harris said. “When someone tells you, ‘We took it to a grand jury, it was up to them,’ you ought to start from a position of skepticism.”

Even Hatch, the state’s expert, said he’s “not a big fan of grand juries” during in-custody death investigations.

“There’s nothing secret about an officer-involved shooting or an in-custody death,” Hatch said. “It’s a public event and it should be aired in public.”

EXCITED DELIRIUM

Di Maio was the chief medical examiner for 25 years in Bexar County, Texas, which includes San Antonio, and has been an expert witness in many arrest-related death lawsuits involving excited delirium. While acknowledging most excited delirium cases involve drugs, he said Garcia’s actions, apparent mental illness and the police observations were consistent with the syndrome.

“You’ll see somebody walking, talking to themselves, muttering,” Di Maio said. “You’ve seen these people on the street. They’re disoriented, and they’re just not there. And then they’ll begin to do crazy things like walking through traffic, or they’ll take their clothing off.”

Forensic pathologist Vincent Di Maio explains excited delirium.

Di Maio said someone such as Garcia appeared delirious because he was walking on the highway in the wrong direction to a beach far from his location. And, once placed in custody, he became excited, smashed out windows and resisted arrest.

He said the troopers’ observations that the pepper spray appeared to have no effect on him, as well as their report that he resisted for so long, reinforced the diagnosis. He dismissed suffocation, saying it would take a tremendous amount of weight and a long time to kill someone.

In excited delirium, he said, already high levels of chemicals such as adrenaline caused by mental illness spike to dangerous levels when someone engages in a heated struggle. The chemicals cause the heart to race, Di Maio said, injuring the muscle fibers and causing cardiac arrest.

“When you do an autopsy on these people, they’ll have, you know, cuts, scrapes and bruises and things, because they were in a fight,” Di Maio said. “But you won’t find anything … of sufficient severity to kill them.”

But Eric Balaban, senior staff counsel for the American Civil Liberties Union’s National Prison Project and a critic of the syndrome, said Garcia’s case was an all-too-familiar scenario in which excited delirium was cited by a medical examiner and “hard questions are never asked.”

“This is a ‘diagnosis’ or cause of death used exclusively by medical examiners that can absolve officers of any wrongdoing and serve as a basis for an official whitewash and a failure to investigate what could be incidents involving excessive and deadly force,” Balaban said.

Di Maio declined comment on the attorney general’s investigation of the Garcia case. But in 2011 — as part of a joint project on death investigations in the country by Frontline, ProPublica and NPR — he criticized the New Jersey Attorney General’s Office oversight of medical examiners as “an absolute conflict of interest.”

“New Jersey has an interesting medical-legal system which is so bizarre I haven’t yet been able to figure it out,” he said, according to a transcript of his interview for the project.

SECOND OPINIONS

Four medical experts who reviewed Garcia’s autopsy and medical records said excited delirium was not the only possible explanation for his death. They said the findings suggested he might have been asphyxiated, or suffocated, while being restrained on the ground. They agreed with the finding of blunt force trauma, but said a lack of objective information about the incident made it difficult to know what exactly happened.

Douglas Zipes, an internationally renowned cardiologist and leading expert on heart rhythm and sudden death, said including excited delirium as part of the cause of Garcia’s death was “meaningless” because “it’s an empty, big bag of diagnoses that doesn’t establish how someone actually died.”

While he stressed he is not a forensic pathologist or an expert on police procedures, he said Garcia’s injuries, combined with the weight of the troopers on top of him, would have made breathing difficult.

Cardiologist Douglas Zipes explains why he is doubtful Kenwin Garcia died from excited delirium.

“The emphasis I would make is that this is not excited delirium,” said Zipes, a distinguished professor at Indiana University School of Medicine. “This is multiple traumatic injuries. I think a respiratory death is just as reasonable as or even more reasonable than excited delirium.”

Jason, the forensic pathologist with Wake Forest, noted the medical examiner’s investigative data sheet included a summary of the incident that said Garcia was on the way to the hospital when he went into cardiac arrest. That summary was at odds with ambulance records that indicated he was that way when first assessed. The data sheet also said Garcia broke a window with his head, a point contradicted by many officers on scene.

“These injuries are severe and are consistent with scenarios in which the police actions by blunt force and/or traumatic asphyxia caused a cardiac and/or respiratory arrest resulting in anoxic brain injury, which led to the death of Mr. Garcia in spite of the resuscitation of his heart in the emergency room,” Jason said.

Michael Baden, a former chief medical examiner for New York City and former director of the New York State Police Medicolegal Investigation Unit, agreed that Garcia likely died of blunt force trauma and said the inclusion of excited delirium as part of the cause of death was “speculative.”

“He had a lacerated kidney, two quarts of internal bleeding,” Baden said. “He complained of inability to breathe, and had fractured ribs and sternum, which indicates a lot of trauma to his chest. He died of trauma caused by inability to breathe and lacerations of internal organs.”

Laposata, the former chief medical examiner in Rhode Island and now president of Forensic Pathology and Legal Medicine, a consulting firm, said that it was likely a marginal case of excited delirium, but that Garcia did have some behavioral aspects of the syndrome. She said there remained significant questions about the case, however, and because of the restraint used against Garcia, asphyxiation “can’t be ruled out at all.”

“If they’re laying their bodies on him and all of a sudden it’s like, ‘Oh gosh, he’s unresponsive,’ that’s a problem. That’s a huge problem,” Laposata said. “You have to be able to move your chest wall about an inch to be able to expand your chest cavity so air can be drawn in. If you can’t do that, you can’t get air in, you can’t get oxygen to your brain.”

Laposata said some broken bones might have been caused by CPR in the ambulance, but that the autopsy “raises more questions than it answers” because it does not indicate what possible causes of the injuries the medical examiner considered, or what information she was given at the time of her review that could have affected her determination.

“There’s lingering questions that have to be answered, which would be the blunt force trauma, which is not explained by what the police said they did,” Laposata said. “If there’s a mismatch between what the police said they did and damage on the body, that makes you question everything.”

Reached by phone, the medical examiner, Perez, said she recalled the case and would review the autopsy, but she did not respond to several follow-up inquiries from NJ Advance Media. A spokesman for the attorney general’s Division of Criminal Justice, Peter Aseltine, said, “a finding of asphyxia was not supported by the autopsy in the Garcia case,” but he did not elaborate on why the possibility was ruled out.

He declined to answer specific questions about what, if anything, state investigators did to question excited delirium, given its controversial nature, or pursue asphyxia.

“Regarding ‘excited delirium,’ it is an acceptable term to use in connection with the cause of death,” Aseltine said. “The State Medical Examiner’s Office does not have any specific policy or guidance on excited delirium.”