Dennis Austin by DavidLohr

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									                                  Jeffrey J. Del Fuoco
                                    Attorney at Law
                                      P.O. Box 244
                                  Fairview, PA 16415
                                    (727) 267-8718

Admitted in PA.,
D.C. and N.J.

                                        February 14, 2012

Honorable Jack Daneri
Erie County District Attorney
Erie County Courthouse
140 W. 6th Street
Erie, PA 16501

Re: Request for Formal District Attorney Investigation – Possible Criminal Homicide and Other
Offenses in the Death of AUSTIN, DENNIS JOSEPH, 48 y.o. W/M; Date of Death: 1/1/2012;
Place of Death: SCI-Albion, Albion, PA

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

Honorable Jack Daneri
February 14, 2012
Page 2

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

Honorable Jack Daneri
February 14, 2012
Page 3

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).

Honorable Jack Daneri
February 14, 2012
Page 4

       As you know, 18 Pa. Cons. Stat. Section 2504 defines “involuntary manslaughter” as

               (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

Honorable Jack Daneri
February 14, 2012
Page 5

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

Honorable Jack Daneri

February 14, 2012
Page 6

to care for the Decedent. Indeed, the facts and attendant circumstances are such that they at least
meet an initial burden of proof, by making it appear more likely than not that DOC officials
either helped to hasten the Decedent’s death or have caused it outright through pure, inexcusable
neglect and deliberate indifference. Prosser, Torts 212 (4th 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.

Honorable Jack Daneri

February 14,2012
Page 7

        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,

                                                     Jeffrey J. Del Fuoco, Esquire
                                                     PA Bar No. 38445
                                                     P.O. Box 244
                                                     Fairview, PA 16415
                                                     (727) 267-8718



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