FORT WAYNE, Ind. (WANE) – An unusual case in the Allen County courts right now involves organ donation within a homicide investigation. The central question: can a homicide victim be an organ donor and still have the autopsy necessary to prosecute his or her killer?
The Allen County prosecutor says no. But, the Indiana Donor Network says yes.
NEED FOR DONORS
Around 120,000 people across the country are on transplant lists waiting for a life-saving organ. About 1,500 of those are Hoosiers, according to the Indiana Donor Network. Every day, 22 people (on average) die waiting for an organ transplant.
There’s a huge need in this country for organ donors. According to organdonor.gov, while 95 percent of U.S. adults support organ donation, only about 54 percent are registered donors. On top of that, only three out of every thousand people die in a way that allows for organ donation.
In a publication by the National Association of Medical Examiners, it’s stated that as many as 70 percent of potential donors fall under the jurisdiction of a coroner or medical examiner. That means an autopsy, and further examination of the body, is needed to potentially prosecute a criminal case. The group also encourages organ donation whenever possible.
“The position of Name is that you will work to come to a conclusion so you can optimally have the decadent become an organ donors so that’s what we try to do,” Marion County Chief Deputy Coroner Alfarena Ballew, said.
One person can donate up to eight life-saving organs and help dozens of other people with other tissue donation. But when an organ donor becomes a homicide victim, it can get complicated.
BRIAN LOWE JR.’S CASE
On October 25, 2017, around 11 a.m., Brian Lowe Jr. was shot in the head while he was getting in a car on Lake Avenue.
“He was a jokster and always wanted to make people laugh,” Linda Lowe, Brian’s mother, said.
The 31-year-old father of 12-year-old and 2-year-old daughters was pronounced brain-dead at a hospital and put on life support.
At the same time, four hours after the shooting, Fort Wayne police arrested DeeDee Barnett. He told police he shot Lowe because he was “causing chaos in the neighborhood.”
“We know who did it, but we don’t know why he did it. He needs to pay for what he did. The answer he gave that Brian was causing chaos in the neighborhood is not a good enough answer to put yourself behind bars for the rest of your life and take your freedom away,” Linda said.
Brian was also a registered organ donor. His parents said he signed up at the BMV when he was 19 years old.
“He was always first in line to give blood, so it didn’t shock us that he was a donor,” Linda Lowe said.
The Indiana Donor Network met with the Lowe family the evening of October 25, and they initially agreed to allow Brian’s organs to be donated.
The next day, an Allen County judge granted the prosecutor’s office a search warrant for Lowe’s body for the coroner to perform an autopsy to confirm cause and manner of death.
The Indiana Donor Network then filed a counter restraining order to delay the autopsy until after organ donation.
The Lowe family was caught in legal limbo, and feels like the donor network was misleading.
“We wanted the coroner to find out what killed our son. We don’t want his killer to walk the streets ever again. Had the Indiana Donor Network received the body, the office of the coroner could never have done his job to find out what killed Brian,” Linda said.
That’s what the Lowe family said the prosecutor’s office told them and that’s what prosecutor Karen Richards argued in the court hearing on October 27.
15 Finds Out obtained the full transcript of the hearing. READ IT HERE
“If we allow organ procurement, then we can’t do a full and complete autopsy. If I say ‘okay’ and can’t prove a homicide case because I don’t have a full and complete autopsy, then I’m answerable to the community for that,” Richards told Judge Stan Levine.
Richards added that even though a suspect had been arrested and he gave police a confession, she still needs an official cause and manner of death to prosecute the case. And while it might appear Brian was killed by a gunshot wound to the head, an autopsy needed to confirm that.
But, attorneys for the donor network argued a victim donating organs does not have to interfere with determining an accurate cause and manner of death.
“We have cooperated with coroners for homicide investigations. In fact, it’s happened in this county under the prosecutor’s watch. This is not anything new. Sixty-nine homicide cases have allowed for organ procurement here in Indiana. [In this county] seven of those donors … “ Attorneys Bryan Babb and Philip Zimmerly said.
They started to talk about seven donor cases in Allen County, but Judge Levine cut them off, saying he would not hear any evidence in the hearing.
The Judge ultimately ruled in favor of the prosecutor. Brian Lowe Jr. was taken off life support without donating any organs.
On October 31, the Allen County Coroner released the official cause of death as gunshot wound to the head.
The Allen County Prosecutor’s Office, Allen County Coroner’s Office and Judge Levine all declined to comment for this story because this lawsuit isn’t over yet. A Case Management Conference Order lists the case is set for a summary judgment hearing on October 18, 2018.
The Indiana Donor Network sent 15 Finds Out that statement about the case:
It is our hope that this lawsuit will begin to forge a basis from which we can better work with Allen County to save lives.
For the Lowe family, that legal battle delaying their son’s final breath added more pain to an already devastating situation.
“It caused us further pain and anguish that we shouldn’t have been subjected to,” Brian Lowe, Brian Lowe Jr.’s father, said. “I’d hate to see another family go through this heart-break.”
Linda thinks the Indiana Donor Network should not have fought for the organ donation.
“I had every right as his mother to say no, and I couldn’t. There should be laws in place. If it’s a criminal investigation back off. Just back off. The family is going through enough,” she said.
WHAT ARE THE LAWS?
The Anatomical Gift Act, in part, stops other people from trying to override an individual’s decision to be an organ donor.
Indiana law also requires coroners to work with organ procurement organizations. But, cooperation does not mean that the coroner or forensic pathologist is required to consent to a victim in a criminal investigation also donating organs.
At least five other states, however, have laws much more strict that require coroners to perform autopsies in a way that is first compatible with organ donation.
While it’s not required in Indiana for homicide victims who are also organ donors be allowed to donate their organs, many cases find a way to make organ procurement work with determining a cause of death for the criminal investigation. The following is a statement from the Indiana Donor Network:
We have dedicated staff and processes in place to collaborate with coroners to protect and provide valuable evidence, including making available to forensic pathologists and/or medicolegal investigators the option to view and photograph organ and tissue recovery procedures. It is our ultimate goal to provide information necessary for an effective prosecution and preserve the option for donation.
In most cases, Indiana Donor Network and county coroners and prosecutors are able to work together to support an individual’s legal right to determine for themselves if donation should occur following one’s death, and are able to put together effective criminal prosecutions without sacrificing the ability to save and heal lives through donation.
HOW DOES IT WORK?
“Ultimately it comes down to communication. We have the prosecutor, the organ donor organization and coroner and forensic pathologist and everyone communicates. What are the benefits? What are the challenges with moving forward with organ donation and what can we do to streamline things,” Marion County Chief Deputy Coroner Alfarena Ballew said.
Ballew said a handful of homicide cases every year in Marion County are also organ donation cases. There, it’s not uncommon for organ donation to occur and still gather an official cause and manner of death for the criminal case.
“It has happened where the forensic pathologist goes right in at the time of the organ procurement and makes decisions on what can be procured or released for donation. That would be documented and everything would go in the case file. So, if there are injuries, they’re documented. The forensic pathologist would look at that, document that, and it’s used as part of the death investigation as evidence,” Ballew explained.
The Allen County coroner contracts with a group of forensic pathologists to perform autopsies. It’s not clear if the forensic pathologists asked or were given an option to be in the operating room to examine Brian Lowe’s organs during donation. They are not named in the lawsuit filed by the Indiana Donor Network.
WATCH| Extended interview with Alfarena Ballew:
Every homicide case is different, and organ donation from a homicide victim isn’t always possible, but Ballew said in her county, the discussion usually doesn’t go all the way to court, like it did in Allen County, even if the answer in a particular case is that donation can’t occur.
“It boils down to communication. I’m a big advocate for who do I need to talk to? Do we need to have a conference call so everyone’s on the line and not one person is missing one aspect of what the other professionals interests are so we are collaboratively working together to identify what the next steps are. What can we do to make things happen? What can we do to move forward,” she explained.
ZYATHEN BLAIR’S CASE
Sometimes the way someone died is not what initially assumed. That is why an autopsy to get an official cause of death is so important in a criminal investigation. In the hearing about Brian Lowe Jr.’s possible organ donation, Allen County Prosecutor Karen Richards illustrated that point with an example of a baby who died a few days before Lowe.
The three-month-old, Zyathen Blair of Paulding County, Ohio, died at a Fort Wayne hospital in late October 2017. Doctors ruled the death as SIDS, but an autopsy discovered something different and turned the death into a homicide case.
“In his autopsy, they found a hole in his brain from blunt force trauma from where he got his head hit off a wall,” Destiny Brooks, Zyathen’s mother, said.
What Richards didn’t say in court, was that Zyathen donated his organs before that autopsy that discovered the blunt force trauma as his cause of death, which in turn, was the evidence needed to arrest the baby’s father, Tristen Blair. In November 2017, grand jury indicted Blair on one count of murder. 15 Finds Out traveled to Paulding County Ohio where his trial will be in May.
Paulding County Prosecutor Joe Burkard said the organ donation prior to the autopsy didn’t taint the cause of death.
“Not really because the organs used for donations were not part of cause of death.,” Burkard, who’s been prosecutor for 22 years, said.
He’s not worried about the cause of death holding up in court either.
“No we have a really good coroner from Fort Wayne actually who did the autopsy. They’re 110 percent sure based on what they saw that blunt force trauma was cause of death. So we’re good that way,” Burkard said.
WATCH|Extended Interview with Paulding County Prosecutor Joe Burkard
While Zyathen’s death wasn’t a homicide when organ donation occurred before the autopsy, Burkard said he can see how the two procedures can work together to achieve both goals.
“Ultimately, if you go to a jury, you have to have everything well-documented and if you have both of those professionals working together and they’re both able to say whatever the causation of death was and it’s not related to the organs being donated then, again, it’s a win-win situation,” he said.
Destiny is grateful both procedures worked for her baby boy. Looking at a picture of his tiny foot wrapped in a hospital band marked organ donor, she tears up, saying it’s a symbol of her son making a difference.
“In my eyes he’s a little hero and you know how heroes wear capes? To me that was his cape,” she said. “A four-month-old baby girl who has his heart, she could do something great in life and knowing my son’s heart is keeping her going, it’s a blessed feeling.”