Dead Wrong

Tim Markley doesn't seem like someone who'd murder an elderly neighbor. At 41, he's bald and slight of frame, favoring tropical shirts and jokes so corny they require rim shots. A fireman by trade, he prides himself on saving lives. "It's my job to make sure everybody goes home," he says.

Which made it all the more bizarre when he was accused of taking a life. "The whole thing has been nothing short of shocking," Markley says. "Being accused of harming an elderly person -- I certainly don't socialize with people who do that."

It all started two years ago, when Markley was walking his girlfriend's dog. According to police, Markley ran into 81-year-old Edward Beverly Sr. outside his home on Denison Avenue. Beverly appeared angry about some money he believed Markley owed him for some animal cages, Markley says. Prosecutors would later claim that Markley punched Beverly in the shoulder. Markley would maintain that Beverly tried to hit him and lost his balance. Whatever the truth, Beverly crashed to the ground.

Beverly was taken to the hospital with a broken hip, from which he never truly recovered. The next 16 months brought a succession of infections until Beverly succumbed to pneumonia last December, two days before Christmas.

The nursing facility where he died didn't bother to inform Cuyahoga County Coroner Elizabeth Balraj. The body was sent to a West Virginia mortuary. But county prosecutors, who had already indicted Markley for felonious assault, tipped off Balraj. The body was brought back to Cleveland for an autopsy.

In his 82 years, Beverly lived a full if not healthy life, having served in World War II and worked as a coal miner. He suffered from numerous ailments, including osteoporosis, high blood pressure, and emphysema. Balraj looked past all that. She determined that Beverly's pneumonia was the result of the debilitating injury he suffered when he crashed to the ground more than a year earlier. Because police told her that a punch sent him sprawling, she ruled the death a homicide. Markley was charged with murder.

At the trial, Markley's attorney, Ian Friedman, shredded the prosecution's argument. The main evidence that Markley had thrown a punch was a two-hour videotape that Beverly made just weeks before his death. "He hauled off and hit me," Beverly said. "He knocked me down." Yet the videotape also suggested that Beverly was hardly a reliable witness, says Friedman. It shows him struggling to remember his age and forgetting that his wife is dead. He may have suffered from dementia.

Friedman saved his most devastating criticism for Balraj. She ruled on the cause of death before reviewing all the medical records or investigating the circumstances, he argued. He also maintained that she ignored Beverly's numerous health problems. Another doctor had ruled that Beverly's death resulted from infected bedsores, and Beverly's family had sued his doctors for malpractice.

Throughout the critique, Balraj stubbornly clung to her original thesis. "I had all of the information I needed from the prosecutors," she testified.

It took only two hours for the jury to reach its verdict. Markley was acquitted. But the jury also pronounced its verdict on Markley's accusers, Balraj in particular.

"Medical evidence? There wasn't any," one juror told The Plain Dealer.

"She should be recalled," another juror said of Balraj.

"She should be retired," added yet another.

The comments cast a spotlight on a problem defense attorneys have privately complained about for years. They say Balraj listens too much to police and prosecutors in making her decisions, rules that deaths are homicides even when medical evidence suggests otherwise, and handicaps the defense by refusing to release information without the prosecutor's permission.

In short: A supposedly neutral official is in the pocket of police and prosecutors.

"They're just too close," says Mark Rudy, president of the Cuyahoga County Criminal Defense Lawyers Association. "It's supposed to be an independent body, but the reality is, lately it's not been."

The coroner's job is arguably the lowest-profile elected post in Cuyahoga County. Those with whom Balraj has the most contact don't vote and can't complain; they're dead. The job pays $110,000 a year, but no one really wants it. Balraj has held the position for more than 17 years, not once facing a challenger. This November will be no different.

Sitting in the coroner's building near University Circle, Balraj seems as unassuming as her post. She's a tiny woman, just five feet flat, with a buttoned-down look that draws no attention. She speaks with chirpy precision in long, science-laden monologues that rival Strom Thurmond's filibusters.

While the coroner's office isn't highly sought, it carries heavy responsibilities. Each year Balraj investigates about 3,500 deaths, slotting each into one of five categories: homicide, suicide, accident, natural, or undetermined. Her decisions affect whether a suspect is charged with murder or whether a nursing home faces a five-figure lawsuit for negligence.

Balraj maintains that she does her job properly and that defense attorneys are only attacking her to help their clients.

"They always complain," she says. "I'm not for the prosecutors, I'm not for the defense attorneys, I'm not for the police. I'm for the truth."

It's true that any coroner could expect criticism. "In this job we're in, there are always two sides: One side loves you, and the other one hates you," says Werner Spitz, a nationally renowned medical examiner, who has been called on several occasions to refute Balraj's rulings.

What's different in her case is that the complaints are so widespread, they threaten the air of scientific sovereignty that's supposed to be the hallmark of the coroner's office.

"It's something that in the defense bar we've been talking about for years," says veteran attorney Bob Dixon. "We've just noticed this change in the past 8 to 10 years, that the office has moved away from being an independent body to being an arm of the prosecutors."

Balraj raised eyebrows earlier this year when she ruled that a heart attack was a homicide. Although it would seem the very definition of a natural cause, she based her decision on police reports that the 35-year-old victim, Michael Vesely, had died during a scuffle with a homeless man named Richard Legg.

It didn't seem to matter that the autopsy suggested that Vesely, with a heart twice the size of a normal man's, was a heart attack waiting to happen, says Bill McGinty, Legg's attorney. Balraj made her decision before all the testing was even complete.

"This was ruled a homicide 24 hours after his death," McGinty says. "There had really been just a gross examination of the body. They hadn't done any of the fluids at this point."

Balraj says there's nothing wrong with considering information from sources other than the autopsy. "In order for me to make a ruling, I need to have the circumstances," she says.

But criminal attorneys say Balraj places far too much faith in the word of police and prosecutors, who may have a stake in skewing the evidence toward homicide.

"She's shifted the focus from basic scientific inquiry to anecdotal evidence," says Juan Hernandez, an assistant public defender. "They're there to do an independent analysis, not to rule on how someone died based on a police report."

"It's a big concern," adds veteran attorney Patricia Snyder, "because I think all of us believe that the county coroner should be an independent investigative body, that they should be looking at the physical evidence and drawing their conclusion without being influenced by the police or anybody."

On average, Balraj rules on about 110 homicides each year. In the vast majority, the body offers a clear cause of death; there's nothing subtle about multiple stab wounds to the chest. In a small subset, however, the medical evidence is open to interpretation. In those cases, Balraj says, she's willing to judge the cause of death as unclear. Still, it's rare to see doubt creep into her verdict: Last year, only 15 cases were classified as "violence of undetermined origin."

"Virtually every case is ruled a homicide," says Larry Zukerman, a well-known criminal lawyer. "When it's equally plausible that a result could be an accident as well as it could be a homicide, I believe she should put that in her report. She has that discretion and authority."

Balraj argues that she's just a small cog in the criminal-justice machine. When she rules a death a homicide, she doesn't identify someone as the murderer or weigh whether the action was justified by self-defense. "All I'm saying is the death happened because of the actions of another."

But that verdict carries steep consequences for the living, says Zukerman. "Once she brands it a homicide, she's let the horse out of the barn. They're going to go to the grand jury, get an indictment, and you're fighting for your life."

A prime example is Thomas Feckler, who was wrongly accused of voluntary manslaughter in the death of his 78-year-old mom.

After his father died, Feckler took over the responsibility of caring for his mother, Rosalie, who lived at a home adjacent to his in North Royalton. She died 17 days later.

There was no shortage of possible explanations. She had heart problems, Parkinson's, and diabetes. Witnesses said she had fallen at least seven times before her death. She had also recently lost her husband, which could have sapped her will to live.

Yet police suspected foul play. Feckler had recently fired his mother's caregiver, and the woman complained to Adult Protective Services that Rosalie was being mistreated. When an autopsy turned up evidence of a fractured collarbone and blunt-force injuries, it seemed to confirm those suspicions. Balraj ruled it a homicide.

On closer examination, however, the story didn't hang together. The same injuries could have been caused by the woman falling down, Balraj conceded. The only reason to suspect Feckler was the word of the caregiver, who may have nursed a grudge over being fired. And Feckler hardly acted like someone trying to conceal a crime. He was the one who requested the autopsy.

In the end, the case was so weak that a judge threw it out before the defense put a single witness on the stand. Still, Feckler endured months of suspicion and stress.

"It was a miscarriage of justice," says his attorney, Ed Heffernan, who lays the blame on Balraj. "You can't just let the police department come in and rubber-stamp cases. You've got to do an investigation."

That police often influence the coroner's ruling became clear when Wanda Kanner was accused of murdering a disabled woman with the most unlikely of weapons.

Kanner served as a caregiver for Darlene Amberik, whose 49-year-old body had been ravaged by multiple sclerosis. Blind and bed-bound, Amberik was so incapacitated she could eat only puréed food. When Amberik died after choking on a bagel, Balraj ruled it an accidental death.

Then came an anonymous call to police, offering a more sinister explanation. A year later, police turned up evidence of an affair between Kanner and Amberik's husband. Detectives confronted Kanner. She admitted that she had fed Amberik a bagel soaked in milk, but not for malicious reasons. "She had been fed milk-soaked bagels before," says Kanner's attorney, Joan Synenberg. "It was one of the few pleasures of her life."

Police took the new information to Balraj, who retroactively changed her ruling to homicide -- two years after the autopsy.

"I took issue with the revision, because the findings were identical but the conclusions were different," Synenberg says. "The only change in her revision was, she typed out the word 'accidental.' She literally typed X's through it. And then she typed, 'should read homicide.'"

Kanner was charged with murder. On the sixth day of her trial, right before Balraj was set to take the stand, prosecutors offered to let her plead to involuntary manslaughter. Facing 15 years to life, Kanner took the deal and got five years, basically agreeing that it was an accident. Prosecutors claimed victory, admitting that the murder charge would have been hard to prove.

If Balraj occasionally changes her mind when given new information by police, she seldom does so when defense attorneys confront her with evidence that contradicts her initial findings. As the Daniela Mays murder case shows, Balraj sticks to her guns even when proven wrong by her own testing.

It started with a domestic disturbance one night between Mays and John McEwen, an elderly man twice Mays's age. She called 911 because he was acting strangely and she was concerned about his health. The paramedics checked him out and said he was fine.

But early the next morning, McEwen called 911. When paramedics arrived this time, they found him emotionally distraught and bleeding from his ear and nose. At first he claimed he had fallen, but later admitted tussling with Mays.

He was taken to the hospital, where his condition worsened. He began to lose consciousness and within an hour became unresponsive. He died later that day.

Partly because of information from the police, Balraj determined that McEwen had died from the assault, ruling it a homicide. Mays was charged with murder and felonious assault.

Yet when the toxicology results came back, they told a different story altogether. As it turned out, McEwen had ingested 12 ounces of antifreeze. The coroner's office amended the manner of death to poisoning, but left the homicide verdict unchanged.

"It could have just as easily been a suicide or a voluntary consumption," says Mays's attorney, Kaye Ranke. "There was no medical evidence to determine the distinction."

Ranke argued exactly that at Mays's trial earlier this year. She pointed out that McEwen had been upset about his wife, who was on life support in a nursing home and had been hospitalized with suicidal thoughts just eight months before.

But Balraj wouldn't be swayed from her original judgment. She testified that the injuries from the beating played a role because they aggravated McEwen's diabetes and heart ailments. This contradicted the statement of one of her own investigators, who conceded that there were no medical findings to support Balraj's statement and that, absent the antifreeze, McEwen would have lived.

The jury found Mays not guilty of the poisoning, but convicted her of murder for the beating. The judge threw the book at her, sentencing her to 23 years to life. Ranke has appealed, arguing in part that Balraj improperly blurred the line between the beating and the actual cause of death.

Defense attorneys say that if Balraj were truly independent, she would be open to reconsidering her decisions, even it if torpedoes a murder case.

"As a scientific body, they should make findings based on science. It shouldn't matter who it helps," says David Doughten, a highly regarded death-penalty litigator.

"They feel it is their duty to win the case instead of reporting objective findings," adds Mark Stanton, a hard-charging defense attorney and former assistant county prosecutor, who faults Balraj's policies rather than rank-and-file workers.

Balraj shrugs off that criticism. "If they find a person guilty, I don't chalk it up as a victory," she says. "It doesn't matter to me at all."

Yet when asked if acquittals such as Markley's or Feckler's ever caused her to reconsider her initial verdict, Balraj says she's batting 1,000: "I have not found a case where I ruled homicide, where I was wrong."

The complaints about Balraj extend beyond a few questionable rulings. Defense attorneys say that the coroner's office takes on an adversarial climate for even the most routine requests.

"You're almost received as an enemy, where clearly the prosecutor is not," says Dixon.

It wasn't always this way. "At one time, that office was a model for the country," says attorney Snyder. "When you went there, you had people who were really grounded in science, were intellectually curious, were willing to listen to your questions, and were teachers."

That was largely due to the influence of Lester Adelson, the chief deputy coroner who, until his retirement in 1987, served under Balraj's predecessor, Samuel Gerber. Adelson was so thorough and fair that lawyers on both sides of the aisle still speak of him with reverence.

"When Adelson was there, they had a number of coroners whose words pretty much went unchallenged in the courtroom," says former prosecutor Carmen Marino. "They didn't shade them one way or the other."

"He would always say to you -- and he meant it -- that he was not a witness for either side; his job was to report the scientific facts, and he didn't care which way they went," says defense attorney Jerry Emoff. "He would actually invite people to come and talk to him and ask, 'Is there anything that would support any kind of reasonable theory of defense here?' And he would give you an honest answer."

Now, defense attorneys say, the coroner's office seems unwilling to help beyond what is legally required.

"If a defense attorney wants additional testing done, the coroner isn't going to do it -- or even talk to you about why you think it might be important," says Snyder.

She points to her experiences in a recent murder case. The coroner's office had tested bloodstains on two T-shirts that had been entered into evidence. Snyder asked that they also test the unstained portions for DNA, because she thought it would support her client's version of events.

But Balraj wasn't interested in listening. "We do testing for our purposes, for what we want to do," she said, according to notes Snyder took of the conversation.

Defense attorneys also complain that the prosecutor's office mediates virtually every request for information. "The idea that we can't look at public records without permission from the prosecutor is just mind-boggling," says Doughten.

"They won't provide documents to you unless the prosecutor has those documents first," adds Stanton.

At times, the adversarial climate borders on absurd. Stanton recalls a recent case in which he had requested evidence findings related to gunshots in an aggravated-murder case. When he went to the coroner's office to interview a deputy coroner, he noticed that the official had the report with him.

Not only did the deputy coroner refuse to show him the document, saying that he wasn't sure whether the prosecution had received it yet, but he went so far as to cover it with his arms to shield it from view, Stanton says. "I felt as if I was in second grade and the little girl next to me was concerned I was going to cheat off her test."

Hernandez had a similar experience. He recently tried to interview an assistant coroner, but Balraj wouldn't leave the room. "She insisted on sitting through the interview and running interference," he says.

Balraj says defense attorneys may be confused because the prosecutor's office represents her in disputes over which records are public. "So I will say that I will talk to my prosecutor and see," she says. "I am not asking permission; I am asking legal advice on that." She maintains that she doesn't favor the prosecution and that her office's resources are available to the defense. "The doors are wide open," she says.

But actions speak louder than words, and defense attorneys say that Balraj too often appears deferential toward the prosecutor's office in matters great and small. Terry Gilbert points to Balraj's handling of the recent civil suit he brought on behalf of the estate of Sam Sheppard, seeking once and for all to have the man who inspired The Fugitive declared innocent.

"She would go on TV at press conferences with Bill Mason two weeks before the trial, criticizing our case and supporting Bill Mason's case," Gilbert says. "She was really out of line in going to bat for the prosecutor's office."

Markley may have been acquitted in the death of his elderly neighbor, but he hardly escaped unscathed. He lost 25 pounds from stress. He was suspended from his job for 20 months before the trial, and he's still fighting for back pay. His credit is shot. And he carries the stigma of having been accused of murder.

"I'm not over this by any stretch of the imagination," he says. "I'm still working on just getting back to normal, whatever normal is."

But if the case harmed Markley, it also did incalculable damage to the coroner's image -- which could have even larger consequences.

"I think the office needs to take account that everyone accused of a crime is innocent until proven guilty," says Markley's lawyer, Friedman. "I hope that her office looks at this case and changes her policy, because my fear is that other people will unnecessarily have to go through what Tim did."