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Clinton's Ties to Controversial Medical Examiner Questioned

May 19, 1992|JAMES RISEN and EDWIN CHEN | TIMES STAFF WRITERS

LITTLE ROCK, Ark. — Gov. Bill Clinton, the presumptive Democratic presidential nominee, refused for several years to dismiss a state medical examiner whose controversial decrees included a ruling that helped Clinton's mother, a nurse-anesthetist, avoid scrutiny in the death of a patient, according to Arkansas officials and state records.

The medical examiner, Dr. Fahmy Malak, "was sort of protected by the governor and the (state crime laboratory) board," state Rep. Bob Fairchild, a Democrat from Fayetteville, told The Times. Fairchild is the author of unsuccessful legislation to reform the laboratory board, which has authority over the state medical examiner. Clinton appoints the board members.

Clinton, Malak and Clinton's mother, Virginia Dwire Kelley, 68, deny any connection between Malak's longevity in his job and his ruling involving Kelley. Malak, through his attorney, says he did not know that one of his findings had benefited Kelley until years after he issued the ruling.

The governor and his board declined to fire Malak despite more than four years of public criticism of Malak's work. The record shows that Malak testified erroneously in criminal cases, that his rulings were reversed by juries and that outside pathologists challenged his findings. In one instance, he misread a medical chart and wrongly accused a deputy county coroner of killing someone. In another, he based court testimony on tissue samples that DNA tests later indicated had been mixed up with other tissue samples.

Three weeks before Clinton announced his presidential candidacy last Oct. 3, he pushed Malak, who was appointed during his first gubernatorial term, to resign. But then the Clinton Administration found Malak another well-paying job in state government. It prompted renewed questions about a conflict of interest growing out of Malak's ruling in 1981 that involved Clinton's mother. That ruling, which came between terms when Clinton was out of office, helped Clinton's mother avoid legal scrutiny in one patient's death--while she was defending herself in a medical malpractice lawsuit stemming from the death of another patient.

The conflict-of-interest questions have been raised by a county coroner, by Malak critics and by a writer for the Arkansas Gazette. The writer, Max Brantley, a columnist for the Gazette at the time and now editor of the weekly Arkansas Times, said about Malak's resignation and his new position: "We may never know why Malak enjoyed such strong support." He added that "critics will note, accurately, that Malak has made an autopsy finding helpful to Clinton's mother."

Clinton, in a written statement to The Times, responded:

"There has never been any connection between my mother's professional experiences and actions I have taken or not taken as governor of Arkansas, and I resent any implications otherwise. . . . In fact it was several years after the incident that I became aware, through the media, that the ruling made by Dr. Malak in this case was controversial. I do not have the professional knowledge necessary to judge the competency of a forensic pathologist. For several years prior to Dr. Malak's resignation as medical examiner, I requested that reviews of his performance be conducted and that appropriate action be taken by the Crime Lab Board and/or the Medical Examiner Commission. It was their decision to retain him."

Betsey Wright, a spokeswoman for Clinton's presidential campaign, said Clinton was not alone in supporting Malak. For much of his tenure, Malak was backed by influential officials in the state law enforcement community as well as by some leaders of the state Legislature. Wright said that Malak had a small staff and was overworked.

"With his workload he was bound to make some mistakes," Wright said. "The governor never said that no mistakes were made."

The case involving Bill Clinton's mother was hardly the only Malak ruling to come under serious question. Over the years, his rulings and his testimony became controversial in more than 20 additional deaths. When asked about the controversy, Herbert H. Buzbee, executive secretary-treasurer of the International Assn. of Coroners and Medical Examiners, called it "unusual, to a certain extent."

He suggested that Arkansas join the majority of states that empower one person to rule on the cause of death and another person or a coroner's jury to decide the "manner of death." Buzbee declared: "It does not work well to have only one person doing everything. That's giving too much power to just one person."

Malak's controversial rulings include:

* The Allbright case. On June 28, 1985, Raymond P. Allbright, 50, of Mountain Home was found in his yard dead of gunshot wounds. Allbright had been arrested the night before on charges of theft. Malak ruled his death a suicide.

But Allbright had been shot five times; all five shots were in the chest. The weapon was a high-powered pistol. "We think," says Maggie Hall, Allbright's ex-wife, "he was murdered."

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