25 Investigates: State autopsy backlog delays justice

by: Eric Rasmussen, Erin Smith Updated:

TEWKSBURY, Mass. - Backlogs at the state Medical Examiner’s Office could delay justice for the family of a Tewksbury teen who died after witnesses said he was assaulted at an underage, alcohol-fueled party.

For more than a year, Investigative Reporter Eric Rasmussen has been exposing autopsy report delays at the agency.

Now, 25 Investigates has found this autopsy report delay could keep prosecutors from filing homicide charges against the suspect in 15-year-old Ethan Costello’s death.

Police reports give a disturbing glimpse into the final hours of Ethan Costello’s life.

Officers reported there were about 75 teenagers at a Lowell house party, including many who were drinking alcohol, on the night of Oct. 28, 2016.

Witnesses at the party said Costello allegedly stumbled into 18-year-old Joe Zagarella and saw Zagarella “slam him into the concrete floor, causing his head to hit the concrete,” according to police reports obtained by 25 Investigates.

Costello was later “vomiting blood” and once at the hospital, a CAT scan revealed a “severe brain bleed,” police reports show.

Costello – just 15 years old – died a day later.

Yet almost a year after his death, Zagarella is still only facing an assault and battery charge – not homicide.

>>PREVIOUS15-year-old dies after assault, traumatic head injury at Lowell party

25 Investigates discovered a Middlesex County prosecutor recently told a Lowell District Court judge she won’t seek more severe charges without an autopsy report.

“The last update I received is that we were still waiting to get that Medical Examiner's report to see, potentially, what charges would be brought,” the prosecutor told the judge last month.

The courtroom audio recordings obtained by 25 Investigates reveal the DA trying to stall for more time.

“So we would be asking for one further date,” said the prosecutor in the recordings, adding, “If I might be able to get more information about when we would get the Medical Examiner's report, I'm not sure, um, how long that would take.”

But the judge said the case had already been delayed long enough and denied the DA’s request for more time, scheduling a trial for Oct. 11 in Lowell District Court – where Zagarella would only face an assault and battery charge.

25 Investigates reached out to Costello’s parents, who declined to comment on the ongoing case.

Investigative Reporter Eric Rasmussen spoke off-camera to Costello’s aunt, who said her nephew deserves justice and thinks Zagarella should face homicide charges.

“The DA's office is feeling pressure because the victim's family is on the phone to them all the time saying ‘What about our boy? Why is this still in district court?,’” said Mike Cassidy, a law professor at Boston College.

>>PREVIOUS25 Investigates: Another family comes forward in autopsy paperwork backlog

The Middlesex County District Attorney Marian Ryan issued a statement saying the investigation into Costello’s death is “open and ongoing” and that she is waiting on the Medical Examiner for a ruling on the cause and manner of his death before deciding whether to amend the charges in the case.

Zagarella’s defense attorney, Karen Goldenberg, said her client wants to see the autopsy report just as much as prosecutors do, adding, “This has caused enormous stress for him and his family.”

Cassidy said the autopsy report could play a key role in the case and the burden is on Medical Examiner’s Office to finish it.

“The pressure's on and the Medical Examiner has a lot of resource problems,” said Cassidy.

Costello’s family isn’t the only one waiting for answers.

25 Investigates has been uncovering autopsy report delays in Massachusetts since last year and found the state Medical Examiner’s Office is still failing to meet the industry standard of completing 90 percent of autopsy reports in 90 days.

Currently, the state is only completing 62 percent of autopsies in 90 days or less.

>>PREVIOUS: 25 Investigates: State Medical Examiner's Office still falling behind

Investigative Reporter Eric Rasmussen asked Public Safety Secretary Dan Bennett why the problem still isn’t fixed yet.

“There's just not enough medical examiners that come out of medical school and take their residency,” said Bennett.

Bennett, who oversees the Medical Examiner’s Office, is the first state official who agreed to speak on camera about the backlog since 25 Investigates began uncovering problems at the agency more than a year ago.

Bennett blamed the delays on an agency that is overworked and understaffed and told 25 Investigates that recruiting qualified workers remains an issue.

When asked what he was doing to end the backlog, Bennett pointed to a fellowship program at the agency with three doctors that they “hope will stay” after completing the program.

When asked what he would say to the families waiting for answers – and justice, Bennett said, “We say we’ve got to do better.”

“I know there's no closure for any family – whether they've got an autopsy report or not – but we don't want to be the block,” said Bennett. “We don't want to be the hold up and we're going to try to do better.”

A spokesman for the Medical Examiner said the office is “working diligently” to close out Costello’s case, but declined further comment, citing the active investigation.

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