Parents obtain TRO to stop OAG from conducting autopsy

A 15-year-old boy who attended a family member’s funeral at Tanapag Cemetery on Aug. 31 fell from the back of a pickup truck and died the following day.

The Office of the Attorney General, however, is not releasing the body to the family from the Commonwealth Health Center’s morgue until an autopsy is conducted.

The autopsy was set for last night, Thursday. This prompted Annjuliet Marie Lieto Lifoifoi and Joseph Lifoifoi, the boy’s parents, to go to court to ask for a temporary restraining order and preliminary injunction to bar the government from performing an autopsy and order the release of the body so they may lay him to rest.

The parents insist that their Refaluwash cultural beliefs will be violated if an autopsy is conducted on the child’s body.

Superior Court associate judge David Wiseman heard the matter yesterday and granted the parents’ motion for a TRO. He barred the government from performing any autopsy on the boy, Wilben Herman Lieto, and ordered the release of the body to the parents.

Wiseman ruled that falling from a truck is not such an unusual circumstance requiring an autopsy and the cause of death is readily ascertainable. He said it is undisputed that Wilben’s death was caused by head injuries.

“There would be little hardship to the government in seeking the family members, doctors, and witnesses who can all provide evidence that the cause of death was injury to the head,” Wiseman said.

Wiseman said the government’s insistence on an autopsy places great hardships on a family that has suffered two losses in a short time span. “Immediate and irreparable injury will result if the burial customs and rituals of the family are interfered with and the scheduled funeral date is disturbed,” he said.

A preliminary hearing will be held on the matter on Sept. 22, 2011.

In her declaration through counsels Viola Alepuyo and Braddock J. Huesman, Annjuliet Marie Lieto Lifoifoi said that Wilben, her eldest son, was with family members on Aug. 31 at the Tanapag Cemetery to attend her brother-in-law’s funeral.

She said that Wilben, along with two other family members, were on the back of a pickup truck with plans to proceed to her parents’ home in Tanapag.

As the truck, being driven by Mrs. Lifoifoi’s cousin, moved along a pothole-filled dirt road at the cemetery, Wilben, who was sitting on the railing, leaned over the side to spit. The truck hit a hole on the ground, causing Wilben to fall and hit the road head first. He was rushed to the hospital where he was admitted to the Intensive Care Unit. Early morning the next day, Wilben died from internal injuries.

Mrs. Lifoifoi said that on Tuesday, Sept. 6, she learned for the first time from a staff at the OAG that her son’s body could not be released because the OAG had scheduled an autopsy. Mrs. Lifoifoi told the OAG staff that she and her husband do not want their son’s body to undergo an autopsy. She said they believe that the desecration of the body is against their Refaluwasch beliefs.

She said the same staff called her the next day, Wednesday, stating that with or without her consent, the OAG was going to perform the autopsy.

“My husband and I as well as our children and our very tight knit family have suffered so much pain and anguish over Wilben’s death, which has now been heightened knowing the OAG is now planning to cut up our child’s body,” the mother said.

Alepuyo stated in her declaration that, after meeting with the parents, she contacted Chief Prosecutor Michael Ernest, who advised her that the autopsy would be done on Thursday, Sept. 8, between 9pm and 9:30pm.

Alepuyo said that Ernest was relying on statute as the basis for ordering an autopsy without the family’s consent since he needs to preserve evidence in the event the OAG decides to prosecute the driver with homicide by vehicle.

Alepuyo said she reviewed the statute, conducted research and concluded that an autopsy was not warranted. She emailed Ernest about her conclusion and notified him that if he insists on the autopsy, she will have no choice but to file court action. She pointed out that the family has made all the necessary arrangements, including cultural and religion funeral ceremonies for today, Friday.

At yesterday 11am hearing, Ernest, assistant attorney general Nicole Driscoll and OAG’s Civil Division chief Gilbert Birnbrich appeared for the government. Alepuyo and Huesman appeared for the parents.

Ernest told the court that the government intends to prosecute the driver.

In his ruling, Wiseman said that Wilben’s death did not occur under conditions suggesting poisoning, violence, or unusual circumstances.

Wiseman said by all accounts it is settled that Wilben’s cause of death was head trauma as a result of falling from the truck, resulting in a skull fracture.

The judge said that Ernest conceded at the hearing that it is not disputed that head trauma or skull fracture was the cause of death.

“In the absence of consent for the autopsy, for which there is none here, the statute requires that a death has to occur under conditions suggesting unusual circumstances surrounding death and the inability to satisfactorily ascertain the cause of death,” Wiseman said.