Old Soldiers Die: Was It A Crime?

The Massachusetts Supreme Judicial Court reinstated a dismissed indictment alleging criminal conduct in the COVID response of a home for veterans

The grand jury indicted the defendants, Bennett Walsh and David Clinton, the superintendent and medical director of the Soldiers’ Home in Holyoke (Soldiers’ Home), respectively, for elder neglect in violation of G. L. c. 265, § 13K (d 1/2) (elder neglect statute), in connection with their alleged failure to provide treatment or services to the veterans there housed. The grand jury heard testimony that, seventeen days after the Governor declared a state of emergency in the Commonwealth because of the COVID-19 pandemic, these decision makers directed their staff to consolidate two floors of elderly veterans, some of whom had dementia, onto one floor. Forty-two disabled veterans, five of whom were named in the indictments (named veterans), were crowded into a locked space designed to house at most twenty-five patients. As one witness told the grand jury, there were “bodies on top of bodies.” “[T]ightly packed together and sick,” and “coughing on top of each other,” the veterans at this State-run facility were left in their “johnnies,” were placed in beds less than two feet apart, and were deprived of adequate hydration and food. The grand jury heard that some veterans were nonresponsive; others lay listless, mouths agape. Those with COVID-19 symptoms intermingled with those without. Record-keeping was abysmal. It was, as one witness told the grand jury, “like a war zone.” Three days after the decision to consolidate, as many as ten veterans had died from COVID-19.

The grand jury also heard that the consolidation ran against known infection control protocols. Medical best practices at the time recommended isolation of patients who were symptomatic from those who were not. Indeed, we were all being told in the nascent days of the pandemic to remain at a prescribed “social distance” from each other.

And the grand jury were told that this tragedy could have been avoided; the defendants were presented with options that comported with expert advice and infection control guidelines. Clinton, who absented himself from the Soldiers’ Home for his own health, was told by the chief operating officer of a nearby hospital that the hospital stood ready, willing, and able to assist. The grand jury heard that Walsh received calls from the same hospital official, but he did not return the calls; and he had daily telephone calls with the Secretary of the Department of Veterans’ Services (DVS) to discuss the Soldiers’ Home’s COVID-19 response, yet he hid the mounting staffing crisis and  emergence of COVID-19 symptoms within the Soldiers’ Home from the secretary. Instead, the defendants chose silently to consolidate this vulnerable population together without adequate space or sufficient staffing to care for them. Because these facts and other information presented to the grand jury constituted probable cause to believe that the defendants violated the elder neglect statute, the Superior Court judge erred in dismissing the indictments.

Of course, sometimes bad things happen for no discernable reason, and no one is to blame. At any subsequent trial, prosecutors will need to prove their case. We conclude only that they will have the opportunity to do so.

Dissent of Justice Lowy, joined by Justice Cypher

We owe our best to our soldiers who, now in old age and frail health, face the twilight of their journey. Their service to our nation and the cause of liberty has passed. Their service, however, entitles them to the opportunity to live out their days in comfort and safety. There can be no doubt that what occurred at the Soldiers’ Home in March 2020 was a tragedy. And in the face of such tragedy, perhaps hurling blame and subjecting the defendants to imprisonment might salve our conscience. But criminalizing blame will do nothing to prevent further tragedy or help unravel the complex reasons why the responses of the Soldiers’ Home and so many nursing homes proved inadequate in the nascent days of the pandemic. Since the testimony in the grand jury failed to constitute probable cause to criminalize such blame, I respectfully dissent.

A majority footnote responds

The dissent provides a rough roadmap for the defendants to follow as they marshal a defense that their conduct was not wanton or reckless, excusing the defendants’ decisions and inactions as either uninformed or merely negligent conduct in the face of the chaotic realities of the early days of the pandemic. In short, the dissent finds that the defendants did the best they could, given the situation with which they were faced. This, of course, is not the question on appeal. Instead, we are tasked with the question whether the grand jury record supports their finding of probable cause.

(Mike Frisch)