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'People Die And Nothing Is Done'
(click here for Earl's
story)
By DAVE ALTIMARI
With reporting by Dwight F. Blint and John
Springer
This story ran in The Courant on October 14,
1998
Sheriff Geno D'Angelo remembers the first time
staffers at the Broome Developmental Center in Binghamton, N.Y.,
called his office for help last year.
A deer had been killed by a car in front of the
center the evening of Nov. 24. The staff wanted it removed.
But no one from the state mental health
facility had called D'Angelo four months earlier when William
Roberts fell to his side, vomited and died after being restrained in
a timeout room.
"I wonder how many of these deaths occur at
that facility or others in this state that [police] never know
about," said D'Angelo, who first learned about the death from a
Courant reporter.
The Courant's investigation has found the
nation's legal system falters time and again when it comes to
restraint-related deaths. Just as the medical establishment fails to
provide the kind of internal oversight that might prevent patients
from dying, the legal system offers little hope for justice after
they are dead.
Law enforcement officials, lawyers and mental
health advocates say it isn't always easy, or appropriate, to place
blame on the ill-trained mental health aides who typically execute
restraints.
But without thorough investigation, the system
too often fails to determine whether a death is a tragic accident or
an act of criminal negligence. And whatever the circumstances, they
say, patients' families are entitled to answers.
Yet the normal investigative process falls
apart at each step, The Courant found.
Hospital workers cover up or obscure the
circumstances of a death. Autopsies are not automatically performed.
Police are not routinely summoned. Investigators often defer to the
explanations offered by the institutions involved.
"It's easier to just say it was an accident and
forget about it," said Michael Baden, a former New York state
medical examiner who now serves on a state board that investigates
deaths in institutions.
Thus, few are ever punished. Prosecutors rarely
pursue arrests in restraint deaths and, when they do, they typically
accept plea bargains to minor charges.
"The way the system runs, people die and then
nothing is done about it," said Raul Campos, whose 15-year-old
daughter, Edith, died while restrained in a dispute over a
photograph.
Hers was a rare case in which criminal charges
were filed. But an Arizona judge found restraint deaths are such a
"rarity" that it would have been unreasonable to expect the aide to
notice Edith's distress. He tossed the case out.
Families of dead patients, angry with the lack
of accountability in the criminal justice system, then turn to civil
court where they face one last obstacle to justice: jurors who must
place a monetary worth on people at the bottom rung of society.
"The law is not disability-friendly. If you're
disabled or mentally retarded, you don't have any value," said
Pennsylvania attorney Ron Costen, who represents families in abuse
cases.
A former prosecutor, Costen is familiar with
the flaws of criminal investigations into restraint deaths.
Among the common problems he cited: Scenes are
not preserved because staff immediately clean up the room where the
restraint occurred. Staffers develop a story emphasizing the
patient's existing physical problems. And workers say they were just
protecting themselves or others from harm, making it hard to prove
criminal intent.
Others have found staffers reluctant to blow
the whistle on colleagues.
"Despite the legal and ethical obligations to
report and protect patients from abuse, a strong code of silence
among direct care staff still exists," California investigators
found last year after an investigation into restraint abuses at Napa
State Hospital. Two people have died in restraint-related incidents
at Napa State in the past six years.
The California report found a system rotting
from within. It cited a survey in which two-thirds of psychiatric
aides statewide believe there to be a "code of silence." Workers,
the report said, consider themselves victims of a bad and abusive
system.
In Pennsylvania, Costen intends to propose
legislation to put the system, corporations and administrators, on
trial -- and not simply the low-paid aides who work for them.
"We have to make it possible to attack the
corporate structure and hold them accountable for criminal actions,"
Costen said. His proposal would carry no prison sentence, instead
fining corporations or, in the worst cases, putting them out of
business.
But punishment can only follow investigation.
Police and prosecutors typically rely on medical examiners to
trigger a criminal case by issuing a homicide ruling. The trigger is
infrequently pulled.
In 23 recent deaths examined in depth by The
Courant, only three were ruled homicides. In the other cases,
including the Binghamton death, medical examiners ruled the deaths
to be accidental or attributed them to the patient's existing
medical problems.
Baden, of New York, said these rulings fail to
take into account the full context in which the patient died.
"Positional asphyxiation has this very nice
ring to it," said Baden, referring to a common cause of death in
restraint cases. "Like maybe somebody did it to themselves instead
of their chests being compressed."
Most medical examiners say they struggle with
restraint cases, but ultimately cannot issue a homicide ruling if
staffers are working within the scope of their jobs.
"It's difficult to say whether a hold put on a
person has any role in their death unless it's clear-cut they were
doing the hold wrong," said Vincent DiMaio, the Texas medical
examiner who ruled that Roshelle Clayborne died of natural causes
after being restrained in a San Antonio, Texas, facility.
Such clarity is nearly impossible. Across the
country, The Courant has found, there are no clear, uniform
standards on restraint use, and no minimum training standards for
staffers.
So prosecution is rare, too.
"If a medical examiner rules a death accidental
or by natural causes, it does make getting a criminal indictment
more unlikely than not," said John Loughrey, a prosecutor in
Monmouth County, N.J.
In June, Loughrey presented to a grand jury his
case against two staffers at the Brisbane Child Treatment Center.
Staffers said 17-year-old Kelly Young's hair was hiding her face
during a restraint -- so they didn't notice that her lips were
turning blue.
But the grand jury refused to issue indictments
after hearing the death had been ruled accidental.
Faced with unfamiliar cases that are difficult
to prove, most prosecutors simply shy away.
"There's enormous variability from state to
state and even county to county on what the district attorney feels
is a prosecutable offense," said Robinsue Froehboese, the U.S.
Justice Department's top abuse investigator.
"Unfortunately," she said, "the jurisdictions
that don't prosecute these cases far outweigh those who do."
Take the case of Melissa Neyman of Tacoma,
Wash.
Gerald A. Horne, a Pierce County prosecutor,
would not pursue charges in Neyman's death -- even though the state
attorney general's office urged criminal prosecution against the
owner and a worker at the Judith Young Adult Family Home.
Tied to her bed in a makeshift restraint on the
night of July 23, 1997, Neyman managed to climb out a window before
becoming entangled in the straps. The 19-year-old autistic woman had
been dead six hours before workers finally noticed her -- hanging
from the window about 3 or 4 feet from the ground.
"We don't charge persons who had goodwill and
were doing the best job they could," Horne said.
"They didn't have any intent to hurt anybody."
But the staffer did put Neyman in a restraint
without a physician's permission -- a direct violation of Washington
state law. The same staffer was not authorized to care for clients,
did not check on Neyman for several hours, and lied to investigators
about the circumstances of the death, the attorney general's office
found.
When prosecutors do press charges or get
indictments from grand juries, they rarely follow through and go to
trial. More often they settle for a plea bargain that calls for no
jail time.
Kimberlye Montgomery was
originally charged with involuntary manslaughter and gross
negligence, a felony with a maximum 15-year sentence, in the
restraint death of 9-year-old Earl Smith in Detroit in November
1995.
Montgomery, a child-care worker at the
Methodist Children's Home Society, sat on Smith and ignored his
pleas for air because it was "typical of the ruses used by children
to get themselves released from restraints," she said in a court
deposition.
Montgomery eventually pleaded guilty to a
misdemeanor and received an 18-month suspended sentence and 100
hours of community service.
Nancy Diehl, the Wayne County prosecutor who
handled the Smith case, said she had little choice because many of
the witnesses were other troubled children.
"We gave her a great plea because we felt we
might have some problems convincing a jury of the original charge,"
Diehl said. "It certainly isn't easy because your witnesses are
other young kids who have various problems. That's why they are in
the home."
After navigating the criminal justice system
and ending up empty-handed, the Smith family ended where many
aggrieved families do -- in civil court. Detroit attorney Julie
Gibson, who represented the Smiths, said her clients eventually
realized it was best to settle the case.
In fact, few lawsuits involving restraint
victims ever make it before a jury because they are settled quietly
and out of court. In the mere handful of jury verdicts over the past
two decades, awards typically fell under a half-million dollars,
according to legal experts and a national tracking service.
When a case does go to trial, families face a
final, common hurdle. Take the case of Roshelle Clayborne.
"What's the life of a poor, black, mentally ill
girl who has been institutionalized for several years going to mean
to a jury?" said Martin Cirkiel, the Texas attorney who represents
Clayborne's family.
"I think the answer," Cirkiel said, "is not
much."
Courant Staff Writers Colin Poitras, Kathleen
Megan and Eric M. Weiss contributed to this story.
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