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Wheels (& Tables) of Justice Turn Once Again in Soldiers’ Home Tragedy…

Maura Healey

Mass AG Maura Healey speaking with family of Soldiers’ Home residents before grabbing Mjolnir and announcing criminal charges. (created via Twitter/@MassAGO & Google image search)

Six Flags New England may be closed, but former(ish) Holyoke Soldiers Home Superintendent Bennett Walsh has had a roller coaster of a week. On Monday, a Hampden County Superior Court judge reversed Governor Charlie Baker’s termination of Walsh. His Excellency and his health secretary had failed to follow the law governing Walsh’s job. Then on Friday, another hammer fell squarely on his head.

Attorney General Maura Healey announced charges of criminal neglect against Walsh and the Home’s former medical director, Dr. David Clinton. The charges are the fruit of her office’s investigation that began shortly after the Baker administration suspended Walsh amid an outbreak of COVID-19 at the Home. Seventy-six residents with COVID-19 perished in the succeeding weeks.

“We allege that the actions of these defendants during the COVID-19 outbreak at the facility put veterans at higher risk of infection and death and warrant criminal charges,” Healey said in a release about the indictment’s unveiling.

During a press conference Friday, Healey said that a grand jury returned the indictments on Thursday. She also remarked on how the indictments were likely a first in the age of the coronavirus.

“We believe this the first criminal case in the country brought against those involved in nursing homes during the COVID-19 pandemic,” Healey said.

Each defendant faces 10 charges of being a caretaker who either committed and/or permitted bodily injury or abuse, neglect or mistreatment of an elder or disabled person. They will face arraignment in Hampden Superior Court at a later date.

Though his attorneys, Walsh has consistently argued that the tragedy at the home occurred at countless other such facilities nationwide. They have also questioned findings and conclusions in the report Mark Pearlstein released in June. Baker had hired Pearlstein, a lawyer, to investigate the incident.

Baker, Walsh, Sudders & Urena

Back in 2016 when all were friends. Gov. Baker, Bennett Walsh, HHS Sec. Sudders, and since-resigned DVS Sec. Urena. (via Twitter/@MassHHS)

In a statement Friday, a new attorney for Walsh, Tracy Miner, essentially decried the charges as scapegoating of her client.

“It is unfortunate that the Attorney General is blaming the effects of a deadly virus that our state and federal governments have not been able to stop on Bennett Walsh,” Miner said.

Walsh’s victory on Monday had been pyrrhic. Judge John Ferrara’s opinion out took the original reason for Walsh’s suit at the knees. In April, Walsh sued the Home’s Board of Trustees and the Executive Office of Health & Humans Services to bar the former from meeting and terminating him without access to materials he could use to defend himself at a hearing. In Monday’s ruling,  Ferrara confirmed only the Board could fire Walsh, but observed Walsh had no right to a hearing.

If the prospect for a hearing became remote on Monday, it could be light-years away now. Still, the Board may not be able to formally fire him until Ferrara or another judge lifts the injunction Walsh secured in April.

The indictment represents an escalation of blame aimed at Walsh and Home staff even as Walsh has pointed to Boston. For example, Walsh has claimed the Home sought help, but received assistance from the administration. Although a civil suit names Walsh, Clinton, one-time Veterans Services Secretary Francisco Urena and others and many top Home staff have lost their jobs, Walsh has become the primary villain from Boston’s perspective.

However, officials and veterans advocates in the Valley have blamed years of chronic underfunding and broken scheduling rules—something Pearlstein acknowledges, but on which does not sufficiently meditate. These, some locals argue, turned a tragedy that has been painfully common in the age of COVID into a complete and internationally-renowned catastrophe.

Hampden Superior Court

See you again soon… (WMP&I)

This context, however, is set to feature prominently in Walsh’s defense.

Miner said nursing home across the country had difficulty protecting their charges from the virus.

“At all times, Mr. Walsh relied on the medical professionals to do what was best for the veterans given the tragic  circumstances of a virus in a home with veterans in close quarters, severe staffing shortages, and the lack of outside help from state officials,” she said.

Healey confirmed in her press conference that the indictments came about from their own investigation and interviews. Yet, she and her office have openly echoed Pearlstein’s report. Her office’s indictments, however, focus on a Mach 27 decision to consolidate patients with mixed-COVID-19 testing statuses. Allegedly, Walsh and Clinton made or were ultimately responsible for this decision.

Pearlstein and Healey’s investigations were two of five that began after the situation at the Home came to light. The state inspector general, the legislature and US Attorney Andrew Lelling are also conducting probes.

When Healey got into the investigatory action, it was not clear what form it would take. Initially, it appeared that it might parallel Pearlstein’s investigation or go well beyond its parameters. His report all but exonerated anybody in the Baker administration above the since-resigned Urena.

Criminal or civil charges could have resulted from Healey’s inquiry. Her look into the Home became mostly criminal in nature, according to those familiar with the matter. No further indictments are imminent, but they remain possible depending on how things proceed. The Boston Globe reported that Healey’s office is also looking at other long-term care facilities.

On Friday, Healey referred questions about restructuring the Home’s management structure to recommendations from the governor and the legislature’s ongoing review.

It seems true that overworked and desperate Soldiers’ Home staff made “baffling” errors, in Pearlstein’s parlance. Yet, the coronavirus has hit long-term care facilities particularly hard. It could be difficult to argue any one person’s errors rise to criminal liability. Presumably, Healey has more substantive evidence than Pearlstein described and which undercuts Walsh’s long-telegraphed defenses.

In her press conference, Healey made clear the charges surgically emphasize the consolidation of wards. Specifically the charges highlight the rooming of five asymptomatic/non-symptomatic residents with symptomatic residents in a dining room. Three contracted COVID-19 and one succumbed to it. The 10 charges against Walsh and Clinton each arise from two counts for each of these five residents.

The decision to charge Clinton, too, may also be a tell. Rather than pile on Walsh alone, as others—aside from the litigants in the civil suit—have done, Healey is more vocally spreading blame around. This could represent patent dual culpability or a tactic to get one to flip on the other.

Holyoke Soldiers' Home

It happened here…but here alone? (via wikipedia)

As the litigation sprawls, one practical impact could be diminution of Walsh’s fight to rewrite the narrative. For weeks now, the public relations campaign he and his attorney/uncle, former Hampden District Attorney William Bennet, had made some headway locally, if mostly outside the Home itself. Though not always convincing, the story they put forward gelled with growing concerns about how the Home had been funded.

The issue of Walsh’s reputation, rightly, pales in comparison to the 76 dead residents and their families. However, the underlying problems at Home do go much deeper than him and still await full exploration.

That may come about as the legislature contemplates reforms—the governor’s preferred changes would tighten his control, which legislators thus far find unappealing. More could also come to light during the pending civil suit as witnesses and administration officials, past and present, face uncomfortable questions.