UPDATED 9/25/22 12:40AM: On September 21, the SJC allowed direct review of the Soldiers Home criminal cases. The state’s highest court will hear the case directly from Superior Court.

The SJC may take on the Holyoke Soldiers Home COVID outbreak yet in one form or another. (WMP&I)

The legal drama around the criminal indictments arising from the Holyoke Soldiers’ Home COVID-19 outbreak has flown under the radar since the appeal began. Last December Attorney General Maura Healey filed notice that her office intended to appeal the dismissal of charges against the facility’s former leaders. That appeal arrived at the Appeals Court in April. The arguments on appeal have been under seal, ostensibly because they contain info from grand jury proceedings.

The case, however, jolted a bit in public view again as Healey’s office sought direct review from the Supreme Judicial Court. Appeals from superior court go to the Appeals Court. A final appeal to the SJC is possible, but the state’s high court has the prerogative to jump the line and review cases directly. That is what the AG’s office seeks here, although one defendants opposes the move.

Two years ago, after concluding her own review of the outbreak at the Soldiers’ Home that killed 77 veterans, Healey announced indictments against then-formerish Superintendent Bennett Walsh and former medical director Dr. David Clinton. Each defendant faced five charges for elder abuse stemming from a decision to combine dementia units amid staff shortages, exposing those five residents to the virus.

Covid killed countless nursing home residents across the country. Various reports differ sharply about the role of Governor Charlie Baker’s administration in the Soldiers’ Home outbreak. Still, these reviews found the merging of units to be key in the wider spread of the virus in the home and the deaths that ensued.

The immediate effect of the indictments was to end legal action Walsh had initiated to block Governor Charlie Baker from firing him. The legislature has since revised the byzantine structure that governed the home and another veteran’s facility in Chelsea.

Both Clinton and Walsh pushed back hard against the criminal charges. They convinced Hampden Superior Court Judge Edward McDonough, Jr. the relevant elder abuse statute—Chapter 265 §13K—did not apply here. Specifically, McDonough found that neither Clinton nor Walsh met the caretaker definition in that laws. The defendants’ motion to dismiss attacked the indictments, claiming they alleged insufficient facts to meet the statute’s definitions.

McDonough also found that the indictments failed allege the two committed or permitted serious bodily harm and/or neglect. However, the caretaker matter is at the crux of requesting direct SJC review.

Although the full appellate briefs parties are filing remain under seal, the application for direct review is not. The filing confirms that the AG is contesting the notion her office presented insufficient allegations about bodily harm and neglect. Yet, the application focuses on the interpretation of “caretaker” to encourage the SJC to take direct review. The state supremes have yet to define the term’s limits.

The SJC still in-person, but still in COVID mode last December. (via Suffolk U/SJC)

Matters of first impression are grounds for the SJC to take direct review. This was partly why the high court took over the appeal about the Police Commission ordinance in Springfield.

“The Superior Court’s construction would immunize a broad swath of elder-care workers under the statute, enabling administrators of nursing home facilities who endanger the welfare of the elderly to avoid accountability,” the attorney general’s office writes. “The Commonwealth has a powerful interest in protecting vulnerable members of society by prosecuting such wrongdoers.”

The application briefly previews some of its arguments about the interpretation of caretaker. Among them is the superior court misread the statute’s plain language and the legislature’s original intent to include administrators of nursing homes. The AG points to comments legislators and then-Attorney General Tom Reilly made at the time of the law’s enactment.

“The Superior Court’s cramped interpretation of the statute is untenable, and should be rejected,” the AG’s office writes.

The office also contests the Superior Court’s assessment that consolidating wards did not increase baseline risk of coronavirus exposure.

Walsh and his legal team, however, deny the situation merits SJC review now. His response claims the application “overstates” this case’s applicability to other situations. He, too, previews how he will defend the lower court’s ruling. His response argues the statute does not apply as his responsibilities did not arise from a familial, fiduciary and/or voluntary/contractual duty to care for an elder.

Walsh early in his tenure as the Soldiers’ Home Super. (via Facebook/HCC)

“A person may be found to be a caretaker under this section only if a reasonable person would believe that such person’s failure to fulfill such responsibility would adversely affect the physical health of such elder or person with a disability,” the response continues.

It goes on to say that contractual situations only apply where there is a “bargained-for agreement” to provide care. Walsh asserts no such thing existed here. He accuses the AG of abandoning its prior claim that Walsh’s responsibility arose out of his position’s statutory obligations. Now, he says, the commonwealth claims an administrator who oversees any similar facilities qualifies as a caretaker. It also disagrees with the AG’s assertion that the merge of the dementia units raised the risk of harm.

Walsh concludes by claiming the issue does not need the SJC to rule now.

“The Superior Court’s decision was based on the specific evidence (or lack thereof) presented to the grand jury regarding Walsh’s responsibilities as Superintendent and will not preclude the prosecution of anyone as a ‘caretaker’ under §13K other than Walsh,” the response says. It also argues questions about neglect are confined to the narrow facts of the case.

It is not clear how quickly the SJC will decide on scooping up the case. So far, neither Clinton nor Walsh have responded to the brief the AG’s office submitted to the Appeals Court. Those filings would transfer to the SJC if it takes direct review.

As of posting time, Clinton had not weighed in on direct review, either for or against. One of his lawyers declined to comment via email.