The SJC, pictured at its January hearing, does the splits 5-2 in the Soldiers’ Home prosecution. (WMP&I)

In a 5-2 ruling, the Massachusetts Supreme Judicial Court reinstated criminal charges arising from the COVID-19 outbreak that killed 76 veterans at the Holyoke Soldiers’ Home. Former Superintendent Bennett Walsh and former medical director David Clinton were the only officials to face such charges.  Hampden County Superior Court Judge Edward McDonough, Jr. dismissed the indictment in 2021 prompting the appeal. The SJC heard the case this past January.

The ruling was a win for the Attorney General’s office, which managed the prosecution. The charges arose after then-Attorney General Maura Healey’s investigation into the outbreak. It was among many probes into Walsh’s tenure and his superiors’ oversight within the Baker administration. As countless civil cases have settled or floundered, only Clinton and Walsh will stand trial now. Yet, the outcome is anything but certain.

“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,” the majority wrote. “We conclude only that they will have the opportunity to do so.”

At the center of the case was Clinton and Walsh’s decision to combine dementia units amid escalating staff shortages. Investigators and prosecutors have claimed that this action fueled the spread of the coronavirus at the Soldiers’ Home.

Although the court considered several factors in its decision, a relatively narrow matter was before the SJC in January. McDonough had ruled that the commonwealth had not presented enough facts to meet the legal standard for elder neglect and serious bodily injury charges. The SJC’s opinion answered all of McDonough’s opinion but two factors stood out. Were Clinton and Walsh “caretakers” within the meaning of the elder abuse statute and did they act “wantonly” or “recklessly.”

Justice Wendlandt said the commonwealth alleged enough to indict. Now prosecutors have to prove it. (via wikipedia)

Justice Dalila Aragaez Wendlandt wrote for the majority which included Chief Justice Kimberly Budd and Justices Frank Gaziano, Serge Georges, Jr., and Scott Kafker. Justice David Lowy penned a dissenting opinion that Justice Elspeth Cypher joined.

Lowy concurred that Clinton and Walsh qualified as caretakers. However, he disagreed that the commonwealth’s allegations of acting wantonly or recklessly crossed a legal threshold.

“As is often noted, hindsight is an exact science, but the protocols in the early days of the COVID-19 pandemic were anything but,” Lowy wrote. “At its core, this prosecution is nothing more than an exercise in assigning blame with the benefit of hindsight.”

Nevertheless, the case can go forward. The AG’s office, now with Andrea Campbell at the helm, can now present the case to a jury.

In a statement, Campbell gave no indication she would balk at continuing the prosecution.

“The Court’s decision today is welcome and important news, and it affirms what we already knew: the leaders and managers of facilities like the Soldiers’ Home share responsibility for the health and safety of their residents,” she said. “Today’s decision allows us to focus once again on securing accountability for the tragic and preventable deaths at the Soldiers’ Home in Holyoke.”

It’s Attorney General Campbell’s case now (WMP&I)

Via a spokesperson, Healey’s office referred to Campbell’s statement but offered no additional comment.

A lawyer for Walsh referred comment to another Walsh attorney who did not respond to a request for comment as of posting time. An attorney for Clinton initially declined to comment, but later, in a statement, highlighted the dissent’s critique of the ruling.

“The dissent eloquently explains why this prosecution is misguided, and why Dr. Clinton is not guilty. We look forward to clearing his name at trial,” Attorney Jeffrey Pyle said.

Beyond the human tragedy, the episode at the Holyoke Soldiers’ Home, since renamed the Veterans’ Home in Holyoke, became a window into the Baker administration. Microscopes that descended on the hallowed veterans facility in the Paper City discovered the problems there transcended the novel pathogen that swept the planet.

Sunny-side up, hard-boiled, scrambled and fried. (via Twitter/@MassHHS)

Opprobrium, embarrassment and cartons of eggs ended up in the faces of then-Governor  Charlie Baker, then-Veterans Services Secretary Francisco Urena, Health & Human Services Secretary Marylou Sudders and even the outside counsel Baker hired to investigate.

Investigations highlighted Walsh’s political considerations and the role they played in his hiring. His mother is Springfield City Councilor Kateri Walsh. Walsh late father, Dan Walsh, once led the city’s veterans services office.

The legislature ultimately restructured the state veterans department including oversight of the homes. Veterans Services is now its own office directly under the governor rather than a subunit of HHS. The changes took effect last month.

Healey’s own investigation landed on criminal charges for Clinton and Walsh. The indictments came out in September of 2020, just under six months after the COVID-19 emergency began in the Bay State. Clinton and Walsh each faced 10 counts. There were two charges of elder abuse—one alleging neglect and another alleging permitting serious bodily injury—for five distinct Home residents in the combined units. During a hearing in Hampden Superior Court, prosecutors conceded their legal theory was novel.

McDonough concurred and dismissed both sets of charges on November 22, 2021. His opinion dwelled on whether the defendants had created a substantial likelihood of harm. However, he also found Clinton and Walsh were not caretakers within the meaning of the statute. Healey appealed, although her office ultimately withdrew the appeals pertaining to serious bodily injury.

The majority and the dissent agreed they defendants were caretakers. They split on whether or not Clinton and Walsh had behaved “wantonly” and “recklessly.” The majority justified its finding by pointing to actions the defendants could have taken, especially summoning help from Holyoke Medical Center.

The majority also rested their decision on the fact that the unit merger violated infection control protocols.

“The grand jury thus heard testimony that would warrant finding probable cause that the defendants had a duty to act in accordance with the infection control practices that the Commonwealth’s experts testified to be known by medical professionals in March 2020, and that in declining to pursue available options and instead consolidate the two floors, the defendants engaged in intentional conduct of omission that involved a high degree of likelihood that substantial harm would result,” Justice Wendlandt wrote.

Justice Wendlandt added that both Clinton and Walsh had failed to take up offers of assistance or other act more quickly to recruit help. Many of the close calls or doubts about the charges were questions for the jury and not the judge at this stage, the court found.

Justice Lowy tl;dr: Sorry, no. (via wikipedia)

The dissent strenuously contested the majority’s assertion that the defendants had other options. Justice Lowy highlighted the rapidly changing nature of the pandemic, something the SJC had observed in other rulings about decision-making in those early, dark months.

For example, he rejected the idea that Holyoke Medical Center was the solution. It was not offering itself as an alternative space to house covid+ residents of the home. Instead, Lowy observed, the hospital was willing to share supplies and prepping itself for resident who required hospitalization.

“The court also predicates its conclusion on the offer of help from Holyoke Medical Center (HMC), contending that as a result the defendants knew that they had safer options available,” he wrote. “Review of the grand jury minutes reveals only scant evidence about the content of calls where help was purportedly offered to the Soldiers’ Home.”

Lowy closed with acknowledging the obligation to veterans who “face the twilight of their journey.” However, he objected to “criminalizing blame” for inadequate decisions made as the shroud of coronavirus fell upon the earth.

The case will now return to Hampden Superior Court, barring a request to change venue. That is unlikely, however, as it should be possible to find an impartial jury. While the charges had support among many family members of deceased Home residents, the case had critics, too. Some believed the tragedy was not only a failure of inadequate management. Rather, they also saw an inevitable result from underinvestment and neglect by way of Boston.

Assuming nobody takes a plea, the case will not be easy for prosecutors. Indeed, even the majority observed in a footnote that the dissent laid out a “rough roadmap” for defendants to argue not they, but circumstance and fate were in control during that wicked March three years ago.