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Correction chief, staff rebuked in patient death

Patrick acts on ‘tragic’ case of mentally ill man who died in restraints at Bridgewater State Hospital

Joshua Messier died at a state hospital.

Joshua Messier died at a state hospital.

Governor Deval Patrick on Saturday announced sweeping disciplinary measures against three prison guards and three high-ranking Department of Correction officials for the roles they played in the 2009 death of 23-year-old Joshua K. Messier as guards attempted to restrain him at Bridgewater State Hospital.

Patrick formally reprimanded Correction Commissioner Luis S. Spencer for his inaction in the wake of Messier’s death, which was ruled a homicide four years ago. His public safety secretary also called for the resignation of Assistant Deputy Commissioner Karen Hetherson from her $117,000-a-year job for overruling a 2011 Internal Affairs report that cited two of the guards for misconduct.

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Patrick placed three guards on paid administrative leave, saying at least two should face disciplinary proceedings for improper use of force against the handcuffed Messier, who suffered a heart attack after guards pushed his chest almost to his knees. The third guard, he said, should be disciplined for failing to properly supervise other guards involved in Messier’s death.

“Mr. Messier’s death was tragic,” Patrick said Saturday. “When tragedies happen during this administration, I expect the responsible officials to get the facts and deal squarely with them. That did not happen here.”

Patrick called for a review of the case by Public Safety Secretary Andrea Cabral after a Globe report two weeks ago detailed the suspect circumstances of Messier’s death and the state’s complete failure to hold anyone accountable for it.

Patrick released Cabral’s 28-page review Saturday as the Globe was preparing to publish a story outlining the pattern of delays and misleading information in the state’s official response to Messier’s death. The Globe found that Bridgewater and state prison officials delayed one report for nearly two years, and failed to produce two others at all.

Within weeks of Messier’s death, the Globe found, Bridgewater Superintendent Karin Bergeron was scrambling to avoid providing a written explanation for the incident. She e-mailed a superior at the Department of Correction that a written report outlining the events of the evening of May 4, 2009, held “the potential for disaster here with a document being misused” — especially if it fell into the hands of a disabled persons advocacy group starting to investigate the case.

Bergeron, who is no longer a state employee, told her superior that she would contact state medical regulators about one key report to “see if they would be willing to have a phone conference . . . so that we do not have to produce a document.”

In another instance, Bridgewater and state attorneys told a state watchdog agency investigating Messier’s death that the guards had been cleared of wrongdoing by a Plymouth County grand jury. In fact, the office of District Attorney Timothy J. Cruz has confirmed that it never presented the Messier case to a grand jury to determine whether criminal charges should have been filed.

The review by Cabral suggests that former correction commissioner Harold W. Clarke set the tone for the state’s response to Messier’s death when he announced his support for the guards to senior staff in 2010 while the case was still under investigation.

In a meeting just days after Messier’s death was ruled a homicide by a state medical examiner, Clarke said, “We take exception to this — everything was appropriately and professionally done,” according to minutes of the meeting provided by the Patrick administration. Both Spencer and Hetherson were at the meeting.

Clarke, now director of Virginia’s prison system, could not be reached for comment.

In addition to the actions taken against Spencer, Hetherson, and the three guards — who will face separate disciplinary proceedings — Patrick approved a letter of reprimand to current Bridgewater Superintendent Robert F. Murphy.

Patrick’s review cites Murphy for delaying delivery of a required report on the use of force in Messier’s case to the Department of Correction’s Special Operations Division until December 2012, nearly two years after he was told State Police had concluded their investigation into the matter.

The review also cites Spencer for failing to act after the Special Operations Division cited the guards in January 2013 for violations of department policies, including one that prohibits guards from putting their weight down on a restrained inmate’s back, even if the inmate is resisting, because of the risk of suffocation. The Special Operations report clearly contradicted Hetherson’s earlier finding of no wrongdoing by the guards.

Patrick’s investigation of the response to Messier’s death was prompted by a Feb. 16 Boston Globe investigation reporting that guards, medical personnel, Bridgewater administrators, and department officials had violated more than a half-dozen laws, regulations, and hospital policies while handling Messier and responding to his death.

The Globe’s story reported that two of the officers suspended by Patrick — Derek Howard and John C. Raposo — improperly applied pressure to Messier’s back. The story also said most of the guards involved in Messier’s death had little or no training in mental health disorders, or in the application of four-point restraints.

Advocates for the disabled and prison inmates said they were appalled at the lack of accountability on the part of state officials, despite videotaped evidence that guards used a banned tactic on the handcuffed Messier known to cause suffocation.

Christine M. Griffin, executive director of the Boston-based Disability Law Center, the disabled persons advocacy group Bergeron mentioned her e-mail, said her agency regrets its decision not to launch a full-scale investigation of the Messier case in the mistaken belief that state investigators could manage it properly.

“We just incorrectly assumed there were so many people involved that the right thing was going to be done and the truth would come out,” Griffin said. “This is a good lesson for us as a protection and advocacy organization: Don’t stand down, just get in there.”

Messier, a paranoid schizophrenic, was sent to Bridgewater for a psychiatric evaluation by a district court judge after he was charged with three misdemeanor counts of assault and battery following two incidents in the psychiatric unit at Harrington Memorial Hospital. He died a month later at Bridgewater after an altercation with a corrections officer led to guards securing him spread-eagle to a bed in four-point restraints.

The Department of Correction’s Internal Affairs Unit concluded in 2011 that Howard and Raposo violated a prison policy that says guards shall never put pressure on a restrained inmate’s back. Surveillance video shows the two guards pushing down hard on the handcuffed Messier’s back, forcing his chest toward his knees, a maneuver sometimes called “suitcasing.”

But Hetherson, the assistant deputy commissioner, set aside that finding, writing in her executive review that “no misconduct was found against staff.”

A month later, the state’s Disabled Persons Protection Commission — a separate state agency — concluded that Howard and Raposo were responsible for Messier’s death, recommending discipline for the two guards, “up to and/or including termination.”

An attorney with the Department of Correction and one for Bridgewater State Hospital appealed those findings, asserting that the two guards had been cleared by a grand jury.

“The lack of wrongdoing on the part of the two officers has been confirmed by the investigation of the Plymouth District Attorney’s Office and subsequent grand jury proceedings,” the attorneys wrote.

But Cruz, the district attorney, never presented evidence in the case to a grand jury, his office said, despite the official homicide finding by medical examiner Mindy J. Hull.

Cruz’s office told the Globe that Hull, in a private conversation, unofficially told investigators that she had pulled back from her official findings and now believed Messier, by resisting the guards, was responsible for his own demise. Hull has declined to comment on Cruz’s claim.

Meanwhile, Bridgewater officials sought five extensions to produce a so-called “use of force package” that was supposed to explain and justify the guards’ use of force on Messier. When they asked for the fifth extension, in August 2010, Bridgewater officials said they were still waiting for lawyers to determine “if the use of force package needs to be completed or not.”

It was not until December 2012, more than 3½ years after Messier’s death, that the package was delivered.

Records reviewed by the Globe show that Bridgewater officials actively tried to avoid writing other reports as well, including a mortality review that is supposed to analyze all staff actions associated with an inmate’s death. It also found that a doctor responding to an emergency in Messier’s cell failed to file a report. Cabral said the department will continue to investigate whether all required reports were completed.

Calling the death of Messier “disgusting,” Patrick asked Cabral to review the state’s response and determine whether department officials complied with all reporting requirements in the five years since Messier died. Messier’s family eventually filed a civil lawsuit against the state, Bridgewater State Hospital, the Department of Correction and several individuals involved in Messier’s care, as the state’s investigations dragged on without result.

Michael Rezendes can be reached at michael.rezendes@globe.com. Follow him on Twitter @RezGlobe.
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