A Hampden Superior Court judge on Monday dismissed all criminal charges against two former top officials of the Holyoke Soldiers’ Home, where at least 76 veterans died from COVID-19, saying there was no “reasonably trustworthy evidence” that their actions harmed veterans.
A grand jury indicted former superintendent Bennett Walsh and ex-medical director Dr. David Clinton in September 2020 for putting elderly veterans at risk of contracting COVID. At the time, it was believed to be the first US prosecution of nursing home caregivers over their handling of the coronavirus pandemic.
Attorney General Maura Healey said she decided to seek criminal indictments after what she called the “worst decision” Holyoke leaders made — combining two dementia units because of a staffing shortage. She said the decision put healthy veterans in the same unit as those who were infected or possibly infected but not showing signs of illness.
But Hampden Superior Court Judge Edward J. McDonough Jr. was not persuaded, dismissing all 10 counts of elder neglect and permitting bodily injury involving five veterans against Walsh and Clinton.
“There is insufficient reasonably trustworthy evidence that, had these two dementia units not been merged, the medical condition of any of these five veterans would have been materially different,” wrote McDonough in a 22-page decision. “Therefore, because the evidence does not support a finding of probable cause to believe Mr. Walsh or Mr. Clinton committed any crime, I must dismiss the indictments against both.”
McDonough also said that elder abuse laws were intended to apply to people who provide direct care for the elderly, not administrators.
Healey’s office said it was considering whether to appeal.
“We are very disappointed in today’s ruling, especially on behalf of the innocent victims and families harmed by the defendants’ actions. We are evaluating our legal options moving forward,” said Jillian Fennimore, Healey’s spokeswoman.
Michael Jennings, Walsh’s lawyer, said he and his client are “happy the judge agreed with our arguments.
“We’re hopeful that now that we’re much farther along with life in COVID, everyone can look back and reflect and decide the criminal forum isn’t the right place to resolve the issues,” he said.
There are still two lawsuits pending against Walsh and Clinton — one filed by the families of veterans who died at the home, alleging leaders acted “with deliberate indifference” to the risks posed by COVID and their actions triggered a “preventable” and deadly outbreak.
Health and Human Services Secretary Marylou Sudders, whose agency oversaw the home, was added as a defendant in that case in September.
In addition, employees have filed a lawsuit against former home leaders. In their suit, the employees charge that they were forced to work under “inhumane conditions” as the virus spread and they helplessly watched as veterans suffered horrible deaths.
The dementia units were combined on the afternoon of March 27, 2020, when the first wave of the pandemic was sweeping through the facility, putting together 42 veterans without regard for whether they had COVID-19 symptoms or diagnosis, Healey said. Some were placed six to a room that generally held four veterans, while others, believed to be asymptomatic, were sent to the dining room.
Walsh, the son of a politically influential Springfield family, had no health care experience before Governor Charlie Baker appointed him Soldiers’ Home superintendent in 2016. The Baker administration dismissed Walsh after an investigation found that he and Clinton had overseen a series of errors that had exposed veterans to a higher risk of COVID infection.
Walsh and Clinton each faced an array of charges related to their oversight of five veterans: that they “wantonly or recklessly” committed or allowed bodily injury to an elderly or disabled person, and they committed or allowed abuse, neglect, or mistreatment to an elderly or disabled person. The criminal neglect charge carried a maximum penalty of three years in prison; the bodily injury charge was punishable by a 10-year prison term, Healey said.
The charges related specifically to five veterans placed in the dining room as part of the merging of the units. Three were infected with COVID-19, including one who died.
But those five veterans, the judge wrote, had likely been exposed to COVID-19 before the merger of the two dementia units.
McDonough wrote that there was insufficient evidence that the actions of Walsh or Clinton caused any of the five named veterans serious bodily injury or neglect. He said there was little sign that any of those veterans suffered from dehydration or malnutrition — signs of serious neglect — after they were moved.
But even if they had, the judge wrote, the charges would still have to be dismissed because neither Walsh nor Clinton was a “caretaker” as required under the applicable laws. To be charged with elder abuse, someone must be directly responsible for the care of that elder. The law doesn’t apply to high-level administrators who are not involved in providing patient care, he wrote.
McDonough wrote, “no court has held that an administrator making facilities and staffing decisions is a ‘caretaker’ meaning ‘a person with responsibility for the care of an elder.’”
Jennings noted that each of the 10 charges required the judge to determine that Walsh and Clinton were “caretakers.” Once he rejected that argument, all of the charges had to be dismissed, Jennings said.
As for Walsh, Jennings said, “he’s taking it a day at a time. He knows the case isn’t necessarily over. He’s waiting to see what happens next.”
Clinton’s lawyer, John Lawler, said he is “thrilled” for his client.
“It’s a 22-page, well-articulated, thoughtful decision that essentially vindicates Dr. Clinton,” Lawler said. “At the same time, Dr. Clinton’s heart still goes out to the veterans and their families who suffered greatly as a result of the COVID-19 crisis that came to the Soldiers’ Home in March and April 2020.”
Clinton, now 72, has retired from practicing medicine, Lawler said.
When she announced the indictments, Healey called Walsh and Clinton “ultimately responsible” for the decision to combine the units, which Healey described as reckless. McDonough rejected that argument.
“It’s truly heartbreaking to think about how residents and staff suffered at this facility,” Healey said in September 2020. “From the time we became aware of this, we made it a priority. We owed it to the families who lost loved ones and these veterans who served our country to get to the bottom of what happened.”
Some family members of veterans who died in the outbreak said Monday the ruling has made them angry and distrustful of the judicial process.
“This isn’t the end of it. We’re going to pursue this and get justice for the veterans and their families,” said Sue Perez, whose father, World War II veteran James Miller, was living at the home before he died on March 30, 2020, at 86. She hopes the case will head to federal court.
Three days before her father died, Perez stood in a parking lot behind the soldiers’ home and watched him on video, gasping for air as he fought for his life.
“My father would have died a more dignified death on the beaches of Normandy at 19 than what we watched from that back parking lot,” she said.
Mark Korovae’s grandfather, Korean War veteran Edward Korovae, died on March 27, 2020, the day that the home combined the two dementia units into one. Korovae was the fifth known veteran to die from COVID.
On Monday, Korovae questioned if there would be any accountability for the handling of the outbreak.
“This whole thing is so corrupt from top to bottom,” he said. “It’s unbelievable … How many panels and investigations and hearings and reports have we had? Has anything materially changed? Has anyone actually been held accountable? What is the point of all of this? It’s just for show, and mock outrage.”
Globe correspondent Nick Stoico and Hanna Krueger and Rebecca Ostriker of the Globe staff contributed to this report.
Andrea Estes can be reached at firstname.lastname@example.org.