Ex-Soldiers’ Home leaders ask judge to dismiss charges

  • Bennett Walsh, right, former superintendent of the Soldiers' Home in Holyoke, listens to testimony with his attorney, William Bennett, during a hearing in Hampden Superior Court, Tuesday, in Springfield. Don Treeger/The Republican via AP

Staff Writer
Published: 8/24/2021 8:58:55 PM

SPRINGFIELD — Two former officials at the Soldiers’ Home in Holyoke appeared in court Tuesday, asking that a judge dismiss criminal neglect charges they face related to the death of at least 76 veteran residents of the home last spring amid a massive COVID-19 outbreak.

Former superintendent Bennett Walsh and former medical director David Clinton both face criminal neglect charges brought by Attorney General Maura Healey over their roles in the deadly outbreak. The two have pleaded not guilty to the charges. Their lawyers have made several motions to dismiss the case, which is being heard in Hampden Superior Court.

Walsh and Clinton were each indicted in September 2020 on five counts relating to two separate charges: “Caretaker Who Wantonly or Recklessly Commits or Permits Bodily Injury to an Elder or Disabled Person,” and “Caretaker Who Wantonly or Recklessly Commits or Permits Abuse, Neglect, or Mistreatment to an Elder or Disabled Person.”

Speaking before the court Tuesday morning, Clinton’s and Walsh’s lawyers began by making a statutory argument that the two former Soldiers’ Home leaders didn’t meet the definition of a caregiver under the law they’re alleged to have broken.

“We don’t think anyone here should be blamed criminally for anything,” Walsh’s attorney, Michael Jennings, told Judge Edward McDonough Jr.. “The blame here belongs with the virus, not with anyone who worked in the nursing home.”

The grand jury’s indictment of Clinton and Walsh rests on one decision that was made at the Soldiers’ Home in the early stage of the coronavirus outbreak at the 247-bed facility — the choice to combine two dementia units after many employees had called out of work with COVID-19 symptoms, packing residents into even closer quarters than usual.

A lawyer hired by Gov. Charlie Baker to investigate the outbreak and what led to it found in June 2020 that combining those units was the “worst decision” leaders at the Soldiers’ Home made, resulting in conditions that staff described as “a nightmare,” “total pandemonium” and resembling “a war zone.”

Walsh’s legal team has previously challenged the validity of that investigation, which was led by former federal prosecutor Mark Pearlstein. And a Boston Globe Spotlight investigation earlier this summer questioned Pearlstein’s independence and found that his report “contained key errors and omissions” that helped shield Baker and Health and Human Services Secretary Marylou Sudders from blame. He has denied that.

Healey brought the charges against Bennett and Walsh after her office conducted its own investigation last year.

Assistant Attorney General Kevin Lownds, one of the state’s prosecutors in the case, rejected the argument from Clinton’s and Walsh’s attorneys that the law in question didn’t apply to them, saying that it would mean a supervisor who makes a decision that nurses and certified nursing assistants, or CNAs, then have to carry out would not be liable for the patients’ neglect or mistreatment.

“What the defendants would do is they would take the lower-level CNAs and nurses, and they would hold them responsible for any deficiencies in care that the veterans suffered while they were at the home,” he said. “Even for decisions those CNAs and nurses did not make.”

Among other motions to dismiss, the two sides also argued over whether the state produced evidence that the veterans infected during the outbreak suffered from neglect or mistreatment.

McDonough did not make a decision on the motions, and another hearing was set for Oct. 28.

Walsh and Clinton are also the defendants in two civil lawsuits over their roles during the COVID-19 outbreak. In those cases, families of veterans and staff sued for damages over the death and trauma left in the wake of the outbreak, which was one of the largest at any long-term care facility in the country.

Dusty Christensen can be reached at dchristensen@gazettenet.com.
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