Is This Homicide*?
Is
This an Obstruction of Justice?
Is
This a Conflict of Interest?
NB: To the best of my knowledge, there is no active investigation of my father's death, the manner of which, after 3-1/2 years, remains officially "undetermined". Whether the authorities are even aware of the circumstances surrounding his death is unknown, but I am quite sure there is no official interest in a review; hence, no danger of "interfering" by asking whether his death were culpable. Following my father's death, the Speaker of the Louisiana House moved to convene a legislative study, at which I testified, for the purpose of improving elder protective law. Despite at least one promise, the press did not attend or cover the testimony. Louisiana mandates the reporting of elder abuse, as I had done, the only obvious result of which was to draw official retaliation and deepen my father's isolation. Although my principle suggestion was to create a civil remedy against elder abuse to provide "due process", at least such retaliation is now criminalized (La. RS 14§403.2 D, Acts 2008, No. 181, §1, eff. June 13, 2008). In the absence of any active interest among law enforcement agencies, the legislature or the judiciary but still of the opinion disabled elders should not be thrown to the wolves without a care, I offer the following for discussion:
American communities do not naturally value the lives of the elderly, the disabled or strangers as they do those of their own children and do not equally protect them or lament their loss. For example, Louisiana's community of Natchitoches promotes itself as "a top retirement town" - "one of the top 10 bargain places to retire in the United States " - soliciting elder residents for the revenue they bring. In exchange for their commerce and taxes, the town owes elders something toward the prevention of neglect and predatory exploitation - particularly while elder abuse looms nationally as the "crime of the 21st century". Yet, without a body of case law establishing a legal standard of the "equal protection" they are due, disabled elders continue to suffer while crimes against them go largely hidden, unpunished and undeterred.
Crimes against the elderly are often committed by purported "caregivers" - although, what actual "care" they provide is generally unscrutinized while caregivers are rarely held accountable for any harm they cause. Overwhelmingly, investigators and prosecutors conveniently dismiss crimes against elders as mere "civil matters"1 although there is not yet a viable civil action to reliably protect abused elders. Congress drafted The National Guardianship Rights Act upon finding that elderly and infirm individuals are being deprived of their constitutional rights to personal liberty and control of their property without due process of law and equal protection secured by the 14th Amendment to the U.S. Constitution. (134 Cong. Rec. H7319, daily ed. Sept. 8, 1988, statement of Rep. C. Pepper). Perhaps consulting public opinion would help prosecutors reform their policies to bring equal protection to the elderly and disabled as was necessary in the gradual process of enlightening them about the serious nature of child and spousal abuse.
It is therefore proper to ask: By what standard would citizens of Natchitoches expect "reasonably careful" paid caregivers to maintain the safety of disabled elders? What constitutes a "gross deviation" below that standard? Without answers to these questions, statutes intended to protect elders have no meaning except as wishful thinking. -ECB
For
Discussion (please review and vote below)
Background: (Suppose what follows to be a plain reading of documentary evidence. Statutes and definitions are provided below.)
A catastrophic stroke leaves elderly Gus with the mind of "a two-year-old". The death of his wife provides his former step-relatives an opportunity to take financial advantage of him under the guise of serving as his "caregivers" which they eagerly arrive from out-of-state to pursue.
Citing a "contract" among themselves, which Gus did not sign, the caregivers thereafter isolate him by controlling access to his family and interfering with his communications. In exchange for being "allowed" to remain in his own home rather than confined to a remote VA facility, Gus signs various civil instruments giving his caregivers control of his assets which they freely assign to themselves. Soon after, the caregivers successfully bring an interdiction action against Gus to have him declared incompetent so that, as a matter of law, he no longer controls or bears responsibility for either his person or finances, his legal status reverts to that of a dependent juvenile and he can not undo anything done in his name.
The caregivers do not supervise Gus. Instead, they regularly allow him to wander into dangerous environments such as along the shoulder of a busy highway.
A visiting home health care nurse observes that her: “Patient is being left alone frequently. Patient is in danger of walking off and becoming lost.” “Potential for injury high.” “Periods of confusion [during which he] wanders about.” “Patient is ... prone to wandering episode[s]. His back yard empties into Cane River and ... potential for fall and safety hazard high.”
As state law mandates, Gus' brother, a physician, reports to the authorities ("EPS") his reasonable concern that the caregivers are endangering Gus by neglecting to attend or supervise him, financially exploiting and otherwise abusing him.
Official EPS investigation glosses† over most of the complaint but does substantiate that Gus is being left alone and rates the risk of harm as a "high risk" only because those particular "perpetrators"†* live with him.
As a "tentative plan to protect" Gus, his "caregivers and curator" officially agree "to adjust schedules so that the elder is never alone".
Gus' home alarm system is capable of indicating the unexpected opening of doors and windows.
Just days before an expected legal judgment concerning his proper care and custody and possible exposure of financial abuse, Gus' bruised, drugged, diseased and malnourished body is indeed found submerged in the lake behind his home in water so shallow he should easily have saved himself by standing up had he simply fallen in.
The caregivers claim (or admit) they had not seen Gus and could not account for his whereabouts or activities for a twelve-hour period of abandonment†† during which his death occurred.
The coroner decides the cause of death is a probable drowning but classifies the manner of Gus' death as "undetermined", leaving open the legal question of accident or homicide and possible criminality (the prior EPS investigation had positively ruled out any danger of suicide).
**"Probable
cause" refers to the standard to which a grand jury believes
that a crime has been committed. This term comes from the Fourth
Amendment of the United States Constitution. The most well-known
definition of probable cause is "a reasonable belief that a
person has committed a crime".
For further discussion: What if it had
been an actual two-year-old who drowned rather than an elder reduced
to that mental capacity by a stroke? How should death have been
prevented? What if Gus' situation occurred in the
furtherance of financial exploitation?
*Louisiana state statutes and definitions:
Homicide is the killing of a human being by the act, procurement, or culpable omission of another. Criminal homicide is of five grades: (1) First degree murder. (2) Second degree murder. (3) Manslaughter. (4) Negligent homicide. (5) Vehicular homicide.
A. Negligent homicide is the killing of a human being by criminal negligence.
B. The violation of a statute or ordinance shall be considered only as presumptive evidence*** of such negligence.
***Evidence that is treated as sufficient for a guilty verdict unless contradicted and outweighed by presentation of rebuttal evidence.
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.
14§93.3. Cruelty to the infirmed (sic)
A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed , a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.
B. "Caregiver" is defined as any person or persons who temporarily or permanently is responsible for the care of the infirmed , physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.
15§1503. Adult Protective Services Act, Definitions
(6) "Caregiver" means any person or persons, either temporarily or permanently, responsible for the care of an aged person or a physically or mentally disabled adult. "Caregiver" includes but is not limited to adult children, parents, relatives, neighbors, daycare personnel, adult foster home sponsors, personnel of public and private institutions and facilities, adult congregate living facilities, and nursing homes which have voluntarily assumed the care of an aged person, or disabled adult, have assumed voluntary residence with an aged person or disabled adult, or have assumed voluntary use or tutelage of an aged or disabled person's assets, funds, or property, and specifically shall include city, parish, or state law enforcement agencies [emphasis added].
†"Very often, police officers
write
incomplete crime reports where the alleged victim is elderly because
of an unfounded belief that the victim is incapable of providing
sufficient information that can lead to a successful prosecution.
Prosecutors have the responsibility to train and educate officers
about the need to thoroughly investigate all cases of suspected elder
abuse and to prepare law enforcement agencies for the anticipated
influx of such cases in the next five years." -
National
District Attorneys Association
†*"Perpetrator:
A term commonly used by law enforcement officers to designate a
person who actually commits a crime." West's
Encyclopedia of American Law, edition 2
††"Abandonment"
means the desertion or willful
forsaking of an adult by anyone having care or custody of that person
under circumstances in which a reasonable person would continue to
provide care and custody. RS
14§1503 (1)
Was
his death a homicide (negligent or otherwise); i.e., was Gus killed
by the culpable act or omission of another?