Is This an Obstruction of Justice?
Is This Homicide?
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:

Background:

    From August C. Baxter's certificate of death No. 117200509626:

Manner of death: undetermined
Date of injury: unknown
Time of injury: unknown
Describe how injury occurred: unknown
Immediate cause of death: probable drowning
Other significant conditions contributing to death but not resulting in the underlying cause: Remote CVA's

    From the criminal investigator's statement (pg. 2):

“I received a fax from [the coroner's] office indicating the cause of death as drowning. It gave no indication that the drowning was forcible. Nor did it give any indication of violent injuries. [The coroner] determined that the drowning was accidental or [a] suicide. After interviewing [the caregivers]; surveying the residence of Mr. Baxter; and receiving statements from several concerned citizens I found no evidence that would lead to probable cause to charge anyone with a crime.” (pg. 1)

Analysis:

The investigator seemed to dismiss criminal consideration merely because the coroner's report mentioned no obvious force or violence¹.  If death appeared due to accident or suicide, the death certificate must² so state. But the coroner did not actually determine a manner of death. In contradiction, the criminal investigator's statement incorrectly reports the coroner determined “the drowning was accidental or [a] suicide”. This misrepresentation of the coroner's finding would seem to qualify as a violation of RS 14§130.1 A. (1), i.e., an "obstruction of justice" in that it is a deliberate distortion of the results of a proceeding relevant to a criminal investigation.

Regardless, the circumstances surrounding unnatural deaths of incapacitated persons occurring while in the custody of “caregivers” must be examined to determine whether, “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” (RS 14§12. Criminal negligence). Otherwise, if negligence is simply condoned, there is nothing to assure even a grossly inadequate standard of care ever be maintained and dependent incapacitated persons unable to protect themselves are consequently deprived of the protection of the law.

The coroner left open the question of criminal neglect and homicide, consideration of which the investigator precluded. At present, my best effort t to assess public opinion shows 90% would judge my father's death a probable homicide according to the evidence. In contrast, the criminal investigator stated he “found no evidence that would lead to probable cause to charge anyone with a crime”. It is difficult to reconcile the two.

The criminal investigator also  failed to note my father was a severely incapacitated person exposed to a documented and established “high risk of harm” for which, following a report³ of domestic abuse, his “caregivers” had agreed “never to leave him alone”. Moreover, the hazard that actually caused my father's death had been cited and obvious all along. These omissions seem also to be obstruction.

Comparison:

I submit the following negligent homicide prosecutions were pursued with much weaker evidence than naturally arises from the circumstances of my father's reasonably predictable and easily preventable death:

Louise Welch, whose eight-year-old died in a house fire,was prosecuted for her daughter's negligent homicide because “the child was home alone on the night of the fire, but was supposed to be under her mother's care.”

The owners of St. Rita's Nursing Home were prosecuted for multiple counts of negligent homicide for the drowning deaths of residents under their care while the survivors' ordeals brought charges of "cruelty to the infirm". It was alleged the caregivers had “ignored a mandatory evacuation order from the parish and refused an offer by parish officials to bus residents to safety a day before the storm hit”. The prevailing defense was “the nursing home had never flooded in 20 years and that [the caregivers] were worried some of the frail residents wouldn't survive the ordeal of an evacuation. The couple also said they were never ordered to evacuate.”

Welch pleaded guilty while the dispute in the St. Rita's case turned upon a question of whether the caregivers had been aware of the residents' risk of harm and whether the caregivers had been ordered to protect them. It did not turn on questions of whether residents were suicidal, mentally incapacitated or had chosen to stay; whether the caregivers had authority to force or refuse the residents' evacuation, whether the residents' relatives also had a duty to assist or whether the drownings resulted from force or violence. In neither case cited above had the specific hazards of death been clearly foreseen and easily preventable. These prosecutions did nothing to deter house fires or levee breaches whereas prosecution of my father's caregivers would likely help deter the abandonment of other incapacitated persons.

Summary:

In summary, the criminal investigation of A. C. Baxter's death conspicuously avoided any consideration of criminal negligence, negligent homicide or other criminal aspects of a report of domestic elder abuse which foreshadowed his apparent drowning - all of which have a reasonable basis for suspicion. Additionally, the investigative report materially misrepresented the medical examiner's actual findings pertaining to the manner of death. The disposition of the case is wholly inconsistent with other very recent negligent homicide prosecutions pursued on weaker grounds. These facts support my opinion of obstruction.

ECB

footnotes: