In pursuit of the truth

Dec - 12

In pursuit of the truth

FIVE YEARS AGO this week marked the end of John McCloskey’s life.

The morning of Dec. 18, 1994, the manic-depressive 18-year-old awoke inside Western State Hospital in Staunton, writhing in stomach pain and vomiting his own feces – the victim of a brutal assault.

Granted, McCloskey would linger another 14 months in hospital beds before infections from the attack killed him. But that December morning in 1994 was the last time he could taste real food, get out of bed without a crutch, and walk untethered to a web of intravenous tubes and catheters and a colostomy bag strapped to his hip.

No one knows how the assault happened, or who did it, and few in state government are looking.

The state’s mental health watchdog never investigated. The Virginia State Police file has been inactive at least a year. And Attorney General Mark Earley’s office is locked in a defensive stance, fighting the $10 million federal lawsuit the family filed against Western State.

The case remains steeped in murkiness, but new evidence has surfaced that adds credibility to the McCloskeys’ claim that the mental hospital is responsible for their son’s death:

An affidavit by the University of Virginia Medical Center surgeon who cared for McCloskey, which states the assault happened at Western State.

A U.S. Department of Justice report released in October that blames a history of understaffing and neglect at the hospital for the injuries, suicides and deaths of several patients – the same situation the McCloskey lawsuit describes.

Interviews with former Western State social workers who describe a hospital long plagued by poor security, gang rapes and cover-ups.

Responsible for this evidence are McCloskey attorney Jonathan Rogers, a legal maverick by Roanoke standards, and Richard King of Fincastle, a ruddy-faced educator who works part time as a private investigator. For a long time, the two men seemed alone in the quest to unravel the McCloskey mystery.

Now, a handful of state legislators are getting involved.

Sen. Mary Margaret Whipple, D-Arlington, who has had her own run-in with Western State, wrote to Secretary of Public Safety Gary Aronhalt on Friday requesting that he review the adequacy of the state police investigation.

Sen. Joseph Gartlan, D-Fairfax County, a longtime mental health advocate, said last week that he is concerned about the handling of the investigation and is considering some unspecified action.

And Del. Creigh Deeds, D-Warm Springs, who believes Western State is responsible for the homicide, announced Thursday that he is working through the Virginia State Crime Commission to try to spark another investigation.

“It seems somebody covered something up,” Deeds said. “Our system of providing for mental illness has come under scrutiny these last few years. All fingers point in that direction.”

Filling in the blanks

But at some time or another, fingers have pointed in every direction. At the heart of the case is a void – of suspects and facts.

The ordeal began Dec. 15, 1994, two days after the troubled teen moved from his Pennsylvania home to Rockbridge County, where his father, Pete, had found a better trucking job.

That morning, John McCloskey caused a disturbance outside a convenience store in Natural Bridge Station, and sheriff’s deputies arrested him. That afternoon, he was taken to Western State, where the sketchy hospital records show he spent most of the next three days heavily sedated and isolated in a room from which he couldn’t get out, but anyone could get in.

When he arrived at the Suva hospital the night of Dec. 18, 1994, he had a ruptured liver, torn bowels and perforated colon.

His surgeon, Dr. Jeffrey Young, suspected someone had either pounded him in the gut, or shoved something like a broom handle up his rectum. But Young, and everyone else who reviewed the case, could say only that the assault happened sometime during McCloskey’s arrest or his time at Western State.

The three-year state police investigation targeted the Rockbridge County Sheriff’s Office. Investigators relied on a cryptic statement McCloskey supposedly made to a Western State aide during his transport to Suva: “You’re not going to beat me like the men in brown suits?”

Speaking from his hospital bed a year later, a dazed and drugged McCloskey could recall nothing of Western State, according to state police, but said the deputies “were rough with me.”

The McCloskeys and their attorney criticized state police for ignoring Western State in their investigation and never interviewing other patients on his ward – all mentally ill and facing criminal charges and, according to the family, the most likely suspects.

They claim the hospital and its former director, Lynwood Harding, refused to protect patients adequately with proper staffing, and covered up the assault. For years, though, they had to build their case by filling in blanks.

A blood test and physical examination done when McCloskey arrived at Western State showed that his body was normal with no signs of trauma. The only complaints he had voiced to a nurse: A deputy had held a gun to his head, and his wrists hurt from the handcuffs.
Had the assault already happened, investigator King believes, McCloskey would have spoken up.

“Somebody has either stomped on your stomach or shoved a broomstick up your a–, and what are you going to be complaining about?” King asked rhetorically.

The injuries were so severe, King and others have speculated, that the assault had to have happened just before he cried out the morning of Dec. 18.

Damning evidence?

Then this summer, Rogers read in The Roanoke Times about a previously undisclosed photograph state police had of McCloskey, taken when he was admitted to Western State. Rogers subpoenaed the picture. In it, the young man is seated, looking calm and comfortable – not like someone who’d just suffered a savage beating or rectal assault.

This picture – along with blood work, the physical exam and the nature of the injuries – led Young in November to submit a statement under oath: “John McCloskey’s injuries occurred after his admission to Western State Hospital” and “were not self-inflicted.”

While Rogers considers this to be damning evidence, David Botkins, spokesman for the attorney general’s office, responded in a written statement that Young “has changed his mind on several occasions. This office will be deposing him to determine what he believes, and what his reasons are.”

Young’s affidavit coincided with news out of Washington, D.C., about the hospital.

In the summer of 1997, the Justice Department began investigating Western State, prompted in part by the deaths of McCloskey and another patient, Maura K. Patten, who had died that July after staff neglected her severe respiratory disease for days despite pleas from her family.

On Oct. 4, the department released its report. Its scope began in 1997 and didn’t include McCloskey, but its accusations echoed those in the lawsuit:

“Many patients suffer repeated injuries due to self-abuse and aggressive acts of other patients,” investigators found. “Many of these incidents are preventable and reflect systemic deficiencies at Western State including lack of adequate staffing, failure to supervise patients …”

“No doubt, that just confirmed what we thought,” Rogers said recently.

But Botkins emphasized, “The DOJ investigation did not cover the McCloskey case or the time period of the case.”

Allegations of poor staffing, a patient assault and a hospital cover-up are familiar to Brendan Buschi, Dennis Draper and five other former Western State social workers who were fired in 1981 after raising similar complaints.

In that year, a mentally retarded young man was gang-raped by patients soon after being admitted, said Buschi, ex-director of social work, now in private practice in Delaware.

“There was a line going into a room,” Buschi said.

This and other incidents led Buschi’s team, later dubbed the “Western State 7,” to charge the administration publicly with gross neglect, sparking rounds of investigations at the hospital.

The administration fired them for disrupting hospital business and interfering with patient care, and subsequently won a federal lawsuit filed by the fired employees.

One of the defendants in their lawsuit was Lynwood Harding, then the deputy director of administration, who was among those accused of trying to cover up the abuse.

“When I heard he had become director of the hospital, I didn’t think that showed Western State had solved many of the problems that had existed at the time I was knowledgeable,” said Ed Wayland, a Charlottesville attorney who handled the workers’ lawsuit.

Still bitter toward the hospital, Buschi, Draper and Wayland have talked with Rogers, who admits the material is dated, but hopes their stories will prove Harding had prior knowledge of understaffing and patient abuse and neglected to fix the problems.

Legislative attention

“It’s been something that’s been nagging at me for a long time,” state legislator Deeds said recently about the McCloskey case. “Somebody had to do something wrong, tragically wrong, to this kid. He just had some mental instability, and for that reason, he lost his life.”

Deeds, a member of the state Crime Commission, a 13-member panel that studies ways to reduce crime, said he has met with its chairman, state Sen. Ken Stolle, R-Virginia Beach, to see about renewing the investigation.

And, Deeds added, “I hope to, within the next 30 days, sit down with the head of state police and get some answers. Or ask some questions, in any case.”

Whipple, the state senator from Arlington, first sparred with Western State on behalf of Maura Patten’s brother. Ted Patten was one of her constituents whose attempts to get a copy of his sister’s autopsy report were repeatedly thwarted. She was able to help Patten, but admittedly has been timid about entering the McCloskey fray because of her lack of legislative muscle.

But last week she decided to seek a review of the state police investigation “since this amount of time had elapsed and no one had done anything.”

Gartlan, who is retiring from the legislature, has yet to form a plan, saying only, “I am concerned as a result of reading your articles and am considering some action.”

Until their thoughts solidify into action, there is only the lawsuit.

The state has tried twice – unsuccessfully – to get it dismissed. Now begins the lengthy deposition period, in which each side questions the other’s witnesses under oath.

Two weeks ago, Rogers sent a settlement offer to the attorney general’s office. He will drop the case, the letter states, for $3.5 million, an acknowledgment of responsibility and an apology.

He cites the old and new evidence against the hospital, but also calls the state to “a higher moral duty” after it took custody of a healthy 18-year-old “and 14 months later returned him in a box to be buried.”

Meanwhile, Pete McCloskey and his wife, Rebecca, have moved from Virginia back to Carlisle, Pa., where their other three children live. They are preparing for another Christmas without their son – the chair at the dinner table where he won’t sit, the gifts under the tree he’ll never unwrap.

“I’ll just be glad to have an end to it,” Pete McCloskey said last week. “Some satisfaction, something for John.”

IN COURT: Attorney Jonathan Rogers (right) confers with Rebecca and Pete McCloskey in US District Court in Roanoke. The state petitioned the court to dismiss the McCloskeys’ lawsuit. Judge James Turk ruled that the lawsuit would not be dismissed at this stage.