Death Without Dignity Re-Released

February 28, 2013

Death Without Dignity Cover Final 4 72

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HOUSTON – They endured for almost seven months.  Coming and going when told.  Eating when allowed.  Working at their regular jobs or businesses one day a week, if at all.  They were compelled to sit and listen hour after hour.  They were told to remember what they heard but they were barred from taking notes or asking questions.  They were expected to understand the subject matter they heard but none had any knowledge or expertise remotely related to it.  Above all, they were instructed to ignore the emotion in an emotionally charged atmosphere.

Who were these people?  Why did they all give up their jobs, businesses and personal lives?  Why did they consent to listen without taking notes, learn without asking questions?  Strangely, none volunteered.  All were compelled.  They had no choice to serve or not serve.  They were the jurors in the first ever and perhaps only criminal prosecution of a corporation for murder — murder by abuse and neglect of more than 200 nursing home patients.

It has been a quarter century since this epic, one of a kind murder trial ended.  The longest trial in Texas history.  The length itself was unique.  But so were dozens of other factors, some of which are public, many of which are still cloaked in the attorney-client privilege and will never be disclosed.

While these stories of the individual jurors who endured this epic trial may yet be written, this book by Steven Long provides unparalleled insight into a murder trial, insight that is unlikely to be provided to any author ever again.  Steven Long was given unprecedented access to the lawyers’ and trial judge’s thoughts and strategies as the trial unfolded day by day for seven months.  This book reveals for the first time ever the daily nuts and bolts of a trial lawyer’s life in trial including strategic decisions, the ups and downs of dealing with witnesses, the little triumph and failures that occur not only daily but hour-by-hour.

Steven Long was able to gain this unique perspective only because he gained the respect and trust not only of the trial judge but of the lawyers on both sides enabling him to provide the public a peek into what is undoubtedly the most closed professional sanctuary in the world – a judge’s chambers during a trial.  Steven Long had known the Autumn Hill trial judge – Don Morgan – for many years.  Somehow he was able to talk himself into the unique privilege of becoming the only journalist to ever have unfettered access not only to a trial judge’s thinking, but to the judge’s chambers during what lawyers call in camera proceedings.  These are a trial’s moments, out of the presence of the jury, new reporters, and spectators when lawyers argue evidence and law points crucial to a trial’s outcome.  This legal wrangling often becomes emotional and personal particularly during an especially long, contentious murder trial like Autumn Hills.  Steven Long’s access to these daily in camera confrontations allowed him to produce an authentic, but readable account of what really happens in a trial – much more authentic that any of the legal novels written by Grisham, Turow, and others.

While Steven Long masterfully tells this trial story through his incomparable eye-for-detail-style, limits on story telling prevented him from touching on several dozen issues raised by a trial of this kind.  The jurors’ story, for example.  Is compulsion really the ideal solution for trials like Autumn Hills?  Jurors are usually chosen because they know little if anything about a trial’s subject matter.  They are then asked to choose between diametrically opposed views: the state, contending that the “victims” died by neglect, abuse and bed sores; the defense, contending that the residents died of natural but complicated disease processes common to aged, infirmed people no longer able to care for themselves or be cared for by family at home.  A trial like Autumn Hills becomes a beauty contest of medical and nursing experts.  Jurors are expected to understand complex, complicated medical and nursing principles and then determine the validity of the opposing contentions even though the experts could not agree on the simplest matters.  Extraordinary amounts of time are spent questioning experts about basic scientific principles in order to lay a foundation for the jury’s understanding of complex medical terminology and pathophysiologic processes.  As odd as it may seem, jurors are expected to learn even though they are not allowed the luxury given to any student expected to learn a complex subject – lecture notes and questions.  Above all else, a jury, without training or practice, is supposed to shut out all of the emotional aspects involved in the subject matter of nursing homes and old people.  Jury members are a product of their individual and peculiar bias, prejudices and sympathies.  An individual’s ability to exclude emotion is an unknowable fact.  There is simply no way to measure the influence these extraneous factors may have on a jury’s verdict nor any way to avoid verdicts totally or partially rendered on these elements rather than evidence.  Why else would trial lawyers try so hard to appeal to emotions?

There are several dozen other important societal issues raised by the Autumn Hills trial, each deserving of a book exploring the problem and its solutions.  Perhaps the most critical issue is the use of the criminal justice system to deal with an ever expanding population living an ever expending life expectancy and how to care for the elderly when they can no longer care for themselves and families have no capacity to care for them at home.  This was the fundamental issue in the Autumn Hills trial.  It is an issue born of the fact that medicine still does not know why we age and in turn cannot offer reliable explanations or cures for the hundreds of maladies of old age.

For example, bed sores – decubitus ulcers.  Bed sores were the central issue of Autumn Hills.  The simplistic approach used by prosecutors and nursing home inspectors even today is one that assigns only one cause to bed sores – not being turned enough – even though medicine now knows that decubitus ulcer formation is a complex combination of causes many of which are uncontrollable by nursing home personnel.  Yet, the medicine is ignored in favor of an emotional criminal or civil prosecution complete with horrifying pictures.  Is this really the way we should solve a complex issue?  Would it be more beneficial for those suffering from decubitus ulcers if the money spent on prosecutions were used for research, more personnel, and improved conditions?

Before Autumn Hills there were only a handful of corporate criminal prosecutions.  None, however, for the crime of murder.  Since Autumn Hills corporations have come under increasing criminal scrutiny in corporate criminal prosecutions so that it is now somewhat common place.  But do such prosecutions really benefit society?  Arthur Anderson, for example. Prosecuted for malfeasance in its Enron representation was convicted and fined $500,000 – not a sum that would put it out of business.  And the conviction was reversed by the United States Supreme Court.  But by then it was too late for 85,000 Arthur Anderson employees because the firm had ceased to exist.  Collateral regulations preventing convicted corporations from doing certain kinds of business, from receiving government funds, and a host of other prohibitions dictated Arthur Anderson’s demise.  Publicity alone is usually sufficient to cripple a corporation even when they are exonerated.

Finally, what is the Autumn Hills legacy?  In the original foreword to this book, Elma Holder of the National Citizens’ Coalition for Nursing Home Reform said there were great expectations that the Autumn Hills prosecution would cause better care for our aged population.  But she was wrong.  Virtually nothing has changed in the 25 years since the trial ended.  Nursing home advocates still decry the poor care the elderly receive in nursing homes, the newspapers are still filled with nursing home horror stories, and civil suits abound with verdicts rivaling the national debt.  So what is it that we should take away from the method, manner and means that we use to enforce better care for nursing home residents?  Perhaps it is that what we are doing is not working.  Enforcement by punitive measures seems not to have improved care one wit.  Perhaps the punitive inspections should be replaced by inspectors who pitch in to solve the problems rather than turning their backs and walking out after making accusations of poor care as did the Autumn Hills state health inspectors.  Maybe an extra set of hands would be more beneficial than sitting in an office writing a report about how bad the conditions are in the nursing home.

I have been honored to be able to call Steven Long my friend for the past 25 years.  He is not only an extraordinary writer, he is an extraordinary human being who cares deeply about human issues.  It is no secret that he and I disagree about the events that took place at Autumn Hills.  I know that the people of Autumn Hills did their best to care for their patients and were certainly not guilty of any crime.  On the other hand, Steven is convinced of their guilt.  And we disagree on other things.  But those disagreements are minor matters in our friendship.  I am honored to have been asked to write this foreword and am honored to call Steven Long my friend.

Tom Sartwelle, Autumn Hills Defense Attorney

Houston, Texas

July 12, 2012.

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