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After a year of investigating, Virginia State Police Special Agent Gary
Pence had failed to finger a suspect in the assault of John McCloskey.
He had interviewed the Rockbridge County deputies who arrested the mentally
ill teen-ager Dec. 15, 1994. He had interviewed people who witnessed the
arrest. And he'd interviewed staff at Western State Hospital in Staunton,
the state-run mental facility where John lived until Dec. 18 when he awoke
violently ill from severe abdominal injuries.
All with no results. Indeed, Pence had never determined exactly how John
had been hurt.
Vicious beating? Rectal assault? Or an accident?
In February 1996, Pence closed the case unsolved.
Then John died, after an agonizing 14 months of hospitalization. Sixteen
months later, in June 1997, the state medical examiner's office finally
finished the autopsy.
Type of death: Homicide.
Time of injuries: Undetermined.
Cause of injuries: Unknown.
The autopsy yielded more questions than answers. One thing was certain:
Agent Pence now had a murder case on his hands.
'Guarding the guardians'
In addition to the autopsy, four incidents converged in the summer of
1997 that potentially would affect the McCloskey case.
On July 7, a Western State patient named Maura Patten died in her bed
of heart disease, five days after she'd told her sister she feared she
was dying. The sister had asked the hospital to examine Patten, but her
request was ignored. A subsequent investigation found that Patten's death
resulted in large part from the hospital's failure to promptly evaluate
her complaints.
(Just Thursday, her brother filed a $6 million lawsuit against the state,
alleging gross negligence by doctors, nurses and administrators at Western
State.)
Also in July, the state appointed a psychiatric care expert to inspect
its mental hospitals, in response to a U.S. Department of Justice report
that alleged numerous incidents of patient abuse and neglect. The expert
concluded that Western State was dangerously understaffed and relied excessively
on drugs, seclusion and restraints.
Then in late July, a new witness emerged in the McCloskey case. A Western
State X-ray technician named Edna Fitch came forward to say she had recalled
a conversation she'd had with John on Dec. 18, 1994, the day his injuries
first arose. The 2 1/2-year-old memory surfaced, Fitch said, after she
read a newspaper article about John's autopsy.
"I cannot recall his exact words," she wrote in her statement, "but Mr.
McCloskey indicated that he had been injured before he came into Western
State Hospital. He mentioned that he had been arrested by the police."
Finally, in September, the FBI opened an investigation into John's death
at the request of the McCloskeys' attorney, Jonathan Rogers of Roanoke.
Rogers had come to believe the assault occurred at Western State, but suspected
that Virginia State Police had turned a blind eye to the hospital, because
both agencies are part of state government.
First Assistant U.S. Attorney Ruth Plagenhoef said as much when later
asked why federal authorities investigate cases worked by state police. "It's
probably because there's a little bit of Owho's guarding the guardians.¹ ²
As federal agents started their work on the case, Pence, of the state
police, returned to Rockbridge County, seemingly convinced that what had
happened to John had happened during his arrest at Arnold's Valley Trading
Post in Natural Bridge Station.
As he noted in his file, "it appears more happened at the store tha[n]
what witnesses are saying."
Again, store owner Calvin "Baldy" Thacker and an employee who witnessed
the arrest, Silas Foster, were questioned. Again, both men said the deputies
didn't hurt John.
"The state police tried to push me into saying" the deputies hurt John,
Thacker said recently when asked about the interview. "I'll get onto any
stand in any court and tell the same thing: The law did not hit him in
my presence."
Pence also asked the two deputies -- Hugh Bolen, still with the Sheriff's
Office, and Richard Dudley, who had since become a truck driver -- to take
lie-detector tests. By this time, the deputies were suspicious of the state
police investigation and refused.
"There was enough evidence to show it didn't happen at Rockbridge County," Dudley
would later explain to The Roanoke Times. "When me and Deputy Bolen dropped
him off, there was nothing wrong with the kid. . . . It seems
like to me they [state police] were taking their sweet time and harassing
me and Deputy Bolen about the whole thing and not looking at other people."
The other people, in Dudley's eyes, were at Western State. From his talks
with Pence, "I just got the feeling nobody down there had ever been questioned.
It just seemed like we were singled out."
As for the lie-detector, Dudley said his years in police work have made
him distrust the tests, whose results, he noted, still aren't admissible
in court.
Bolen declined to speak publicly about the McCloskey case, referring
questions to Sheriff Bob Day.
"There's no reason to polygraph this guy," Day said recently. The sheriff
pointed out that, after Bolen arrested John, he "went out of his way" to
search the neighborhood until he found John's mother to inquire about John's
mental health.
"If I thought either of these two guys were involved, I'd be fighting
just as hard to put them in prison," said Day, adding that neither had
ever been accused of excessive force.
He, too, wondered how thoroughly the state police had investigated Western
State.
"I'd like to see the names of the people that they interviewed . . .
and how much time they spent with them," he said. "It's been a strange
and different way of working a case."
In fact, 22 Western State employees were interviewed, but just once,
in January 1995, the first week of the investigation. Meanwhile, Rockbridge
County deputies and witnesses to the arrest were interrogated two or three
times and asked to take lie-detector tests. And at no time did state police
interview any patients -- all of whom faced criminal charges -- about what
they might have seen, or done.
Rogers, the McCloskeys' attorney, further questioned the seriousness
of the Western State interviews.
"The interviews are kind of surface interviews," he said. "I mean, there
are a lot of them, but there are not a lot of questions asked of these
people. And he [Pence] did not take an adversary position with them. He
just seemed to be more of a recorder of what they said rather than somebody
who was trying to probe deeper.
"But, granted," Rogers added, "it's a difficult case. And whether that
would have made a difference or not, at this time, it's impossible for
me to say."
Pence referred questions to Capt. Larry Burchett, who oversees all state
police criminal investigations.
To suggest investigators shied away from Western State "is absolutely
beyond belief, ludicrous and just plain false," Burchett said.
"We just go ask all the questions we can, and when we feel like we've
got all the answers we can, we quit. If there was a reason or any indication
that someone else should have been offered a polygraph, we would have offered
it. We're not bashful about that."
Patients weren't interviewed, Burchett suspects, because "there was no
indication any of them had ever seen anything."
"We don't have anything to defend. If they have some allegations they
want to make, let them make them. We're just going out there to do our
jobs."
State reports to state
Sheriff Day has never heard the outcome of the state police investigation.
For that matter, neither have the McCloskeys, who last heard from Pence
in late 1995 when he interviewed John in his hospital room.
And neither has Rockbridge County Commonwealth's Attorney Gordon Saunders,
whom Pence consulted in February 1996, just before John died, to see if
the deputies or store witnesses should be charged. Saunders last heard
from the investigator in summer 1997 about his plans to reinterview the
deputies and store witnesses.
"It is, I would say, unusual that there would be this period of time
that has passed without anything, any follow-up with me," Saunders said
earlier this year.
Indeed, Saunders had never seen John's autopsy report or state police
investigative summaries until shown them by The Roanoke Times.
Still, Saunders admitted, it was a tough case, with scant forensic evidence
and no witnesses. The only way to solve it, he believed, would be if someone
confessed.
But while Rockbridge County authorities say they were left uninformed,
state agencies stayed fully apprised of the investigation.
Throughout the investigation, regular calls and letters were exchanged
by Virginia State Police, Western State and the state attorney general's
office, which would have to defend the hospital in court if the McCloskeys
filed a lawsuit.
In an internal memo dated Feb. 27, 1996 -- three days after John's death
-- Western State Director Lynwood Harding wrote, "Mr. Pence has indicated
that as far as his office is concerned, the case is closed. Apparently
there will be a final autopsy report, and we will attempt to obtain a copy
of the medical examiner's conclusions and final death summary. Assistant
Attorney General Garland Bigley has been working with us on this case."
A year later, in response to Jonathan Rogers' request for a federal investigation
into Western State, the attorney general's office wrote the U.S. Department
of Justice, "The hospital and State Police thoroughly investigated the
injuries that Mr. McCloskey sustained and determined that he was not injured
at Western State Hospital."
In March 1997, state police forwarded a summary of its investigation
to Dr. Timothy Kelly, then the commissioner of the Department of Mental
Health, Mental Retardation and Substance Abuse Services, and to Bigley
in the attorney general's office. The state police cover letter ended with, "Please
be assured of our desire to cooperate in all matters of mutual interest."
Then there is the mysterious news release.
In September 1997, a few months after John's death was ruled a murder,
someone leaked John's Western State records to Doug Harwood, editor of
the alternative monthly Rockbridge Advocate.
Harwood decided to publish the records, pointing out that no documentation
existed for several hours of John's hospitalization. As he prepared his
article, Harwood called Harding, Western State's director, for a response.
According to Harwood, the director said he couldn't comment on the case,
but that he could fax a news story "all ready to run."
"He told me it even had a headline already on it," Harwood recalled, ³ OWe've
done your work for you¹ is what he said, which I thought was mighty
nice of him."
The headline read, "Evidence in the John McClosky Homicide Case Points
Toward Rockbridge Deputies."
The unsigned, two-page release quoted Pence's state police reports and
referred to a meeting between investigators and the medical examiner's
office.
"Sources close to the investigation," the release stated, said that tissue
samples taken during John's first surgery and at his autopsy showed his
injuries had been healing at least 72 hours before he arrived at UVa.
"This new evidence seems to confirm the suspicions of the State Special
Investigator [Pence], who concluded that the injuries occurred before admission
to Western State Hospital while Mr. McClosky was in Rockbridge County and
likely while in the custody of the Rockbridge County Sheriff's Office," the
release stated.
"According to Assistant Attorney General Garland Bigley, extensive investigation
by Hospital Staff, local advocates, State Police and State Central Office
Staff have uncovered no evidence linking Western State Hospital Staff to
McClosky's injuries."
Harding has denied authoring the release, and no one has ever claimed
responsibility.
Self-inflicted
But if Pence uncovered no evidence linking hospital staff to John's injuries,
he did find evidence placing the injuries at Western State.
In December 1997, he and one of the FBI agents assigned to the case called
on a Charlottesville forensic psychiatrist, Dr. Robert S. Brown Jr., to
get a fresh perspective. Brown's findings: John's injuries had to have
happened at Western State.
A photograph of John taken when he was admitted to the hospital showed
a healthy young man, Brown observed, not someone suffering severe abdominal
injuries. Lab results of John's blood, drawn 14 hours after he arrived
at Western State, were normal. Had John already been injured, Brown said,
his liver enzyme level and blood cell count would have been elevated.
As to the cause of the injuries, Brown proposed a new theory, according
to Pence's follow-up report. Brown noticed that John was agitated and verbally
abusive at Western State and spent most of his time in seclusion, where
he frequently banged on the door.
According to Pence's report, Brown believed there was "a strong possibility" John
injured himself, either by throwing his body against the door, or holding
one end of a rolled-up mattress against his body and ramming the other
end against the door.
But according to Brown, Pence's report overstated his opinion.
"Please don't get the idea I've reviewed this case thoroughly," Brown
said recently. "I've just suggested another place for them to investigate.
. . . I had no idea that there was a mat that was rolled up or
could have been rolled up and used."
Virginia's chief medical examiner, Dr. Marcella Fierro, whom Pence consulted
early in his investigation, was asked by The Roanoke Times to review Brown's
findings about the blood tests -- results she said state police had never
shown her.
"I wouldn't hang my hat on a single test," Fierro said.
While the liver enzyme and blood cell levels suggest John hadn't yet
been injured, Fierro pointed to other lab figures that "can be a marker
of infection." Furthermore, she said that specimens of tissue surrounding
the hole in John's colon, taken Dec. 18, 1994, the day his injuries first
appeared, show a healing process that had been going on for days to possibly
a week, putting the injury well before Western State.
"There's no good medical way to tell whether he got his injury after
he got there or before he got there, and I think that has been our continuing
issue all along," she said.
Still, a few weeks after he spoke with Brown, Pence telephoned Bigley,
the assistant attorney general, about the psychiatrist's theory of self-inflicted
injuries and told Bigley "it would cost between $3,000 and $5,000 for Dr.
Brown to research the injuries and be able to make a conclusion and testify
to this fact in court."
The Brown interview was telling, in the eyes of attorney Jonathan Rogers,
because it proved a pattern in Pence's thinking: that John McCloskey could
not have been assaulted at Western State.
Rogers noted that the investigator's first inquiry concerned store owner
Thacker, and whether he hurt John before deputies arrived. Next, scrutiny
focused on the deputies themselves. Finally, when Brown concluded the injuries
had to have occurred at Western State, Pence wrote in his report that John
must have hurt himself. This, despite the findings of every other medical
doctor that the injuries couldn't have been self-inflicted.
Pence was an officer caught in a dilemma, Rogers claimed. "He did want
to solve it, but he apparently did not want it to lead -- he was hoping
it would not lead -- into certain directions, and in fact was trying to
get a credible scenario that might explain it without any state agents
being culpable."
Conflicting evidence, not a conflict of interest, hampered Pence, countered
Capt. Burchett.
"There was no planned conspiracy that we just avoided talking to people
at Western State," Burchett said. "I don't think there's a scintilla of
evidence at this point that somebody willfully beat this kid up and killed
him. We can't say that any more than we can say he did it to himself. Beyond
that, it's just opinion, and everybody's got one of those."
Case closed
The state police investigation is now closed. Unsolved, and no arrests.
The federal inquiry has ended as well. In November 1998, after reviewing
the FBI report, the U.S. Attorney's Office in Roanoke recommended to the
Justice Department's civil rights division that no one be prosecuted, though
the department has yet to make its final decision. Plagenhoef, with the
U.S. Attorney's Office, said she was not at liberty to discuss the reasons
for her office's decision.
One curious footnote to the FBI investigation:
In the fall of 1998, agent Paul Hunt of the FBI's Roanoke office called
Sheriff Day. According to Day, Hunt said he had a letter that stated John
suffered from a rare tissue disease that left his organs very fragile.
John suffered his injuries, the letter alleged, when Deputy Bolen pushed
John against an ice box to handcuff him.
"I just don't think it happened this way," Day said.
Hunt would later confirm the letter's existence, but said he had mistakenly
mentioned it to Day and couldn't reveal its contents or its source.
The Justice Department is still inspecting Western State as part of its
investigation into all of Virginia's mental institutions. The focus is
not on John McCloskey's death, but on "systemic problems in the current
hospital structure," investigator David Deutsch said. That report is expected
at any time.
Faced with the failure of all the official investigations, the McCloskeys
have been left to find the truth for themselves.
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