There are two ways the System can screw up: convict an innocent man or fail to convict one who is guilty. Actually, there is a third: taking too long to render a verdict. “Justice delayed is justice denied.” An in-law of mine, Joseph, faced conviction for a crime he did not commit, yet also faced up to a year in jail if he fought to have a trial. Here is his story.
This is a case that I took as a private investigator. I was called by a friend to investigate the disappearance of an in-law of mine, 60-year-old Joseph, who was made unemployed by the closing of the company for which he worked for 30 years, leaving him with no severance pay.
Joseph was ashamed of his situation. He was evicted from his basement apartment, but he kept it a secret and went to live with a nephew and the nephew‘s wife. I was called by the nephew’s brother, Michael, a fellow veteran of the World Trade Center recovery operation, who eventually had to retire on disability. He told me that Joseph had been missing for two days.
I checked with the wife of the nephew with whom Joseph had been living, and had some difficulty communicating with her, as English was not her first language. The nephew’s wife said that on the Saturday afternoon when Joseph was last seen, she heard a buzzer downstairs, and then she heard two or three people talking by her door, and then it sounded as though they were walking away. One of the two or three people she heard was Joseph.
I went over to their apartment and found, on the floor in the hall outside their apartment, a package of cigarettes, a toothpick, which Joseph often held in his mouth, and a paper towel. Inside the apartment, on the table, were his cell phone, his keys, and his wallet.
The circumstances seemed strange. I asked the nephew and his wife whether the medication that Joseph routinely took, an anti-anxiety medication, was missing also. He had recently gotten a full bottle of his prescription. I worried a little bit that we might be looking at a suicide. In suicide cases, often things are left behind, often in threes. We checked his bedroom and it was neat, often seen in suicide cases, but that was not unusual for Joseph.
Next, I called all the hospitals in The Bronx. No trace of Joseph.
I called the Bronx Medical Examiner, and got the same answer: no corpses matching his description.
If it were suicide, where would he have gone? He lived near a large park, one much too large to comb thoroughly.
I noticed that there were cameras in the nephew’s apartment building, in the elevator, in the entryway, in the lobby, and in the exit to the alley in back of the building. Sometimes these cameras are merely for show, but when I asked the superintendent about them, he said they had been installed earlier in the year and had been running since that time.
The superintendent said something else very interesting. He said that the police had been to the apartment building that Saturday afternoon, and he had observed Joseph in conversation with two guys in the lobby. Further, Joseph and the two men took the elevator to his fifth floor, stayed there briefly, and then came back down. That was recorded by the elevator camera, which video records I subsequently viewed. As I looked closely at the photographs from the elevator, I saw that Joseph was being put into handcuffs by the two men accompanying him.
He was being arrested for the first time in his life!
I was able to contact the appropriate authorities and found that Joseph was under arrest for arson in the second degree, a serious felony. There had been a fire at his old apartment, the one from which he had been evicted. Not only was he required to post a $50,000 bail, but $20,000 of that had to be in cash, not the usual 10% [$5000], perhaps manageable. He was staying in jail until he got a trial or a plea deal.
This was exceptionally large bail for someone who would be a first offender at worst. A few years before this, there had been charges of laxity in the prosecution of arson cases, and members of the political and judicial systems decided to get tough on this particular crime. Joseph became victim of this get-tough policy.
The next part of my investigation took me to his former apartment, a basement apartment in a detached home. I noted that the apartment’s windows were boarded, and there was some evidence of a fire having occurred there.
Soon after, I attended the preliminary hearing in the courtroom, and I was able to get legal aide assistance for Joseph. Furthermore, I offered to investigate, pro bono.
I conferred with the legal aide about how Joseph could have gone from merely being under suspicion to having there be enough evidence against him to give the “probable cause” necessary for his arrest. Since we doubted that he would have committed such a crime, and since the primary evidence against him was his statement, virtually a confession, we figured that to some degree this statement had been coerced.
Next, I re-examined the available videos taken in the vicinity of the apartment that he shared with his nephew and his nephew’s wife, looking to determine the times that he left and the times that he returned in the period of interest, from approximately 6am Friday morning to late Saturday afternoon. As noted above, the videos covered the elevator, the lobby, the front door, and the alley exit.
I noticed that Joseph was not arrested by police detectives, but by fire marshals. Fire marshals have special expertise that is useful in investigating fires, especially including arson, but they do not have the degree of training that members of the NYPD detective forces have. It seemed possible that their investigation was seriously flawed.
Joseph subsequently denied being at his former apartment immediately prior to the outbreak of the fire, but acknowledged that he had been there a day or two before that.
I talked separately with a husband and wife who lived in a building next to the one in which the fire occurred. Both of them witnessed something unusual near midnight Friday night just before the fire broke out.
The husband said that around midnight he heard laughter or giggling and he looked at the house next door, at the basement apartment entrance, and he saw the landlady talking with two teenagers. There was no fire or smoke visible, but 5 minutes later firemen came. Because the husband was a retired policeman, I gave his eyewitness testimony credence. Furthermore, he commented that this landlady had at times acted in a bizarre fashion on previous occasions.
Interviewing his wife separately, I was given the same facts with one significant addition. The wife heard the smoke alarm in that basement apartment go off while the landlady and the teenagers were talking.
What evidence did the fire marshals have to give “probable cause” to arrest Joseph? They produced a two-page statement that was supposedly his, but it was in rather stilted language that didn’t sound at all like him. He had acknowledged visiting the apartment a few days before the fire to pick up some clothes. Somehow, he was gotten to “admit” that he was an “alcoholic,” even though we know this is not true. Somehow, he was induced to say that he might have “blacked out,” but this is highly unlikely.
Unfortunately, the fire marshals were part of the System that was eager to find a perpetrator and close the case, without sufficient care for the rights of the accused. Sad to say, I have to admit that I would advise someone I cared about to ask for a lawyer immediately and not answer questions until one was provided.
Because both the neighbors, husband and wife, indicated that the fire engines came within a few minutes of their observing the landlady talking with the teenagers, and the wife noted that the smoke alarm went off during their conversation, it seemed highly likely that the fire had been set by one or more of these individuals, not Joseph.
Joseph had nothing to gain from setting the fire, but the landlord might have had insurance coverage that made arson attractive. I learned that she falsely continued to claim and receive welfare payments for the rent on this basement apartment even after she had evicted Joseph.
Meanwhile, Joseph, unable to raise the exorbitant bail, has languished in prison. If he chooses to demand a trial, and is unable to raise bail, he would likely be spending half a year to a year in that facility awaiting his trial. The plea deal that he was offered would have him serving up to several years in prison for a crime that he did not commit. Either way, he loses.
I became determined not to let this case rest. It is possible that detailed analysis of the rather complete coverage by the video monitors, along with precise timing of the crime, will provide evidence sufficient to convince the prosecutors that they are imprisoning an innocent man.
********
This excerpt is Chapter 21 from THE SHIELD OF GOLD, a candid memoir by a former NYPD detective, Lenny Golino, now of Gold Shield Elite Investigations, Newburgh, NY, and Douglas Winslow Cooper. Published in 2012, by Outskirts Press, it is available in paperback or ebook formats from Outskirts, amazon.com, bn.com.
Redundancy
When possible, we have had back-ups for our equipment: two ventilators, large and small oxygen tanks to supplement the oxygen concentrator, heating and air conditioning units in Tina’s room to supplement the central heating and air conditioning, a gasoline-powered 5,000-watt electrical generator to protect us from power outages, the longest of which was 95 hours. Our previous special van had two gas tanks.
The multitudinous disposables used daily also need to be in abundance, taking into account the possibility of delays in receiving shipments of them. We have a month or more of all of these, including the crucial special complete nutrition liquid. This much stuff required a room for storage, our dining room, and a sharp, detail-oriented home manager, Barbara George, to track them.
Computer
Our computer and computer skills aided us greatly once we replaced the nursing agency.
We pay the nurses on Thursday or on their last shift of the week. The spreadsheet program on our computer enables us to print out the details of date, shift, hours worked, gross pay, deductions (FICA and Medicare), and net pay. Two copies are made, one for the nurse, the other for her to sign and return to us for our records.
The insurers want similar information, monthly. The federal government also wants much the same information monthly, along with the deductions and the matching employer “contributions” to FICA and Medicare.
Quarterly and annual reports for the state and federal government are required
as well. I do the first draft. We have an accountant to prepare the final draft. The same happens with the preparation of the IRS W-2 income tax forms at the end of the year.
Fun!
Hospital Bed
A sturdy hospital-type bed, where the upper third and the lower third can be raised or lowered electrically has proved very valuable. The full-queen bed we use is wide enough to allow easy movement of Tina onto her side and back. The width allowed me to sleep or rest beside her during the year without overnight nurses. The head rest is up for watching TV, being fed, talking on the telephone, and gastric tube and tracheostomy care. It is down for disposable diaper changes, bed baths, shampoos.
Hoyer Hydraulic Lift
Nurses tell me that back injuries are endemic to their profession. Lifting and transferring patients cause most of the injuries.
Tina weighs 125 pounds, rather slender at 5’5”, lighter than the average adult patient. Still, the Hoyer hand-pumped hydraulic lift is a back-saver. Pump, pump, pump and up she rises, like Mary Poppins as she thinks happy thoughts. Open the faucet-like valve, and down she comes, slowly if you are careful. Tina lands onto her bed or into her wheelchair like a snowflake in the winter, a flower petal in the spring, a glider in the summer, and a leaf in the fall.
Pulse Oximeter
Using laser light, these highly informative meters give pulse rate and the percentage oxygen saturation of the blood. Some are smaller than a deck of cards.
Tina’s normal pulse rate is 70–
90 per minute. Lower than that may indicate she is sleeping or may be a cause for concern. Higher than that suggests agitation or a fever.
Tina’s normal oxygen saturation percentage (pO2) is 98–100 percent, quite good, in response to the additional 3 liters per minute of oxygen supplied to her by the ventilator, mixed with the room air. Lower than that suggests the oxygen line has become crimped or disconnected or that there is a leak. Without the line, she registers 92–94 percent pO2. Breathing room air for minutes without the ventilator, she can stay near 90 percent, the low end of the safe range, but we do not know for how long, and we are not eager to test it. In an emergency (say, a fire), she will be evacuated immediately, quite possibly without the ventilator.
Ventilator
The ventilators we have will not let Tina’s respiration rate fall below 10 per minute, a value she often reaches during deep sleep. Usually, the “vent” monitors her natural breathing pattern, adding input air as she starts to breathe in, withdrawing air as she breathes out. It assists, rather than replaces, her normal respiration.
The ventilator is one of several pieces of equipment in Tina’s room that repay some familiarity with electronics, mechanics, fluid flow and physiology, much of which I had expertise in from my career in environmental science and engineering. The ventilator displays a series of values for her breathing cycle, the most useful to us being the breath rate, f. Values of f between 10 and 20 per minute are of no concern. Values in the 20s may indicate a problem. When she started to develop pneumonia, the rate went to the 30s per minute. Time to call 911.
The ventilator is a modern technological miracle. Sure beats an iron lung.
Washer–Dryer
A medium or large wash is done each of our four shifts each day. Pads, sheets, pillow cases, nightgowns, towels, all need washing and drying, with different frequencies.
When the washer needs repair? Yes, we have a backup.
Rotating paired interactions seem likely to produce more effective networking than dais presentation from each member.
Assume you want a group of N people to network among themselves in pairs, changing the pairing frequently to allow every member to meet with every other member. How many possible pairs are there?
Mathematically, this is the number of combinations of N things taken r=2 at a time. It is (N)(N-1)/2 pairs. For N=2 people, there is (2)(1)/2=1 pair. For N=3, there are (3)(2)/2=3 pairs, etc. As N gets large, this is approx. N squared divided by 2. A room of 20 people will have exactly (20)(19)/2=190 pairs, or roughly (20)(20)/2=200. Assume we will have the pairs meet for a fixed time interval, then all will change partners. For the first meeting interval, N/2 pairs will network, 10 pairs for our room full of 20 people. To allow all possible pairs to meet, we would need 190/10= 19 intervals, or (N-1) intervals.
If I want to meet each of the (N-1) members in the room, it will take me (N-1) intervals. The same is true for each of them, so (N-1) intervals suffice for all of us. Makes sense.
Alternatively, we could each speak from the dais to everyone else in the room. N speakers would require N intervals, slightly longer than (N-1) intervals, and the interaction would be broadcast-listener rather than paired dialog. If the pair splits the time of the interval, each would speak half the time rather than for the full interval.
Thus, having all the speakers broadcast from the podium individually for a given interval gives them twice the speaking time they would have if the intervals were used to hold simultaneous pairings, changed after each interval. You get more speaking time at the cost of person-to-person interaction in pairs.
Rotating paired interactions seem likely to produce more effective networking than dais presentation from each member.
Ah, you say to yourself, perhaps, this sounds too idyllic. Were there no problems? The biggest ones were the rare but scary infections Tina contracted. She came home from the Critical Care Unit with Pseudomonas and drug-resistant methicillin-resistant Staphylococcus aureus (MRSA), common hospital-acquired infections. Her good general health and the use of antibiotics beat these back, though MRSA remains in her system. For five years there were no bedsores, a major risk in these bedridden patients, and then one developed under unusual circumstances and took many months to conquer, but we did, with added help from a wound-care specialist, Edie Fitzpatrick, RN. During the last seven years there have been a few viral respiratory infections, for which medicine can do little. Fortunately, Tina’s body has fought them off. Still, each day is a minor miracle. I have encouraged the nurses who really rely on this job to get a second one, too, just in case.
Other problems? Young or inexperienced nurses generally did not do well. The 20-year-old I hired as our first overnight nurse fell asleep in her chair and remained asleep as I got up from our bed, got Tina’s medications, and returned to administer them. That was grounds for termination, and I did. (Recall they once shot sentries for sleeping on duty.) During the past seven years, I fired two or three others for being asleep on the overnight shift. One of the two was in her twenties, also. Inexperienced middle-aged nurses tended to be nervous but generally worked out. There often was a willingness to learn that helped offset the lack of experience and a maturity that made them more suitable companions for Tina.
Language Barriers
A different kind of problem arose with nurse Kim, originally from Korea. Very nice, hard-working, caring, careful. Not too good with English, unfortunately. One day she described giving medicine X when it should have been Y. No real harm done, but when she went to take another job–soon after–I was both sorry to see her go and a bit relieved. “Trust, but verify” indeed.
Even native speakers of English have some misunderstandings due to the special jargon of the nursing profession. I’ve kidded those trained in British schools with the witty saying that Britain and America are two countries separated by a common language.
H1N1 Flu Shots
As mentioned above, we lost several nurses over the issue of H1N1 flu shots. One had provoked an argument prior to this that led to her dismissal, but the underlying issue seemed to be her dread of the H1N1 shot. Because the flu could be deadly to Tina, an individual nurse’s desire to avoid possible side effects could not weigh heavily with us. We could not let some skip the shots while requiring the others to get them. Sorry. We lost some capable nurses.
Ms. Take
One nurse’s behavior led me to court. She was a hiring mistake, and I’ll refer to her as Ms. Take. In some senses she was a hardship case. She was married, had five children and now custody of a grandchild. In her interview, Ms. Take acknowledged that she was a smoker, which was usually disqualifying. She promised never to smoke on the job, and I think she kept that promise. She was an LPN, intelligent but not well-educated, with more than a dozen years of appropriate experience. Preferring not to work overnight, she was still available for any shifts we had. That might have been a tip-off. Two of her three references did not call back, another tip-off, but the one who did was favorable toward her. Ms. Take was chubby, sloppily dressed, warm and articulate. I took a chance and hired her.
She started with a half-dozen hours per week. Eventually, she was working more than the threshold necessary to qualify for unemployment benefits. After the requisite six months of this, her performance declined. Then she missed a shift without alerting us, with an excuse that did not sound true. I warned her that she was on probation. A month and a half later, on two consecutive overnight shifts, she failed to initial the numerous boxes that document medications and feedings. I knew she was busy making beaded jewelry to sell, which was acceptable as long as she met her obligations to Tina. The morning of her second night she took home with her the shift report record, the first time anyone had ever done that. I called her, listened to her excuses, and fired her.
When the Department of Labor wanted to give Ms. Take unemployment payments because she claimed that was fired without adequate cause, I appealed. Two Administrative Trial Judge hearings, of about an hour each, followed. In the first, I presented my case, and I felt optimistic. In the second, the same judge seemed leaning toward favoring Ms. Take, who had not disputed my narrative. Subsequently, the judge found in her favor. Reasons were as follows:
–We lacked an instruction book for the nurses (though the forms made it obvious what needed to be done).
–We hadn’t warned her she’d be fired if she took our property (nursing records) home (did not tell her theft was not OK?)
–You aren’t supposed to be fired for a first offense, generally, and this was the first time she had failed to document medications and treatments twice in a row.
We had been warned that such judges tend to favor the employee over the employer. Looked that way. I call her Ms. Take partly because she collected a substantial amount of unemployment money and partly because she had lectured one of our staff on how to maximize child welfare payments from the state. Because we paid well above the usual LPN wage, she could honestly maintain that she could not find a comparable job in her area. Perhaps she had outsmarted us, making herself eligible for unemployment then getting herself fired.
In two or three other cases, we succeeded in appealing unemployment compensation decisions concerning other nurses we fired for good cause.
Why Dontcha?
“Why don’t you…?” This is followed by an explanation of how you could do more, better. It’s helpful, in offering an idea you may not have considered, and not helpful, in seeming to add yet another burden. My response is often along the lines of “Yes, but….”
Nurse Michele Shehata says her grandmother has a saying, “Everybody wants to fish, but no one wants to get his feet wet.” When I’m given a suggestion that requires added work, I try to delegate that work to the one making the suggestion, such as the suggestion that we make “fruit and vegetable smoothies“ in a blender for Tina. Delegating the suggestion to the innovator may discourage input, but it makes me feel less stressed. Often, the suggestion is not carried out, because there were good reasons why it had not been done already.
Why not make smoothies for Tina?
The benefits are small. She cannot taste the smoothie, given through a gastric tube. She is already getting a balanced nutritional diet, without evident deficiencies, although a variety of foods might provide something not known to be missing.
The problems are numerous: We keep track of everything she gets, to help interpret her responses, such as rashes, flushing, etc. We would need a standard formula for the smoothie, one that we tried out in small increments at first. The ingredients would need to be purchased, then washed and cut up and prepared in the same proportions each time. They need to be processed in the blender, with the excess saved or discarded. The blender needs to be cleaned thoroughly. Who is to be responsible for each of these steps? We have a crew of ten nurses. Which ones will do what, when? This will need to be “charted,” scheduled. Right now her daily calorie intake is 1,200, and her weight seems stabilized (we almost never get her to a scale). An extra 100 calories per day would mean she might gain an extra pound each month or two, unless something else is reduced or dropped. What would we eliminate?
“Smoothies” died a natural, organic death.
How Many Nurses?
There are 168 hours a week to be covered in round-the-clock nursing. We generally have had eight to ten nurses at one time, whose weekly hours usually ranged from about 8 to about 39, averaging roughly 16 hours per nurse. As a rule, our nurses got along very well with one another, often chatting awhile about personal matters during the change-of-shift periods, which we did not discourage. Different nurses had different strengths and weaknesses, but by the end of a week, what needed to be done got done.
How Old?
The nurses who worked out best for us were typically forty to sixty years of age. All had been married. Almost all had children. Almost all used this as a part-time job, as we did not offer health insurance, which they typically had through other means. Compassion and intelligence were most valuable traits, and these women became the primary source of Tina’s social life, as we had few friends and family who could visit us regularly. To lessen the risk of contagion, we mildly discouraged visitors.
Male Nurse?
Only rarely has a male applied for the position. Tina would not feel comfortable with one, nor would I. We have not ended up with one.
TLC
The doctors who have treated Tina have remarked on the exceptional care she has obviously been getting. Her continued survival is little short of a miracle. We are proud of her and proud of ourselves.
Recently, a Chamber of Commerce member remarked that networking meetings are not as effective as they might be because those involved come to broadcast their messages, but are less eager to receive the messages sent by others.
I am guilty of this. I recently went to a Chamber session on “elevator pitches,” trying to learn how to present my freelance writing business to new people in half a minute to a minute. I learned about “pitching,“ but I still need to learn about “catching.”
A network is a set of connections among a number of nodes, objects, people perhaps. A two-person interaction has two connections, if both can send and receive. A collection of N people has approximately N squared connections. In a room with twenty people some 380 possible connections…if people are both sending and receiving in pairs, one-on-one. For any individual, in this example, there are nineteen others with whom he can have a dialog, and the larger the audience, the more possible dialogues…if one has the time!
If you are involved in the Chamber only as a seller, not a buyer, then there are half as many valuable links to be made. Furthermore, the person you are selling to can feel like a target rather than a partner in the interaction.
How can one develop one’s “elevator catch”? Listening attentively helps. Ask questions. Think about possible uses for what is proposed and possible other users if one cannot use it oneself. Be receptive.
The Chamber is large enough that there is likely to be a buyer for what a member is selling and a seller for what a member would likely buy. Buyers and sellers need to make greater efforts to look for the beneficial pitching-catching combinations that produce win-win deals.
The Chamber phone is answered with “Orange County Chamber of Commerce–
where members come first.” If we think of our fellow members first when we want to sell or buy, we can help each other prosper…especially if we listen as carefully as we speak.
Verleen Lewis
How did a nurse from a village in South America make it to us? We needed people who were not afraid of the responsibility of a ventilator-dependent patient. The second nurse I hired (August 2004) was an intelligent, warm, attractive mother of two, originally from British Guiana. A minister’s wife, she was an LPN who had no ventilator-dependent case experience. She was willing to learn, however, and I was able to train her easily. [Perhaps half of the nurses we hired subsequently needed such on-the-job training.]
For a year and a half, her family lived within a dozen miles and she commuted daily. Her husband’s ministerial career then took them to Long Island, so for another two years she came Monday mornings, worked during the week, sleeping at our house, and returning home Friday evening. When this got to be too much for her and her family, we regretfully waved goodbye (November 2007). She was inspired to continue her education toward her RN license.
Diane Beggin
Another early hire (November 2004) was a local RN who has been with us since then, for more than six years, serving effectively as our head nurse and my personal nurse. Her high intelligence, broad experience, and almost obsessive attention to detail, along with great personal warmth, and a great sense of humor, have made her an invaluable asset. Although we did inherit from the agency a variety of forms with which to track medicines and treatments daily, she improved them, developed new management tools, and provided insightful advice on a wide variety of nursing and management issues. Now semi-retired, she still comes to nurse, to organize, and to write the semi-annual reports we need to submit to our insurers, United Healthcare.
Home Atmosphere
Some say the problem with public transportation is the public. Nurses will tell you that the problem with home care is the home. They can do their jobs under a variety of conditions, but the nature of the home can make the job pleasant or unpleasant. We tried to keep that in mind. Tina is a patient patient and a gracious and grateful one. I am appreciative, too, though businesslike in manner. I praise in public and criticize in private and try to be clear in communications. We have not only detailed shift record forms to be filled out each shift by each nurse, but also a communications notebook for information that is less technical but needs to be shared.
One goal is to make the job a place the staff looks forward to coming to.
We try to live up to our motto, “Tina comes first, but everybody counts.”
Scheduling
On the refrigerator in the nurses’ kitchen, I post two or three months of shift schedules. Each row is a date, and the columns are for three or four shifts, typically 4 to 10 hours each, during that date, indicating which nurse (her initials) is to be on duty. I started by giving each nurse pretty much which shifts she preferred, and then I negotiated to fill the less-popular hours. I required the nurses doing 16 hours or more a week to serve some week-end time. The 10-hour shifts were almost always overnight, from 10:00 p.m. to 8:00 a.m. If a nurse needed to take some time off, she gave up hours temporarily to another nurse or traded with other nurses. They marked up the schedule to show the revision, with my approval. If a nurse did the same shift for a month or two, she “owned” it. There was a “use it or lose it” factor. New nurses were hired to fill particular gaps, then later tended to get more hours as the occasional vacancy developed. With the help of my nursing business manager, Barbara George, we almost never had a period without nursing coverage.
Privacy
In the home care situation, we have almost no privacy. The baby monitor connecting Tina’s bedroom to the nurses’ kitchen/headquarters is almost always on. Whatever one does or says is likely to be known. The nurses, too, have little privacy, as they may readily be overheard or observed. One gets used to it, and we make some effort to back off and provide each other a bit of privacy, at times.
Of course, when you are not doing something you shouldn’t, the need for privacy is less. Once or twice during the week, Tina and I lock her bedroom door, use the dimmer to turn down the lights, turn off the baby monitor, and turn on some romantic music. It’s a good opportunity for each to tell the other, “I love you, every cell, every second; every molecule every moment; all ways, always.”
