Lessons from the Defense (Final Chapters- ST Rita’s Home Deaths)
A Long Term Care Nightmare - Legal Strategies….’Saved By a Loaf of Bread…A new beginning and the Final Ending follows-
“ A grand jury in St Bernard Parish has just returned a multi-count indictment against Sal and Mabel Mangano, the owners and operators of the St.Rita’s Nursing Home where dozens drowned in Katrina’s flood waters. There may be more than one hundred counts in the indictment and Eye Witness News will bring you all the details beginning at 5 pm…”
Twenty four counts of cruelty corresponded directly to the number of residents Sal and Mabel rescued in the flood waters . The government’s theory was that these survivors should have been evacuated in advance of the storm.”
Defense Atty James Cobb did some quick math - The penalty for negligent homicide was 5 years maximum for each count; Cruelty to the elderly and infirm was 10 years for every count; If convicted, Sal and Mabel were exposed to 175 years in prison for the 35 counts of negligent homicide in addition to 240 years each for the cruelty to the elderly and infirm. Practically speaking, a conviction on one count meant a conviction on all counts or a 118 count indictment.
If the case was lost, it was prison for the rest of their lives.
LESSONS FROM THE DEFENSE-
There are many reasons why defense attorneys take on colossal cases such as the case of Sal and Mabel Mangano. Often defense attorneys are former prosecutors and have a change of heart after they are disillusioned all too often by the system.
Others are always crusaders for the downtrodden- a life’s mission.
Still others are thrown into a similar circumstance and can relate on some level with their client. The latter was the true circumstance of James J. Cobb, Jr, Esquire.
He was a personal Katrina survivor in that his New Orleans home had been devastated by the hurricane and was headed to Texas where he also had a license to practice law.
He has practiced civil law for “deep pocketed corporations' ' and insurance companies since 1978 and was a managing partner in the firm Emmett, Cobb, Waits, Henning. Cobb, also served as an adjunct professor at Tulane University Law School since the 1980s and has taught at Harvard University since 2008.
One of his clients was the Louisiana Nursing Home Association who ultimately contacted him and persuaded him to represent the Manganos.
The kicker was… he had never been a criminal attorney! The fact that he ' ‘jumped into it” without hesitation was a reflection of leading with his heart.
Law Professor Robert Mead made these points concerning the pros and cons of taking on such a case.
Factors Against the Prosecution and for the Defense
Most Problematic for both sides - The issue of true cause.
Was it the inadequacies and poor maintenance of the levees that failed OR personal negligence? (i.e the State and Federal government’s responsibility?) They would need strategic testimony concerning how to properly build and maintain a flood system.
The Manganos remained at St Rita’s to rescue other residents when only about one third of the nursing homes in total affected by Katrina evacuated;
The building was made of brick; They were located on somewhat higher ground with a generator, nurses, and a past history of no floods;
Elder abuse and neglect is difficult to prove legally due to the reticence of the resident to report; It may be a snapshot in time; Difficult to see a pattern without evidence;
Transfer trauma had caused deaths in the past. This fact was known by Mabel.
At that time, the legal difference between gross negligence and ordinary negligence was insufficient.
Note- In the aftermath of Katrina, the Louisiana Legislature added this provision to Gross Negligence/Willful Misconduct-
Keep in mind that neither Sal nor Mabel were considered medical personnel...
“In a declared state of emergency, La. R.S. 13:1731.1 applies a gross negligence/willful misconduct standard to liability claims but only those against a “physician, surgeon, or physician assistant ... or a nurse ...” This statute applies to the listed class of health care providers who, “in good faith and regardless of compensation, render or fail to render emergency care, health care services or first aid during a declared state of emergency when the state of emergency affects the rendering of medical care.” Thus, under this provision, these healthcare providers must be rendering medical care affected by the state of emergency.
Louisiana law states that a violation of an ordinance or statute exists, that qualifies as presumptive evidence - (i.e. evidence stemming from circumstances that appear to fit with the facts.)
However, the question becomes, is it guilt beyond a reasonable doubt which is the criminal standard?
Factors Against the Defense and for the Prosecution as per Richard Mead-
In a nursing facility, especially in an emergency situation, a heightened standard of care is the expectation and failure to perform a special duty- (i.e. A nursing home administrator with an evacuation plan and the means to execute it, coupled with Mabel’s refusal to take the buses should have constituted a special duty;)
As per Atty James A. Cobb-
Federal evacuation plans are long on generic info and full of platitudes, there is no mandate for critical decision making.
Mr Mead commented that,
When all is said and done, typically facilities don’t pay attention to the content of government policies. Rather, they adapt what is done to fit their needs.
On a personal note, as I read ‘Flood of Lies”, Mabel and Sal frequently indicated that they were unable to understand basic information given by their attorney. They needed the simplest of explanations, the bottom line. This may have been due to their lack of education and worldliness, as well as their extreme stress. How could they be expected to comprehend and fill in information ‘on the fly’ from a Federal document that didn’t really say anything? In addition, how does a clerical function like filing your plan in the local courthouse and the State Department of Health and Hospitals in Baton Rouge along with a personal copy that may have been destroyed in the flood bring any solace? The government rule was- They must have a plan on file, but they are not required to implement it. How ridiculous!
James Cobb learned while preparing his defense that a letter was written by Sal Mangano which could have potentially been very damaging. St. Rita’s emergency plan included a transportation company owned by Sal consisting of one van to transport 59 people and their life sustaining medical equipment. Does this make any sense?
It cannot be overemphasized that the families of those who died, the St. Bernard Parish community, national and international media including ‘Nancy DisGrace,’ had spun the story with so much hype, many untruths and engaging in one upping each other for ever more stories, that Sal and Mabel were the most hated couple in America. They were the perfect scapegoats! How would the defense overcome that?
A Closer Look at the Defense-
James A. Cobb’s main purpose initially was to get Attorney General Foti to quash the arrest charges and arraignment of Sal and Mabel, even though the Army Corp of Engineers took public responsibility for the failure of the levees. The AG did not respond directly, nor did backroom deals work. Foti was a career politician and reportedly not a competent AG. He had done some unethical things for which Atty Cobb wanted him disqualified. It didn’t happen.
Defense strategies can include blaming the victim, various other legal maneuvers to buy time, distract with other issues beyond the core issues, do damage control for ‘trial by media’, obtain the best help on your team to assist in various specialty areas, obtain interviews with key people before the other side.
Cobb also employed a technique called ‘third party demand’ in which all of those in good faith the defense believed played a part in the tragedy, such as the Army Corps of engineers, Governor Kathleen Blanco, and other local politicians. St Rita’s was able to file this document claiming that they were not responsible, other parties were responsible.
Without giving away the major content and the final outcome of the trial of James A. Cobb’s book, “Flood of Lies,” I will say that Mr. Cobb writes with heart and empathy for his clients and his community. He gives an honest portrayal of the overall situation and is not afraid to expose his considerable flaws including drinking far too much; lacking the criminal experience needed, virtually abandoning his entire family in their great time of need in favor of the case; making promises he couldn’t keep. But, therein lies the attraction and great human storytelling. Each chapter unfolds some new ingredient.
Defense Attorney Cobb had what he termed a ‘three legged stool’ for best evidence involving these areas - testimony from a former Medical Director that the number of people who evacuate during a hurricane-flood is roughly equal to those who shelter in place; Secondly, 37 of 52 area nursing homes also decided to shelter in place and yet no one else was brought up on criminal charges. Thirdly, a reluctant engineer and scientist from LSU was subpoenaed to give testimony regarding the poor manner in which the Federal levees were built., including miscalculated surge speeds, infrastructure built for a Category 2 storm versus Category 4, the wrong height and no protective covering.
Then there was the question of whether Sal and Mabel should testify after keeping silent for two years. Legal scholars and the public at large wanted them to testify, as the core issue, why they didn’t evacuate in their own words could tip the scales of justice. The one decision they made independently was not to testify.
The defense had far fewer witnesses compared to the prosecution. But Sal and Mabel’s daughter in law, T.J Mangano, also an employee, would testify as being ‘at the scene of the crime’ and give a heart wrenching narrative.
Ultimately, the outcome entirely rests on a jury, who they believe, and not believe, with an ever present reminder of seeking evidence of the truth ‘beyond a reasonable doubt.’
A Story of Courage- “Saved by a Loaf of Bread” (Passage taken from “Flood of Lies”)
Before the story winds down to final endings, there should be room for an incredible story of bravery and dedication in the face of extreme terror and probable loss of life. Whatever you may think of the State of Louisiana, the Federal Government’s mishandling and the poor judgement of the Manganos, there is no doubt they provided a nurturing service for 20 years. Right up to the end, two nurses chose life against all odds.
The true account of the Director of Nurses, Diane and the Assistant Director of Nursing, Thelma as the water was rising.
(Paraphrased passage )- After they tried to pick up residents and place them on mattresses hoping they would float to safety, they realized the water was approaching chest level, rising 8 to 10 feet in 15 minutes. There was no safe place to go. The nurses now needed to be rescued. Four other survivors, and Thelma and Diane were clinging to floating pieces of furniture. They floated together in order to survive. Thelma was a diabetic and hadn't eaten since early morning. She clung to Diane and said,
“ I can't make it. '' I can't hold on any longer" after floating a couple of hours in the dark. Diane grabbed her by the hair and shoulders and said "You're not going anywhere". Suddenly a plastic container floated in front of them which was a loaf of bread meant to be eaten for lunch with the red beans and rice. It gave Thelma energy to balance her blood sugar and gave in some energy. Hours later they heard an outboard motor and rescuers -including Sal, on the roof desperately trying to get in. Thelma believed that loaf of bread was a gift from God!
LOOKING TO THE FUTURE - WHAT SHOULD HAVE BEEN A HAPPY ENDING-
A New Assisted Living Facility re-Opens … or Does It?
This is yet ANOTHER MYSTERY! What I thought might be a happy ending in the aftermath of tragedy, instead I found more questions than answers.
'Just to give you a taste - I discovered that the Manganos were silent partners in a new assisted living facility called the Village of St. Bernard. It was a facility in which Mabel and Sal did not have to be consumed with managing many nursing staff or complex and frail residents, as they were healthier and more independent.
The Village at St. Bernard was built on the very site where St. Rita's Nursing Home was destroyed by the Hurricane. A builder opened a 36 bed independent living - assisted living unit June 28, 2018 .
The location was very controversial for some...
After the grand opening, virtually no record a month later from many places I looked. No date appeared on the Dept of Public Health licensure records, nor the Director's Name nor subsequent newspaper articles.
I could find little information about the building contractor- property developers- King and Kelly Barber, with the exception that they invested $3 million.
Facebook posts stopped July 22, 2018. In fact, a statewide moratorium was declared on all nursing homes in St. Bernard Parish as of July 2018, leaving them with practically no facilities! What happened to the (former) Village at St Bernard?
Did they lose their license in 2018? Did Sal and Mabel have to step down due to health reasons? Was the community not as welcoming as they anticipated?
I don’t know….
And Then the Final Ending
Of all the ironies in the world...
I was still trying to figure out what the real story was behind the former assisted living venture that started with such fanfare... and thenthere was no trail to follow!
I wondered about Sal and Mabel themselves. More than likely, they were still shunned by their community. But I couldn’t see them moving to any other place on earth, for St. Bernard Parish was the true fabric of their lives. Mabel did not have her beloved nursing home residents for comfort and nurturing.
What I discovered, purely by accident, was that Sal and Mabel had passed away this year, 2021. I am assuming by the time period and requests for masks, that it may have been due to COVID), one month apart - March for Sal and April for Mabel after 61 years of marriage.
There were no messages of condolence at the funeral home website.
Mabel’s Obituary- https://obits.nola.com/obituaries/nola/obituary.aspx?n=mabel-buffone-mangano&pid=198470023&fhid=29886;
Sal’s Obituary-