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Group Home Death Provokes Legal Clash

December 5, 2002

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PITTSBURGH (AP) _ The drowning of a retarded man left to bathe alone at a group home has provoked an unusual legal clash, with a judge ordering a district attorney’s office to prosecute a case it doesn’t want to pursue.

The judge, lawyers and a coroner have been locked in debate over whether criminal charges should be filed against officials and workers at the personal care home where Timothy Michaels died in a bathtub more than two years ago.

Allegheny County prosecutors decided not to pursue the case, and they continue to oppose it even after Judge Lawrence O’Toole twice ordered them to file charges. District Attorney Stephen A. Zappala Jr. said he will appeal O’Toole’s latest ruling to a higher court.

A lawyer for Michaels’ family has denounced the prosecutors’ position _ and called their motivations into question.

Attorney Michael Pribanic has suggested that ties between the group home and the brother of Homeland Security Director Tom Ridge _ Pennsylvania’s former governor _ may have played a role in dissuading prosecutors from pursuing charges.

David Ridge is an attorney for the Gertrude Barber Center and a former law partner of John Barber, president of the center.

``It is inexplicable. I cannot fathom why they would not file criminal charges to protect the weakest members of our society,″ Pribanic said.

Ed Borkowski, an assistant district attorney, has called that suggestion ``utter nonsense,″ and the district attorney’s office continues to insist that charges should not be filed.

Pribanic says Michaels, 50, a retarded man with a history of seizures, drowned while bathing without supervision at the Barber Center’s Hillcrest Home outside Pittsburgh on Sept. 27, 2000.

Family members say Michaels was routinely granted requests for privacy, even though the home had policies against people with his condition being left unsupervised.

Court records indicated workers had been told about the seizures Michaels suffered at a previous group home and that some employees had witnessed the seizures themselves. But the workers say they gave Michaels his privacy because they were never told that people in his condition must be monitored. They also say they never knew about evaluations detailing his condition.

An autopsy determined that Michaels’ seizures were partly to blame for his death.

``You don’t let anyone alone with seizures, especially someone who is retarded,″ Pribanic said. ``And you seldom let someone who is retarded make decisions about their safety.″

The lawyer argued that the way employees treated Michaels ``virtually ensured″ he would die.

The Allegheny County coroner’s office, which performed the autopsy, did not recommend criminal charges. Neither did prosecutors, who believed the employees’ behavior didn’t rise to the level of criminal recklessness or negligence.

Even if workers were negligent, there was no pattern of reckless disregard which would justify charges, and any shortcomings at the center have been corrected, said Borkowski.

Prosecutors also say Michaels’ family wants the criminal case filed so they can use it as leverage in a wrongful death lawsuit they are pursuing against the center.

O’Toole stepped in at the request of the family, taking the unusual step of ordering the district attorney to prosecute eight Barber Center executives and employees, including John Barber, the president of the Erie-based company.

Prosecutors asked the judge to reconsider. He reiterated his order.

``It is incomprehensible,″ O’Toole said, ``that the District Attorney would believe that it would not be a useful allocation of resources to the Commonwealth to protect those citizens who are least able to protect themselves.″

Such clashes between judges and prosecutors are rare, said George Newman, a former board member of the National Association of Criminal Defense Attorneys and chairman-elect of the criminal justice section of the Philadelphia Bar Association.

``If a judge makes a ruling, most people let it go,″ he said.

Robert Del Greco, another attorney for the group home, declined to discuss the case but said Barber Center officials supported the prosecutors’ appeal. He has previously denied that there has been any improper influence.

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