A Florida judge on Friday dismissed all nine manslaughter counts against a nursing home administrator accused of providing insufficient care after the facility’s air conditioning was disabled after Hurricane Irma.
Circuit Judge John J. Murphy III dismissed the charges against administrator Jorge Carballo three weeks into the trial and just days before the case could have gone to the jury. In granting defense attorneys’ request for a dismissal, the judge ruled that no jury could conceivably find the state had made its case.
Murphy said there was “undisputed evidence” that Carballo and the staff at the Rehabilitation Center at Hollywood Hills staff had tried to deliver care to their patients, thus overcoming charges of reckless endangerment.
The case made national headlines and caused rifts in the long-term care community over the merit of the criminal charges.
In the end, it was a “no-win” scenario that, ironically, led to Carballo’s exoneration, said defense co-counsel James Cobb Jr.
“It revolved around the question that can’t be answered: To evacuate or not to evacuate?” said Cobb in a 1-on-1 interview with McKnight’s Long-Term Care News Saturday. “Basically, it got down to the prosecution’s expert, a former administrator. I set him up. He acknowledged there are no good choices, only bad choices. He also acknowledged, you’re damned if you do and damned if you don’t (evacuate).
“So in the context of where you’re damned if you do and you’re damned if you don’t, and there are no good choices, how can a defendant be recklessly negligent? As a matter of law, that’s what the judge bought into.”
Cobb said the prosecution also put on an expert witness who said that she would have started evacuating the second the air conditioning failed. In his eight-page ruling Friday, Murphy noted the uncertainty among prosecution experts made it difficult, if not impossible, to prove recklessness, Cobb added.
Carballo, who had in-laws residing at the facility, and his staff brought in fans and ice to try to offset the soaring temperatures in the building. They also followed procedures to call the power company and local officials, as well as then-Gov. Rick Scott (R), who had earlier encouraged direct contact in the case of such an emergency.
But no repair crew was sent out until Hollywood Hills patients started to die. Ultimately, the repair — to a blown fuse on a power pole — took just 30 minutes, according to local news reports.
“We never abandoned them,” Carballo said of the 150-bed facility’s residents in a local news interview Friday.
Another rebuke coming?
The nursing home leader had not demonstrated conscious indifference nor acted with a reckless disregard for human life, both necessary to achieve conviction, defense co-counsel David Frankel said. Buttressing the defense’s case was a state report that said Hollywood Hills staff had bought extra food, water and fuel for a back-up generator prior to when the storm hit on Sept. 10, 2017.
Murphy is expected to address an appeal by the Broward County State Attorney’s Office to reconsider his ruling at a 9 a.m. hearing Monday morning. Cobb predicted the judge would not reverse himself less than three days after issuing the “stunning rebuke” and that prosecutors would be further “embarrassed.”
In opening arguments, the state portrayed Carballo as a captain who had “abandoned” his ship. Cobb countered by calling the charges a clear case of “scapegoating,” an approach that had worked before in another nursing home disaster case that received worldwide attention.
Cobb was a lead defense attorney in that case against Sal and Mabel Mangano. They were the owners of the St. Rita nursing home near New Orleans, where 35 patients drowned after Hurricane Katrina led to the unprecedented breach of a nearby levee in 2005. The couple were targeted with 118 criminal charges and worldwide media scorn.
“I thought from Day 1, because I had been through this before with the same themes, that the themes that the people in the nursing home did the best they could under difficult circumstances, then that could be acceptable in this case, just as in Managano,” Cobb told McKnight’s.
“The theme is Florida Power & Light failed miserably to get power put back on. The theme that the emergency management structure in Florida was a flipping disaster. The theme that Gov. Rick Scott promised help — and we called him three times and he never called us back. Each of these themes was placing the blame where it truly belonged.
“It was the same thing that we did in St. Rita’s. The jury in the St. Rita’s case said, ‘Why are the Manganos the only people here [on trial]?’ Again, we successfully deflected the blame to the people it really belongs to, and the government [prosecutors] didn’t want to think about that at all.”
Settlement offers spurned
Cobb told McKnight’s that the defense team offered to settle with prosecutors on multiple occasions.
“I can’t tell you how many chances I gave them to get out of it,” Cobb said. “They wouldn’t take it. They made the political decision that it would be better for them to go try it and lose it, and blame it on a Broward jury, rather than dismiss it and look like a pussycat. That’s a political calculation.”
Cobb said his unrequited plan was to have the state’s attorney dismiss the charges and in return, the defense team would praise the wisdom of the prosecutors.
“The option was you go ahead and dismiss the charges,” he explained. “We will go to a press conference, we will praise the district attorney for their wisdom, etc. and not say anything bad about you.
Carballo faced up to 15 years in prison on each of the nine counts if convicted.
At the order of the fire department responding to the deaths at the Hollywood Hills center Sept. 13, remaining patients were evacuated across the street to a hospital that had not lost its air conditioning. Paramedics told officials that body temperatures were as high as 108 degrees in the afflicted facility, which never reopened.
It was unclear what the implications of Friday’s acquittal might be on any current or future civil litigation involving the 12 deaths at Hollywood Hills.