Louisiana Attorney General Charles Foti Jr. made sure that no cameras were present on July 17, 2006, when he had Dr. Anna Pou and nurses Cheri Landry and Lori Budo arrested for allegedly killing four elderly patients at Memorial Hospital in New Orleans during the ghastly aftermath of Hurricane Katrina.
Foti kept the spotlight on himself instead. The orchestration of events gave Foti a bonanza of free publicity leading into a splashy political fund-raiser just two days after the arrests.
News of the arrests leaked in time for 10 p.m. news broadcasts, however, and mug shots of the three women were soon flashed around the world. The next day Foti held a press conference in Baton Rouge, which CNN carried live, giving Louisiana a new heap of international scrutiny.
"This is not euthanasia," Foti told reporters in reference to second-degree murder allegations against the doctor and two nurses. "This is a homicide."
In fact, euthanasia is a form of homicide under the law. That legal tenet was lost on CNN anchors and TV coverage in general, which repeated the mistake in endless recapitulations of the briefing.
Foti's misstatement was one in a sequence of blunders that led critics to call his competence and ethics into question. The Memorial arrests incited widespread criticism from medical professionals. Now, even one of Foti's oldest allies, an attorney who did legal defense work for his office when Foti was the Orleans Parish criminal sheriff, is attacking the attorney general's motives on the arrests of the three women.
Three months after the arrests, there have been no indictments. The case now sits with New Orleans District Attorney Eddie Jordan, in whose jurisdiction the deaths occurred.
Jordan needs evidence to present to a grand jury. A pivotal factor for Jordan is how Orleans Parish Coroner Dr. Frank Minyard decides to classify toxicology data from lab specimens of the four deceased seniors. Samples have gone to out-of-state labs, with toxicology consultants yet to render opinions. Police can arrest and prosecutors can charge or seek indictments, but only a coroner can classify a death as a homicide. Without that classification, there can be no murder case.
"I can't say anything about the case," Minyard said to an interview request. But in a Feb. 16 National Public Radio report — months before Foti's office arrested the three women — Minyard said it would be difficult to prove whether levels of morphine were lethal in the four bodies. A total of 34 corpses stayed in overheated Memorial Hospital, decomposing, for two weeks after Katrina.
Minyard has classified many deaths in the last 14 months as Hurricane Katrina-related, but that's a far cry from saying someone was killed at the hands of another.
Foti built his investigation on interviews with people who were in the hospital during the awful days after the storm. As the generators failed, Memorial lost electricity, heat exceeded 100 degrees, and floors were blanketed in darkness. According to news reports, the environment was chaotic and rife with rumors.
Now, 14 months after the storm and three months after the arrests, many are wondering why the attorney general made such high-profile arrests without the most basic evidence needed — lab reports and a coroner's classification of the deaths — to ensure an immediate indictment.
Foti did not return three calls to his press staff requesting an interview.
"Arresting those women was a clear abuse of power in [Foti's] office, and it blew up in his face," declares New Orleans attorney Allen Usry, who defended Orleans Parish Prison against civil lawsuits during Foti's 29 years as the city's criminal sheriff, until his election as attorney general in 2003.
"He should have turned the information over to [New Orleans DA] Eddie Jordan, without arrests, and let Jordan decide whether to take it to a grand jury," says Usry.
Why did Foti arrest the suspects?
"He thought it would be good political PR," states Usry.
Foti reaped a harvest of media attention for weeks because of the arrests, including a recent interview on CBS' 60 Minutes.
On July 20 — two nights after the press conference announcing the arrests — the attorney general spoke to a $500-a-plate fund-raising dinner held in his honor at the Windsor Court Hotel in New Orleans. The room was packed with lawyers and political heavy-hitters in response to letters sent weeks earlier by Foti and the attorney general's campaign "finance committee." Charlie Foti, once the popular and politically untouchable criminal sheriff of Orleans Parish, was on a roll, chomping a cigar, pumped up from the recent news coverage.
"Some people say I should run for governor," he said to several guests. "What do you think?"
But Foti's image was about to tank. Reports in The New York Times, Time magazine, The Times-Picayune and elsewhere quoted prominent physicians disputing his press conference remark that the four Memorial patients succumbed to "a lethal cocktail" of morphine and Versed, pharmaceuticals that critical-care physicians often prescribe for severe pain. Doctors and nurses protested on talk radio. As reporters put new scrutiny on the flood-swamped hospital, where 34 people died during Katrina, the story morphed from medical workers under siege to intense scrutiny of Louisiana's criminal justice system.
At one time, and for nearly three decades, Usry was Foti's "political alter-ego," according to an attorney who knows both men. Usry supported Foti in the sheriff's 2003 bid for the AG's office — and he received contract legal work from Foti after the election — but the two had a falling out in early 2005.
"I've known Charlie 32 years, and there are some personal issues," concedes Usry. "My problem with Foti is that he's not reliable. Time and again I'd introduce him to people, and they'd call back and say he doesn't keep his word. He's got a lot of personality flaws. … What's bothering me is not personal. I was born and raised here. We're in a hell of a mess after Katrina," continues Usry. "Memorial Hospital was like a MASH unit. Foti should have known better after running that jail with [prisoners'] suits over medical treatment."
Usry defended a line of civil lawsuits against Orleans Parish Prison during Foti's long tenure. "Most of those suits were without merit, criticizing decent medical staff working under adverse conditions — with criminals trying to manipulate the system," says Usry. "Foti had experience with baseless accusations. This is the same situation. Here's a doctor [Pou] with an impeccable record, volunteering for something she didn't have to do, in conditions even worse than a jail. Foti's the last person in the world who should be second-guessing someone in a medical situation like that."
There were, however, some medical tragedies at OPP on Foti's watch.
In 2001, Shawn Duncan, 24, died in custody three days after a DWI arrest. He spent two days in bed with restraining straps on his arms, legs and waists, under orders by prison doctors. Duncan lost 20 pounds in those three days and died of dehydration. An autopsy found no food in his system, according to an ACLU report on abuses at the parish prison.
A lawsuit brought by Duncan's family was settled out of court.
"We're talking about people that pretended maybe they were God, and they made that decision," Foti said at his July 18 press conference, referring to the three women arrested the night before. "It goes without saying that we did not take this case lightly," noted Foti. "We did not rush to judgment."
Attorneys for the three accused dispute that last assertion.
Rick Simmons is Dr. Pou's attorney. Eddie Castaing represents nurse Budo. John DiGuilio represents nurse Landry.
The attorneys, from different law firms, spoke in separate interviews of having had communication with Foti's staff during the long investigation. "It was always understood we would self-surrender our clients," says Castaing.
All three lawyers believe that understanding was superseded by orders from Foti.
The three women are rooted in the New Orleans area, and Anna Pou and Cheri Landry went through Mercy High School together. Lori Budo is married and has two children and Pou is also married.
The two nurses have been unemployed since the arrests, struggling to pay bills with help from a fund-raising Web site organized by medical colleagues. "It's very humbling," says Landry, sitting next to Budo in a conference room at Castaing's office in New Orleans' Central Business District. "I'm very grateful for this fund, but it's weird — paying bills this way. It's like someone else's life."
Budo wept through much of the interview.
Cathryn Green, a nurse who worked with them at Memorial, organized a support group (www. MemorialNursesSupportFund.com) to assist Budo and Landry. "If I had to send my daughter to a hospital, these are people I'd want to take care of her," says Green in an unsolicited telephone interview. "These nurses are the best of the best."
Attorneys for the three allowed them to be interviewed for only the second time since the arrests — the other was for 60 Minutes — with a ground rule of no questions about what happened at Memorial, nor on possible evidence that could be introduced at a trial.
Landry and Budo were night nurses who worked in critical care units, assisting in surgical procedures at Memorial. Pou had staffing privileges at Memorial and Charity Hospital.
Cheri Landry was born in the hospital when it was known as Baptist. A 1980 graduate of LSU Nursing School, her Lakeview home was destroyed in the flood. Since then she has been living with her mother in Metairie. On the night of July 17, Landry was at work in a long-term acute care facility, which she declined to name.
At 9:30 p.m., Landry was in a patient's room, when her supervisor told her "some people need to see you." Out in the hallway she saw several people with the words "Attorney General's Staff" emblazoned on their jackets.
"Are you Cheri Landry?" asked one. Yes, she answered. The supervisor asked the AG officials if they would move to another room. The group ended up in the empty cafeteria. They read Landry her constitutional rights. A female officer padded her down, checking for weapons, then handcuffed her behind the back. By then the head of nursing had called the facility's chief executive, who arrived just as the officers were walking Landry to a law enforcement vehicle.
She sat in the back. "Don't move too much or the handcuffs will tighten," an officer said helpfully, as Landry leaned forward, wrists behind her back.
At Central Lockup the handcuffs were removed. Someone handed her an orange prison suit and ordered her into a holding cell. She recalls "about 15 women in there. A lot of them were talking. One was sleeping on the floor. One woke up and said she'd been there since Friday. …One lady was walking around in pants and a bra. It was hot, extremely hot. I didn't feel comfortable changing into prison clothes, so I just stayed in my scrubs."
Landry had never been arrested before. She was afraid. A female inmate was yelling into a phone in the corner.
At the barred door, a man in a deputy sheriff's uniform called her name.
Foti's agents arrived at Lori Budo's home in Harahan as Landry was being arrested at the hospital. Budo was not working that night. She was in the kitchen, cleaning up after dinner. Her daughter, an LSU student, was taking a shower. Her son, a UNO student, was elsewhere in the house when a hard knock hit the door. Her husband Mike opened it. Budo heard voices asking for her. "She's not available," said her husband. "May I help you?"
Agents pushed past him, as others forced her husband to the street.
Confronted in the kitchen, Budo was read her constitutional rights and ordered into the bedroom to change into long pants; a female agent stood in the room as she changed. Shaken, Budo asked if she was going to be handcuffed. "Yes," said the agent. "Can you wait till I'm outside so my children don't see that?" asked Budo. The agent agreed to her request.
The officers had her son and daughter sequestered in the kitchen as they escorted her out of the house. Budo was handcuffed and put into the car that took her first to the Harahan jail for initial processing. From Harahan, Budo was driven to Central Lockup in New Orleans.
Mike Budo immediately called Castaing, who by then had gotten word from an attorney on Foti's staff. "I pleaded with him to let me self-surrender Lori," Castaing said. "He said he had his instructions."
"The same attorney called me," says DiGuilio, "and basically apologized. He said he had instructions from above."
Castaing immediately telephoned New Orleans Judge Calvin Johnson at his home.
Presumably alerted by Foti's office, Johnson had already decided on a $25,000 property bond for each of the four counts. In a show of consideration to the suspects, he told Castaing he would give them four days to present documents posting mortgages or property as collateral for the women's release.
Attorney DiGuilio spoke with Johnson a few minutes later.
Lori Budo was trembling when she got to Central Lockup. "As terrible as it sounds," she says, fighting back tears, "I was glad to see someone I knew" — Cheri Landry, in blue scrubs.
After Budo was padded down in a weapons check, the two nurses were put in a small cell, with no one else. About an hour later, Landry's brother-in-law arrived at the prison to take them home.
Neither has worked since.
After Katrina, Dr. Pou rented a house in Baton Rouge as a part-time residence because her job as a teaching physician with LSU Health Sciences Center demanded time in the capital city — the storm put Charity Hospital out of commission.
Pou is in the department of otolaryngology, specializing in head and neck surgery for cancer patients. She is one of the few physicians in Louisiana who does microvascular reconstructive surgery — areas between the clavicles, the shoulder area, and above. (She does not perform brain surgery.)
Speaking about her work, Pou says: "Tissue from a thigh can be used to reconstruct a tongue after a tumor is removed. You can get the tongue back to good speed and swallowing, though speech may not come as easily."
About a third of her patients are indigent — poor people on Medicaid.
"I know Dr. Pou and have taken care of her patients," says nurse Cathryn Green. "She operates on people who have horrible cases of cancer, trying to give them a few extra years of life. Many of her patients are poor black people."
Pou discussed her work and arrest experience in the Metairie office of her attorney, Simmons, with the same ground rule: no questions about evidence or events in Memorial Hospital during Katrina.
On the morning of Monday, July 17, she was in the middle of an eight-hour surgery when a call came from a reporter in Baton Rouge. She had an assistant refer the message to Simmons. At 3:30 p.m., she finished the procedure. After making rounds, she arrived home at 7:30 p.m.
Simmons had received calls from other reporters asking about an arrest.
He was troubled because he, too, had "an understanding" with Foti's staff to self-surrender his client. Three days earlier, the AG's office called LSU, seeking Pou's address. Simmons called Foti's office that Friday and was told they needed to complete documentation to provide to New Orleans DA Jordan.
Simmons wanted to make sure that Pou's surgery schedule, set before each work week, was not disrupted.
About 9 p.m., Pou was at her house in Baton Rouge, still in her scrubs from the operating room, eating a salad when she heard a knock. She opened the door and met four agents in uniforms — two men, two women.
"You're under arrest."
She asked if she could use her cell phone to arrange for another physician to care for the patient on whom she had operated that afternoon.
The officers looked at each other.
"I was not going to leave that house with my patient hanging in the breeze," says Pou. "Think of what you would do [after surgery] if you learned your doctor was abandoning you."
The officers demanded her driver's license and allowed her to make the call — but then she'd have to leave the cell phone behind. The cell rang first. A neighbor said, "People with flashlights are in your yard. Are you okay?"
"Yes, I'm okay," Pou responded. Then she called a colleague who would take over care of the patient who had been in surgery earlier that day.
The officers read her the constitutional rights of an accused, padded her for weapons, allowed her to put on shoes, handcuffed her, put her in the back seat and drove to the East Baton Rouge Parish jail for initial processing.
"I was talking to God, asking for strength and courage, saying Hail Marys," says Pou.
The Baton Rouge jail was "surreal," says Pou. "The people in charge were very kind. Someone said, 'Can you look at the camera?' Praying helped me remain composed. I did not cry."
Two officers drove her to New Orleans. She sat alone in the back seat, handcuffed. At one point someone in front said, "You OK back there?"
She said she was fine.
"I prayed all the way to New Orleans," says Pou.
At Central Lockup, she was struck by the politeness of people working on the intake procedures. One of them told her the judge wanted her released immediately. She was not put in a holding cell.
She was standing by an open window, next to Foti's agents, after a second pose for the mug shot. The fingerprinting machine malfunctioned; she would return the next day to provide her fingerprints. That night, standing there, she saw a group of young men in a holding cell.
"You must be the doctor they had on TV," said one.
"Yes," she replied.
"Good luck to you."
"Good luck to you," she said.
"I'm going to pray for you," the man said.
"I'm going to pray for you, too," she answered.
Rick Simmons had contacted Judge Johnson at home, making the same arrangements for bond as Budo and Landry, who were by then back home.
At 1:30 a.m., Simmons dropped Pou at home. After waking up a few hours later, she called the chairman of her department at LSU to cancel the surgeries she had scheduled for the week. She called her patients at Earl K. Long Hospital, explaining the change in care.
"I had to cancel two surgeries with patients who had complex cases," she says. Another physician eventually did those procedures.
Two hours later, Foti held his press conference.
Foti's decision on the Memorial arrests marked the second phase of an investigation into the way retirement and nursing homes handled patients during Hurricane Katrina.
Foti's concern for the elderly was an issue he cultivated as sheriff. He held Thanksgiving dinners for old people who were poor or without surrounding kin. Helping old folks, like the prisoners' murals and the Halloween haunted house he ran in New Orleans' City Park, bolstered Foti's popularity.
His concern for the elderly is genuine. For most of his adult life, Foti lived with his parents. After his mother died, he cared for his father, a retired dentist, who died two years ago at 94.
Foti built a political empire at Parish Prison. In his 29 years as sheriff, the prison expanded from a decaying jail that held 800 inmates into a sprawling physical plant along Interstate 10 with space for more than 8,000 prisoners — an increase of 1,000 percent during a generation in which the population of the city declined by 18 percent. Foti turned the prison into a powerful patronage base, with 1,200 employees not governed by Civil Service.
To Foti's credit, he inherited a nightmare and quickly turned it into a tightly run urban jail. In his first term, he won praise from locals and from across the country, including The New York Times.
Foti ran the prison like a for-profit business. OPP billed the city for holding inmates and rented cell space to other parishes with overcrowded jails. That most of those incarcerated were poor and African-American never hurt Foti politically; the sheriff hired many African-Americans. New Orleans voters, cynical after years of corrupt politicians, evinced scant interest in the treatment of prisoners.
Foti ran for AG in 2003 against Suzanne Haik-Terrell of New Orleans, a Republican who had waged a strident, losing campaign for U.S. Senate against Sen. Mary Landrieu in 2002. Foti had Landrieu's support and, with his political base as sheriff, defeated Terrell handily. He had substantial support from nursing home operators and their statewide organization.
As AG, Foti made elderly issues a priority, focusing on Medicaid fraud and medical standards of care.
In the traumatic days after Katrina, Foti moved swiftly to arrest Sal and Mabel Mangano, who had for many years operated St. Rita's nursing home in St. Bernard Parish — "the best nursing home in the parish," Dr. Bryan Bertucci, the coroner, testified in a civil deposition. Thirty-five people died in the flooding at St. Rita; Bertucci had offered the Manganos the use of two buses to evacuate residents. The Manganos declined the offer.
When the Manganos' mug shots were flashed across TV screens, the media narrative of Katrina found a criminal strand. Millions of Americans were outraged at FEMA's incompetence, the failure of elected officials from President Bush to Gov. Kathleen Blanco to New Orleans Mayor Ray Nagin, and images of New Orleans like a Third World backwater. The Manganos had been in a shelter before they were arrested, with all the implications of abandonment.
Few people realized that the Manganos had actually stayed at St. Rita's during Katrina, believing, as many did, that they would ride out the storm. The levees had held in the past. When the place flooded, the couple and their son ended up on the roof with 50 people. "We saved 58 people with six people in tow boats," the Manganos' son, Sal Jr., told Esquire for a story published in September.
Sal and Mabel Mangano were indicted in St. Bernard Parish, though the judges in that parish, where many people had relatives or friends at St. Rita's, recused themselves. Retired New Orleans Judge Jerome Winsberg has been appointed to preside over the case.
A key factor in the St. Rita's case is whether the Manganos were criminally culpable. Civil lawsuits against them need not prove intent, only damages to those who lost their loved ones as a result of the Manganos' alleged negligence. Their attorney, Jim Cobb, has counter-charged that state officials are at fault, particularly the Department of Transportation and Development, which did not provide an evacuation plan. Cobb also argues that Foti's office should be disqualified because the AG was a party to the state evacuation plan. The state's DOTD secretary has admitted to Congress that his office failed to deliver on its plan. In arresting the Manganos so soon after the storm, Foti positioned himself as an avenging angel righting the wrongs inflicted upon the helpless elderly.
Ten months later, when Foti went before the cameras on July 18 in Baton Rouge, two issues that shaped his career — old people and medical care — wove through his comments in tangled syntax. He hardly resembled the buoyant sheriff of yesteryear. With gray hair and a timeworn face, Foti faltered as he spoke, mumbling some words, breaking off sentences as he started others.
Foti is lucky most of the news coverage used short sound bites from his performance that day.
"We have a number of hospitals and nursing homes still under investigation," Foti began. "Today we're here to talk about Memorial Hospital."
He shifted to a strikingly personal note, posing a hypothetical question and citing his own parents: "Well, you say why do you do that? It's not just your duty — because it is — but it is for your mother — my mother, father, brother, sister or loved one. Someone goes to the hospital or nursing home, you want to feel that they're safe. And you want to feel that whatever happens will be done with good judgment and — medically necessary."
Harking back to the week after Katrina, he said: "As we started this case, the attorneys for Lakeside came to our office and self-reported. And that's how euthanasia got in, that euthanasia happened." Then he made his famous comment, "This is not euthanasia. This is a homicide."
"Lakeside" is a Metairie hospital. LifeCare is the health care company whose representatives went to Foti's office to report what had happened at Memorial. Foti made the "Lakeside" mistake three times in the press conference, never saying "LifeCare."
LifeCare provides acute medical services to patients suffering from catastrophic accidents or life-threatening illnesses. LifeCare had its own unit on the seventh floor of Memorial Hospital (now known as "Baptist" once again, having been bought recently by Ochsner). The company had transported several patients to that floor from another facility in St. Bernard Parish before Katrina hit.
Pou, Landry and Budo were not LifeCare employees; they ended up working on the seventh floor because LifeCare had no physician present.
"Inside [Memorial] hospital, they have another hospital called Lakeside," Foti told the media. "In that acute-care patients, these were some of the people that it was alleged that they were killed by lethal injection."
The arrest affidavit cites several witnesses, only by initials, regarding what happened at Memorial. Dr. Pou is said to have told a colleague: "A decision had been made to administer lethal doses."
The most damning statement Foti attributes to his sources allegedly came from Pou: "You don't have to participate. We will take care of it."
Then, said Foti, "That taking care of it meant that four — three people — the four people we have charged with today, a homicide was committed." He arrested three people, not four. The central allegation — four people died at the hands of three medical professionals — he could not get right in front of the media after months of investigation.
Then he discussed euthanasia. Here is the attorney general, verbatim, talking to the media:
"The only time we have euthanasia in the state of Louisiana is twice, or maybe three times. Once is in the Constitution and the Bill of Rights, which says that the state should not euthanize anybody. And that's for criminals. You can't euthanize criminals. Now, this is our Bill of Rights. So, if you can't euthanize criminals, it would seem to me that you can't euthanize you and me and ordinary people.
"The other time it's used is putting animals to sleep," he continued. "The Legislature, on more than one occasion, says every person has a right to be charged — in charge of his own medical care. Now, sometimes, they will come up and say, 'Let's divert you, but do not resuscitate.' Do not resuscitate means that, if you have a heart attack, that they have the doctor and the patients have agreed that they will not use heroic methods in order to resuscitate you to come to life.
"As you go back through the statutes, you will also see they have a prohibition against assisted suicide in a criminal statute. So, as you go through all these things, you can come only to one conclusion on our part, that we had probable cause to make the arrest of these individuals."
He offered praise to medical professionals in general. Then he said:
"We're talking about people that pretended maybe they were God, and they made that decision. It goes without saying that we did not take this case lightly. We did not rush to judgment. We, at one time, had to resort to subpoenas to get the owners of the hospital to cooperate. We were met with obstacles at every turn.
"But we are entrusted to look after the safety of our senior citizens, our children, the people that need help. Now, at some instances, there was a song that once says, 'For those voices that cannot speak, we will speak.' And this system has started."
Foti's swanky fundraiser atop the Windsor Court Hotel was two nights later. Scores of lawyers had contributed to his dinner, and he beamed in the political spotlight. Ironically, Foti — and his fund-raising committee — had sent requests for funds on AG stationery to Sal and Mabel Mangano, who were under indictment, and to their attorney, Jim Cobb of New Orleans. Cobb fired off a motion arguing that Foti transgressed boundaries of legal ethics. Foti's fund-raisers claim it was a computer mistake, that the Manganos (who had contributed to Foti in the past, as had their association of nursing home operators) were "habitual contributors."
The only DA on the long list of Foti's supporters is Eddie Jordan. Another supporter is Gretna Police Chief Arthur S. Lawson Jr. Lawson gave the order to prevent people stranded at the Superdome and Convention Center — most of them African-Americans — from crossing the Crescent City Connection during the tense days after Katrina.
The bridge incident drew widespread media attention, with the ACLU requesting an investigation by Foti and the Justice Department. Foti conducted an investigation, which he handed off to Jordan, who is African-American, without making any arrests. Jordan's investigation continues.
In a city bitterly polarized along racial lines, Foti has thrust Jordan and Minyard into the vortex of the Memorial legal drama, with the AG now observing from the sidelines.
Minyard was one of many physicians who performed heroically during Katrina. If he signs a document declaring the cause of death to be homicide, he or someone from his office will become a witness against another doctor and two nurses.
"When you diagnose a patient with cancer, it creates a special bond," says Dr. Pou. "I have close relationships with my patients."
From a standpoint of civil liability, the arrest prevents Pou from seeing patients in a clinical setting or performing surgery. Unlike the nurses, however, Dr. Pou still draws a salary. She works on curriculum reorganization and administrative matters at LSU Medical School.
"What made me angry is the effect this had on my patients," Pou adds, her voice rising slightly. "Can you imagine your spouse, or you, watching on the news that the doctor who has operated — or is about to — gets arrested for murder? I think if Foti truly cared about the people of Louisiana he would have been more considerate in the manner in which he handled this. They were lying in bed, sick. Had I known about the arrest, I would have told them, 'I'm going to self-surrender and set your treatment with Dr. So-and-So.'"
Dr. Pou paused.
"I think what Foti did was cruel to my patients."
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