Who Killed John McCloskey?

After a year of investigating, Virginia State Police Special Agent Gary Pence had failed to finger a suspect in the assault of John McCloskey.

He had interviewed the Rockbridge County deputies who arrested the mentally ill teen-ager Dec. 15, 1994. He had interviewed people who witnessed the arrest. And he'd interviewed staff at Western State Hospital in Staunton, the state-run mental facility where John lived until Dec. 18 when he awoke violently ill from severe abdominal injuries.

All with no results. Indeed, Pence had never determined exactly how John had been hurt.

Vicious beating? Rectal assault? Or an accident?

In February 1996, Pence closed the case unsolved.

Then John died, after an agonizing 14 months of hospitalization. Sixteen months later, in June 1997, the state medical examiner's office finally finished the autopsy.

Type of death: Homicide.

Time of injuries: Undetermined.

Cause of injuries: Unknown.

The autopsy yielded more questions than answers. One thing was certain: Agent Pence now had a murder case on his hands.

'Guarding the guardians'

In addition to the autopsy, four incidents converged in the summer of 1997 that potentially would affect the McCloskey case.

On July 7, a Western State patient named Maura Patten died in her bed of heart disease, five days after she'd told her sister she feared she was dying. The sister had asked the hospital to examine Patten, but her request was ignored. A subsequent investigation found that Patten's death resulted in large part from the hospital's failure to promptly evaluate her complaints.

(Just Thursday, her brother filed a $6 million lawsuit against the state, alleging gross negligence by doctors, nurses and administrators at Western State.)

Also in July, the state appointed a psychiatric care expert to inspect its mental hospitals, in response to a U.S. Department of Justice report that alleged numerous incidents of patient abuse and neglect. The expert concluded that Western State was dangerously understaffed and relied excessively on drugs, seclusion and restraints.

Then in late July, a new witness emerged in the McCloskey case. A Western State X-ray technician named Edna Fitch came forward to say she had recalled a conversation she'd had with John on Dec. 18, 1994, the day his injuries first arose. The 2 1/2-year-old memory surfaced, Fitch said, after she read a newspaper article about John's autopsy.

"I cannot recall his exact words," she wrote in her statement, "but Mr. McCloskey indicated that he had been injured before he came into Western State Hospital. He mentioned that he had been arrested by the police."

Finally, in September, the FBI opened an investigation into John's death at the request of the McCloskeys' attorney, Jonathan Rogers of Roanoke. Rogers had come to believe the assault occurred at Western State, but suspected that Virginia State Police had turned a blind eye to the hospital, because both agencies are part of state government.

First Assistant U.S. Attorney Ruth Plagenhoef said as much when later asked why federal authorities investigate cases worked by state police. "It's probably because there's a little bit of Owho's guarding the guardians.¹ ²

As federal agents started their work on the case, Pence, of the state police, returned to Rockbridge County, seemingly convinced that what had happened to John had happened during his arrest at Arnold's Valley Trading Post in Natural Bridge Station.

As he noted in his file, "it appears more happened at the store tha[n] what witnesses are saying."

Again, store owner Calvin "Baldy" Thacker and an employee who witnessed the arrest, Silas Foster, were questioned. Again, both men said the deputies didn't hurt John.

"The state police tried to push me into saying" the deputies hurt John, Thacker said recently when asked about the interview. "I'll get onto any stand in any court and tell the same thing: The law did not hit him in my presence."

Pence also asked the two deputies -- Hugh Bolen, still with the Sheriff's Office, and Richard Dudley, who had since become a truck driver -- to take lie-detector tests. By this time, the deputies were suspicious of the state police investigation and refused.

"There was enough evidence to show it didn't happen at Rockbridge County," Dudley would later explain to The Roanoke Times. "When me and Deputy Bolen dropped him off, there was nothing wrong with the kid. . . . It seems like to me they [state police] were taking their sweet time and harassing me and Deputy Bolen about the whole thing and not looking at other people."

The other people, in Dudley's eyes, were at Western State. From his talks with Pence, "I just got the feeling nobody down there had ever been questioned. It just seemed like we were singled out."

As for the lie-detector, Dudley said his years in police work have made him distrust the tests, whose results, he noted, still aren't admissible in court.

Bolen declined to speak publicly about the McCloskey case, referring questions to Sheriff Bob Day.

"There's no reason to polygraph this guy," Day said recently. The sheriff pointed out that, after Bolen arrested John, he "went out of his way" to search the neighborhood until he found John's mother to inquire about John's mental health.

"If I thought either of these two guys were involved, I'd be fighting just as hard to put them in prison," said Day, adding that neither had ever been accused of excessive force.

He, too, wondered how thoroughly the state police had investigated Western State.

"I'd like to see the names of the people that they interviewed . . . and how much time they spent with them," he said. "It's been a strange and different way of working a case."

In fact, 22 Western State employees were interviewed, but just once, in January 1995, the first week of the investigation. Meanwhile, Rockbridge County deputies and witnesses to the arrest were interrogated two or three times and asked to take lie-detector tests. And at no time did state police interview any patients -- all of whom faced criminal charges -- about what they might have seen, or done.

Rogers, the McCloskeys' attorney, further questioned the seriousness of the Western State interviews.

"The interviews are kind of surface interviews," he said. "I mean, there are a lot of them, but there are not a lot of questions asked of these people. And he [Pence] did not take an adversary position with them. He just seemed to be more of a recorder of what they said rather than somebody who was trying to probe deeper.

"But, granted," Rogers added, "it's a difficult case. And whether that would have made a difference or not, at this time, it's impossible for me to say."

Pence referred questions to Capt. Larry Burchett, who oversees all state police criminal investigations.

To suggest investigators shied away from Western State "is absolutely beyond belief, ludicrous and just plain false," Burchett said.

"We just go ask all the questions we can, and when we feel like we've got all the answers we can, we quit. If there was a reason or any indication that someone else should have been offered a polygraph, we would have offered it. We're not bashful about that."

Patients weren't interviewed, Burchett suspects, because "there was no indication any of them had ever seen anything."

"We don't have anything to defend. If they have some allegations they want to make, let them make them. We're just going out there to do our jobs."

State reports to state

Sheriff Day has never heard the outcome of the state police investigation. For that matter, neither have the McCloskeys, who last heard from Pence in late 1995 when he interviewed John in his hospital room.

And neither has Rockbridge County Commonwealth's Attorney Gordon Saunders, whom Pence consulted in February 1996, just before John died, to see if the deputies or store witnesses should be charged. Saunders last heard from the investigator in summer 1997 about his plans to reinterview the deputies and store witnesses.

"It is, I would say, unusual that there would be this period of time that has passed without anything, any follow-up with me," Saunders said earlier this year.

Indeed, Saunders had never seen John's autopsy report or state police investigative summaries until shown them by The Roanoke Times.

Still, Saunders admitted, it was a tough case, with scant forensic evidence and no witnesses. The only way to solve it, he believed, would be if someone confessed.

But while Rockbridge County authorities say they were left uninformed, state agencies stayed fully apprised of the investigation.

Throughout the investigation, regular calls and letters were exchanged by Virginia State Police, Western State and the state attorney general's office, which would have to defend the hospital in court if the McCloskeys filed a lawsuit.

In an internal memo dated Feb. 27, 1996 -- three days after John's death -- Western State Director Lynwood Harding wrote, "Mr. Pence has indicated that as far as his office is concerned, the case is closed. Apparently there will be a final autopsy report, and we will attempt to obtain a copy of the medical examiner's conclusions and final death summary. Assistant Attorney General Garland Bigley has been working with us on this case."

A year later, in response to Jonathan Rogers' request for a federal investigation into Western State, the attorney general's office wrote the U.S. Department of Justice, "The hospital and State Police thoroughly investigated the injuries that Mr. McCloskey sustained and determined that he was not injured at Western State Hospital."

In March 1997, state police forwarded a summary of its investigation to Dr. Timothy Kelly, then the commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services, and to Bigley in the attorney general's office. The state police cover letter ended with, "Please be assured of our desire to cooperate in all matters of mutual interest."

Then there is the mysterious news release.

In September 1997, a few months after John's death was ruled a murder, someone leaked John's Western State records to Doug Harwood, editor of the alternative monthly Rockbridge Advocate.

Harwood decided to publish the records, pointing out that no documentation existed for several hours of John's hospitalization. As he prepared his article, Harwood called Harding, Western State's director, for a response.

According to Harwood, the director said he couldn't comment on the case, but that he could fax a news story "all ready to run."

"He told me it even had a headline already on it," Harwood recalled, ³ OWe've done your work for you¹ is what he said, which I thought was mighty nice of him."

The headline read, "Evidence in the John McClosky Homicide Case Points Toward Rockbridge Deputies."

The unsigned, two-page release quoted Pence's state police reports and referred to a meeting between investigators and the medical examiner's office.

"Sources close to the investigation," the release stated, said that tissue samples taken during John's first surgery and at his autopsy showed his injuries had been healing at least 72 hours before he arrived at UVa.

"This new evidence seems to confirm the suspicions of the State Special Investigator [Pence], who concluded that the injuries occurred before admission to Western State Hospital while Mr. McClosky was in Rockbridge County and likely while in the custody of the Rockbridge County Sheriff's Office," the release stated.

"According to Assistant Attorney General Garland Bigley, extensive investigation by Hospital Staff, local advocates, State Police and State Central Office Staff have uncovered no evidence linking Western State Hospital Staff to McClosky's injuries."

Harding has denied authoring the release, and no one has ever claimed responsibility.

Self-inflicted

But if Pence uncovered no evidence linking hospital staff to John's injuries, he did find evidence placing the injuries at Western State.

In December 1997, he and one of the FBI agents assigned to the case called on a Charlottesville forensic psychiatrist, Dr. Robert S. Brown Jr., to get a fresh perspective. Brown's findings: John's injuries had to have happened at Western State.

A photograph of John taken when he was admitted to the hospital showed a healthy young man, Brown observed, not someone suffering severe abdominal injuries. Lab results of John's blood, drawn 14 hours after he arrived at Western State, were normal. Had John already been injured, Brown said, his liver enzyme level and blood cell count would have been elevated.

As to the cause of the injuries, Brown proposed a new theory, according to Pence's follow-up report. Brown noticed that John was agitated and verbally abusive at Western State and spent most of his time in seclusion, where he frequently banged on the door.

According to Pence's report, Brown believed there was "a strong possibility" John injured himself, either by throwing his body against the door, or holding one end of a rolled-up mattress against his body and ramming the other end against the door.

But according to Brown, Pence's report overstated his opinion.

"Please don't get the idea I've reviewed this case thoroughly," Brown said recently. "I've just suggested another place for them to investigate. . . . I had no idea that there was a mat that was rolled up or could have been rolled up and used."

Virginia's chief medical examiner, Dr. Marcella Fierro, whom Pence consulted early in his investigation, was asked by The Roanoke Times to review Brown's findings about the blood tests -- results she said state police had never shown her.

"I wouldn't hang my hat on a single test," Fierro said.

While the liver enzyme and blood cell levels suggest John hadn't yet been injured, Fierro pointed to other lab figures that "can be a marker of infection." Furthermore, she said that specimens of tissue surrounding the hole in John's colon, taken Dec. 18, 1994, the day his injuries first appeared, show a healing process that had been going on for days to possibly a week, putting the injury well before Western State.

"There's no good medical way to tell whether he got his injury after he got there or before he got there, and I think that has been our continuing issue all along," she said.

Still, a few weeks after he spoke with Brown, Pence telephoned Bigley, the assistant attorney general, about the psychiatrist's theory of self-inflicted injuries and told Bigley "it would cost between $3,000 and $5,000 for Dr. Brown to research the injuries and be able to make a conclusion and testify to this fact in court."

The Brown interview was telling, in the eyes of attorney Jonathan Rogers, because it proved a pattern in Pence's thinking: that John McCloskey could not have been assaulted at Western State.

Rogers noted that the investigator's first inquiry concerned store owner Thacker, and whether he hurt John before deputies arrived. Next, scrutiny focused on the deputies themselves. Finally, when Brown concluded the injuries had to have occurred at Western State, Pence wrote in his report that John must have hurt himself. This, despite the findings of every other medical doctor that the injuries couldn't have been self-inflicted.

Pence was an officer caught in a dilemma, Rogers claimed. "He did want to solve it, but he apparently did not want it to lead -- he was hoping it would not lead -- into certain directions, and in fact was trying to get a credible scenario that might explain it without any state agents being culpable."

Conflicting evidence, not a conflict of interest, hampered Pence, countered Capt. Burchett.

"There was no planned conspiracy that we just avoided talking to people at Western State," Burchett said. "I don't think there's a scintilla of evidence at this point that somebody willfully beat this kid up and killed him. We can't say that any more than we can say he did it to himself. Beyond that, it's just opinion, and everybody's got one of those."

Case closed

The state police investigation is now closed. Unsolved, and no arrests.

The federal inquiry has ended as well. In November 1998, after reviewing the FBI report, the U.S. Attorney's Office in Roanoke recommended to the Justice Department's civil rights division that no one be prosecuted, though the department has yet to make its final decision. Plagenhoef, with the U.S. Attorney's Office, said she was not at liberty to discuss the reasons for her office's decision.

One curious footnote to the FBI investigation:

In the fall of 1998, agent Paul Hunt of the FBI's Roanoke office called Sheriff Day. According to Day, Hunt said he had a letter that stated John suffered from a rare tissue disease that left his organs very fragile. John suffered his injuries, the letter alleged, when Deputy Bolen pushed John against an ice box to handcuff him.

"I just don't think it happened this way," Day said.

Hunt would later confirm the letter's existence, but said he had mistakenly mentioned it to Day and couldn't reveal its contents or its source.

The Justice Department is still inspecting Western State as part of its investigation into all of Virginia's mental institutions. The focus is not on John McCloskey's death, but on "systemic problems in the current hospital structure," investigator David Deutsch said. That report is expected at any time.

Faced with the failure of all the official investigations, the McCloskeys have been left to find the truth for themselves.