The Deadly Choices at Memorial

The fifth part of the 2010 Dart Award-winning story, published by ProPublica and the New York Times Magazine in August, 2009.

THE GRAND JURY’S DECISION

In March 2007, the grand jurors who would consider Anna Pou’s fate were sworn in. That spring, they began meeting about once a week at a secret location. Normally prosecutors are advocates for indictment, calling their strongest witnesses to testify and granting immunity in exchange for critical information. But the assistant district attorney, Michael Morales, whose office received condemnatory letters every day for bringing a case against Pou, told me that he and the Orleans Parish district attorney, Eddie Jordan, “weren’t gung-ho” about prosecuting the case. “We were going to give some deference to the defendant,” he said, because Pou wasn’t the usual career criminal accused of murder. At the same time, because a judge had signed a warrant to arrest Pou and multiple witnesses were willing to testify, “we weren’t going to shirk our duties and tank it.” He said that he personally “didn’t care one way or the other” about the outcome.

Rather than presenting the evidence to the jurors and seeking an indictment, as he typically did, he said he invited the jurors, in conjunction with the district attorney’s office, to act as investigators and decide what evidence they wanted to consider. This didn’t sit well with the attorney general and his staff. Foti told me that he repeatedly asked the district attorney’s office to present all the evidence and the experts.

Grand-jury hearings are conducted in secret, making it difficult to know exactly what jurors hear. Minyard told me that in the end, he decided that four of the nine deaths on the seventh floor were homicides, including Emmett Everett and Rose Savoie. Until now, he has never publicly revealed that conclusion. He also said of Pou, “I strongly do not believe she planned to kill anybody, but it looks like she did.”

The jury heard from Minyard but not from any of his forensic experts; nor from two family members who were present on the LifeCare floor during most of the ordeal; nor the main Justice Department investigator, who worked the case for a year and helped collect 50,000 pages of evidence. Only two of the main LifeCare witnesses were brought before the jury late in the process. Budo and Landry, who were compelled to testify after the district attorney decided not to prosecute them, had publicly expressed their support for Pou.

The grand jurors lived among the general public, which was firmly in Pou’s corner. Pou had one of New Orleans’s premier public-relations agencies representing her. A poll commissioned by her lawyer’s office to assess the potential jury pool found that few New Orleanians favored indictment.

Any grand jurors who might have turned on their radios or TVs, or opened The Times-Picayune, or surfed the Web would have heard samples of the community’s drumbeat of support. Nearly every day, New Orleans’s most popular talk-radio host, Garland Robinette, raised his bass voice on WWL’s “Think Tank” in outrage at “what’s being done to these three . . . for trying to save lives.” On July 17, 2007, a support rally to mark the first anniversary of Pou’s arrest garnered top billing on Robinette’s show and on every local news program. Hundreds gathered in City Park. Speakers aimed their comments directly at the grand jury, warning that medical professionals, whose ranks had already been depleted by Katrina, would flee Louisiana in droves if a doctor was indicted after serving in a disaster.

The week of the rally, the grand jurors stopped hearing evidence. The district attorney’s office prepared a 10-count bill of indictment against Pou for the grand jury to consider — one count of second-degree murder in Emmett Everett’s case and nine counts of the lesser conspiracy to commit second-degree murder, one for each of the LifeCare patients on the seventh floor.

This meant that the grand jurors were being asked to decide whether the evidence they heard persuaded them that Pou had “a specific intent to kill” — part of Louisiana’s definition of second-degree murder.

On July 24, 2007, the jurors filed into Section E of Orleans Parish Criminal District Court, the building where Minyard survived Katrina. Judge Calvin Johnson read aloud the 10 counts of indictment. The grand jury did not indict Pou on any of them.

FOUR YEARS AFTER Katrina, it’s summer again in New Orleans, and the myrtle trees are in bloom. Rodney Scott, the patient whom Ewing Cook once took for dead, is still alive.

Scott is grateful to be with his family. A former nurse, he says he does not know whether euthanasia occurred at Memorial; but if it had, he wonders what the doctors and nurses could have been thinking. “How can you say euthanasia is better than evacuation?” he asked me not long ago. “If they have vital signs,” he said, “get ’em out. Let God make that decision.”

The debate among medical professionals about how to handle disasters is intensifying, with Pou and her version of the Memorial narrative often at the center. At a conference for hospital executives and state disaster planners a few months ago in Chicago, she did not mention that she injected patients, saying that helicopters arrived in the afternoon of Thursday, Sept. 1, and “we were able to evacuate the rest.”

Pou projected the booking photo from her arrest onto the screen as she argued for laws to shield health workers from civil and criminal liability in disasters.

Before delivering the keynote address, Pou participated in a panel on the “moral and ethical issues” that could arise if standards of care were altered in disasters. At one point, one of the panelists, Father John F. Tuohey, regional director of the Providence Center for Health Care Ethics in Portland, Ore., said that there are dangers whenever rules are set that would deny or remove certain groups of patients from access to lifesaving resources. The implication was that if people outside the medical community don’t know what the rules are or feel excluded from the process of making them or don’t understand why some people receive essential care and some don’t, their confidence in the people who care for them risks being eroded. “As bad as disasters are,” he said, “even worse is survivors who don’t trust each other.”