Who Killed John McCloskey?

Before his son's emergency surgery in December 1994, Pete McCloskey had never heard of a perforated colon.

His encyclopedia told him that the perforation, or hole, was usually caused by a burst ulcer. A medical malfunction. An accident.

But the next morning at the hospital, a doctor pulled Pete aside and asked whether John had any homosexual tendencies.

"No!" Pete declared.

Well, the doctor continued, this did not just happen. Somebody did something to him. Sexually assaulted him. Maybe Pete should get a lawyer.

Pete met with some attorneys, but none seemed interested. Then in April 1995, he drove from his Fishersville home to Roanoke to see another.

He'd heard that Jonathan Rogers had a cowboy reputation, less for the bleached steer skulls adorning his office than for his willingness to wrangle with police and the state in court.

Pete told the lawyer of his son's torture, and of the surgeon's theory that the attack occurred sometime while John was in custody of the Rockbridge County Sheriff's Office or Western State Hospital in Staunton.

Pete had few facts, but Rogers agreed to take the case.

"I don't care which one is responsible," the lawyer told Pete. "I'm not afraid to go up against any of them."

In the end, after John died and investigations by the Virginia State Police and the FBI yielded nothing, Rogers would settle on just one suspect: Western State.


The lawyer

If the McCloskeys' frustration could be traced to two sources, they would be these - that their son died a horrible death, and no one was ever held responsible.

Jonathan Rogers soon shared their feelings.

"I have never had a case that was so difficult in terms of getting facts," he would later explain.

He met his client just once, in January 1996 in his room at the University of Virginia Medical Center. John, then 19, had only recently learned to talk again, after living for months with a breathing tube that had kept him from speaking. His body was bloated, his voice high-pitched, and a gruesome hole filled the space where his stomach should have been.

"Do you know what happened to you?" Rogers asked.

John made an unintelligible noise and pointed to the wall. Hanging there was a framed photograph of a slender young man with dark eyes and shoulder-length black hair. A handsome kid, Rogers thought, nothing like the pitiful wretch lying on the bed.

Rogers left that day shaken, but believing they'd have another chance to talk. That never happened. John died a month later.

John's strange injuries further complicated the case. State police had produced five different theories, from severe beating to rectal assault. One psychiatrist even suggested John had inflicted the injuries himself, though that theory was discredited by other physicians.

Even Dr. Jeffrey Young, the UVa surgeon who first suspected someone had jammed something up his rectum, now indicated that a tremendous blunt force -- such as a man falling onto John's relaxed stomach -- could explain the injuries. And, Young added, it might have occurred as long as five days before John arrived at UVa - two days before the arrest.

Helping Rogers was Jim Davis, a Richmond lawyer for Teamsters Joint Council No. 83. The truck drivers' union, to which Pete McCloskey belonged, hoped to recoup the $558,000 it had paid for John's hospitalization.

Together, the lawyers hired a private investigator, Richard King of Fincastle, who went to work in April 1996, soon after state police closed the case as unsolved.

State police had focused mainly on the Rockbridge County deputies, partly because of a hospital interview in which John said the deputies had been "rough" with him, that he'd "felt a large push" to his stomach that knocked the wind out of him. But John had no memory of Western State, and, considering Rogers' own fruitless interview with the boy, the lawyer believed, "Even at best, he would have been a very inaccurate historian."

King interviewed the Rockbridge sheriff and the convenience store clerks who witnessed John's arrest on Dec. 15, 1994, and found no hint the deputies had harmed the teen-ager. Instead, King learned that one deputy had taken time to track down John's mother after the arrest to learn more about his mental illness.

From Western State records, King noted that John had passed a physical exam when he arrived the night of Dec. 15. His only complaint had been some bruising from the handcuffs. John didn't complain of stomach pain until the morning of Dec. 18 - 65 hours after his admission. Western State had no documentation for 15 of those hours.

"We do have to realize that John was aggressive, used extremely abusive language . . . and had frequent loud, uncontrolled outbursts while at the hospital," King later wrote Rogers. "He easily could have angered an employee or possibly another patient."

In late 1996, Davis wrote Western State director Lynwood Harding and then-Attorney General Jim Gilmore's office, seeking a settlement to avoid litigation. The state said its internal investigation had uncovered no wrongdoing and refused to settle.


The lawsuit

Filed Feb. 20, 1998, in U.S. District Court in Roanoke, the lawsuit grabbed headlines statewide.

Sometime during the three days that John W. McCloskey was a patient at Western State Hospital, the lawsuit claimed, two unknown staff members attacked him and jabbed "a broomlike handle up his rectum," tearing apart his colon, small intestine and liver.

After John began screaming in pain and vomiting his own feces, the lawsuit continued, a state psychiatrist, Dr. Tim Kane, remained "deliberately indifferent," prescribing an enema that only helped flush toxic fecal matter through a hole in his torn colon into the abdominal cavity.

The assailants' actions "were subsequently ratified" by Harding and the state "by their intentional cover-up of the assaults and batteries," the lawsuit alleged.

To compensate Pete and Rebecca McCloskey -- whose son lingered in agony for 14 months before dying Feb. 24, 1996 - and to punish the perpetrators, the lawsuit sought $10 million.

The first fight over the lawsuit occurred not in court, however, but at the doorstep of the Miller administration building at Western State. A hospital official refused to accept the papers from the process server hired by Rogers to hand-deliver the lawsuit.

The standoff was a first for the server, Shelby Alcorn, of Roanoke-based Pro Serv. From her car, she called Rogers, who told her to leave the paperwork at the front door. Back inside, Alcorn went up to the official, who'd just gotten off the phone with the commonwealth attorney's office, and thrust the papers in her arms.

"There, you're served," she said, then ran from the building. With the official in pursuit, Alcorn jumped into her car, which she'd left running, and sped away.

Eventually, the state chose a more traditional battle plan. In a motion to dismiss, lawyers with now-Attorney General Mark Earley's office argued that the state and its agencies couldn't be sued by citizens in federal court. After a hearing on this issue in September 1998, Rogers was allowed to file an amended complaint.

He took full advantage of the opportunity.

Richard King had spent the summer of 1998 doing something Virginia State Police had never done in its three-year investigation -- interview security officers from Western State.

From the now-retired guards, King learned that the forensic ward, B-2, where John was kept those three days, housed about 24 patients who faced a variety of criminal charges, a few as serious as rape or murder. But some nights, only two aides staffed the ward while one guard patrolled the campus.

The guards who spoke to King insisted the staff would not have harmed John; far angrier, louder and sicker patients had walked the halls before. But the patients, King quoted them as saying, would react violently to insults and "could have purposefully distracted personnel or taken advantage of a ward distraction to get to McCloskey."

But in a more recent interview with The Roanoke Times, one of the former officers, John Barker, said he doubted John McCloskey's assault could have occurred at Western State.

"There would have been some kind of sounds or hollering, and the staff is right there," Barker said.

Still, Barker admits he suffered a broken wrist, bruised ribs, scratches, bites, kicks and sprains on the job, all from patients.

Also in summer 1998, now-Gov. Jim Gilmore released a report by a Massachusetts psychiatric care expert, Dr. Jeffrey Geller, who had inspected all of the state's mental facilities.

Geller's report criticized Western State for "frequently not meeting its own staffing standards, which really are minimal standards. On some occasions when it is out of compliance with its own standards, it actually is staffed at dangerous levels."

With these developments in mind, Rogers filed his new lawsuit Oct. 30, 1998. He omitted the state and Western State as defendants, but left in Harding, Kane and "unknown agents 1 and 2."

The two unknown agents either inflicted the injuries (Rogers theorized it took at least two: one to hold John down while the other wielded the instrument), or failed to adequately protect him.

Harding knew the hospital was dangerously understaffed, the suit alleged, yet "helpless, restrained and overmedicated patients" were placed beside murderers and rapists.

Again, the state objected. Rogers had waited too long to raise the new theory, the state claimed, because he hadn't filed the amended complaint before the statute of limitations expired - in John's case, by Feb. 24, 1998, two years after his death. And again, the state moved for the lawsuit to be dismissed.


'A tragic thing'

The hearing was held Feb. 18, 1999.

Inside the second-floor courtroom of the Poff Federal Building in Roanoke, Pete and Rebecca McCloskey sat silently, their chins propped on prayerfully clasped hands, as Rogers scribbled a few final notes before the hearing began.

The case had been assigned to U.S. District Judge James Turk. When the affable 75-year-old judge took the bench that day, he sidestepped the legal briefs and homed in on the heart of the case.

"What did the doctors at UVa say?" he asked.

At the lectern stood Assistant Attorney General Ann Berkebile. "As far as I understand the evidence as it is now, there has not been a definitive -- several different doctors have said several different things."

Turk leaned forward. "It's a tragic thing, isn't it?"

"Definitely, your honor. Definitely."

"Yes it is," Turk added.

"And he'd had a tragic life," Berkebile said. "He had had some severe mental problems."

Still, she said, the lawsuit should be dismissed because the statute of limitations had expired.

"Nothing prevented them from filing suit soon after he died," she said, adding later, "It's now been four years . . . since he was even at the facility, and they have not even named the defendants."

When Rogers stepped up, he admitted he had no proof an employee had assaulted John, just of "employees allowing this to happen."

He disputed Berkebile's characterization that John's life was tragic. "He was doing very well, had graduated school."

"High school?" Turk asked.

"High school."

"Second honor roll," Rebecca piped up.

A few minutes later, Turk pondered aloud whether the injuries were self-inflicted.

"I've heard doctors talk about being in the emergency room and, you know, people came in and they had inserted Coke bottles up the rectum and this kind of thing," he said.

"Your honor," Berkebile said, "anything is possible."

A week later, Turk issued his order. The lawsuit would not be dismissed at this stage, but the state could try again once Rogers finished his discovery -- the court's fact-finding process that includes issuing subpoenas and taking depositions.

On March 11, Rogers began that process. He filed papers seeking, among other things, all Western State documents mentioning John McCloskey; a list of patients housed with John on B-2; all assault, rape or suspicious-death complaints involving staff or patients from 1980 to 1996; and all reports of brooms or other broomlike devices left unsecured from 1990 to 1996.

The state immediately moved to quash the subpoena.

Rogers already had John's complete medical record and the state police investigative file, Berkebile wrote in her brief. "He is now attempting to engage in an inappropriate, overly broad and unduly burdensome fishing expedition, which should be prohibited by this Court."

On April 20, lawyers for both sides again appeared before Turk to hammer out what papers Rogers would and would not be allowed to get.

Citing privacy concerns, Berkebile first objected to releasing patient lists.

Turk thought differently. "It seems to me he'd be entitled to go and talk to them to find out, 'Did you see anything that happened to Mr. McCloskey?' It seems to me if state police were doing an investigation, they would have interviewed the patients."

Then, without any of the evidence before him, Turk said, "My feeling is he was probably injured before he came to Western State."

Rogers' eyes widened briefly, but he focused his response on state police. "I think they did a very cursory investigation, considering the gravity of the situation."

"This is not a cover-up," Berkebile shot back.

Again, Turk said Rogers should have the list, adding ominously, "He might hit a dead end."

Murmured Rogers, "I might. I might."

Berkebile's next objection concerned Rogers' wish to see any internal investigation reports on John's injuries. For years, Western State and the attorney general's office had said the hospital had made a thorough internal inquiry apart from the state police.

Before Turk, though, Berkebile admitted this wasn't so. "You use the term 'investigation.' Loosely, there was a review of Mr. McCloskey's stay at the hospital and a report furnished to Director Harding." Dr. Geller, the Massachusetts consultant, was also "asked to review Mr. McCloskey's record," she added, when he visited in September 1997, almost three years after John was there.

Still, Berkebile objected. If state agencies suspect they one day may be required to turn over internal reports, they "are going to be discouraged from doing this kind of thing." But then, in an apparent contradiction, she insisted Rogers had "access to everything the hospital has access to."

"How do I know that?" Rogers asked. "We're adversaries. How do I know that?"

Turk ordered the reports turned over, but instructed Rogers to keep them confidential.

Again, the judge added, "I don't think it's going to help you."

"I don't think so, either," Rogers answered. "I think it will help them."

And then Rogers paused. The hearing was near an end. He looked at the papers before him, then began telling the judge of his plans for the case and the frustrations he felt. He would review every document he could get his hands on. He would question everyone who might know something about the assault. And in the end, if, after doing all he could, he realized he could do nothing else, he would tell the McCloskeys it was time to call it quits and try to get on with their lives.

"I know what I'm convinced of," he said. "But I don't know if I can prove it."

And there the case stands - unsettled, full of questions, like the death that brought it into being.


The mystery

Jonathan Rogers is now putting together a list of witnesses to depose. He will start with the nurse and doctor who examined John when he arrived at Western State, then turn to the aides present on John's last night at the hospital - the night Rogers believes the assault occurred. Next will come some patients who also were there. He plans to begin depositions in August.

At Western State, Lynwood Harding stepped down as director in September 1998 and was replaced by the former chief of staff, Dr. Jack Barber. Because of the litigation, hospital officials wouldn't discuss any aspect of the John McCloskey case. Neither would nurses nor psychiatric aides when telephoned at home.

Western State will, however, open its doors to anyone who wishes to inspect its facility.

On a recent spring day, as the sun shone warmly on greening fields and birds chirped in budding trees, John Beghtol, director of community services, led a tour of the sprawling campus.

Along the way, he spoke of the hospital's declining rolls, from 1,354 patients in 1977 to 330 today. The hospital is understaffed, he said, but this will be fixed now that Gov. Gilmore has pledged $7 million to hire 41 nurses and discharge 59 patients into community service programs.

Inside the Pettus Building, which houses criminal Ward B-2, Beghtol introduced several staff members who treated John during his short stay. "Can't talk McCloskey," he cautioned each time.

Debbie Armstrong, on staff 22 years, and Janet Peterson, 24 years, insisted the hospital offers excellent care and is on the cutting edge of mental health treatment.

"I would not hesitate to put a family member here," Peterson said. "There are going to be deaths, there are going to be accidents, there are going to be suicides. Nobody ever publishes the suicides we prevent."

Added Armstrong, "If we ran a hospital for just heart patients, if somebody died, nobody would look at it. People do die from mental illness."

But mental illness didn't kill John McCloskey. What did is a mystery.

Inside her attic apartment in Carlisle, Pa., Julie McCloskey wipes away her tears.

"A lot of sadness," is how she describes her family now that her older brother is gone. "It's gotten better, but I think there's not going to be any closure or anything until this lawsuit's over with. I just hope and pray to God that Jonathan wins this case, because I want somebody to pay."

Now 22, she wears her brother's memory on the flesh of her ankle. A cross tattoo with John's initials and the years of his birth and death.

On each anniversary of his death, she pens a poem to her brother and pays for its publication in The Sentinel, Carlisle's newspaper. So far, she has written three.

The same tattoo is etched on the right arm of Joey McCloskey, the youngest child and now the only son. Inside his mobile home in Carlisle, he has only one picture hanging on the walls. John's.

"I still think he's with us. I'm not really into the whole religion thing like a lot of people are, but I still feel he's with us. He's there for us. Just that I can . . . like during a hard time, I can just sit and reminisce."

Several miles to the south, near fields of corn and alfalfa that ripple in the summer wind, on a hill that overlooks a dairy farm with the South Mountains rolling to the horizon, is the Huntsdale Church of the Brethren cemetery. Few cars go by, few birds sing. It is a quiet place, peaceful.

Every week or so, Joanne McCloskey Keck comes here to visit her brother's grave. She brings along her 2-year-old daughter, Kady, who squeals as she climbs over the headstone, "Uncle John! Uncle John!"

On a special day like Christmas or Thanksgiving, or the anniversary of his death, Joanne places a bouquet of flowers against the headstone. The tattoo needles scared her, so this is her way of remembering.

You will find flowers there today. Today, John McCloskey would have turned 23.

After her son's death, Rebecca McCloskey returned to Pennsylvania for a few months to live with her children. Virginia had become too painful for her. She is now back in Fishersville with her husband, in the apartment they first rented years ago to be closer to the Charlottesville hospital.

On Thanksgivings, they set an extra plate on the table and fill it up for John, and at Christmas there are gifts for him under the tree.

"I keep his memory alive," she said. "I don't care what other people think of me. I just try to pretend he's with us."

Pete McCloskey spends most days on the road, hauling loads for Yellow Freight. The road recently took him to New York at the beginning of the trial of five police officers accused of sodomizing a Haitian immigrant with a wooden stick.

"It's sad what happened to that Haitian guy," Pete would later say, "but at least they got who did it, and he's still alive. We got none of that."

Born in the Philippines, Rebecca has no family or close friends in Virginia, and she's never learned to drive. So while Pete trucks to Charlotte or Atlanta or maybe St. Louis, she spends her days talking on the phone to her children. Sometimes she strolls around the complex's parking lot. But mostly, she sits alone, waiting for Pete and thinking of her far-away home, and of her dead son.

"Even right now, I'm still hoping John will walk in the door and say hi to me."

That is how Pete finds his wife when he gets home. Sitting, waiting.