[Archived] OCA Declines to File Charges Against Elderly Man

Commonwealth's Attorney Bryan Porter announced that he will not seek a grand jury indictment against an elderly man in relation to an unintended death investigation. The incident that resulted in the death occurred on October 24, 2016, at the Sunrise of Alexandria Senior Living facility located on Duke Street in the City. The incident was investigated by the Alexandria Police Department, which presented its investigation to the Commonwealth's Attorney for a charging decision.

During the incident, a 77-year old resident pushed an 82-year old resident after a brief argument over a television. The 82-year old fell to the ground and received a fractured hip from the fall. This injury led to cardiac complications which ultimately caused death on October 26, 2016.

Importantly, both men were residents of a special unit for people suffering from memory impairment or dementia. 

In a statement, Porter said: "The unnecessary death of any citizen is a tragic and unfortunate event. In this case, there is no doubt that the decedent was a gentle man wholly undeserving of such a death."

"However, in deciding whether to attempt to hold a person criminally accountable for their actions, I must consider many factors beyond the mere tragic death itself. In this case, two factors were extremely important to my decision not to seek an indictment."

"First, the evidence revealed that the death was unintentional. After a very brief argument over whether the television in the residential unit should be turned off, a 77-year old resident pushed an 82-year old resident one time. The push caused the 82-year old to fall. The fall caused a fracture which, in turn, ultimately led to death."

"The police investigation revealed no evidence that suggested that the 77-year old intended to cause death or great bodily harm, nor any evidence that he acted with premeditation or malice. Instead, the evidence establishes that the death was unintentional."

"Second, the 77-year old resident who caused the death is sadly caught in the throes of severe dementia. A police detective attempted to interview him. The detective reported that he was unable to converse cogently with the detective about the incident and seemed unable to understand who the detective was or what he was investigating. This severe cognitive disability was confirmed by staff of the facility and available documentation."

"In light of these factors, I find that the public interest is not served by seeking an indictment. If the 77-year old were charged, the facts and my experience suggest that his dementia would cause him to immediately be deemed incompetent by the court. Given his mental state, there is no reasonable probability that attempts to restore him to competency would be successful. In other words, if he were charged is it extremely unlikely that he would ever be brought to trial."

"The goals of the criminal justice system - holding people accountable for their actions, punishing intentional criminal actions and deterring future criminality - cannot be accomplished in a case where the person who committed the acts clearly does not understand the nature and consequences of his actions due to irreversible dementia. On these facts, a felony indictment would, in my opinion, constitute an improper exercise of the authority inherent in my office and a breach of the trust handed to me by the citizenry."

"Finally, I note that the 77-year old has been moved from the Alexandria facility to a facility in another state. Upon information and belief, it appears that he is in a facility capable of providing him the care and attention he needs." 

"My thoughts and prayers are with the family of the decedent in this case. By all accounts, he was a wonderful and generous man and I am truly sorry for their loss."

After discussing the facts of the case, Porter continued expressed the following concerns for an aging population: "As a society, we need to address two simple facts: First, medical care for the elderly continues to improve, and this has resulted in a rise in life expectancy. Second, while progress is being made, currently there is no treatment capable of reversing the damage and decline caused by dementia and similar cognitive diseases. These two facts, considered together, obviously mean that the numbers of elderly persons living with cognitive diseases has increased."

"Elderly people who are in the clutches of cognitive disease may 'act out' in a manner wholly inconsistent with their true personality. In other words, as our population 'greys,' the frequency of violent acts committed by people incapable of understanding the nature and consequences of their actions will surely increase."

"How will our society address this situation? Obviously, in most cases, the bringing of criminal charges against a senior citizen of unsound mind would receive the disapprobation of the community. However, if the evidence establishes that death was intended or that the act was particularly cruel and malicious, a prosecutor has a duty to attempt to make sure the act is not repeated in the future."

"I sincerely hope that our citizenry openly discusses this important issue and how it should be addressed. The resolution may, in fact, require the General Assembly to weigh in and provide guidance. In most cases, the criminal justice system is not the appropriate way to address this issue, but, without additional resources it may end up being the only way. This unfortunate situation is one we as a community can avoid by being proactive."