The shameful COVID-19 death of Joseph Messere

ON THE LAST DAY of 2020, COVID-19 claimed the lives of 81 Massachusetts residents. Joseph Messere was one of those 81. Like the death of all of the others, Joe’s death was tragic. But it was uniquely tragic because it so easily could have been prevented, and because of the shameful way in which the Massachusetts Department of Correction and the Massachusetts Parole Board acted during the final days of Joe’s life.

Joe was a prisoner in state custody for the past 40 years serving a life sentence for second degree murder. He was first eligible for parole in 1995, after serving 15 years in custody. But he was passed over for parole that year and on five subsequent occasions, largely because he steadfastly maintained his innocence, and refused to take responsibility for a crime he denied having committed. Most recently, Joe appeared before the Parole Board in December 2019, and was waiting for his parole decision when the COVID-19 pandemic arrived in Massachusetts.

Joe, who was no dummy, immediately knew that the combination of his age (68 years old) and long history of bronchial asthma and other health issues put him at great risk of severe complications, including death, were he to contract the disease. Likewise, he knew that being in prison exponentially increased his chances of contracting the disease.

He was among the most vulnerable individuals in the most vulnerable venue for COVID-19. In March 2020, he filed his own “emergency grievance” with the Department of Correction, spelling out the heightened risk he faced, and requesting immediate release under supervision to protect his life. At the same time, he called me as his lawyer in a panic, begging me to do whatever I could to expedite his parole decision, get him out on parole, and protect him from COVID-19.

On March 30, 2020, immediately after receiving Joe’s call, I wrote to the Parole Board’s staff to check on the status of his pending parole review, and to ask what could be done to get Joe “out now in light of the coronavirus horror.” I ended my entreaty by saying: “I don’t want to be overly dramatic, but what can be done right now to make sure that Joe’s sentence does not become a death sentence?”

MCI-Norfolk (Photo by Massachusetts Department of Correction)

On April 23, with nothing having been done, I again wrote to the Parole Board’s staff, noting that the question was “not if but when Joe will contract the disease,” and stated that by taking prompt action to “get Joe out of MCI-Norfolk we would dramatically increase Joe’s chances of not contracting COVID, and thus surviving to see his 69^th birthday.”

One week later I tried again, noting that I was becoming “increasingly concerned that inaction here is going to result in a tragic outcome for Joe.” I ended my plea for action by stating that the “real tragedy here is that all this is so avoidable.”

Days later, on May 6, I heard back from the Parole Board’s legal staff, thanking me “for reaching out,” and explaining that the board was willing to expedite its decision but only if Joe formally waived “his right to a full administrative decision” and agreed to accept an “abbreviated decision.” Joe immediately waived this “right,” and five days later he received a written decision – parole was denied with further review set for four years from the date of his December 2019 hearing. No mention was made of Joe’s health or the lethal risk posed to him by COVID-19.

Joe appealed the decision to no avail. He also wrote letter after letter to Department of Correction officials concerning his asthma and other health concerns, and his fears regarding COVID-19. Even during the COVID lull that Massachusetts experienced over the summer months, Joe’s efforts to be heard never ceased. More and more he sounded like the boy who cried wolf. But when the fall and early winter arrived, and with it the inevitable and all too predictable surge in COVID-19 cases, it became clear that there was nothing imaginary about Joe’s pleas for help.

During the first week of November, the number of confirmed COVID-19 cases among prisoners at MCI-Norfolk, where Joe was imprisoned, leaped from 5 to 77, with 73 “active” cases. One week later there were 239 confirmed cases, 172 of which were active. And the numbers continued to climb unabated throughout November and into December, reaching by mid-December 421 confirmed cases, or more than one out of every three men incarcerated at the prison.

As the numbers increased and became more and more frightening, so too did the urgency of Joe’s pleas.  Despite my overriding sense that any effort would prove futile, at his repeated requests I prepared a motion for the Parole Board to reconsider its most recent denial of his parole. In support of the motion, I had a physician review Joe’s medical records, and prepare an affidavit stating the obvious, albeit with the imprimatur of a medical science, namely that continued imprisonment would likely be a death sentence for Joe in light of his age, asthma, and other underlying medical conditions. I also prepared a letter to send to the Massachusetts Commissioner of Correction asking for Joe to be released or, at a minimum, to be transferred to a prison where COVID-19 was less rampant.

During the last week of November, I finalized the motion for reconsideration and the letter to the commissioner, and I was only waiting for a call from Joe before submitting both. He had promised to call that week to give me the name and contact information for the person with whom he would be staying if somehow or someway either the Parole Board or the Department of Correction agreed to release him. But the call didn’t come. I feared the worst, and soon enough my fears were realized.

On December 2, I received a call from MCI-Norfolk telling me that I would be receiving a call from Joe Messere, who had been hospitalized and had asked to speak with me. Moments later Joe called from Milford Regional Medical Center. The bounce in his voice and his usual self-effacing sense of humor were gone. He told me that he had contracted COVID, and that breathing had become hard. He assured me he was going to fight like hell, but he was already on oxygen, and he wasn’t sure if he was going to make it. I never spoke with him again.

Shortly after that phone call, Joe was intubated, and went rapidly downhill. By the end of the first week of December he had become little more than an appendage of medical tubes, and his chance of meaningful survival had been reduced to near zero. According to his ICU doctors, it was going to take a miracle for Joe to survive at all, and there was little chance he would ever be more than a vegetable.

Remarkably, with Joe’s death imminent, both the Department of Correction and the Parole Board sprang into action. But not in a good way. The two institutions that had systematically ignored Joe’s entreaties when there was still ample time to protect him from COVID-19, now leaped at the opportunity to wash their hands of any responsibility for his demise. Stating that she was “in receipt of the petition for medical parole that was submitted on behalf of Joseph Messere,” Correction Commissioner Carol Mici granted medical parole to Joe. The Parole Board’s staff called me urgently, leaving me message after message on Christmas Eve to return their calls immediately because, as they put it, “we really want your client released as soon as possible.”

With Joe about to die any minute, these institutions that could not have cared less while he was alive were rushing to “release” him, apparently for no reason other than to artificially reduce the statistics of the number of incarcerated individuals dying of COVID-19 while in Department of Correction custody, and to eliminate the need to pay for Joe’s burial. Anecdotally, I have been told by other attorneys that Joe is not the first person who has been rushed through the medical parole process by the Department of Correction during the pandemic.

Massachusetts law authorizes the commissioner of correction to grant medical parole if she “determines that a prisoner is terminally ill or permanently incapacitated such that if the prisoner is released the prisoner will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society.” Prisoners who are released on medical parole then fall under the jurisdiction, supervision, and control of the Parole Board, which “may revise, alter, or amend the terms and conditions of a medical parole at any time.”

Normally, the process of petitioning for and receiving a decision on medical parole takes many months.  But in Joe’s case the entire process took less than a week, and apparently was initiated without any petition at all, at least no petition from anyone who cared about Joe as a human being.

Typically the medical parole process is initiated by the prisoner himself or the prisoner’s attorney or next of kin. It is, in other words, initiated by someone who knows and cares for the prisoner as a person, and wants to give the person an opportunity to die with dignity, as a free man in the presence of family and friends. But, here, I, as Joe’s attorney, had not submitted a petition for medical parole, and to the best of my knowledge Joe had not submitted any such petition on his own, and Joe had no next of kin, at least none that anyone has been able to locate. There was no petition at all, at least none from anyone who knew or cared for Joe, and was looking out for his best interests.

The first sentence of Commissioner Mici’s medical parole decision that states that she was “in receipt of the petition for medical parole that was submitted on behalf of Joseph Messere” was either false, or the petition was submitted by the Department of Correction itself in an effort to rid itself of responsibility for a dying man. In other words, the process of medical parole, which exists to lend dignity to the end of life, was turned on its head by the commissioner and used, if anything, to insult a man who could no longer speak for himself.

As soon as the decision to grant medical parole issued, the Parole Board’s staff, which normally works at a glacial pace and is all but impossible to reach, called me to expedite Joe’s release. They called because Joe himself was unconscious, and he had no known, living family member. They called because they needed someone who “spoke for Mr. Messere” to authorize and sign his release permit. But when I asked to whom Joe was being “released,” they had no answer. When I asked why the rush, they had no answer.  And when I made clear that I had no interest in being complicit in their effort to rid themselves of Joe and to grant a meaningless parole, the emergency disappeared, and I never heard from them again.

My call with the Parole Board’s staff occurred on Christmas Eve. Joe then lived for another week at the Milford Regional Medical Center, where he was treated with dignity and respect by the doctors, social workers, and staff. When I told the Milford professionals that Joe was a fighter who loved life, and would want everything possible done to give him a chance to live, they respected his wishes and fought to give him a chance. And when the determination was made that Joe’s lungs had been permanently damaged by COVID-19, and that he would never again be able to lead anything resembling an independent life, they once again asked what Joe would want. The decision to take Joe off of the ventilator was made with deliberation, respect, and grace. In stark contrast to the behavior and attitude of the Department of Correction and the Parole Board, the hospital staff made its decision to remove life support, not to rid itself of a nuisance, but to ease the struggle and pain of a human being, and allow him to die in peace.  Joe passed at 2:05 p.m. on the last day of the horrible year that was 2020.

Joseph Messere, March 31, 1952 – December 31, 2020. May he rest in peace.

David Apfel is a partner with Goodwin and a former federal prosecutor. He maintains a pro bono practice in which he represents indigents in federal criminal cases and state murder prosecutions. He is also a committee member with the Committee for Public Counsel Services. The views above are his own.