PROSECUTING ATTORNEY CRIMINAL DIVISION 82 Ionia Ave Nw Suite 450 Grand Ropids, Mi 49509-3022 Tolepnone: (616) 632-6710, Fea (616) 692-6714 (CHRISTOPHER BECKER Prosecutor MONICA M. JANISKEE Chief Assistant Prosecutor FACTS ‘On January 31, 2018, Grand Rapids Police were dispatched to The Samaritas Lodge, an assisted living facility for the elderly. The staff there reported that a 61-year-old resident Kenneth Conley had assaulted another resident, 81 year old Dan McBrian. The two of them resided in the same room, and both men had been diagnosed with dementia. ‘Mr. McBrian was punched in the jaw during the assault. He was transferred to Butterworth Hospital after his daughter responded to the scene and noticed swelling on his jaw. Mr. McBrian underwent surgery to repair the damage. Kenneth Conley was the individual who punched Mr. McBrian. Conley was identified by a staff member who witnessed him run down the hall and suddenly strike Mr. McBrain. The two were then separated. The GRPD officer who responded spoke with Mr. Conley. Mr. Conley told the officer he “pushed” Dan because Dan was taking his stuff. The officer put in his report that, “It was obvious that Conley was suffering from some sort of mental health issue.” Mr. McBrian never fully recovered from this broken jaw. After the initial surgery to repair his. jaw, Mr. McBrian was admitted to the hospital on a number of different occasions. He caught pneumonia, had respiratory failure, and suffered other medical complications from his jaw being broken. Mr. McBrian was placed in hospice and passed away on July 11, 2018. An autopsy was performed on Mr. MeBrian, and the listed cause of death was medical complications of fractured jaw, and the manner of death was listed as a homicide. The issue in this case is not if Mr. Conley committed the assault. The issue is if he should be held criminally liable for the assault given his mental capacity. THE LAW “A defendant to a criminal charge shall be presumed competent to stand trial. He shall be determined incompetent to stand trial only if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner.” MCL 330.2020. Even if a person is competent to stand trial, they may not be held responsible for criminal activity if they are determined to be legally insane. A person is legally insane under Michigan law if that person suffers from a mental iliness, or is mentally retarded as defined by the law, and due to either one of these conditions the person, “lacks substantial capacity either to appreciate the nature and quality of the wrongfulness of his or her conduct or to conform his or her ‘conduct to the requirements of the law.” MCL 768.21a The definition of mental illness is a, “substantial disorder of thought or mood which significantly impairs judgement, behavior, capacity to recognize , oF ability to cope with ordinary demands of life. MCL 330.1400(g)ANALYSIS: There is no question that Mr. Conley suffers from dementia and the early onset of Alzheimer's Disease. He was initially diagnosed with this in 2014, yet continued to live on his own until 2017, when this was determined no longer appropriate. On February 14, 2017, his primary care physician submitted a letter to the Probate Court that Mr. Conley suffered from this diagnosis, and that he was unable to ‘manage his own finances or make informed medical decisions. His dactor recommended a guardian be appointed for him. The attending physician of Samaritas agreed with him; he too recommended a guardian. Mr. Conley was interviewed by Behavioral Care Solutions for Adults and Seniors in February of 2017 and was unaware of his birthplace, the branch of the service he was in, or the number of children he had. Mr. Conley’ children were also interviewed, they all agreed that their father was in need of a guardian because he was unable to care for himself. On March 18, 2017, Judge David Murkowski signed and order that found Mr. Conley suffered from a mental deficiency that made him totally without the capacity to care for himself and appointed his daughter as his guardian. There is nothing in the records to establish that Mr. Conley has improved in any way from the time the guardian was appointed, to the time the assault occurred. Nor would any improvement be expected. Very rarely, if ever, do symptoms improve for an individual diagnosed with Alaheimer’s/dementia. His daughter remains his guardian. In his most recent exam, which occured April of 2018, Mr. Conley was once again seen by Behavioral Care Solutions for Adults and Seniors. The examining doctor stated Mr. Conley, “engages freely and is welcoming of interaction. Attempted to gain some hx from patient but itis noted that he is unable to provide much as far as pertinent details. Patient does recall that he had been divorced and that he is in a medical facility.” He was noted to be disoriented to time, place, and had impaired judgement, insight, and impulse control. it was also noted by the examiner that Mr. Conley’s attention was poor. Also noted in the records was the fact that Mr. Conley’s long term and short-term memory was severely impaired ‘This isa terrible tragedy for the family of Dan McBrian. His final months before he died were spent in and out of the hospital, dealing with very serious medical issues, which all can be traced to the broken jaw he suffered in this assault. There is no question this incident caused his family pain and anguish. However, given the mental history or Kenneth Conley, it would not be appropriate to charge hhim with any crime. Mr. Conley would not be found competent to stand trial. Given his memory issues, his well-documented diagnosis of dementia, he could not assist in his defense in @ rational manner. He he cannot remember how many children he has, or what branch of the military he served in, in the police report he could not fully explain what occurred just after it happened. He clearly exhibited signs of a mental health issue when the responding officer spoke to him, so much so he noted this in his report. He also would not be found criminally responsible. He clearly suffers from a substantial disorder of thought or mood which impairs his judgement and behavior. A well know symptom of dementia Patients is they may become aggressive. A simple search on Web MD regarding dementia symptoms, “Fear and Aggression” are listed. In this section, describing someone with dementia, the article states, “Sometimes they can become physically aggressive, which can be frightening for a caregiver.” In his last medical review it was noted Mr. Conley had a problem with impulse control due to his mental state. From all of the material provided, Mr. Conley had no prior outbursts. He was never noted to be violent or aggressive. fhe had repeated incidents, if he used @ weapon or there was some other reason to believe public safety was threatened, this may change the analysis. Under these circumstances; adementia/Alzheimer’s patient reacting in a way that is common for such people suffering from this, disease to do, lashing out physically due to his condition, no charges will be filed. It would not serve any purpose to charge Mr. Conley criminally for his actions that day there is nothing more the criminal justice system would do to Mr. Conley. He would not go to jal, nor would he go to prison for what happened, his mental state would prevent this from happening. Under these circumstances, this office will not file charges against him for this incident. CABZ— JO ~ )0 ~~ Chris Becker Date Prosecuting Attorney