Was Baltimore City prosecutor Kurt Schmoke prompted by politics or the law when he dropped a homicide investigation against a Johns Hopkins Hospital doctor quoted as saying he pulled the plug on a critically ill man because he was "better off dead than alive"?
The answer lies in examining not the body of the dead man but the anatomy of Baltimore rumors--words whispered in courthouse corridors here. The rumors have it that the politically ambitious Schmoke enjoys a cozier-than-thou relationship with Johns Hopkins that makes it difficult for him to come down hard on that hallowed institution.
Schmoke denies the suggestion, and there is much in the record to support him.
It all started last April when The Washington Post published a series of articles on life-and-death dilemmas faced by doctors in their daily rounds. The series focused in part on Dr. Warren Summer, then director of the Johns Hopkins intensive care unit.
Summer had been treating Raymond Strickler, an 81-year-old retired steelworker who was suffering from a variety of critical respiratory and heart ailments. The doctor said Strickler was not responding to repeated attempts to wean him from a mechanical respirator.
"I made a decision," Summer was quoted as saying, "that there was nowhere for this guy to go and that he was better off dead than alive." Subsequently, he said, he turned off the respirator and Strickler died in the next 12 to 15 hours.
Summer said he had not sought the consent of Strickler, who was conscious and able to communicate, or members of the Strickler family before turning off the machine.
The statements generated a rash of inquiries to Schmoke's office about whether Summer could be held criminally liable for ending Strickler's life.
There followed a four-month investigation by two of Schmoke's top assistants and a Baltimore police investigator. On Sept. 8, Schmoke quietly announced that he had turned up no evidence of criminal conduct and said the investigation was closed.
A carefully worded press release issued by his office emphasized that the investigation, which involved interviews with dozens of hospital employes, not only found no criminal conduct in the Strickler case but determined that care for all Hopkins patients mentioned in the Post series was "excellent and highly professional."
The Johns Hopkins public relations office then issued its own release, declaring it was "pleased at the results of the inquiry."
Once the announcements were out, rumors began circulating, especially among Schmoke's political enemies from his bitter election victory last year over former Baltimore prosecutor William A. Swisher, that Schmoke had cut a deal to keep from besmirching the good name of Johns Hopkins.
Critics noted that Hopkins did not use its regularly retained attorneys, from the prestigious law firm of Venable, Baetjer & Howard, to represent its interests in the Summer investigation. Rather, it called in Russell T. Baker Jr., former U.S. attorney for Maryland and now a leading member of Piper & Marbury--the same firm to which Schmoke himself belonged before he was elected city prosecutor last year. In addition, Schmoke served briefly as an assistant federal prosecutor under Baker in the U.S. Attorney's Office in the late 1970s.
Also, the whisperers noted, another Piper & Marbury partner, Andre W. Brewster, just happens to be chairman of the board at Johns Hopkins.
To top it off, the critics suggested that Schmoke's wife, Patricia, an ophthalmologist, was associated with Johns Hopkins and enjoyed professional privileges there.
Well, says Schmoke, it ain't so.
"If that were the case," he said in a recent interview, "I never would have started the investigation. If I were afraid of Hopkins, nothing would have started."
Schmoke said "I anticipated this. . . and I made sure there were no conflicts."
His wife, he said, is not on the Hopkins staff and does not have privileges there. An independent check of Hopkins' directories supports this assertion.
As for the Piper & Marbury connection, Schmoke acknowledges that he was a junior member in the same firm with Baker and Brewster but says he did not work with either of them. "My supervising attorney was Roger Redden. . . ," Schmoke said. Also, he said, he never did any work for Johns Hopkins while at Piper & Marbury.
Baker was brought in to the Summer case, rather than someone from Venable, Baetjer & Howard, because he is a former (and celebrated) federal prosecutor versed in criminal law, Schmoke said, "and of course this Summer matter was basically a criminal matter." Venable, Baetjer & Howard, in contrast, represents the hospital primarily in civil matters, according to Schmoke, Baker and Hopkins officials.
Because of his former association with Piper & Marbury, Schmoke said he deliberately "removed myself from the day-to-day process" of the Summer investigation.
The job was left up to two senior assistant prosecutors in his office, Howard B. Gersh and Peter M. Semel. Schmoke said he gave them carte blanche, and they "left no stone unturned."
At one point early in the investigation, a source close to the case said the quotes attributed to Summer in the Post series "appeared to make a prima facie case of intentional taking of life."
But both Schmoke and Gersh now say the quotes, while accurate, were out of context and contend that medical records at the hospital support their findings that Summer did not intend to terminate Strickler's life.
Gersh says Summer was still trying to wean Strickler off the respirator when he died and the doctor had not intended to turn it off a last time.
Also, Marvin Ellin, an attorney for Summer, said the respirator itself was causing Strickler to have arrhythmia, a potentially fatal irregular heartbeat. Keeping Strickler on the respirator had the potential of killing him, Ellin said, but keeping him off it risked killing him by lack of air.
Summer was trying to balance those risks when Strickler died, Ellin said. Summer, who left Johns Hopkins recently and now teaches at Louisiana Medical School in New Orleans, declined through his attorney to comment on the case.
Gersh contended that Summer's statements, which appear in the Post to refer exclusively to Strickler, "were actually generalities and philosophy about patients in general, but a tremendous amount of this overview material was applied in the Post article to individual patients."
"The quotes were not taken out of context and the Baltimore prosecutors never heard the tape recordings which were the basis for the story," Post Assistant Managing Editor Bob Woodward said this week.
The Summer interviews, tape recorded by Washington Post reporter Benjamin Weiser, quote Summer as saying he abandoned efforts to prolong Strickler's life because its quality had declined to what Summer considered an unacceptable level.
"I think if I would have asked him, he wouldn't have let me quit," Summer said. ". . . I decided I knew what his quality of life is." Summer said he later viewed this attitude as a mistake.
At one point, investigators interviewed reporter Weiser and asked him to voluntarily hand over his notes and tapes. He declined. The next step would have been for Schmoke's office to issue a grand jury supoena, a move The Post was prepared to resist. Schmoke says he did not relish a protracted legal fight over the notes and tapes "unless the Summer case was a close question. . . ."
He said medical records and hospital staff interviews at Hopkins independently supported the finding that there was no criminal conduct.
"We got every chart . . . We got every minute of that guy's Strickler's life for several weeks," Schmoke said. " . . . There was no deliberate attempt to kill."