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Court tosses verdict in Waltham suicide case

Posted by Leslie Anderson  April 9, 2010 02:41 PM

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More than a dozen years after a man killed himself shortly after being held by Waltham police, the Massachusetts Appeals Court has ruled the city is not responsible for his death even though officers released him without first notifying his relatives as they had requested.

The court’s decision today overturns a 2006 verdict issued by the Superior Court against the city that had awarded $100,000 to the father of James McCarthy, a Waltham man who took his own life in March 1997, one hour after he was freed by police from protective custody.

Lawyers for McCarthy’s father, Richard, who brought the lawsuit on behalf of his son’s estate, contend that police dispatchers repeatedly assured McCarthy’s aunt they would notify her before he was released so she could escort him home.

The city of Waltham had appealed that decision, arguing police never explicitly promised the family they’d call before letting McCarthy go, and that under state law, the city and its employees were immune from being held responsible for McCarthy’s actions once he left their care.

The Appeals Court found there was “insufficient” evidence that comments made by police to the aunt that morning constituted any “explicit and specific assurances of safety or assistance” that would override the immunity protection afforded to municipalities from these kinds of claims, wrote Justice Francis R. Fecteau.

According to the court records, McCarthy’s father, Richard called Waltham police from Florida around 3:43 a.m. on March 4, 1997 to say his son sounded incoherent on the phone and that he suspected the son might have overdosed.

When officers arrived at McCarthy’s apartment, they said he appeared intoxicated and agitated, but never mentioned he was feeling suicidal. McCarthy was taken into protective custody, where police planned to hold him for eight to twelve hours.

Richard McCarthy alleges that when he called police again shortly after 4 a.m. to see how his son was doing, a dispatcher told him James had talked about committing suicide.

Around 5:30 a.m., McCarthy’s aunt, Betty Ann Marino of Westborough, also called police to ask how long James would be held and if officers could alert her so she could get to the station before he was released.

Marino alleges two dispatchers assured her at different times that morning they would call her, but never did.

An hour after he left the station, McCarthy was found by his sister and her boyfriend in his apartment hanging from a pipe. He was pronounced dead the following day.

John Cervone, the city's solicitor, said he's "very happy" with the decision since it affirms the city's argument all along that the statute provides the city and police immunity from such lawsuits provided they aren't the direct cause of McCarthy's death. 

"What police did was within accepted procedures and they don't have to go beyond that," said Cervone.

Attorney Timothy G. Lynch, who represented Richard McCarthy, also could not reached.

Christina Pazzanese can be reached at cpazzanese@globe.com.

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