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According to court records, Hershey declared Frank fit to proceed: Mr. K knows his charges. States he did not rob anyone. Knows court procedure + definitions of court procedure and personnel. Know consequences if found guilty and understands possible evidence against him. He will be able to aid his lawyer in his defense. Fit to proceed.
After Hershey declared Frank fit, Judge Rosado held a conference with the assistant district attorney prosecuting the case and the lawyer representing Frank.
That conference was apparently conducted off-the-record, outside of Franks presence, probably in the judges chambers, a court transcript of the proceeding reveals. When the court went back on the record, Judge Rosado addressed Frank directly and told him that he could plead guilty and be sentenced to seven years in prison, or he could go to trial, and be sentenced to up to 25 years. The choice was his, Judge Rosado told him, but the decision had to made immediately.
THE DEFENDANT: Give me the seven.
THE DEFENDANT: Ill take it.
THE COURT: Do you want to talk it over with your attorney?
I dont have to talk it over with nobody. I said give me the seven years [emphasis added].
Obviously, a defendant who refuses to talk with his attorney about the single most important decision in the criminal process, whether to plead guilty or not guilty, does not have sufficient present ability
to consult with his lawyer with a reasonable degree of rational understandingthe legal standard defining a mentally ill defendants fitness to proceed.
Nevertheless, Judge Rosado accepted Franks guilty plea and sentenced him to seven years in state prison.
That was the last time Joy saw Frank alive.
When Frank was received into the New York state prison system, in the fall of 2002, he was classified as mentally-ill and prescribed 10mg of Zyprexa per day, according to Franks prison medical records. In late winter 2003, according to those same records, prison doctors increased Franks daily dose of Zyprexa to 20mg per day.
Zyprexa is the brand-name for Olanzapine, a potent anti-psychotic medication commonly prescribed for schizophrenia. According to Zyprexas manufacturer, Eli Lilly & Co., the maximum safe dosage of Zyprexa is 20mg per day.
On Aug. 4, 2004, Frank was transferred to the Fishkill Correctional Facility. Prison doctors at Fishkill increased Franks Zyprexa dosage to 30mg per day10mg above the maximum recommended dosage.
On Aug. 9, a corrections officer caught Frank smoking a cigarette in a bathroom at Fishkill, a violation of prison rules. Officials conducted a disciplinary hearing, and sentenced him to solitary confinement for 30 days. When the hearing officer announced the sentence Frank stood up, abruptly and aggressively, prison disciplinary records say, which earned him another 30 days in solitary confinement for threatening staff.
On Oct. 15, 2004, after two months in solitary confinement, prison officials arranged for Franks transfer to a maximum-security prison, the Greenhaven Correctional Facility, a short 15-mile ride away.
To Frank, this would have been good news. Previously, in a letter to prison officials, Frank had expressed a preference to be housed in a cell, in a maximum-security prison, because it helped make his mental illness manageable. In other words, Frank would not have feared being transferred to a maximum-security prison, but would have welcomed it.
Shortly after 5 p.m., COs arrived at Franks cell, strip-frisked him for contraband, placed him in handcuffs, and transported him to Greenhaven. According to the State Police investigation into Franks death, he was processed into Greenhaven at 6:30 p.m. Upon being processed into the facility, Frank was taken to the prisons infirmary and evaluated by a registered nurse.
The nurse noted that Frank appeared fine, according to the State Police investigation report into his death. The nurse took Franks vital signs, and no apparent distress or medical difficulties were noted at the time of assessment, the report says.
Minutes later, as he was being escorted to his assigned cell, Frank collapsed.
Thats where Frank was first seen by a responding medical team, laying on the floor of H company, conscious, responsive and able to stand and walk with assistance to the stretcher, according to Franks prison medical records.
Frank was carried back to the infirmary he had just left.
In the infirmary, Frank began vomiting, seizing, and flailing his arms and legssigns of an overdose. Guards shackled Frank to an infirmary bed. An ambulance was summoned to the prison, from the local volunteer ambulance corp. When the ambulance failed to arrive, the prison nurse requested it be sent again, on a rush, the nurses notes say.
Frank was transported to St. Francis Hospital, in Poughkeepsie, New York, where he died.
Late in the evening on Oct. 15, 2004, a priest telephoned the home of Alice Kucharczyk, Franks mother, and asked for her address. The priest told Alice that he worked at the Greenhaven Correctional Facility, 60 miles away, and had bad news to deliver. Alice gave the priest her address, then called two of her daughters, Joy and Dolores, and asked them to come over.
Later that night, the priest told Alice, Joy, and Dee Dee that Frank had been transferred from Fishkill into Greenhaven and while he was on the way to his cell he just collapsed and they tried to get EMS. He didnt make it, but theyre doing an autopsy, Joy recalls the priest saying.
He didnt seem like he had a lot of information to share, Joy says. We said to him thanks, and we just kind of all sat around mad.
After that, Joy says, we wanted to find out what happened to Frankie and try and fix whatever wrong was made.
Joys quest for answers and justice began with the New York State Police.
Investigator William Popow was assigned to investigate her brothers death. Popow telephoned Joy and asked her to meet with him, at a State Police barracks, but Joy said he didnt have answers for them, either.
It was just another brick wall, Joys says, referring to the meeting, where they make you feel uncomfortable about being a prisoner, and dying, and having a history.
Im like, really?! What are we doing here? Is anybody investigating this? We told them what our concerns wereI never heard from him again.
From the barracks the two women drove the short distance to Greenhaven, the prison where their brother died and demanded to speak with Greenhavens warden, William E. Philips.
We wanted to speak with him, Joy says, To find out.
The two women were directed to a room, and told to sit, and wait.
And we sat there. And we sat there. And we sat there.
He never came out. They didnt give a shit. They just thought it was one less dirtbag to deal with for the day.
Instead of answers, guards at Greenhaven gave Joy and Dee Dee a huge sack containing their brothers personal effects. It was as almost as tall as they were.
It took the two of us to carry it out of the building and they kinda watched. They didnt help. They didnt offer any help. They just was like, Take it.
But Joy refused to just take it.
Back home in Yonkers, Joy began a campaign of phone calls, letters, emails, and faxes to state officials seeking answers to her brothers death.
One of the places Joy wrote was the New York State Commission on Correction, an agency charged with ensuring that prisons and jails in New York are safe and humane. Though Joys letter told the commission she was writing about the death of her brother, and requested an investigation into it, the response Joy received from the commission advised herineptly, if somewhat comicallythat the Commission does not handle transfer decisions.
Joy wrote the commission back, putting in her first sentence that she was writing about the death of her brother.
That time, the commission treated her letter like a Freedom of Information Law request, for copies of any report it issued as a result of its investigation into Franks death. The commission told Joy it was reviewing her request, and that she would hear back from it within 30-45 days of availability and cost of any such documents.
After that, the commission wrote back again and told Joy that Franks death was still under investigation. Because it was still subject to investigation, such records are not subject to FOIL disclosure pursuant to the Public Officers law.
The commission promised to inform Joy of the availability of such records upon the closure of the matter, but it never did.
Calls, letters, and faxes to the New York State Department of Correctional Services, likewise failed to provide answers, Joy and Dee Dee said.
The department declined to comment for this story.
In late October 2004, after not hearing anything further from Popow, Joy faxed a letter to State Police headquarters in Albany, New York. The letter requested that an investigation be conducted into Franks death: the family would like an investigation as to his medical records and if he was given the care of someone with schizophrenia needs. Unfortunately, due to situation and where he was I feel he wasnt Please look into this for the family and let us know your findings.
But the State Police in Albany did not respond, either.
I thought, Joy says, that somebody would do their job and investigate how he died. And I never got anywhere with that. Nobody followed-up. Nobody called. Nobody said anything.
The one entity that gave Joy answers was the Dutchess County Medical Examiners office, which mailed a copy of the autopsy report it prepared concerning Franks death.
The report stated that Frank was a schizophrenic being MEDICATED WITH ZYPREXA [OLANZAPINE, 30 MG EVERY PM]; it stated POSTMORTEM TOXICOLOGY POSITIVE FOR TOXIC LEVELS OF ZYPREXA IN BLOOD = 360 NG/ML; it stated
CAUSE OF DEATH: OLANZAPINE OVERDOSE; and it stated MANNER OF DEATH: UNDETERMINED.
After receiving the autopsy report, Joy wrote the State Police again.
Since the autopsy report found that the manner of death had not been determined, it stood to reason, Joy says, that the State Police would do that job, and determine the manner of Franks death.
The State Police, Joy and Dee Dee say, ignored multiple requests for a copy of its completed investigation report into Franks death. It wasnt until June 2005, after yet another request, that the State Police finally provided the Kucharczyks with a copy of the reporteight months after Franks death.
When she read the official report, Joy was shocked: The police had written, on the first, third, and last pages of the report, that her brother died a Natural Death.
In addition, the State Police coded the report NAD 5440.
According to Beau Duffy, the director of Public Information for the New York State Police, NAD 5440 is State Police shorthand for natural death.
The State Police provided only a redacted copy of their report into Franks death to Joy. Several typed sentences were blacked out in paragraphs documenting Popows discussion with the Dutchess County Medical Examiner about Franks death. While Olanzapines toxicity and its ability to cause death by overdose is mentioned in a paragraph in the State Police report, the report fails to state that Frank died of an Olanzapine overdosein so far as could be seen because of the redactions.
It was like looking at gibberish, Dee Dee says, remembering what she thought when Joy showed her the State Police report. Trying to make heads or tails out of it. Wondering why they blacked things out. What was the purpose of it? What are they trying to cover up?
The State Police closed their investigation into Franks death after receiving the autopsy report, without ever determining the manner of Franks death. In other words, no one ever found out how Frank received a lethal dosage of Olanzapine.
When asked to respond to this report, police spokesperson Beau Duffy said: State Police investigated this case and determined that no criminal conduct had occurred, and the case was closed.
But the State Police report does appear to rule out suicide, because it states facts that would have made it impossible for Frank to have obtained or accumulated extra doses of the drug.
According to the report, Popow spoke with the director of Nursing at Fishkill at the time, Angie Maume. Popow wanted to know how medication was dispensed to prisoners at Fishkill. According to the report, Director Maume told Popow that all psychiatric medications are nurse administered on a one on one basis, including to prisoners confined in the SHU, as Frank was for two months before his death.
Mrs. Maume stated that if an inmate is confined in the special housing unit (SHU) and requires medicationsas Frank was, and didthe medications are delivered to the inmates cell and administered directly to that inmate.
In other words, Frank was given his pills one at a time, and observed swallowing them by a prison nurse, eliminating the possibility that he could hoard medication or swallow a bottle of prescribed pills at once. Further, because he was in solitary confinement, his cell was regularly searched for contraband, and Frank had no chance to interact with other prisoners, eliminating the possibility that he could have obtained pills from another source.
None of this makes any sense, Joy said.
Neither the current Dutchess County medical examiner, Dennis J. Chute, nor the pathologist who performed Franks autopsy, Margaret Prial, who currently works for the Office of the Chief Medical Examiner in New York City, would answer questions about Franks death.
But Lawrence Kobilinsky, chair of the Department of Science at the John Jay College of Criminal Justice, agreed to review the autopsy and police report about Franks case and share his thoughts.
Kobilinsky told us that I have noted similar findings in other cases and it appears to me that a toxic dose for one person is not a toxic dose for another. In other words, a sublethal dose can be toxic for somebody who is more sensitive to the drug than the average person. Although there are contraindications and warnings about taking olanzapine, it is generally thought to be a safe drug as long as the patient takes the right dose and is monitored properly (and does not commit suicide). Other than this, I cannot say more.
At the time of Franks death, Joy and the rest her family could not afford to simply hire a lawyer to represent them.
So Joy took it upon herself to talk to as many lawyers as would listen, in an attempt to convince one of them to take the case on a contingency basis, meaning, theyd get paid when and if a lawsuit was successful. But lawyers hesitated, because, as a mentally ill 44-year-old man with a record of institutionalization, Franks life was of little financial worth.
Basically it boiled down to the value of his life, Joy says.
He had no value. He was not married. He didnt have kids. He was basically in their eyes worthless.
Time went by. Because the three-year statute of limitations on filing suit had been ticking all along, Joy and the rest of Franks family faced a looming deadline after which she would be forever barred from suing, and holding anyone responsible for Franks death.
In black ink sculpted by elegant penmanship Joy wrote out a civil indictment of the state officials who, she alleged, killed her brother through mistreatment and neglect: Frank Kucharczyk, while being denied good and accepted treatment for his serious psychologically debilitating medical condition, suffered severe emotional torture and died by drug overdose while in DOCS custody.
In order to be able to file the lawsuit without paying the steep $400 filing fee, Joy swore out a motion to proceed as a poor person, known in federal court as an application for
in forma pauperis status. In her application, Joy swore under oath that she had only $28 in her checking account, and $40 in her savings account.
Then she went and filed the paperwork in the United States District Court for the Southern District of New York.
The complaint caught the attention of Kimba Wood, who was at the time the chief judge of the court. Because of the amount of frivolous
pro se complaints the federal court receives, it maintains a special unit that screens and routinely dismisses scores of pro se complaints, without requiring the accused defendants to answer. While she was chief judge, Wood oversaw this unit.
Wood took notice of Joys complaint. In her judgment, Joys complaint was legally deficient. However, instead of dismissing it outright, as usually occurs in such cases, Chief Judge Wood returned the complaint to Joy with what amounted to a judicial road-map on how to re-write the complaint so that it passed legal muster.
In the meantime, Joy was able to find a lawyer to take the case, but by then the statute of limitations had passed, and her lawsuit was eventually dismissed on procedural grounds, without a hearing or trial.
That was seven years ago.
We never found anything out, Joy says. Nobody contacted us. It was like he was buriedthe story was buried.