1

The Failure and Troubled Legacy of “Titicut Follies”

Nicole K. StricklandMica Critchfield

Georgia State University

2

THE FAILURE AND TROUBLED LEGACY OF “TITICUT FOLLIES”

Arguably the most horrifying sequence of “Titicut Follies”

begins with a shot of a mortician preparing a body for burial;

stuffing and sewing shut the eyelids. Director Frederick Wiseman

leads his audience back and forth between scenes of the body’s

preparation and scenes of the deceased patient’s final days,

including forced feedings. Initially the viewer assumes the

scenes depict two separate patients shown in parallel. The back

and forth of the rapid sequence of cuts is confusing.

Eventually, we understand that this section shows the fate of a

single man and he is already dead. Only then does the viewer

understand that the inmate’s suicide attempt was fueled by his

treatment at Bridgewater and the forced feeding was the

institute’s attempt to prevent it. The implication is that this

force feeding occurred often enough for the prison’s staff to

have been familiar with it. The lack of respect the staff

3demonstrated for the patient is the pre-death sections of the

montage is shocking - the supervising physician held a cigarette

with a perilously clinging bit of ash directly over the patient’s

open feeding tube and he spoke to the patient as one would to a

wayward child as he attempted to scrape the last vestiges of

vaseline out of the container before shoving several feet of

feeding tube down the man’s nose. The patient’s discomfort was

of no concern; only the physician’s ability to avoid fetching a

new jar of vaseline. The nurse corrected the physician when he

failed to stop pushing the tube when it reached the mark

indicating the stopping point. No one apologized to the patient

- for either the mistake, the cigarette ash in his liquid food or

the cigarette smoke in his face - as if, to the staff, the

patient was not a person, but a problem to deal with. The

patient’s identity, as well as his choice whether to live or die,

no longer belonged to him. The day the inmate was committed, he

lost the right to make those choices. Instead, that right had

been entrusted to the state in the form of the physician with the

cigarette.1

1 Titicut Follies, Directed by Frederick Wiseman, Zipporah Films Inc, 1967.

4By the end of Frederick Wiseman’s 1967 documentary “Titicut

Follies”, the audience has observed not only the brutal final

days of the nameless deceased patient, but also public nudity,

strip searches, mockery, humiliation and degradation of patients

at the hands of their caregivers in the state-run Bridgewater

State Prison for the Criminally Insane in Massachusetts. Over

twenty nine days2, Wiseman observed the goings-on at Bridgewater

State Prison but “Titicut Follies” would never see wide

distribution and it would be twenty years before the hundreds of

inmates housed at Bridgewater from the 60’s through the 80’s got

any kind of justice.3

The early rulings handed down in Massachusetts regarding the

matter of Commonwealth of Massachusetts v. Frederick Wiseman flew

in the face of the First Amendment using the Right to Privacy as

a shield. The 1967 injunction against exhibition of the film and

the 1968 order to destroy all copies of the film were precisely

the types of decisions the First Amendment was enacted to protect

against. The rulings censored Wiseman’s speech in order to

2 Anderson, Carolyn. "The Conundrum of Competing Rights in TITICUT FOLLIES." Journal of the University of Illinois Film Association 33 (1981): 17.3 Horn, M. (1993). Shining a light on their follies. U.S. News & World Report, 114(14), 20.

5protect the state’s reputation at the expense of Bridgewater’s

inmates.

The state of Massachusetts’ decisions to censor “Follies”

was an abuse of power so egregious it served as a model for what

not to do in later cases. The judicial legacy of the decisions is

varied - Bridgewater has often been in the news, but rarely, if

at all, for a positive event. Particularly because the case

concerned adults with mental illness, the Massachusetts courts

had the ability to manipulate laws regarding guardianship of the

mentally incompetent, privacy law and contractual law to subvert

Frederick Wiseman’s First Amendment freedoms in a mostly

successful attempt to protect its reputation and that of its

agents. We begin with a thorough discussion of Commonwealth v.

Wiseman then explore contemporary cases that cast further

aspersion on the Wiseman rulings, first in terms of protections

for the defenseless and then in terms of the common law right to

privacy. Lastly, we survey a variety of cases involving

Bridgewater inmates since the Wiseman appeal in 1969 - including

the homicide of a patient at the hands of a guard in 2010 - to

track the troubled legacy of Commonwealth v. Wiseman.

6Commonwealth v. Wiseman

Frederick Wiseman was a lawyer-turned-filmmaker. He first

visited Bridgewater in order to show students in his legal

medicine course “the realities of law and custodial

institutions”4. What he witnessed there troubled him deeply.

Wiseman undertook the documentary project that would eventually

be named “Titicut Follies” with the intent to alert the public to

the conditions at Bridgewater and spark positive changes for the

inmates. Wiseman initially approached Massachusetts’

Commissioner of Corrections, in regards to filming a documentary

about life at Bridgewater, with the full support of the prison’s

Superintendent Charles Gaughan, who saw the film as a chance for

exposure. Gaughan had previously pushed for funding to improve

the substandard conditions and outdated facilities at Bridgewater

but his plea fell on deaf ears.5 Wiseman would later claim that

after viewing the film, Gaughan and his superior, Commissioner of

Corrections, John Gavin, reacted positively, and felt it would

4 Anderson 15.5 "The "Titicut Follies" Case: Limiting the Public Interest Privilege." Columbia Law Review 70 (1970): 360.

7draw the attention and support needed to improve conditions at

Bridgewater. 6

After filming completed in 1967, Wiseman entered the film

into The New York Film Festival. Though “Follies’’’ early

critical reception was positive elsewhere - it won first prize

for documentary film at the New York Film Festival in addition to

awards from festivals in Germany and Italy7 - the government of

Massachusetts did not enjoy the attention the film garnered.

“Follies” came to the attention of the Attorney General of

Massachusetts when Wiseman contracted with Grove Press to

distribute the film to the general public in the United States

and Canada. The contract entitled Wiseman to 50% of theatrical

receipts and 75% of television receipts.8 Before “Follies” could

be shown at the New York Film Festival in 1967, the officers at

Bridgewater sought an injunction banning the release of the

film.9 The suit claimed the film, in its depiction of nudity and

abuse, went far beyond the initial permissions given Mr. Wiseman.

6 Anderson 18.7 "The "Titicut Follies" Case: Limiting the Public Interest Privilege." Columbia Law Review 70 (1970): 361.8Cullen v. Grove Press 276 F. Supp. 727, 729-731 (S. D. N. Y.)9 Ibid.

8Gaughan acted as a guardian and filed a damage suit on behalf of

a patient whose depiction in the film showed exceptional

cruelty.10 Wiseman had collected permission from those inmates

deemed mentally competent to decide for themselves and from

either legal guardians or the Superintendent acting as parens

patriae for those deemed mentally incompetent. Wiseman and the

Superintendent struck and oral agreement concerning the

permissions granted and editorial control of the film.11

The trial judge called the film “crass...commercialism” and

an abuse of the privilege the state had granted Mr. Wiseman in

allowing him to make the film. He ruled the film was “an unjust

intrusion into the inmates’ privacy... not warranted by any

legitimate public concern.”12 He commented that the public’s

right to know did not outweigh the inmates’ right to privacy,

10 Anderson 19. This is the patient referred to as “Jim” in the film. He is shown living naked in an completely empty concrete cell. As the guards are leading him to a room where he can freshen up, they are mocking the patient for his lack of cleanliness in the cell which is even more horrible considering this man has no possession, even including clothing. The best we can assume is that this man failed to clean up his bathroom bucket once to earn this level of derision. They take the man to was up and receive a shave, where the man tasked with shaving him does so with very little compassion, therazor is drug roughly over his face, cutting him multiple times. Jim is still bleeding as he is brought back to his cell, once again being degraded for the filthiness of his cell. 11 Commonwealth v. Wiseman 356 Mass. 25112 Ibid.

9particularly in light of the degrading situations in which they

were depicted. The ruling dismissed witness testimony which

stated that the film held educational, artistic and journalistic

value.13

Perhaps the clearest evidence of intentional First Amendment

violation is the reference to the “Massachusetts violation of

privacy”. At the time of the ruling, Massachusetts had neither

common law nor statutory right to privacy.14 The trial judge

specifically cited the abuses as the strongest evidence for

invasion of privacy, stating the inmates could not have

understood what they had agreed upon because they had not seen

how the film would depict them.15 Those same abuses were also

the strongest evidence for public exhibition - major changes at

Bridgewater would only happen if the public outcry forced

movement on the issue - and the reference to the invasion of

privacy as “not warranted by any legitimate public concern” was

an egregious dismissal of the state’s responsibility to those in

its care.

13 Ibid. 14 Anderson 19.15 Commonwealth v. Wiseman 356 Mass. 251

10In 1969, the Suffolk Superior Court heard the case and

banned all copies of the film and demanded all negatives

destroyed. The action was intended to erase the film - and with

it, the most emotional argument against the State. On appeal, the

Massachusetts Supreme Court upheld the ruling, but lifted the ban

on the film to allow professionals and educational establishments

to use it - only these particular professionals and scholars

would benefit from it - under the condition that each time the

film was shown, viewers must read aloud a document stating that

since the film’s creation in 1966, changes and improvements had

occurred at Bridgewater. If any doubt remained that the goal of

the State’s case was to protect its reputation, this caveat

removed it.16

In both the federal and supreme courts of the State of New

York - where the film exhibited as part of the New York Film

Festival - the courts saw “Follies” as a significant exposure of

abuses in a public mental health facility and thus protected

16 This caveat would be proven false 20 years later, when the families of inmates sued for wrongful death, specifically citing the Massachusetts’ courtsjudgements as reasons why changes were not made when “Follies” was created. “Film on State Hospital Provocative after Twenty Years,” New York Times, March 17, 1987, http://www.nytimes.com/1987/05/17/us/film-on-state-hospital-provocative-after-20-years.html.

11under the First Amendment. The New York courts ruled in

Wiseman’s favor, granting him and Grove Press unrestricted

exhibition of “Follies”.17

The Massachusetts courts’ refusal to grant the inmates’

abuses equal weight as those given to the invasion of

privacy/breach of contract arguments spoke to their desire to

censor “Follies” as quickly and efficiently as possible. The

attempt to literally wipe the film off the face of the earth was

only part of a relentless quest to protect the reputation of the

commonwealth and its agents. Their arguments against exhibiting

the film revolved around a vague oral contract and a horrendous

invasion of the inmates’ privacy on Wiseman’s part. Very little

was said about the abuses themselves. No one pointed out that

Frederick Wiseman could not have filmed abuses that never

happened. No one commented on the state’s responsibility for

protecting the inmates from the abuses in the first place. It was

in the state’s best interest to avoid these arguments, so

instead, the prosecution zeroed in on the method Wiseman chose to

exhibit the film, i.e. making the exhibition of “Follies” a

17 Cullen v. Grove Press 276 F. Supp. 727, 729-731 (S. D. N. Y.)

12commercial venture18, in order to continue pressing its attack.

The court decided the film was “abject commercialism, trafficking

on the loneliness, on the human misery, degradation and

sordidness in the lives of these unfortunate humans” rather than

a piece intended to expose horrors within the institution.19 It

would seem the judges regarded the public exhibition of the

atrocities as more detrimental than the atrocities themselves.

Comments regarding the commercialism of the film’s exhibition was

brutal, but the notion that the film had no commercial intentions

for exhibition seemed flimsy. According to Mr. Wiseman, he never

indicated he intended the film as anything but a commercial

venture.20 Also, one must wonder how Wiseman could have been

expected to distribute the film widely enough to spark attention

sufficient to spur the government to action without commercial

distribution.

18 Although it is important to note that “Follies” was largely self-funded. Whatever funds did not come from Wiseman himself, came from PBS. Wiseman himself often stated in interviews discussing his films, many had to wait years for enough funding to make them. Frederick Wiseman, interview by Jesse Pearson, 2008. http://www.vice.com/read/doc-v14n9.19 Commonwealth v. Wiseman 356 Mass. 25120 Frederick Wiseman, interview by Jesse Pearson, 2008. http://www.vice.com/read/doc-v14n9.

13The Massachusetts courts abused the delicate balancing act

concerning right to privacy versus first amendment freedoms in

order to protect the state’s reputation. The Wiseman rulings

did not take into account the significance of their places in the

history of privacy law and set a nasty precedent for the abuse of

citizens.

The MA courts’ failures to protect the defenseless

Over the next 44 years, the state of Massachusetts would

hear a number of cases requiring the judge to weigh the privacy

of the defenseless against the public’s need to know. The Wiseman

rulings would serve as examples of what not to do. 1986 saw the

initial action in the civil matter of The Judge Rotenberg

Educational Center v. Commissioner of the Department of Mental

Retardation21 case wherein representatives for current and former

mental health patients treated at state-run facilities requested

permission to inspect, photograph and videotape designated

facilities to determine whether the patients’ treatment violated

their constitutional and statutory rights. The state consented to

the discovery under a specific condition - only patients whose

21 N.O. v. Callahan, 110 F.R.D. 637, 649 (D. Mass. 1986)

14guardians consented could be included in the documentation.22

The original findings prompted the state to settle with the class

of plaintiffs but in 1993 an alleged violation of the court-

approved settlement agreement prompted plaintiffs’

representatives to bring a contempt motion against the Department

. Included with the contempt action was a request to appoint

next friend guardians for the plaintiffs who could then intervene

on the plaintiffs’ behalf. The only reason to appoint a next

friend guardian23 - an additional guardian with legal authority

to make decisions on the incompetent individual's’ behalf - for

22 The Commonwealth of Massachusetts has recognized the privacy rights of mentally ill patients in state mental hospitals. Mass. G.L. c. 111, § 70E(j) provides that each patient or resident of DMH facilities is entitled to "privacy during medical treatment or other rendering of care within the capacity of the facility." See Rogers v. [*641] Comm'r of Department of Mental Health, 390 Mass. 489, 458 N.E. 2d 308, 313-314 (1983) (each person hasstrong interest in being free from nonconsensual invasion of his bodily integrity). See Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E. 2d 610, 615 (1969), cert. denied, 398 U.S. 960, 26 [**8] L. Ed. 2d 546, 90 S. Ct. 2165 (1970)23State statutes now set the qualifications and duties of a person who acts as a next friend, but these laws more commonly designate this person a guardian ad litem, or a court-appointed special advocate. Regardless of the designation, this person's responsibilities are now confined to representing aminor or incompetent person in a lawsuit or court proceeding. At common law, anext friend represented a plaintiff, whereas a guardian ad litem represented a defendant. This distinction has been removed in modern law.A next friend is not a party to a lawsuit but an officer of the court. When the lawsuit is concluded, the next friend's duty ends. The next friend has no right to control the property of the person she or he represents or to assume custody of that person. These rights may be given to a person designated by a court as a minor's or incompetent person's guardian

15the plaintiffs would be to nullify any possibility that the

current guardians - whether legal guardians or state-appointed,

such as Superintendent Gaughan and Commissioner Gavin for the

inmates at Bridgewater - had a conflict of interest. The judge

declined to appoint next friends in this case and to allow any

appointed next friends the power to intervene. The 1st Circuit

Appellate Court upheld her decision, stating “a next friend is

not required where there is a duly appointed guardian, unless it

is clear that the interests of the guardian and the ward

conflict.” Though they never intended the material gathered in

the discovery for use in a commercial manner - the court granted

the permissions under the rules that governed discovery24 - the

question of who could act as guardian for, and thus approve an

invasion of privacy for, a mentally incompetent individual was

contested.

The existence of the next friend rule takes us back to

Commonwealth v. Wiseman. The trial judge considered the consent

of the state as parens patriae to the inmates at Bridgewater, in

the form of Superintendent Gaughan , (where a legal guardian was

24 Rule 26 of the Federal Rules of Civil Procedure.

16not available) sufficient to approve the creation of the film

under the caveat only those inmates who had their competency to

understand and decide whether to participate or not examined,

could appear. Superintendent Gaughan and then Attorney General

Elliott Richardson25 - as parens patriae guardians for the

inmates and the supervisory agents for the state - saw “Follies”

prior to its first public exhibition. Records from the initial

trial state both men had concerns about the invasion of privacy

present in the film in regards to the number of inmates depicted

in the film who were not competent to understand and sign a

release. Gavin withdrew whatever releases had been signed,

stating none of the inmates could have understood what they were

agreeing to because, in signing before the film was edited, they

could not know how the film would depict them. Gaughan also

informed Wiseman the film could not be shown without further

editing.

However, in 2008, during an interview with fan Jesse

Pearson, regarding the re-release of the film, Wiseman would

25 Elliot Richardson was the Lieutenant Governor who initially helped Wisemanobtain permission to film at Bridgewater and by the end of filming he was the Attorney General of Massachusetts.

17state “They both [Gaughan and Richardson] initially liked the

film. They knew that Bridgewater was like that, in part because

of the absence of money to attract and train competent guards,

psychiatrists, and social workers. That was one of the

points...They both praised the film and condemned the state of

Massachusetts.” The trial records indicate Mr. Richardson

described the film as “impressive in many ways....powerful in

impact.”

Both Superintendent Gaughan and Commissioner Richardson had

clear conflicts of interest in the Commonwealth v. Wiseman case..

Gaughan, as the supervising agent on site during filming of

“Follies”, was ultimately responsible for the depictions Wiseman

was allowed to capture. As the highest-ranking state’s agent at

Bridgewater and the referenced agent of the state’s as parens

patriae guardianship of the inmates., he would be expected to

represent the interests of both the state of Massachusetts and

the inmates housed at Bridgewater in any matter bringing those

two powers into opposition. This says nothing of his substantial

interest in publicizing the conditions at Bridgewater in hopes of

spurring improvement, an interest shared by Attorney General

18Richardson, who used his influence as then Lieutenant Governor to

initiate the documentary project. Mr. Richardson, as Attorney

General when Commonwealth v. Wiseman went to appeal, was legal

responsible for representing the state in any action against it

regarding the treatment of the inmates at Bridgewater, yet if the

state took legal action on behalf of the inmates, as it did in

Commonwealth v. Wiseman, he would be forced to recuse himself as

their advocate and instead appoint a special prosecutor, which he

did.26

Even without the conflicts of interest for Mr. Gaughan and

Mr. Richardson, the content of the film created substantial

potential for charges of abuses of the inmates by the state’s

agents. Yet, in the appellate decision, Judge Kalus contradicted

himself, remarking on both the court’s recognition that the

conditions at Bridgewater would continue to be of public concern

and that certain conditions were “of no legitimate public

concern.” He also commented that no inmate shown in the film

“had any special news interest as an individual” and the only

news interest any of the inmates had corresponded to the fact

26 "The "Titicut Follies" Case: Limiting the Public Interest Privilege." Columbia Law Review 70 (1970): 359-371.

19that they were inmates at Bridgewater. Undoubtedly, the conflicts

of interest were substantial enough to justify the appointment of

a next friend for each inmate depicted in the film. The

Massachusetts next friend rule existed as early as 188127,

leaving no reasonable expectation that, by 1967, either the trial

or appellate judge had no familiarity with the rule. Yet neither

judge chose to enact it.

The Wiseman decisions presented the courts an opportunity to

address the growing problem of inadequate conditions at

Bridgewater. “Titicut Follies” was not the first demonstration of

subpar living conditions and treatment for the inmates there. The

Wiseman appeal was decided in June 1969, but Nason v.

Superintendent of Bridgewater had brought some of the prison’s

issues to light in early 196828.

Indicted for the murder of his wife, but found not competent

to stand trial in September 1962 John Nason was bounced from

Medfield Hospital to Bridgewater before being committed to

27 Commonwealth of Massachusetts. 1881. The Public Statutes of the Commonwealth of Massachusetts, Enacted Nov. 19, 1881. Boston: Band, Avery and Company. 1087.28John W. Nason v. Superintendent of Bridgewater State Hospital 353 Mass. 604; 233 N.E.2d 908; 1968 Mass. LEXIS 699

20Bridgewater in June 1963 for evaluation. During his time at

Bridgewater, no one treated him. There was no evaluation, no

medication, no psychotherapy. Nason sued the Superintendent for

a writ of habeas corpus in 1967, claiming his forced confinement

without treatment deprived him the due process of the law. The

court appointed a special commissioner to investigate. The

commissioner found Bridgewater desperately understaffed, with no

feasible way to care for the 600 inmates, and the facility

“rundown and antiquated”. He commented on the record that there

was “no reason to keep Nason, or anyone else at Bridgewater.” He

went on to say “Cases like this present serious constitutional,

legislative, and budgetary problems.”29 The state initiated

basic improvements at Bridgewater, but when Judge Kalus decided

the appeal of the Wiseman case in 1969, he carefully cited only

ongoing improvements with no specific information as to the

nature of the improvements. He did not request an investigation

into the improvements based on the content of “Titicut Follies”.

In many ways, the courts wilfully and carefully failed to protect

the inmates and patients of Bridgewater.

29Ibid.

21The fallacy of the privacy argument

The Massachusetts courts abused the delicate balancing act

concerning right to privacy versus first amendment freedoms in

order to protect the state’s reputation. The Wiseman rulings in

Massachusetts did not take into account the significance of their

places in the history of privacy law and set a nasty precedent

for the abuse of citizens.

The Wiseman appeal marked the first time the state of

Massachusetts recognized a common law right to privacy. However,

its application to the inmates and patients at Bridgewater seemed

to apply universally although all residents of Bridgewater at the

time were not of equal standing - the facility housed not only

the criminally insane , but also those incompetent to stand trial

due to mental illness. The commonality among the residents was

the need for maximum security.30

Contemporary privacy expectations for free citizens,

prisoners and patients differ dramatically. But in 1969, laws

discussing the rights of prisoners were few and far between. Soon

after the Wiseman appeal, reform began. In 1984, Hudson v Palmer

30 Anderson 17.

22finally set a legal precedent. The decision stated individuals

either lose the right to privacy altogether or enjoy a

dramatically reduced right to privacy while incarcerated.31

According to the special commissioner who reported on conditions

at Bridgewater for Nason v. Bridgewater32, the prison did not

physically allow for significant distinction between the privacy

expectations of prisoners and patients. Any patients there, not

under criminal indictments, still had to live under maximum

security, although the commissioner did question whether creating

maximum security facilities at other hospitals would not have

been a more feasible option for those individuals. Functionally,

there was no difference in the privacy expectations for the

31Hudson v. Palmer, 468 U.S. 517 - “A prisoner has no reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches. While prisoners enjoy many protections of the Constitution that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration, imprisonment carries with it the circumscription or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety. It would be impossible” Even in this case, it was decided that the prisoners had a right against the unreasonable search a seizure. The strip searches which the prisoners were subjected to in Bridgewater would be unconstitutional less than10 years later.

32 John W. Nason v. Superintendent of Bridgewater State Hospital 353 Mass. 604; 233 N.E.2d 908; 1968 Mass. LEXIS 699

23patients and prisoners living in the areas of Bridgewater

depicted in “Follies”. The text of the decision itself bears this

out as it uses the terms ‘inmate’ and ‘patient’ interchangeably -

as well as ‘prison’ and ‘hospital’.

A Columbia Law Review article places the responsibility for

the invasion of privacy on the state of Massachusetts and its

agents at Bridgewater, rather than on Frederick Wiseman. The

authors saw the camera as a necessary intrusion on the inmates’

privacy in order to expose the realities of life at Bridgewater.

Frederick Wiseman could not have filmed an event that never

happened, so the responsibility for the intrusion rested with

Bridgewater’s management. The commonwealth failed in its duty

“to prevent a massive unrestrained intrusion into intimate

lives.”33 Indeed the footage Wiseman captured during his 29 days

at Bridgewater demonstrated regular, if not daily, public strip

searches, forced nudity for extended periods of time and the

supervising psychiatrist discussing the frequency with which he

had to force feed patients.34

33 "The "Titicut Follies" Case: Limiting the Public Interest Privilege." Columbia Law Review 70 (1970): 359-371.34 Titicut Follies, Directed by Frederick Wiseman, Zipporah Films Inc, 1967.

24The Bridgewater rulings were the exception that proved the

rule in terms of balancing a right to privacy with both the

protection of the defenseless and the public’s right to know.

Recently, a similar case in the UK demonstrated the significance

of this particular balancing act. In June of 2011, undercover

footage of life inside Winterbourne View - a private hospital for

people with learning and mental disabilities - appeared on an

episode of BBC Panorama. A former Winterborne View nurse reported

the abuses occurring there to the BBC. Panorama producers

assigned reporter Joe Casey to investigate the story. Casey

obtained a job as an orderly at Winterborne View, allowing him

concealed, but unrestricted, access to the facility. The footage

he shot depicted the staff both physically and verbally abusing

the patients - slapping, taunting and even dragging them into the

shower fully clothed.35

Much like Bridgewater, the staff used the patients’

disabilities against them, mocking and taunting the patients.

Many patients did not have the capacity to complain or even

understand what the staff truly had done to them. In a BBC

35 BBC News, “Four Arrests After Patient Abuse Caught on Film,” BBC News, June1, 2011. http://www.bbc.co.uk/news/uk-13548222.

25article discussing the situation, Andrew McDonnell, a clinical

psychologist who works with mentally disabled adults, labeled the

footage “torture”. He noted all professional techniques for

dealing with challenging disabled patients were ignored. The

public outcry over the lack of inspections - inspections that

would have uncovered these abuses - appeared soon after the show

aired.

After the Panorama episode containing the footage aired,

numerous agencies, including the National Health Service36,

immediately voiced their concerns about the treatment of these

patients. Again, much like at Bridgewater, reports soon proved

that many warnings and complaints about the hospital had been

ignored or dismissed. 18 year old patient Simone told her parents

of the abuses she had suffered and they immediately contacted the

hospital’s managers. Winterborne View’s management assured her

parents the abuses did not occur, but Joe Casey’s footage

depicted staff throwing cold water on her as punishment for ill

behavior.37 Former senior nurse, Terry Bryan informed both

36 BBC News, “Timeline: Winterbourne View abuse scandal,” BBC News, December 10, 2012. http://www.bbc.co.uk/news/uk-england-bristol-20078999.37 BBC News, “Four Arrests After Patient Abuse Caught on Film,” BBC News, June1, 2011. http://www.bbc.co.uk/news/uk-13548222.

26Winterbourne View’s administrators and the Care Quality

Commission (CQC) about the abuses at the hospital. The CQC‘s

function is to perform quality checks on hospitals and care homes

to protect against abuses precisely like the ones occurring at

Winterborne View, yet no quality checks ever happened. On Bryan’s

urgings, BBC panorama assigned Joe Casey to investigate. 38

The situation at Winterbourne View easily parallels the

situation at Bridgewater. Both situations demonstrate that the

administrators, charged with the protection of the defenseless,

failed to protect their charges from the staff and attempted to

bar the publication of any material which would uncover the

truth. Yet the courts in the UK prevailed where the

Massachusetts courts failed.

While the welfare of Bridgewater’s patients and inmates was

lost in the debate over contracts and privacy, the Winterbourne

View case made the patients’ welfare the central issue. When the

BBC Panorama episode aired, 13 employees found themselves

immediately suspended. Over the next 2 months, seven additional

employees lost their jobs, at least 2 more nurses were

38 Ibid.

27disciplined, and several other employees came under investigation

for their involvement.39 The CQC released several statements

regarding the hospital’s failure to provide adequate care and

addressed its own failings, admitting that some of the

preventable abuses would not have occurred had the agency acted

when Terry Bryan initially brought the situation to the agency’s

attention. All of the agencies involved - the CQC, NHS, and the

SAB (Safeguarding Adults Board) - apologized and initiated

actions to remedy the situation at Winterborne View. 40

In the end, Winterbourne View closed and Britain reevaluated

the system responsible for investigating the quality of hospital

care. A total of 11 care workers admitted to 38 charges of abuse

or neglect and appeared in court on these charges. Courts found 6

of Winterborne View’s employees guilty on charges and sentenced

them to 2 to 6 years in prison. Several public officials

initiated research and policy initiatives to fix gaps in the

39 Larisa Brown, “'Culture of cruelty': 11 care home workers sentenced for shocking abuse of vulnerable residents exposed by Panorama probe,” Daily Mail, October 26, 2012, http://www.dailymail.co.uk/news/article-2223514/Winterbourne-View-11-care-home-workers-sentenced-abuse-exposed-BBC-Panorama.html.

40 BBC News, “Timeline: Winterbourne View abuse scandal,” BBC News, December 10, 2012. http://www.bbc.co.uk/news/uk-england-bristol-20078999.

28mental health care system. Families who previously felt powerless

to do anything about the abuse of their loved ones, have now come

forward to disclose other problems. In time, a better mental

health care system will emerge.41

Unfortunately, the Wiseman decisions helped only to bury the

truth about conditions at Bridgewater. The court stated “the film

gives a striking picture of life at Bridgewater and of the

problems affecting treatment at that or any similar institution.

It is a film that would be instructive to legislators, judges,

lawyers, sociologists, social workers, doctors, psychiatrists,

students in these or related fields and organizations dealing

with the social problems of custodial care and mental infirmity.”

The fact that the patients were abused was clear and

unchallenged, yet the court found “Follies” to be nothing more

than an educational tool and ignored its own responsibility to

protect the inmates and patients. Despite the court’s insistence

upon seeing the situation at Bridgewater as a learning

41 Larisa Brown, “'Culture of cruelty': 11 care home workers sentenced for shocking abuse of vulnerable residents exposed by Panorama probe,” Daily Mail, October 26, 2012, http://www.dailymail.co.uk/news/article-2223514/Winterbourne-View-11-care-home-workers-sentenced-abuse-exposed-BBC-Panorama.html.

29opportunity, none of the staff received any sort of discipline or

lost their job, Bridgewater allowed no further inquiries and only

1 more investigation of the “Follies” inmates occurred .

The Massachusetts State Commission of Mental Health held a

hearing prior to the Supreme Court ‘s 1969 decision to deny the

writ of certiorari. The commission’s investigation quickly

turned into a debate about how to deal with “Follies”’ exhibition

rather than the well-being of the patients and inmates. The

commission stated “its [Titicut Follies’] stark portrayal of

patient-routine and treatment of the inmates is at once a

scathing indictment of the inhumane conditions that prevailed at

the time of the film and an undeniable infringement of the

privacy of the inmates filmed, who are shown nude and engaged in

acts that would unquestionably embarrass an individual of normal

sensitivity”.42 The statement explicitly acknowledges the

“inhumane conditions” at Bridgewater, yet according to the

decision, these facts paled in comparison to the privacy

invasion. One can all too easily wonder: if Wiseman had given his

42 Anderson, Carolyn. "The Conundrum of Competing Rights in TITICUT FOLLIES."Journal of the University of Illinois Film Association 33 (1981): 1.

30documentary to news outlets instead of film festivals, would the

future of “Titicut Follies” - and of Bridgewater and the men

imprisoned and committed there - have been different?

The legacy of “Titicut Follies”

In 1969, Judge Kalus may have thought the problematic

conditions at Bridgewater were being addressed but in the decades

since the Wiseman appeal, Bridgewater State Hospital has never

been out of the news or the courtroom for very long. Even

before Kalus decided the appeal, news crossed the country of a

massive investigation into allegations which said Bridgewater had

illegally held approximately 300 inmates - some for more than 25

years. No major improvements resulted from the investigations.43

Hidden in the shadows of the “Titicut Follies” case,

Bridgewater’s next big scandal did not garner as much attention

as it should have. The hospital saw a rash of unexplained deaths

- eight deaths between February 1967 and July 1968.44 Then

Attorney General Elliott Richardson, called for an investigation

43 Spokane Daily Chronicle, “State Checking on Inmate Status,” Spokane Daily Chronicle, June 3, 1968.44 “Film on State Hospital Provocative after Twenty Years,” New York Times, March 17, 1987,” http://www.nytimes.com/1987/05/17/us/film-on-state-hospital-provocative-after-20-years.html.

31after The Boston Globe broke the story. At least 1 death, that

of 55 year old Edward Roake - who choked on an eyeglass lens

while restrained in solitary confinement - was blamed on the

negligence of several guards who, in turn, argued that

understaffing caused Mr. Roake’s death.45 Representatives from

the guards’ union reported between August 1967 and July 1968,

Bridgewater guards filed more than 2 dozen complaints of

understaffing, insufficient inmate monitoring and inadequate

training. The lawyer for a 62 year old inmate who choked to death

on a hot dog in 1967 described Bridgewater as “a secret tunnel

people can drop into.”46 We could not locate any records of

improvements made in response to this case.

Bridgewater’s troubles have not relented despite assurances

the institution has attempted to correct the issues in its

checkered past. In 1997, inmate Philmore Gibson died of alleged

asphyxiation after guards restrained him. Officers handcuffed him

with his hands behind his back then placed him face-down on the

45 Massachusetts Medical Society, et al., Petitioners v. Dukakis, Michael S.,et al.484 U.S. 89646 Horn, M. (1993). Shining a light on their follies. U.S. News & World Report, 114(14), 20.

32floor for several minutes. In an article published in the

American Journal of Forensic Medicine and Pathology, scientists

demonstrated that asphyxiation caused the deaths of several

patients who sat handcuffed, hands behind their backs while in an

agitated mental state. During depositions, guards testified they

had not received proper training in the use of 4 point

restraints. The state of Massachusetts settled the Gibson case

out of court.47

In 2003, Bridgewater stated it would reduce the use of

seclusion and restraint as a means of patient control .

Bridgewater had attempted to improve conditions enough to obtain

National Accreditation since 1997. The hospital superintendent

stated that of the 700 points required for accreditation, the

hospital only lacked when it came to approximately 10 “mostly

about the use of restraints and seclusion.” The reviewers who

visited the hospital noted “during 1 month, prisoners were

secluded for an average of 29 hours each, even if they were quiet

and calm.”

47 Stephen Kurkjian, "Inmate may have died of asphyxiation, sources say." The Boston Globe, 1997. http://www.highbeam.com/doc/1P2-8408864.html

33Inadequate training in restraint technique was again blamed

for a patient’s death in 2010 when 23 year old Joshua Messier

died when 7 guards restrained him. Messier was diagnosed with

paranoid schizophrenia and was committed to Bridgewater for

evaluation and observation after punching a nurse at a hospital.

Messier was murdered 1 month and 4 days after his committment to

Bridgewater.48

The evening of his death, Joshua visited with his family. On

the way back to his cell, he stopped in a break room he knew to

be off -limits to patients. A guard found him there and Joshua

threw a punch. The guard called for help and several guards

charged into the room to restrain Messier. Joshua’s autopsy would

reveal damage to the torso, neck and head so bad that it caused

his brain to bleed. The surveillance videos, which only became

public two years after Messier’s death, captured the last moments

of his life, and depicted the brutality which seems “standard

procedure” at Bridgewater. The guards escorted Joshua back to a

cell in the Intensive Treatment Unit, where he would be

restrained by each hand and foot. Witnesses later reported “he

48 Mike Beaudet, “Death on the ITU: video reveals fatal restraint by prison guards,” MyFoxBoston,November 15, 2012.

34said he was sorry but was gasping and having trouble

breathing”.49 A total of 7 guards helped to restrain Joshua -

one man folded Joshua’s chest down onto his legs then applied the

pressure of his body weight on Joshua’s back, even bracing his

foot against the wall for leverage. After several minutes, the

guards released Joshua and his body flopped back onto the bed.

The guards continued securing Joshua’s restraints while the cctv

feed clearly showed Joshua not breathing . His face changed from

red to blue. Approximately 9 minutes later a nurse checked on

Joshua, checked his pulse, found none, and ran for help but

Joshua had died several minutes prior.50 The medical examiner

ruled Joshua’s death a homicide.

During the officers’ depositions, one explained he had never

received formal training in 4 point restraint but used a

technique the veteran officers had taught him. Depositions from

other guards echoed the lack of formal training . However the

Department of Corrections released a statement stating “actions

taken by DOC medical and security staff were done in accordance

with standard procedure.” The guards were neither disciplined nor

49 Ibid.50 Ibid.

35criminally charged. A spokeswoman for the Department of

Corrections said there was “no indication of excessive force” in

Joshua’s death. When asked about the Messier family’s lawsuit,

the president of the Massachusetts Correction Officers Federated

Union said, "They have to accept that their son was a violent and

out of control individual."51

Discussion and directions for future research

When the Commonwealth v. Wiseman trial and appellate judges

made their decisions, they could not have accurately predicted

the decades of abuses which would follow. But as judges, their

responsibility to protect the mentally ill patients and inmates

at Bridgewater State Prison for the Criminally Insane was crucial

and they failed miserably. Their failures are further emphasized

by the willful and careful execution of their decisions to bury

the conditions at Bridgewater as deeply as possible - all in the

name of a common law right to privacy which did not, and could

not, apply to the prisoners and patients there. The decisions

flew in the face of the First Amendment - to educate an informed

citizenry so it could initiate action against a government which

51 ibid.

36failed in its duties.- and left a legacy of abuse and horror in

its wake.

Further investigation into the political subcontext of the

Wiseman decisions would reveal potentially useful information -

not only about the Wiseman case - but about the nature of

politics in the judicial, criminal and mental health systems and

the groups in our society most likely to be abused by those

politics.

CITATIONS

"The "Titicut Follies" Case: Limiting the Public Interest Privilege." Columbia Law Review 70 (1970): 359-371.

Anderson, Carolyn. "The Conundrum of Competing Rights in TITICUT FOLLIES." Journal of the University of Illinois Film Association 33 (1981): 1.

Armstrong, Dan. "Wiseman's Realm of Transgression: Titicut Follies, the Symbolic Father, and the Spectacle of Confinement." Cinema Journal 29 (1989): 20-35.

Associated Press, Bridgewater hospital changes rules of restraint and seclusion, Corrections.com,http://www.corrections.com/articles/443.

BBC News, “Timeline: Winterbourne View abuse scandal,” BBC News, December 10, 2012. http://www.bbc.co.uk/news/uk-england-bristol-20078999.

BBC News, “Four Arrests After Patient Abuse Caught on Film,” BBC News, June 1,2011. http://www.bbc.co.uk/news/uk-13548222.

Commonwealth of Massachusetts. 1881. The Public Statutes of the Commonwealth of Massachusetts, Enacted Nov. 19, 1881. Boston: Band, Avery and Company.

37Frederick Wiseman, interview by Jesse Pearson, 2008. http://www.vice.com/read/doc-v14n9.

Goffman, Erving. "Asylums: Essays on the Social Situation of Mental Patients and their Inmates." (1961).

Horn, M. (1993). Shining a light on their follies. U.S. News & World Report, 114(14), 20.

Jonathan Saltzman and Milton J. Valencia, “Patient's Death After Scuffle Ruleda Homicide,” The Boston Globe, March 10, 2010. http://www.lubinandmeyer.com/news/bridgewater_death.html.

Stephen Kurkjian, "Inmate may have died of asphyxiation, sources say." The Boston Globe, 1997. http://www.highbeam.com/doc/1P2-8408864.html

Larisa Brown, “'Culture of cruelty': 11 care home workers sentenced for shocking abuse of vulnerable residents exposed by Panorama probe,” Daily Mail, October 26, 2012, http://www.dailymail.co.uk/news/article-2223514/Winterbourne-View-11-care-home-workers-sentenced-abuse-exposed-BBC-Panorama.html.

Mike Beaudet, “Death on the ITU: video reveals fatal restraint by prison guards,” MyFoxBoston,November 15, 2012. http://www.myfoxboston.com/story/20113362/2012/11/15/death-on-the-itu-video-reveals-fatal-restraint-by-prison-guards.

Perlin, Michael L. "“Dignity was the First to Leave”:* Godinez V. Moran, ColinFerguson, and the Trial of Mentally Disabled Criminal Defendants." Behavioral Sciences & the Law 14, no. 1 (1996): 61-81.

Spokane Daily Chronicle, “State Checking on Inmate Status,” Spokane Daily Chronicle, June 3, 1968.

Szasz, Thomas. "The Titicut Follies." History of Psychiatry 18, no. 1 (2007): 123-125.

Titicut Follies, Directed by Frederick Wiseman, Zipporah Films Inc, 1967.

“Film on State Hospital Provocative after Twenty Years,” New York Times, March 17, 1987,” http://www.nytimes.com/1987/05/17/us/film-on-state-hospital-provocative-after-20-years.html.

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