WILKES-BARRE — With his health in rapid decline, a cancer-stricken Raphael Musto is facing an uncertain homecoming.
A federal judge on Friday ordered the former state senator to be immediately released from a government medical facility in North Carolina so he may return to Luzerne County and be examined by his family’s physicians, one of whom says hospice may be the 85-year-old’s ultimate destination.
“It’s obvious this is a dire circumstance. There’s not any question in my mind about it,” U.S. District Judge A. Richard Caputo said during a hearing on the motion by Musto’s attorneys seeking his release.
Musto has been held at Federal Medical Center at Butner, 12 miles north of Durham, N.C., for about two months, following Caputo’s Jan. 7 ruling that Musto was mentally incompetent to go to trial on corruption charges.
Musto participated in Friday’s hearing via a video link, but said he had difficulty hearing the proceedings.
Since reporting to FMC Butner, examination by doctors at the facility revealed Musto has Stage IV lymph cell cancer, and he could have as little as two months to live, Musto’s attorneys wrote in their original release petition, filed March 24. A letter from a local oncologist submitted by defense attorneys prior to Friday’s hearing suggested the Pittston Township resident’s prognosis is poor, adding that it’s not clear whether treatment is even an option.
Assistant U.S. Attorney Michael A. Consiglio on Friday told Caputo that the government has no objection to what he termed a “temporary” release, subject only to the request that the court and prosecution be provided with a status update within one month.
Caputo agreed, ordering that a report on Musto’s condition be filed within 30 days of his arrival at home, with further proceedings dependant on the status of his health.
“There’s no point casting this in stone, with a timeline, given what the doctors are saying about Mr. Musto’s condition,” the judge said.
Family members will be responsible for transporting Musto home from North Carolina, the judge said, but he agreed to a defense request to make sure prison officials have Musto ready for release to relatives as soon as possible.
“I will issue an order and I will notify the marshals personally,” Caputo said.
Musto, a Democrat, had been Luzerne County’s senior elected leader in Harrisburg, where he served eight years in the House of Representatives and 28 years as a state senator, retiring in November 2010.
One week before his scheduled retirement, Musto was indicted by a federal grand jury on charges of accepting $25,000 from a construction contractor who developed various properties in Luzerne and Lackawanna counties.
Musto allegedly accepted the cash and other items of value from the contractor as part of a scheme designed to secure his continued support of various construction projects, according to the U.S. Attorney’s Office. Musto’s attorneys, John E. Riley and William J. Murray, have previously identified the contractor as Robert Mericle.
Musto also was accused of accepting thousands of dollars in cash from another unnamed individual affiliated with Northeast Pennsylvania municipal authorities. Musto allegedly accepted those cash payments as a reward for having helped the municipal authorities obtain loans and grants.
The retired lawmaker pleaded not guilty.
Mericle pleaded guilty to corruption-related charges unrelated to Musto’s case, and is scheduled to be sentenced in federal court on April 25.
Late last year, Musto sought an indefinite continuance of the trial, contending health issues and mental deterioration made him unable to withstand a trial or participate in his own defense. His attorneys cited an aortic aneurysm and non-alcoholic cirrhosis.
Caputo in January ruled Musto was physically able to stand trial, but mentally incompetent to do so, ordering him hospitalized “for such a reasonable period of time … as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed.”
He limited the hospital stay and evaluation period to not exceed four months.
Musto turned himself in to officials at FMC Butner in early February.
Caputo initially requested an update on Musto’s evaluation status on March 7. Late in February, Caputo extended Musto’s evaluation until June 2 based on a letter from FMC Butner Acting Warden J. Ray Ormond.
Late last month, Musto’s attorneys announced in court records that Musto was diagnosed with Stage IV lymph cell cancer and might have only two months to live, prompting their request that he be released to family custody for treatment.
On March 7, Musto’s attorneys say, a doctor at FMC Butner informed Musto’s granddaughter that a bone marrow biopsy resulted in a diagnosis of Non-Hodgkin’s Lymphoma, or lymph cell cancer, and that it was his belief chemotherapy should be started as soon as possible.
“The physical issues have now overtaken the issue of mental incompetence,” Musto’s lawyers wrote.
As part of the defense’s filing, area oncologist Dr. David W. Greenwald submitted a letter to the court indicating that he has not yet examined Musto, but he has reviewed Musto’s medical records from FMC Butner, where Musto has been held since earlier this year.
“I can say with reasonable certainty that in a gentleman of Mr. Musto’s age of 85 with the underlying co-morbidity of advanced liver disease, the survival is likely to be short and counted in weeks or several months and not years,” Greenwald wrote.
According to Greenwald, doctors at Butner found that aggressive lymphoma has infiltrated 75 percent of Musto’s bone marrow, and he does not yet know whether it has spread elsewhere.
Greenwald suggests that following a personal evaluation of Musto’s current condition, he “would then need to meet with the family and and discuss whether or not treatment is even an option at this point.”
Even if treatment is an option, Greenwald writes, it “could potentially prolong survival but at the cost of toxicity,” and whether to pursue such measures is a personal decision Musto and his family would have to make.
“At this point in time it is clear that Mr. Musto has a very poor prognosis. He may, in fact, be hospice appropriate and not a candidate for any type of medical intervention,” Greenwald adds, but that “would have to be determined by a face-to-face evaluation (with) Mr. Musto.”
“Once he has been fully evaluated, full recommendations can be made,” Greenwald concludes.
Musto on Friday was seen at a conference table next to a prison employee. Clad in a tan shirt, he frequently shifted in his chair and interrupted several times to say he could not hear what was being said.
Caputo at one point stopped the proceeding to ask defense attorney John E. Riley, of West Chester, if he wished to proceed under the circumstances, to which the lawyer agreed.
“How did I do, OK?” Musto was heard asking after the hearing concluded. “That means I’m going home?”