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Prison Legal News v. Babeu, AZ Deposition Deland, censorship, 2011

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Capital Reporting Company
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UNITED STATES

DISTRICT COURT

DISTRICT OF ARIZONA

PRISON LEGAL NEWS, a project of |
The HUMAN RIGHTS DEFENSE CENTER, |
|
Plaintiff,
|
|
vs.
| No. CV 11-01761-PHX-GMS
|
PAUL BABEU, individually and in |
his official capacity as Sheriff |
of Pinal County, Arizona; PINAL |
COUNTY, ARIZONA; Sergeant TONYA |
DELGADO, in her individual and
|
official capacities; Detention
|
Aide ALYSSA ROMERO, in her
|
individual capacity; Detention
|
Aide LAURENDA HENSLEY-SALISBERRY,|
in her individual capacity;
|
Detention Aide CHERYL MCBIRNIE, |
in her individual capacity;
|
Detention Aide JOHN JOHNSTON, in |
his individual capacity;
|
Detention Aide LAUREN MCVICKER, |
in her individual capacity;
|
LORETTA VALDEZ, in her individual|
capacity; DALTON GAY, in his
|
individual capacity; ERICA CHAVEZ|
in her individual capacity; DENA |
KELLY, in her individual capacity|
Sergeant AMADO MARTINEZ, in his |
individual and official
|
capacities; Sergeant LEONARD
|
ARNOLD, in his individual and
|
official capacities; Training
|
Specialist DAVID LINDERHOLM, in |
his individual and official
|
capacities; Lieutenant FRANCIS
|
HAWKINS, in her individual and
|
official capacities; Lieutenant |
DENNIS RUSHING, in his individual|
and official capacities;
|
Lieutenant MATTHEW HULL, in his |
individual and official
|
capacities; Lieutenant DARREN
|
RUSHING, in his individual and
|

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official capacities; Lieutenant
VERNITA GANT, in her individual
and official capacities;
Lieutenant MICHELE MCNEELY, in
her individual and official
capacities; Lieutenant GILBERT
HOYAS, in his individual and
official capacities; Captain
TERRY JOHNSON, in his individual
and official capacities; Captain
JAYME VALENZUELA, in his
individual and official
capacities; and Deputy Chief
JAMES KIMBLE, in his individual
and official capacities,

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Defendants.
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__________________________________|

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DEPOSITION OF GARY DELAND

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DATE:

October 31, 2012

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TIME:

9:30 a.m.

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LOCATION:

St. George Executive Suites
169 West 2710 South Circle, Suite 203A
St. George, Utah 84790

REPORTED BY:

Russel D. Morgan
Certified Shorthand Reporter
License Number 108442-7801

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A P P E A R A N C E S
For the Plaintiff Prison Legal News:
BLAKE THOMPSON
ROSEN BIEN GALVAN & GRUNFELD, LLP
315 Montgomery Street, Tenth Floor
San Francisco, California 94104-1823
(415)433-6830

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For the Defendants:
GEORGIA A. STATON
JONES, SKELTON & HOCHULI
2901 No. Central Avenue, Suite 800
Phoenix, AZ 85012
(602)263-1700

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I N D E X
EXAMINATION BY:

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PAGE:

MR. THOMPSON

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E X H I B I T S

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Plaintiff's Exhibit:

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1

Subpoena

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2

Expert Statement and Report

45

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Nashville NSA 2012 Conference Program

75

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Pinal County Facility Procedures

137

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Expert Report of John L. Clark

144

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Pinal County Facility Procedures,
Rev: 11/09/11

162

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(Exhibits attached to the transcript.)

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GARY DELAND,

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called as a witness by the Plaintiff, who, having

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been duly sworn by me, was examined and testified

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as hereinafter set forth.

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--o0o--

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EXAMINATION BY COUNSEL FOR THE PLAINTIFFS

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BY MR. THOMPSON:
Q

Good morning.

My name is Blake Thompson.

am the counsel for the plaintiff in this case.

Can you

state your name for the record.

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A

Yes.

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Q

And can you spell that?

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A

G-a-r-y, W-a-l-t-e-r, D-e capital L-a-n-d.

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Q

Have you had your deposition taken before?

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A

Yes.

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Q

Approximately, how many times?

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A

Oh, a few dozen, I guess.

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I

Gary Walter DeLand.

I have never

counted.
Q

Have those always been for on behalf of a

defendant?
A

Not always, but, certainly, in the vast, vast

majority of the cases, that's true.
Q

Do you remember any particular cases in which

you were an expert on behalf of a plaintiff?
A

A case in 2004, I believe in Arizona.

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it was called Valenzuela, or something like that,

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against the Arizona Department of Corrections.

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that time, it would be several years, a suicide case in

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Kane County, Illinois.

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that would be.

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1980s, I guess.

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Q

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cases?

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A

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them.

Prior to

But I don't recall what year

Certainly, probably, sometime in the

And did you testify in court in any of those

The case in -- yeah, both of them.

Both of

Both of them were Federal District Court.

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Q

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cases?

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A

Yes.

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Q

Have you ever had your deposition taken in a

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And were you testifying as an expert on those

case about jail mail or publication policy?

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A

Yes.

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Q

What case or cases was that?

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A

The only one that comes to mind is a case

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called Cheshire vs. PLN.
Q

So, you don't remember any other cases besides

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that, that you testified regarding mail or publication

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policies of a correctional facility?

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A

No.

I can't swear that it never has before,

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but if it has, it's been a very long time ago.

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recall it.

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Q

Okay.

Also just for the record, I want to

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note that Lance Weber, who is general counsel for the

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Human Rights Center, is on the line via conference call.

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MS. STATON:

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MR. THOMPSON:

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MS. STATON:

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MR. THOMPSON:

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quiet.

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BY MR. THOMPSON:

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Q

Okay.
Did you say something, Georgia?
I just said all right.
Okay.

Sorry.

It's kind of

So, I know you are familiar with these rules,

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but just to go over them, the court reporter is going to

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transcribe my questions and your answers.

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an opportunity to revise your responses.

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changes you make, I'll have the ability to ask you about

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them later.

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on videoconference, you need to answer verbally and not

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by nodding or gestures.

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You'll have
But any

And, of course, especially because we are

If I ask you a question that you don't

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understand, please let me know.

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questions about the form of the deposition?

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A

No.

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Q

Okay.

Do you have any

And is there any reason today you

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wouldn't be able to answer my questions fully or

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truthfully?

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A

No.

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Q

No medication of any kind that's impairing

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A

No.

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Q

Okay.

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you?

(Exhibit No. 1 was marked for identification.)

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MR. THOMPSON:

It's the subpoena for

documents.

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I am going to mark this as Exhibit 1.

MS. STATON:

Okay.

BY MR. THOMPSON:

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Q

Have you seen this document before?

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A

Yes, I have.

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Q

And what is it?

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A

It is a subpoena for information or objects or

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to permit inspection of premises, although, I think this

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is just for production.

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Q

And did anyone ask you to produce documents

responsive to these requests?
A

Yes.

The subpoena indicates which documents

were requested.
Q

And did anyone ask you to produce documents

responsive to these requests?
A

Well, the subpoena did, but not individually.

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That's what I was relying on to know that I was being

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requested to provide certain kinds of documents.

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Q

So, how did you receive the subpoena?

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I don't know.

by email.

Whether it was in the mail or

But, at some point, it was on my desk.

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Q

And did you provide documents to counsel for

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defendants?

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A

Some.

But not all of those.

I had objections

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to some.

So, went over them with Georgia Staton, the

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attorney for defendants, then provided those documents

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that were available, those documents that we felt were

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not overly burdensome and so on.

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Q

And what were your objections?

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A

Do you want to go through them individually?

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Q

If you can just tell me what you remember of

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your objections?
A

Well, in part such things as notes.

When I

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take notes, as soon as I complete the notes, whether

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it's a walking tour or interview or whatever, I go ahead

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and transcribe that into the outline of the report I'll

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be writing.

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As I begin writing, then that information is there.

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incorporate it or don't incorporate it based on whether

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it's sufficiently relevant.

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testimony given in past depositions and whatnot.

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don't save any of those.

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Then the notes themselves are never saved.
I

There's also requests for
I

There were a number of things that were asked
for that I just simply don't save that I don't maintain.

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There are other things, I don't recall right off the top

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of my head, that would have been a very extensive

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process to try to locate them.

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Q

What kinds of documents would require a very

extensive process?
A

Like I said, off the top of my head, I

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couldn't tell you exactly.

Let me see what was asked

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for and it might be of some assistance.

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Producing all communications and any documents that may

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have come to me at some point in time.

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the email that I receive.

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emails a week, at least.

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them I get rid of them.

Okay.

I don't save all

I receive a couple hundred
And so, when I'm through with

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Let's see.

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rely on, I think was in there.

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endless amount of documents that I reviewed at one time

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or another.

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would have taken a lot of time and then probably

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produced nothing anyway.

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Q

Things that I read that didn't
That could have been an

So, there were a number of such things that

So, emails, in regard to Request Number Two,

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which are communications about this case, were there

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emails regarding this case that you would have deleted

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before responding to this?

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A

There may have been.

But what I asked was

that the attorneys provide all of them.

I am sure that

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they are much better record keepers than I am with

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respect to email, because it would be part of their

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case.

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So, I asked them for help in assembling those.
Q

Was there anyone else you communicated with

about this case by email?

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A

No.

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Q

Is it your understanding that the attorneys

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provided the emails between you and them that would have

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been discoverable?

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A

That's my understanding, yes.

The other

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concern I had is not knowing for sure what the federal

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rules allowed and what they didn't allow.

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necessary for me to confer with them about what would be

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provided and what would not.

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Q

It was

Can you explain what you were describing

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earlier about taking notes and then incorporating them

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into another document?

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A

Yes.

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Q

Are you talking about handwritten notes?

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A

Yes.

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Q

So, what kinds of handwritten notes did you

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have regarding this case?
A

There would have been some handwritten notes

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that I would have made when I interviewed Montano and

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Kimble.

Since I didn't tour the facility, there

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wouldn't be notes on that.

There would be a very

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minimal number of notes in this particular case.

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in response to your question about why, I find when I

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have toured facilities or taken a lot of notes, it's not

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an exact transcription of what happened.

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get ready to write my report.

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quite sure in all instances what I meant by certain

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notations that I had made.

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before I ever do anything like that, I look at the

But,

I wait until I

And very often I'm not

So, I found it very useful,

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complaint, identify each of the areas I'm likely to

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opine in.

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interviews, whatever, while everything is still fresh in

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my mind, I incorporate those notes in a more narrative

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fashion into my, under each one of those various

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opinions.

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Then, after I have toured a facility or done

Then when I get ready to actually start

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writing the report at some point, I can determine what's

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relevant, what needs to be incorporated in that opinion.

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And I have a more accurate record of what I saw, what I

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observed, what was said.

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Q

And you throw away the handwritten notes?

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A

Yes.

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Q

That's your general practice?

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A

Yeah.

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That's my constant practice, not

general.

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Q

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notes?

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Why is it that you don't keep the handwritten

Well, for one thing, I found many years ago,

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when I did save them, I was asked about notations and

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notes.

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taken them.

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because it was no longer fresh in my mind.

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not required to maintain those notes, I came up with a

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better process where I could have more accurate

You know, it had been a long time since I had
I couldn't always answer the question
Since I am

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information, I could have information put together while

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it was still fresh.

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those notes any longer.

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Q

Then there was no need to maintain
So, I don't.

So, you don't keep them because you are not

required to keep them; is that correct?
A

Well, I'm not required to keep them.

But they

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are also no longer valuable since I already put that

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information where it will be the most use to me and

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where I can more accurately put it into my report.

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Q

So, in this case, how long after you took

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written notes did you incorporate them into some other

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document?

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A

Probably within a few hours, because I

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simply -- when I went back to the motel that night, I

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was there doing some training, both of them were

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available, so I asked them questions about this.

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so, when I went back to the motel that night, I went

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ahead and took what notes I had made, put them into the

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outline and then discarded them.

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Q

When you say you put them into that outline,

is that a document on the computer?

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A

Yes.

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Q

So, did you provide certain documents to

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counsel for defendants?

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A

You mean in response to?

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Q

Yes.

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A

Yes.

I don't recall exactly what was

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provided.

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see what was provided.

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outline.

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affidavit in a case called City Weekly vs. Cache County.

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Probably provided -- I think I provided my expert report

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in DeWitt.

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well, City Weekly was an expert report, what would have

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been an affidavit, would have been PLN vs. Cheshire, I'm

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sorry.

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recall for sure if I provided anything else.

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an updated CV.

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Q

I guess I could take another quick look to

Let's see.

I think there was a lesson
I think I also provided an

PLN vs. DeWitt.

I may also have provided --

Those things I know that I provided.

I don't
Probably

Had counsel for defendants provided you with

some documents prior to that?
A

Yes.

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Q

And what types of documents were those?

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A

There were what turned out to be several

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binders full.

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a video disk, CD, to view all of those documents, so I

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didn't have to cart everything into the deposition.

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Q

But they said that they would provide on

So, they didn't provide your copies of the

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documents, they provided their own copies of the

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documents?

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A

Correct.

They would have been the same since

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I also make it a practice never to make notes on any of

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the documents.

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them, if something comes up, I type it into that same

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outline that we have talked about.

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Q

I keep them pristine.

And, as I read

So, did you take any written notes on other

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paper as you were reviewing a deposition transcript, for

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instance?

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A

No.

As I'm reading the deposition transcript,

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if there's something I thought was relevant, I would

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type the entirety of the text or, at least, at the very

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least, a reference to it into the appropriate place in

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my outline.

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I have done that.

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Q

You'll see places in my expert report where

So, did you have any written notes on this

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case that were thrown away other than the notes from

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your conversations with Montano and Kimble?

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No.

I can't say that at no time I didn't jot

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down the name of something or other that I was going to

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look for in the next few minutes.

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a reminder to me to do something else.

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never survive more than a few minutes after I used it.

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I would wad it up and throw it away.

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8

But it would just be
But those would

Q

When was the first time you heard about this

A

I couldn't tell you exactly.

case?

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It seems like it

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was earlier this year.

I know it was a while after it

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had been filed.

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not aware I was going to be involved with it.

13

remember exactly when I was called.

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it would probably be late winter, early spring.

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could be off on that.

I heard that it had been filed, but was
I don't

If I had to guess,
But I

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Q

How did you hear that it had been filed?

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A

I heard it secondhand from a fellow by the

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name of Jim Chip who does some work with me.

He had

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heard it directly from one of the people at Pinal

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County.

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facility.

He had been doing some inspections of their
And they mentioned it.

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Q

What kinds of inspections was he doing?

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A

An inspection to compare their practices to

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Arizona's guidelines, jail guidelines, helping them with

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that.

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Q

So, was he hired by Pinal County or by someone

A

Someone else.

else?

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I don't know.

Pinal County

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probably didn't hire them.

It was probably a group

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called AARMS who provide the software to do those

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inspections.

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Q

Can you explain what AARMS is?

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A

Yeah.

9

It's a company that does, that provides

internal inspection software for jails.

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Q

So, what did he tell you about this case?

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A

Just that they had been sued.

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a lot of information on it.

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complaint.

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was just a point of information.

He didn't have

He hadn't seen the

Neither had I at that time, of course, so it

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Q

So, why did he tell you, I am asking?

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A

Because we interact periodically.

He also --

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AARMS also, or the individual who runs AARMS also

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supervises something called NIJO, National Institute of

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Jail Operations, which provides jail training.

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does some work for them as well.

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it.

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to him probably weekly, at least, on one matter or

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another.

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for the Utah Sheriff's Association.

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interaction between people that have various different

And he told me.

And he

So, he became aware of

I see Mr. Chip probably, or talk

I also use him sometimes to set up training
So, there's

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functions.

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Q

So, why did he think you would be interested

in this particular case?

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MS. STATON:

Objection.

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Wait.

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going to be a little difficult.

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can.

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foundation.

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A

Foundation.

Wait.

Let me -- because there is a time lag, Gary, it's
But I'll do the best I

I'm objecting to the last question on form and

I can't tell you why, you know.

10

obviously, he has his own reasons.

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to question him.

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BY MR. THOMPSON:

I mean,

But it would be best

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Q

So, you don't know why?

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A

He didn't say for these reasons I'm telling

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you this.

He told me what it was.

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motivation for him to answer.

And I leave his

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Q

Why did he tell you about the case?

18

A

That they had been sued.

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That they had been

sued, an issue involving PLN.

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Q

Did he just tell you what the issue was?

21

A

Yeah.

I don't think he knew any more than

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that.

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said that they had been sued by PLN.

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At least, based on what he explained to me, he

Q

So, he didn't tell you what the issue that

they were being sued about was?

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A

No.

And he knew that I had been involved with

a PLN case in Cache County.

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Q

Was his inspection there covering mail

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operations?

5

A

I'm sure that over the, you know, several

6

different periods of time when he would go in on those

7

inspections, that would be one of the several issues

8

that he would ultimately look at.

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time he was there he was only partway through that

10

process of inspecting them.

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understanding.

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Q

But I know at the

At least, that's my

So, why was AARMS hiring someone to do an

inspection of the jail?
A

15

Well, they do that all over the country.
MS. STATON:

16

foundation.

17

A

Objection to the form and

AARMS does work in Alabama.
They do work in Utah.

They do work in

18

Arizona.

They do work in a

19

variety of different states.

20

Kansas.

21

stuff going on.

22

either local people or others that they are familiar

23

with, go out and do that.

24

in Alabama.

25

hires him to do the work.

Some in Wyoming.

Some in

I don't know all the places that they have
But, they have to have people, usually

I know Mr. Chip was involved

I know he was involved in Arizona.

AARMS

That's up to them.

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BY MR. THOMPSON:
Q

So, you described AARMS as a company that

provides software, correct?

4

A

Yes.

5

Q

So, is someone hiring them to do an

6

inspection?

7

A

No.

Actually, Arizona countys' insurance pool

8

contracted with them sometime back to do that, for not

9

just Pinal County, but for any of the counties that were

10

participating that asked for assistance with those

11

inspections.

12
13
14

Q

So, the Arizona countys' insurance pool hires

AARMS, then AARMS hires someone else; is that correct?
A

They contracted with AARMS.

I don't know for

15

what period of time.

16

of the counties in Arizona which they cover.

17

would be the ones that he would be concerned about,

18

those would be the ones that he would be interested in.

19
20
21

Q

And then for, I think there's 13
And those

And then does AARMS produce a report to the

county?
A

They -- yeah.

They would -- it's an online

22

inspection system which provides realtime data on what's

23

happening with any of the guidelines that they are

24

looking at, what progress they have made and so on.

25

it's all on website firewall.

But

It's not a paper system.

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Q

So, is it correct that when someone like Mr.

2

Chip goes in, he's going in to set it up, then the

3

county is inputting data as time goes on?

4

A

No.

As I understand it, AARMS already has it

5

set up.

And all they have to do then is provide pass

6

codes for individuals at the individual agencies who are

7

going to be authorized to get into the system and make

8

any data entries.

9

that has been referred to as inside-out.

What Mr. Chip would do, it's a system
That is

10

instead of the auditors coming in first and doing the

11

inspections, saying, okay, fix all these things, that

12

system, as I am aware of it, requires the jail commander

13

to do the initial inspections and audit.

14

Then a follow-up auditor from the outside will

15

come in and look only at those things they claim to be

16

in compliance with.

17

of compliance with A, if they have already recognized

18

that and they are working to try to fix it.

19

There's no sense saying you are out

So, what will happen is that individual will

20

then come in, it could be Mr. Chip, it could be somebody

21

else, whoever else they hire, and look at those things

22

they believe that they are compliant with, which may

23

take a less charitable view of and tell them what they

24

need to do to come into compliance.

25

basic role.

So, that's his

He doesn't set anything up.

That's set up

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2

by AARMS already.
Q

So, what's the end result of an inspection

3

conducted by Mr. Chip?

4

something else?

5

A

No.

Is it a written report?

Is it

The end result is the client agency knows

6

where they stand with respect to any given set of

7

standards or guidelines to which they are being

8

inspected.

9

mistaken.

That's the purpose, I think, if I'm not
ASIF also has a code where they can get in

10

and look at any of the jails that are participating,

11

that they are insuring, so they can also get a sense of

12

what progress is being made.

13

to get people to move forward, do it in a way that what

14

their efforts are not immediately discoverable,

15

otherwise, people are not willing to find their worts,

16

as you might guess.

17

people to find those things that are not fully compliant

18

or compliant at all, I suppose, in some cases with the

19

guidelines that Arizona has adopted to run those 13,

20

maybe 14 jails.

21

participating.

22

Q

The whole idea is to try

So, it's a way of trying to force

I don't know exactly how many are

Is there a written report that's produced at

23

the end?

24

inspector has determined that are not compliant?

25

A

Or how does the jail know what areas the

Because the record is all made online.

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1

given time, with the system, you can look and see what

2

the jail inspector has done, his notes on what they need

3

to do.

4

noncompliant, because they didn't have a written policy

5

on a particular topic or they had a policy that did not

6

include the issues, all of the things that were

7

required, then you may find his notes recognizing that.

8

And you may also find in a compliance section that they

9

have now rewritten the policy and electronically

10

If the jail inspector realizes they are

attached it to the file.

11

Or to take an odd example, let's say you have

12

gasoline next to the furnace.

13

picture that it's no longer there, and here's where it

14

now is.

15

furnace, I suppose.

16

they can pull up a screen and see by color code every

17

standard that they are noncompliant, partially compliant

18

or fully compliant with.

19

written report.

20

you stand on any given standard.

21
22

Q

You can also attach a

Not that anybody would put gasoline by a
But the idea is at any given time

So, it's much better than a

It provides you realtime data on where

Those determinations of where someone is at is

based on the judgment of the inspector?

23

A

Yes.

24

Q

So, after you heard from Mr. Chip that first

25

time, when was the next time you heard about this case?

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A

It had to have been, I'm guessing, at least a

2

couple of months.

3

my fingertips.

4

away.

5

doing anything with it.

6

Staton saying that they would like my assistance on the

7

case.

8

I had to work.

9

agreed to take it and get as much done as I could in the

10

I just don't have that information at

But I know for certain it was not right

I had no -- I did not believe I was going to be
But then I got a call from Miss

Unfortunately, it was a very short timeline that
And I had other work going on.

So, I

time available to me.

11

Q

Do you mean it was a very short time between

12

when they called you and your expert report was

13

completed?

14

A

Yes.

I am very often scheduled out three or

15

four months.

Not very often, it's almost a given.

And

16

I don't usually like to take cases that I don't have at

17

least three or four months before a deliverable product.

18

I have done a lot of work with Miss Staton.

19

talked about the difficulty getting it done in a short

20

time.

And we

We agreed I would do it.

21

Q

So, how long did you have approximately?

22

A

I don't recall.

It was -- well, I just don't

23

recall.

It was far less than my normal three to four

24

month requirement.

25

I have that much time, but I already had my time already

Or, you know, there's sometimes when

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1

booked out.

2

training sessions.

3

for example now.

4

before.

5

to, look at my schedule to see whether two months, three

6

months, four months is too tight.

7
8
9

Q

I have four or five expert reports or
I haven't been home for three weeks
Indiana last week.

Alabama the week

And Kentucky the week before that.

So, I have

What did you understand you were supposed to

be offering opinions about in this case?
A

Well, I was told that they had conceded an

10

issue involving post cards, so I would not be talking

11

about that.

12

was the policies, procedures and actions of the Pinal

13

County officials with respect to accepting or rejecting

14

publications, PLN, of course, being one.

15

look at that in the context of what they were trying to

16

accomplish in their jail.

17
18
19

Q

Basically, what they wanted me to look at

And, also, to

And that's what I did.

And you are testifying as a rebuttal expert

here, correct?
A

I don't know if I was asked to be a rebuttal

20

expert.

I was just told I was testifying as an expert

21

witness.

22

the expert witness for the other side's already issued a

23

report before I do.

24

report is when we both replied, and then I'm, you know,

25

replying yet again to that.

In all cases, or on nearly all cases, not all,

But what I consider a rebuttal

So, my initial expert

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2

report I have never thought of as a rebuttal.
Q

So, you weren't told that you were supposed to

3

be limited to responding to the opinions of the expert

4

for the plaintiff in this case?

5

A

Oh, yeah.

But that's pretty typical.

6

at two things.

7

complaint.

8

other side.

9

and to the expert witness.

I look

One is the complaint, the operative

And the other is the expert witness for the
So, I was responding both to the complaint
If issues were moot at that

10

point, issues had already been resolved, then that was

11

out of play.

12

didn't talk about post cards, thus, neither did I.

13

was no longer on the table.

14

Q

So, of course, the plaintiff's expert

My question is, were you told that you were

15

limited to rebutting the opinions expressed in the

16

expert report of the plaintiff's expert?

17

A

It's possible.

I don't recall being given

18

that specific instruction.

19

put an expert report together.

20

response to both the complaint and the plaintiff's

21

expert.

22

that I would be prohibited from discussing.

23
24
25

Q

That

I was being asked if I could
And it was certainly in

I don't recall being given any specific limits

What did you do to prepare to write the expert

report?
A

Went through documents that I was provided,

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1

depositions, policies and procedures.

2

had been written.

3

full of materials that ultimately were printed out to

4

work from.

5

things.

6

sense of where I was going and identified which things

7

were particularly relevant to what I would be doing,

8

then I started actually constructing the report itself,

9

actually started filling in the narrative.

10
11
12

Q

Any reports that

Like I said, there was a few binders

Certainly, expert report, those kinds of

Once I had reviewed those enough that I had a

So, did you read all the deposition

transcripts from beginning to end?
A

Some that I considered most important I read

13

beginning to end.

Some that, as I would go through

14

them, I didn't think was providing a whole lot of

15

additional information I didn't read beginning to end.

16

But, for example, if I wanted to know about training or

17

I wanted to know about when somebody learned or thought

18

they learned what policy was, then I would go into

19

depositions and use the index in the back to find all

20

possible references to that topic and then go read those

21

and bring it in.

22

each officer went to school and what grades they got,

23

any of that sort of thing.

24

relevant to any of the opinions, I could go to the index

25

in the back.

You know, I didn't need to read where

But anything I considered

And as I would exhaust that opinion, I

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1

would see if there was anything I thought was important

2

to add.

3

they gave me?

4

So, did I read every single page of the stuff

Q

Of course not, no.

So, you said some of them you thought were

5

more important you would read beginning to end.

6

remember which ones those would have been?

7
8

A

No.

Like I said, it was not so much -- well,

yes, I would.

DeNiro.

9

Q

Who is that?

10

A

Or, no.

11

Montgomery.

12

expert witness?

I read DeNiro's two volumes.

Excuse me.

Wait a minute.

13

Q

No.

14

A

Isn't he?

15

Do you

I got mixed up.
No.

Montgomery.

Yours is DeNiro?

Your

Who the heck is your

expert witness then?

16

Q

Our expert witness is John Clark.

17

A

Thank you.

18

right now.

19

yes.

I'm writing three expert reports

So, I apologize.

20

Q

His deposition?

21

A

No.

So, it was Clark I read,

His report -- yeah, I think his, the only

22

report.

DeNiro, who I just mixed up, is the case I have

23

to have finished by day after tomorrow.

24

different case, so I apologize for that.

25

two-volume deposition.

That's a whole
His was a

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Q

So, any deposition transcripts in this case?

2

A

Okay.

Let's go back and re-do this one.

3

Probably from the problem of having too many things you

4

are working on simultaneously.

5

Montano's I did.

6

looked for specific information that I wanted in there.

7

I know that there were people that worked, for example,

8

in the mail room that talked about when they learned

9

they didn't accept publications or where they came to

Kimble's, I did.

Any others I would have just simply

10

those conclusions.

11

deposition and some of it I read simply those parts that

12

I could discover from the index that they would be

13

talking about.

14

Q

So, some of those I read much of the

So, besides reading the documents that were

15

provided, did you do anything else to prepare for the

16

expert report, to write the expert report?

17

A

Well, as I mentioned, when I was in Pinal

18

County doing some training, they were doing some

19

regional training for themselves and several other

20

counties, I took the opportunity, since both Chief

21

Deputy Kimble and Captain Montano were there, to talk to

22

them when I wasn't actually doing the instruction.

23

There were two of us that were instructing at that time.

24

So, that gave me an opportunity, when the other

25

instructor was working, to take them aside, sit down

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with them, go through the information that I needed to.

2

And mostly, probably, Kimble was the most valuable, more

3

so than Montano.

4

Q

Why is that?

5

A

He just seemed to have more information that I

6

was actually looking for.

7

the top of the sheriff's administration down.

8

works for Kimble.

9
10

He also was seeing it from

Q

So, how did you decide to talk to those two

A

They were available.

men?

11

Also, because Kimble, in

12

particular, is more in a policy setting role.

13

wanted to talk to him.

14

I was looking for for Montano.

15

him.

16

programs we have done.

17

him questions about it.

18

terms of providing information.

19

Montano

I really

I don't recall all the specifics
But I am familiar with

I have known him from contact in the training

Q

And he was there.

So, I asked

Kimble was the most useful in

So, did you decide who you wanted to talk to

20

and ask to speak to them or are those just the people

21

that were provided to you?

22

A

Well, I could have gone into the jail and

23

talked to other people, but I was mostly concerned about

24

policy issues.

25

Montano was the captain, those were the two people I

And since Kimble signs the policy and

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thought I could glean the most from in terms of

2

timelines, policy, what was done, why it was done.

3

individuals working in the mail room had all been

4

deposed under oath, so I had their testimony to work

5

with.

6
7
8
9

Q

The

And how did you pick Commander Montano as

opposed to any of the other -A

Well, in part, because I'm familiar with him.

In part, because he was there.

And, in part, because

10

he's got a high position.

It's an administrative level

11

position within the jail.

So, I got the information I

12

was looking for from a combination of talking to him and

13

to Kimble.

14

sheriff, but not about this case.

15

information the sheriff might have Kimble would have and

16

then some.

You know, the sheriff, I talked to the
I figured what

17

Q

How long did you speak to Mr. Kimble for?

18

A

If I had to guess, I would say probably 20

19
20
21
22
23
24
25

minutes or so.
Q

And did you speak separately with Commander

Montano or was it at the same time?
A
shorter.
Q

No.

It was separately.

And his was probably

Maybe 10, 15 minutes at the most.
And where was that conversation?

Was that at

the jail?

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A

There's a training room there at the

2

jail/sheriff's complex.

3

recall.

4

retired to and talked.

5

room.

And I -- there was -- I can't

It was a break room or another room that we
It might have been the break

6

Q

So, did you enter an actual jail facility?

7

A

Not on this occasion.

I have been in that

8

jail before, but I didn't see that touring the jail was

9

going to have, you know, provide any useful information

10

in this particular case.

11

confinement case or some use of force or other incident

12

that occurred, I would want to be inside the facility

13

for sure.

14
15

Q

If it had been a conditions or

So, you did not speak with any of the mail

room staff, correct?

16

A

No.

17

Q

You did not speak with any prisoners, correct?

18

A

No.

19

Q

And you didn't speak with anyone else besides

20
21

Kimble and Montano; is that correct?
A

No.

Not in respect to this case.

Obviously,

22

I talked to a lot of people when I was there.

23

clarify the question, not in response to this case, no.

24
25

Q

What were you at the jail for?

But, to

What was the

training you were there for?

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A

Pinal County decided sometime back they wanted

2

to do a number of trainings courses, one or two a year.

3

This one was a civil liabilities, prisoner rights

4

presentation.

5

by the name of Carrie Hill and I did.

6

recently this spring -- or, no, this summer.

7

even late fall, I guess.

8

September, which was on mental health issues.

9

Steve Sampson out of Georgia and I did that.

10
11
12

Mostly prisoner rights, which an attorney
They did one more
Or maybe

Yes, probably August or
That one,

Did a brief, I think, four hours in that one.
He did the rest of the training for two days.
Q

So, this prisoners' rights training, was that

13

the one you were there for when you spoke to Mr. Kimble

14

and Montano about this case?

15

A

Yes.

16

Q

When was that?

17

A

I can consult with that -- where's the CV I

18

gave you?

19

you quite easily.

20

would have been August of this year.

21

would have been August of last year, it looks like.

22
23

Q

It would be in there.

I can find that for

Let's see, with Steve Sampson that
The other training

So, the civil liabilities and prisoner rights

training was August of last year; is that correct?

24

A

25

about.

Yeah.

So, whichever one of the two I talked

I thought it was the civil liabilities training,

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but, you know, those are the two dates that I trained

2

according to this, so if that's an accurate date for the

3

training, it would be one of those two sessions.

4
5

Q

So, in August of 2012, you were there for a

mental health training; is that right?

6

A

Yes.

Let me also see what date it says in my

7

expert report that I talked to them.

8

easier.

9

would have talked to them.

Hopefully.

Okay.

That's even

August 16th, 2012 is when I
So, it would have been the

10

second training program.

I guess.

Anyway, I talked to

11

James Kimble August 16th, 2012.

12

during a training session.

13

with another instructor, so I had time away from the

14

podium.

And I know it was

In either case, I was there

15

Q

16

there?

17

A

No.

18

Q

Why did you not think that was relevant to

19

Have you ever been in a mail room in the jail

this case?

20

A

Well, it was, basically, a policy and practice

21

case.

22

features of the mail room would add to the discussion.

23
24
25

I wasn't sure what looking at the physical

Q

And you didn't think that talking to the mail

room staff would be helpful?
A

They had already been deposed and had

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testified under oath.

2

upon, sworn testimony rather than a subsequent

3

discussion.

4

Q

5

So, that's what I chose to rely

So, did you draft the report yourself, the

expert report?

6

A

Yes.

7

Q

Did you have any help doing that?

8

A

No.

9

Q

Did you provide any draft reports to counsel

10
11

In the entirety.

for defendants?
A

Yeah.

I believe before they got the final

12

report I sent them, asking them if there was anything

13

else that they thought needed to be included in the

14

scope of the report.

15

for me to correct.

16
17
18
19
20
21
22

Q

And Georgia found a bunch of typos

So, did you add any other topics to the report

at that point?
A

No.

She didn't ask for me to expand the

report, so I didn't.
Q

And have you done any additional work on this

case since you submitted the expert report?
A

Two things.

One was to try to respond to the

23

subpoena duces tecum.

And the other was to spend some

24

time last, yesterday afternoon and last night reviewing

25

my report and a few other documents prior to giving a

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deposition.

2

Q

3
4

Have you been provided with any other

documents since you submitted your report?
A

Let's see, Georgia sent me copies of exhibits

5

that you would be using today.

6

night, and, really, didn't having any time to do

7

anything with them, then this morning looked and saw it

8

was basically the same materials I reviewed yesterday,

9

for the most part:

10

I got those late last

Copies of the policies and

procedures, my expert report, Clark's report.

11

Q

12

trial?

13

A

Do you plan to modify your report before

No.

Well, let me add one caveat to that.

In

14

reviewing my report last night, I went through and found

15

that 4.5, I had made a reference in my report and called

16

it 4.3.

17

replicated that 4.3 as I was writing constantly.

18

there's probably a dozen, a dozen and-a-half 4.3s in

19

there that are supposed to be 4.5.

20

to clean that up, I would do so.

21
22
23
24
25

Q

So, I would certainly want to add a note.

Then
So,

So, if I was asked

Other than those, you don't have any other

plans to modify your report?
A
in there.
Q

No.

I can't think of anything that would go

And I haven't been asked to.
And in preparing for this deposition, did you

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speak to anyone to prepare?

2

A

Sure.

Spoke with Georgia Staton.

3

Q

And when was that?

4

A

For maybe 10 minutes on the phone yesterday.

5

Yesterday afternoon.

6

note from somebody, or a call from somebody, that I

7

wanted to speak to her this morning.

8

inaccurate.

9

special.

10
11
12
13

Then I also -- she had gotten a

So, she called.

But that was

And I said, no, nothing

And I was headed out the door when she called

me.
Q

So, have you worked with Chief Kimble prior to

this case?
A

Chief Kimble had been in some training classes

14

I had done in the past.

15

did our initial training program for them, the prisoner

16

rights program, I had had an opportunity to speak with a

17

woman by the name of Nicole Yusif, who works for them

18

and found her to be, have developed a very, very good

19

prisoner grievance program.

20

to Kimble a couple of times about whether I could bring

21

her out to our annual conference in Utah, and then also

22

scheduled her for an annual conference seminar at the

23

National Sheriff's Association.

24
25

Also, during the time that we

So, you know, I have talked

So, I think AARMS has also now included Kimble
on one of their committees -- not AARMS.

NIJO.

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N-I-J-O. has put him on one of their committees to

2

review training issues.

3

So, yeah, I see Kimble from time to time.

I

4

see him at conferences.

I see him at training sessions.

5

So, but I do so much training around the country, and I

6

have done a bunch in Arizona, so they called and asked

7

if I would do it for them as well.

8

Q

What's your relationship with NIJO?

9

A

NIJO is an appendix to the National Sheriff's

10

Association.

It was created to develop a national

11

training program and national model policies program,

12

which will probably be kicked off early next year, and a

13

jail standards or guidelines program that the National

14

Sheriff's Association wants to begin doing

15

certifications on next year.

16

of outsourced to NIJO.

17

Tate McCotter, T-a-t-e, capital M-c-C-o-t-t-e-r, has

18

included, like I say, included him on one of his

19

committees.

20

Q

So, what's your relationship to NIJO?

21

A

I provide training for them.

All of that they have kind

And the fellow who runs that,

And I also happen to sit on that committee.

I provide a lot

22

of materials for them to use in what they are doing.

23

And I am also on their training committee.

24
25

Q

So, do you have contracts with them to do the

training?

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1

A

No.

Pretty much everything is handshake.

2

They call and say we've got training set up in Wheaton,

3

Illinois.

4

Alabama or Washington, Indiana, wherever it may be, then

5

I schedule it and go.

We have training set up in Orange Beach,

6

Q

But they compensate you for that?

7

A

Oh, yes, absolutely.

8

When we do that type of

training we get compensated.

9

Q

In the trainings you do for Pinal County, are

10

those through NIJO or is that a separate arrangement

11

between you and the county?

12

A

13

the county.

14

not go through NIJO.

15

with DeLand & Associates.

16

We don't have a written contract.

17
18

Q

That was a separate arrangement between me and
I do a lot of training on my own that does
But that was a separate contract
Separate handshake, I guess.

And so, under that agreement with Pinal

County, how many training sessions are you providing?

19

A

Well, I have done two.

And it will be up to

20

them whether they want to continue to sustain the

21

program.

22

in.

23

other counties said, is there any way that we could

24

sponsor it in the future so this training moves around

25

the state.

They have, like I said, invited other counties

And, at the last session we did, a couple of the

Whether they do that or not, I don't know.

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If they do, then it would mean that Pinal County would

2

not be taking the lead perhaps in all the future ones.

3

They were hoping to do at least a half dozen programs

4

over the next four years.

5

Q

How much do they compensate you for doing

7

A

I think -- I'm thinking that was about $2,500.

8

Q

For each session?

9

A

Yeah.

10

Q

So, you have done two sessions for $2,500 per

6

11

that?

Not each day, but each session, yes.

session?

12

A

Right.

13

Q

And you said they want to do a half dozen over

14

the next four years, half dozen more?

15

A

Yeah, four to six.

They talked about four to

16

six.

They said if we can keep the interest up we can

17

maybe do as many as half a dozen.

18

speculation at this point, of course.

But that's all

19

Q

Who are you training when you go there?

20

A

It's jail administrators and supervisors, for

21

the most part, although, we do see some line officers

22

come to the training as well.

23
24
25

Q

So, what level in the jail?

Are we talking

lieutenants?
A

It could be.

Of course, small jails may not

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1

have more than a lieutenant running the whole thing,

2

where others may have majors, commander, chief deputies.

3

So, rather than trying to look at rank so much, it's

4

better to look at functions.

5

mid-level managers or supervisors for larger facilities

6

might be two separate tracks.

7

you'll also have some line level people.

8
9

So, the chief executives,

And, like I say, then

The mental health program we did, we also saw
a bunch of nurses and medical people, mental health

10

people from some of the jails, because Steve Sampson was

11

a renowned instructor, and they wanted to hear what he

12

had to say.

13

Q

14
15

How many people attended this most recent

session you were there for?
A

I would say probably around 50.

Certainly

16

more than 40, but it quite easily had been 50.

17

even have been more than that.

18

little less than that.

19

the 40s for sure.

20

exceeded 50.

21
22
23

Q

It might

The first session was a

It would have probably been in

But this one could have easily

And who was at the first session?

Was that

the same group of people you described?
A

Yeah.

It was a smaller number of counties

24

that attended.

They got word of what had taken place at

25

the first one, so we had more people interested in doing

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1

so.

2

developed as resulted of it.

3
4
5

Like I say, now the interest in hosting this

Q

So, how many people from Pinal County were at

that first training?
A

First session, they were probably two-thirds.

6

Second session they were probably half or less.

7

that's just a guess, of course.

8

Q

So, two-thirds of how many?

9

A

Two-thirds of 40, say, depending on how

10

accurate my estimating is.

11

the same number of people at the second one.

12

little less, because it was a more narrow focus.

13

had more people attended overall.

14
15
16

Q

But

They probably had, roughly,
Maybe a
But we

Can you describe the content of that first

training?
A

Yeah.

I did a basic overview of 1983 and 1988

17

for them.

Some discussion of the Prison Litigation

18

Reform Act.

19

substantive issues.

20

force, duty to protect and prisoner discipline.

21

does medical and mental health conditions of confinement

22

issues, first amendment, Pria.

23

Pria at that session.

24

particular training session.

25

Religious Freedom Restoration Act.

Then Carrie Hill and I split up the
I ordinarily do searches, use of
She

Although she didn't do

That wasn't done at that
Oh, and she also does the
And RLUIPA,

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Religious Land Use and Institution Persons Act, which

2

deal with prisoner religious issues.

3

higher standard than the constitution does in that area.

4
5

Q

Since that has a

So, you don't do any training on mail

publication issues?

6

A

Occasionally.

But once -- Carrie and I train

7

together.

And I apportion that to her.

Last spring, I

8

know I did one or two sessions, because neither one of

9

us could be there for the full three days.

I could do

10

two days, she could do two days, so we kind of played

11

around with the schedule.

12

It was probably Orange Beach, Alabama last year, or this

13

spring, I should say.

14

think I did the mail issues there.

15
16

Q

And I did -- trying to think.

And San Bernardino County, I

And do you have written materials that you

provide to the people being trained about mail issues?

17

A

Yeah.

For the regular training programs we

18

do.

19

those, the portion of that training outline that dealt

20

with mail issues as part of the package we responded to

21

the subpoena duces tecum on.

22
23
24
25

We have written materials.

Q

I think we employed

So, do you use the same packet or same

training materials for your training?
A

Until the law changes.

Until something comes

up that says it's time to change this.

So, you know, if

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I put out a training outline with five or six topics in

2

it, and Carrie puts out a training outline with five or

3

six topics in it, you can be sure that one or more of

4

those have had some modification.

5

just to be changing.

6

Q

But we don't change

So, if we were provided materials from the

7

Alabama first amendment training, would that have been

8

the same materials that were provided to the people in

9

Pinal County who were trained in August of 2011?

10

A

No.

Because she did that training.

I didn't.

11

She did the training at Pinal County.

12

PowerPoint presenter.

13

you notice -- the case law would be similar, obviously,

14

but we use very much different outlines.

15
16
17

Q

So, she's a

And I don't use PowerPoint, so

And what issues does she cover in the first

amendment session of her training?
A

Mail visits, telephones, privacy and

18

communication or lack of.

19

touches on religion from a First Amendment standpoint,

20

RLUIPA, Religious Land Use and Institutionalized Persons

21

Act is what she focuses on.

22
23
24
25

Q

And then, although, she

In terms of mail issues, does she cover any

different material than you cover in your mail training?
A

It's probably the same.

emphasis would be different.

Obviously, her

She might cite some cases

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1

differently than I cite since there are any number of

2

cases out there, I suppose.

3

to a case such as Cheshire, PLN vs. Cheshire, because

4

that was a case I testified in, at least at deposition,

5

before the summary judgment came down.

6
7
8
9

Q

I might pay more attention

And, approximately, how many hours have you

spent working on this case so far?
A

I'm not sure in terms of hours.

If I had to

guess, you know, charging 300 an hour, if you divide

10

that into how much I've charged them, and I don't know

11

that exactly, but I would be surprised if it's more than

12

15,000.

13

a little more, I suppose.

14

you can probably come to a number.

You know, probably a little less.

If you want to do the math,

15

Q

So, that's about 50 hours, maybe?

16

A

Sounds about right.

17

Not as much as I do on

some other cases, but --

18

Q

Okay.

19

A

Just about ready to ask for one.

20
21
22

It could be

Let's take a brief break.

(Whereupon, a brief recess was taken.)
BY MR. THOMPSON:
Q

I am going to mark the expert report as

23

Exhibit 2.

For the record, this is Defendant's Expert

24

Disclosure Statement, which includes the expert report

25

of Gary W. DeLand.

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1
2

(Exhibit No. 2 was marked for identification.)
BY MR. THOMPSON:

3

Q

Can you turn your attention to page 4?

4

A

Okay.

5

Q

So, it says you are the executive director of

6

the Utah Sheriff's Association?

7

A

Yes.

8

Q

What are your responsibilities for the Utah

9

Sheriff's Association?

10

A

Among other things, I oversee the jail

11

inspection system and the standards which they are

12

inspected to.

13

Academy training program, other in-service training

14

programs for jails.

15

have jails.

16

technical assistance to the jail commanders when they

17

have questions with respect to whether policies are

18

correct or those kinds of things.

19

I run the Jail Commander Certification

We have 29 counties.

So, we train all of them.

28 of them

I also provide

I have also put on a conference each year,

20

which is law enforcement and corrections for the

21

association.

22

attendees.

23

16, 17 years.

24

them.

25

meetings, except those times when I am out of town, and,

I think this year we had about 800
I have been doing that for about the last
Those are the main things that I do for

I also, of course, attend their monthly business

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1

basically, serve at the pleasure of the sheriffs.

2

Q

So, is it a full time position?

3

A

No.

In fact, several years ago I asked them

4

to reduce my contract amount from 50, from 55,000,

5

whatever they were paying me, down to about 30, 35,

6

somewhere.

7

because it was requiring too much of my time working for

8

them.

9

them, or with the money that I gave back to them, they

10

hired somebody else to do some of my responsibilities,

11

which included the legislature, which I don't like to

12

do.

13
14

I don't remember the exact number even,

So, with some of the money that I gave back to

Q

So, does the Utah Sheriffs Association have

other staff?

15

A

Let's see, they have somebody who oversees the

16

vendors at the conference.

17

handles fund raising for the association.

18

an individual who handles the legislature, as I

19

mentioned, which I do nothing on that.

20

one other person who basically handles our financial

21

side.

22

contractors, not employees.

23

They've got -- and she also
There's also

And then we have

All of us are actually contract employees or

There's also an individual who works free for

24

the association, other than we provided him a vehicle,

25

who actually is the hands-on for our jail inspection

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program.

2

bought him one.

3

for us.

4
5

Q

He's got MS and needs a special vehicle, so we
But he works, other than that, for free

So, are you the one that conducts all the

training for the sheriffs association now?

6

A

I am the one who sets it up.

And I conduct a

7

lot of it.

8

City.

9

Lieutenant Shawn Stewart, so we'll be doing three days

10
11
12

Like, a couple of weeks I'll be in Park

But I'll be sharing that responsibility with

of training, but I'll be doing one of those days.
Q

Does the Utah Sheriffs Association have jail

standards?

13

A

Yes.

14

Q

Did you draft those?

15

A

I drafted those about 17, 18 years ago, before

16

they had hired me.

17

had written their standards that they hired me.

18
19

Q

As a matter of fact, it was after I

And so, how many days a year are you doing

training for jail staff, would you say?

20

A

In Utah, you mean, or all over the place?

21

Q

Let's start with Utah.

22

How many days a year

are you doing training for Utah jail staff?

23

A

If -- let's see --

24

Q

Approximately.

25

A

Accounting the fact that I may only do a

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1

couple of days, hours on one day and then a couple more

2

the next, working with other instructors, it would

3

probably be something in the neighborhood of half a

4

dozen days a month, sometimes more, sometimes less.

5

conservatively, at least four days a month.

So,

6

Q

In Utah?

7

A

Yes.

8

Q

And, then, what about other training of jail

9

staff?

10

A

How often are you doing that?
Well, in the past, I have tried to limit the

11

time I have been doing training.

But since I have been

12

helping NIJO set up training programs, I have done quite

13

a bit of training this year.

14

programs in San Bernardino, Orange Beach, Indiana, just

15

this past week.

16

session.

I have done three-day

Back to Orange Beach for a two-day

Let me look at my CV again.

17

Q

That's all right.

18

A

Yeah.

I got the idea.

I don't like to travel, and got kind of

19

tired of that.

20

working, I have been taking a lot more training.

21

Q

But to make the training program

So, it says you are a member of the training

22

committee for the National Sheriffs Association; is that

23

correct?

24

A

Yes.

25

Q

What does that entail?

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1

A

Well, it's the training committee of the

2

Committee of Executive Directors and Presidents.

So,

3

there's two different committees I am on involve

4

training at NSA.

5

and Executive Directors Committee.

6

committees that are underneath that, including the

7

training committee, are part of that.

8

subcommittee of the main committee.

And if you'll look, it says Presidents
And all those

It's a

9

Q

So, what does that subcommittee do?

10

A

It, basically, provides trainers, or

11

recommends trainers for our -- we meet three times a

12

year, that committee.

13

business and part training.

14

individuals that can provide relevant training.

15

recommend trainers and training topics to the various

16

other executive directors of the sheriff's association.

17

We don't actually conduct any training on our own.

18
19

Q

So, part of those sessions are
So, we look at lining up
Also,

And when was the last time you worked full

time in a correctional facility?

20

A

1992.

21

Q

And where was that?

22

A

I ran the Utah Department of Corrections.

23

the prisons and halfway houses were part of that

24

process, or that organization, I should say.

25

Q

And

So, at that time, were you working in a

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correctional facility though?

2

A

No.

I was working -- my office was located

3

separate from that, but made it a point, at least two

4

days a week, sometimes more, to be at the prison,

5

meeting with staff, sometimes pulling shifts with two or

6

three in the morning, whether I needed to make sure I

7

knew what was going on and to stay current in the kinds

8

of problems my staff were dealing with, going out on

9

Christmas Eve with candy to them in Salt Lake.

10

Q

So, when was the last time you were actually

11

working five days a week full time in a correctional

12

facility?

13

A

That would be at the Salt Lake County Jail in,

14

probably, 1979.

15

and out of Utah's jails all the time, working with them.

16

Q

Then, you know, the part-time basis, in

And when you do the training that you do now

17

in jails in Utah, or any other place you described, are

18

you actually in the jails doing the training or are you

19

doing that in a separate room somewhere?

20

A

Varies.

It varies.

You know, the recent

21

training we did in Indiana was a room adjacent to the

22

jail.

23

before that in Alabama it was a hotel in Orange Beach.

24

So, wherever they want us, that's where we go.

25

inside the criminal justice complex adjacent to the jail

It was part of the jail building.

The week

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in Pinal County.

2

certainly.

3

Q

But not right inside the bars,

So, what kind of work do you do now that has

4

you actually inside the jail, you know, in housing units

5

or areas like that?

6

A

In my own state, because I'm, you know, a

7

technical assistance provider and oversee, you know, I'm

8

in charge of the jail inspection program.

9

opportunity or the need on some occasions to go sit down

I have the

10

with jail commanders at different places.

We also hold

11

our monthly business meetings in a variety of locations

12

around the states which gives me an opportunity to go

13

into the jail, whichever county we are there, and sit

14

down with the jail commander, tour his facility, talk to

15

his staff.

16

different functions when I'm there.

So, it's a wide variety of opportunities and

17

Of course, then I also, in most instances

18

where I'm doing expert witness work, tour the jails

19

there.

20

practice issue, so I didn't worry about it.

21
22
23

Q

Like I say, this one was more of a policy and

And when you say you oversee the jail

inspection program here in Utah, what does that mean?
A

Well, since I put the standards together

24

originally, I now keep the standards up-to-date.

25

brought in this individual who, like I said, he's

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retired.

2

that we buy him a vehicle.

3

couple of weeks about the progress different jails are

4

making.

5

want, I either call the jail commander or the sheriff on

6

the phone.

7

spend some time with them to try to get them cranked

8

back up again.

9
10
11

Q

He's working free for us with the exception
So, he and I talk every

If some of them are not making the progress we

Or, if it's convenient, we'll drive over to

So, are you actually doing any inspections, or

is that all the other person in the organization?
A

No.

We have four part-time inspectors that we

12

have trained, almost all but one of whom are former jail

13

administrators or mid-level managers, all of them with

14

exceptional experience, in any event.

15

have them do the inspections.

16

what they will do.

17
18

Q

So, what I do is

And then I train them on

I would like to turn your attention to page 6

of your report.

19

A

Okay.

20

Q

In paragraph 5 --

21

A

Yes.

22

Q

-- you say you provided training and/or

23

technical assistance for other jurisdictions concerning

24

how to outline format, write and validate policy

25

procedures on manuals.

Can you explain what outline,

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2

format, write and validate means?
A

Yes.

Especially when I was doing a lot of

3

work for the National Institute of Corrections, they had

4

me doing a lot of this.

5

start writing standards, you know, the important thing

6

is to outline and determine what are the topics that

7

they are even going to need to include.

8

basically, an outline becomes a table of content under

9

which any number of individual standards will be placed.

10

Format.

And by that, I mean, before you

You know,

How are you going to assemble the

11

standard?

12

saying, hey, do this, do this, do this?

13

that I train to, at least, is to have the text of the

14

standard, which is what we want you to do, much like

15

policy in a manual would be what we want you to do.

16

Then a rationale statement.

17

Are you just going to have a brief statement
Or, my approach

I have told people you shouldn't trust what I

18

tell you to do unless there is a reason for it.

So,

19

what is the basis for that particular standard?

You

20

know, usually they are legal based, the ones we are

21

doing.

22

say, Arizona State University or the department of

23

justice or someone else that has really good data that

24

justifies doing something a particular way.

25

But there may be studies that have been done by,

Then we have a compliance discussion, which

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1

would be not, you know, somewhat similar to procedure in

2

a manual.

3

a 50 bed jail and a 5,000 bed jail are, obviously, going

4

to approach things differently.

5

keep between the digits.

6

basically have to do to comply.

7

want to do it within these limits.

8
9
10

Q

Everybody's under the same constitution, but

So, basically, try to

You know, here's what you
You figure out how you
So --

What does validating the policies and

procedures manual mean?
A

Part of it is what I just mentioned with

11

regard to the rationale statements.

12

do not provide a rationale for the policy and

13

procedures.

14

that way, it's because some other county did it or an

15

AJA manual suggested they do it, or some other such

16

thing.

17

look at why they do what they do, number one.

18

Most places I go to

So, when you begin asking why you do it

So, validating is getting people to take a hard

And, number two, to contrast their policies

19

and procedures with the case law; you know, get with

20

their county attorney.

21

outlines, but those aren't legal advice, they are simply

22

training guides.

23

together with whoever their legal provider is and make

24

sure they have sufficient research to know whether their

25

policies are on track or not.

They can look at our training

But we recommend that they get

So, that's, you know,

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what we are talking about validating.

2

basically, what I am talking about.

3
4

Q

That's,

Have you put together any documents on how to

write like a policy and procedure manual?

5

A

Back in the early '80s I did, because we used

6

it.

And I see a lot of it in the training programs I

7

did.

8

couple of decades.

But I haven't seen those outlines for probably a

9

Q

So, are those used anymore, to your knowledge?

10

A

I doubt it.

I'm sure other people have come

11

up with their own ideas about how to do things.

12

instruction, I bring up policies and procedures and talk

13

about state created liberty interests and rationale

14

statements and so on, but it's not a how to, it's just,

15

basically, some of the things they need to be aware of

16

when they are writing policy manuals.

17

Q

In my

So, when you give those presentations, do you

18

have materials that describe your philosophy for how to

19

right a policies and procedures manual?

20

A

No.

I hand out materials that would simply

21

talk about why we have policy manuals, and those two

22

things I just mentioned to you, probably a page, page

23

and-a-half of an outline, I'm guessing.

24
25

Q

And where do you give that training?

Who do

you give that to?

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A

Well, it depends on what people ask for.

If

2

they just want prisoner rights, I don't do it.

3

want prisoner rights and civil liability, then we add

4

that to the training outline.

5

recently, this last training session we did, that was

6

part of it.

7

Q

When you say the last one, which one do you

9

A

Washington, Indiana.

10

Q

Was this discussion of how to draft policies

8

If they

For example, just

The week before, it was not.

So --

mean?

11

and procedures part of a training you did in Peoria,

12

Illinois of 2011?

13

A

I have to look at the training outline.

I'm

14

not sure.

I thought this was mostly a prisoner rights

15

thing. I would have to look at it.

16

how you draft them, the training is simply here's some

17

things to keep in mind when you do draft them.

18

and I haven't for a long, long time, but NIC used to

19

send me out to do that type of training.

20

spend two days teaching them how to write, having them

21

write various aspects of a policy, then breaking down

22

what was right and what was wrong with it.

23

course of two, sometimes three days, actually, we had

24

some as long as a week, you know, people left with,

25

hopefully, an understanding of how to write a policy.

The training is not

If I do,

And we would

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But I haven't done anything like that in decades.

2

it's just a 15 minute discussion as part of protecting

3

yourself against liability.

4

Q

Now

You say in your report that you wrote jail

5

standards for Michigan and Alabama and Arizona; is that

6

correct?

7

A

Yes.

8

Q

So, does that mean you wrote them from

9
10

scratch?
A

No.

I wrote the Utah standards, as I

11

mentioned.

12

to do it for Arizona.

13

Court of Appeals, obviously.

14

statutes in the ARS, or Arizona Revised Statutes.

15

what I would do then, is update or modify those

16

standards to meet Ninth Circuit Arizona District Courts

17

and, if appropriate, any state court cases, which we

18

didn't run into many that have helped.

19

that anything that was written was consistent with the

20

Arizona Revised.

21

And they are all legal based.

So, I'm going

They are in the Ninth Circuit
They also have state
So,

And make sure

Then there was a committee that would go

22

through.

23

their needs unless it was something that was far enough

24

off track that I said no.

25

And they would adjust what I had written to

Alabama, almost nothing in statute, but they

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have got 11th Circuit case law.

2

District Courts.

3

which they have not adopted yet, but, same thing.

4

at the statutes.

5

there, then modify what's already been written to fit

6

that requirement.

7
8
9

Q

And they have Alabama

So, you know, in writing Michigan's,
Look

You looked at Sixth Circuit case law

So, who is commissioning you to write these

standards in these other states like in Michigan?
A

Michigan, it was the Michigan Sheriff's

10

Association.

11

adopted yet, is they are working with their risk

12

management people to fund getting this thing together.

13

I don't know when that will happen.

14
15
16

Q

And they are the reason they haven't been

So, you have already drafted a standards, but

they haven't been issued; is that correct?
A

That's right.

In Alabama, it was an Alabama

17

risk management firm, but they only do 45 counties out

18

of, I don't know, some, probably close to a hundred

19

counties in Alabama.

20

applicable to those counties, because they want the

21

counties they insure to follow them.

22

training two weeks ago there.

23

counties I heard ask the representative of that group if

24

they could buy in and use the standards as well.

25

just depends.

So, the standards are only

Although, I was

There were a number of

So, it

In Arizona, it was Arizona Counties

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Insurance Pool that funded the initial project.

2

sure how it's funded now, whether they get paid by the

3

individual counties or what.

4
5
6

Not

Q

And, in Michigan, is it an insurance pool

A

Yes.

also?
Well, they are the ones who will

7

ultimately fund it.

But it was the Michigan Sheriff's

8

Association that asked that we do it.

9

fortunate there.

Then I was

They offered us an attorney who had

10

researched the statutes for me, which saved me that

11

responsibility.

12
13
14

Q

So, do you start with kind of a template from

the Utah standards, then adopt it to the local law?
A

Yes.

You know, if the Tenth Circuit is

15

different than the Sixth or the Michigan or whatever

16

other Federal District Courts have taken a different

17

approach than, say, the Utah, then, obviously, I have to

18

reflect that.

19

Q

You also described some jail policies and

20

procedures manuals you have written in Utah.

21

look on page 14 --

If you

22

A

Actually, it's on 13 and 14 on my copy.

23

Q

Yes.

So, on page 14, it looks like in the

24

last 10 years you have written policies and procedures

25

manuals for four jails here, is that correct, the four

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1
2
3
4
5
6

counties?
A

Iron County, Uintah County, Millard County and

Cache County.
Q

So, what's your role in writing those manuals?

Are you drafting those entirely yourself from scratch?
A

Yes.

What we do is, you know, there's an

7

endless number of chapters that could go in a manual.

8

So, I agree to do 200 or 150 or whatever number of

9

chapters they want.

Then I give them a list of the

10

various topics they could ask for.

11

have policies they feel comfortable with in some area or

12

may not want to put out money that may not have any

13

liability attachment.

14

they want written and which ones they want done first.

15

Then, over the course, usually is a couple of year

16

project, because it takes them a while, when I write, to

17

go through it and make suggestions on changes and so on.

18
19
20

Q

Some people already

So, I let them prioritize what

So, then are those manuals you drafted revised

by counties or do you give them a finished product?
A

Well, it just depends.

In, for example,

21

Millard County that's mentioned there, all I do is

22

provide them the draft.

23

with it after that.

24

wanted a finished product.

25

for it, of course.

It's up to them what they do

With regard to Cache County, they
Then they paid a lot more

So, I would send them a draft.

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had a series of committees, depending on what the topic

2

was that reviewed that.

3

comments in, make their suggestions.

4

they wrote was a clear violation, in my judgment, of the

5

constitution, or something it was going to get them in

6

trouble, that's the way I redrafted it for them, then

7

sent the finished product to them.

8
9

They would then put their
Then, unless what

Toward the end, they started saying, look.

can even do our own finished product if all we are doing

10

is changing, you know, typos or very minor things that

11

don't have a great deal of impact.

12

that as well.

13
14
15

We

Q

And I agreed to do

So, are those policies and procedures manuals

changing since you finished them?
A

Sure.

In fact, I built in a requirement that,

16

at a minimum, every 18 months they have reviewed the

17

manual and -- reviewed individual chapters.

18

chapter will have a different suspension date, of

19

course.

20

little changes, six months out, eight months out, then a

21

new 18 month review date is attached to it.

22

it's intended that they do that, because laws change or

23

maybe what I wrote didn't work out so well.

Each

Most of the time they will find they have made

But, yes,

24

Q

So, are you involved in those changes?

25

A

No.

No, that's all on them.

That would be a

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separate contract.

2

Q

And for those four counties on page 14, did

3

you write the sections of those policies and procedures

4

manuals regarding mail publication issues?

5

A

Yes.

Each of the four, I did.

They may be a

6

little different from jail to jail.

7

made changes in them, and I don't know for sure, I

8

couldn't tell you with respect to every single chapter

9

what happened, but, yeah, I would have written all four

10

of those.

11
12

But if somebody

Q

Those four counties, bigger or smaller or

about the same size as Pinal?

13

A

Let's see.

I think Pinal County has about

14

400,000 residents.

15

this county we are in now, it is just under, I think

16

it's 180, 175,000 last I heard, so it would be half that

17

size.

18

would be substantially smaller.

19
20
21

So, the ones that I was writing for,

Iron County, Millard County, and Uintah County

Q

And have you written mail policies for any

other correctional facilities?
A

Let's see, yeah.

Summit County several years

22

ago, a lot of that policy would now be outdated, but

23

several years ago I wrote one for Summit County.

24

just take a quick, quick, quick look.

25

the 1980s.

Let me

Sonoma County, in

Again, that's so long ago I'm sure most of

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what I have written is outdated.

I did a complete

2

manual for them.

3

a result of those being written, I was asked to do a

4

model policy manual which could or could not be used by

5

the various counties that were interested.

6

terminated that contract about three-quarters of the way

7

through.

8

that one.

9

said, you know, we are getting to where we can now write

Arizona Model Detention Guidelines, as

However, we

And I don't recall ever getting to mail on
Certainly, they got to a point where they

10

using your format and so on.

11

terminated the contract?

12

great idea, since I don't really like writing manuals,

13

and I didn't have the time.

14
15
16

Q

Would you mind if I

I told them it would be a

So, did you write a model mail policy for that

manual?
A

No, I don't believe I did.

Because I remember

17

when I was talking it seems like I had a conversation

18

with Bill Hardy on an entirely different matter on

19

another day.

20

didn't write the mail policy, you know, for Pinal

21

County.

And it seemed to me he said, too bad you

Something to that effect.

22

Q

What did he mean by that?

23

A

Well, I guess he had been sued.

And so, I

24

guess he thought somehow if I wrote it it would be less

25

likely that would be the case.

I don't know if that's

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true, but that was, again, another manual that was

2

written.

3

about three-quarters of the way through.

4

recall ever getting to the mail policies.

But, like I say, that contract we terminated
So, I don't

5

Q

That was a contract with --

6

A

With ACIP, Arizona County Insurance Pool.

So,

7

they own that manual.

Then we had a whole series of

8

manuals at the Utah Department of Corrections.

9

know, many, many years ago, when none of this case law

You

10

was around, I had written it for Salt Lake County.

11

have also written for a private correctional operation

12

called Promontory, and also for the Purgatory

13

Correctional Facility.

14
15

Q

I

But that was in the late 1990s.

Okay.

Can I turn your attention back to

Okay.

page 4?

16

A

Sure.

17

Q

So, you list that you were a senior adviser

18
19

for the Iraq Minister of Justice?
A

Yes.

And Department of Prisons part of that,

20

because they also had courts.

It had nothing to do with

21

the courts.

22

Q

So, were you employed by the United States?

23

A

Yes.

There were two pockets of money over

24

there; one for the military and one for what's called

25

CPA, which is the civilian side.

Coalition Provisional

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1

Authority.

2

came through, I guess it would be Justice and the State

3

Department.

4

seized from the Iraqi Government, you know, the box cars

5

full of hundred dollar bills that might have been around

6

when they came in.

7

Q

So, I was being paid with the money that

Much of that money was money that had been

So, in Note 2 on page 4, you say you helped

8

establish the Iraqi Correctional Services Training

9

Academy?

10

A

Yes.

11

Q

What was that?

12

A

Well, when we came in, we were under order to

13

stand up as many facilities as we possibly could,

14

because we were simply being housed on bare ground with

15

concertino wire around it and, generally speaking, slit

16

trenches where they would burn off the waste.

17

Abughraib, for example, they had a place called Camp

18

Victory.

19

just sectioned off with concertino wire enclosing and

20

separating the prisoners.

21

not sure I got everything that you were asking there.

22

Q

At

And that's all that was when I got there, was

Ask the question again.

I understood the response.

I am

So, you said in

23

footnote 2 you renovated open federal detention and

24

prison facilities.

25

open?

Can you describe what you mean by

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A

Yeah.

One of the things that happened over

2

there was, there would be some damage, obviously, from

3

the fighting.

4

that was the least of the problems.

5

we found had simply been -- vandalized isn't even the

6

word -- stripped might be a better word, and sold.

7

know, the seal would be gone, the glazing or what you

8

call the glass would be gone.

9

off the floors.

Abughraib was shot up pretty good.

But

The facilities that

You

Tile would be taken up

So, what you had to do is go back and

10

rebuild.

In fact, they had just built a place, I think

11

it's in one of these documents, Kan Ban'i Saad.

Brand

12

new facility.

My team

13

arrived there a month ahead of me.

14

new pristine facility.

15

it.

16

guns.

17

produced international journalists.

18

a standoff.

I think there's like 4,000 beds.

And it was a brand

But some Arabs had moved into

And when they told them to get out, they produced

19

So, they came back with the military.

And they

So, it was a bit of

And while that was going on, they tore the

20

prison down, literally.

21

building probably twice the size of this room left, an

22

administrative building, even the walls had been torn

23

down and sold.

24
25

Where there was one single

I mean, they are really good.

We built a place called Karck, or were working
on it.

Laid down tile.

Next day, came back.

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tile was gone.

2

selling it.

3

rebuild the facility that had been stripped of security

4

equipment, locks, bunk beds.

5

even bother to provide beds for them.

6

been there was no longer there.

7

rebuild it all.

8
9
10

Q

There was a guy three blocks away

So, what we did was have to go back and

A lot of them we didn't
But whatever had

So, we had to go

So, that was one of the facilities that was

renovated and open that you managed?
A

Yeah.

Abughraib, we really liked that

11

facility for one reason, and that was it was really big.

12

It had been built by a German construction firm.

13

well designed and built.

14

The downside to it, it was right on the edge of the

15

Sunii Triangle.

16

But there were so many beds that once we tore out the

17

kitchen and rebuilt it and put in a hospital and those

18

things, when I left we actually cut the ribbon on it.

19

But it didn't have any inmates in it because we had --

20

all the locks hadn't arrived yet.

21

waiting for a shipment of locks.

22

felt because our tour was up, he wanted us to be there

23

when they cut the ribbon even though there wasn't any

24

prisoners there.

25

know how long after we left they started putting

It was

And the damage was repairable.

And they were mortared every night.

And we were still
But, General Campbell

So, that came a month or so.

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prisoners in it.

2

Q

So, when did you leave there?

3

A

September.

4

Q

September 2003?

5

A

2003, yes.

I had offered to go home, come

6

back and extend, but at that time they weren't doing

7

that.

8

lined up a whole bunch of work thinking I could not do

9

that, so I never got back.

10

Then, later, they were.

Q

But I had gone ahead and

So, you say here that the Abughraib facility

11

was turned over to the US Army Military Intelligence

12

Unit?

13

A

Right.

14

Q

So, when was that?

15

A

Well, I left in September.

Lane McCarter

16

left, then General Campbell that we worked for, we all

17

left September -- there was a general over there who

18

since has been kicked out of the army, demoted, and then

19

had to leave by the name of Janis Carpinski.

20

I left, something we had refused to do before, because

21

of which money we were using to rebuild this place, they

22

had tent cities, we had the hardened facilities for the

23

government.

24

these military intelligence prisoners.

25

As soon as

She went ahead and turned over for housing

Also, a very professional unit out of Nevada,

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1

the 72nd or 73rd MP Company followed home a month after

2

us.

3

Appalachia.

4

there then a couple of months later.

5

everything had changed.

6

was gone.

7

now the military unit that provided security, they were

8

also gone.

9

exception of Carpinski.

10
11

And they brought in a group from, I guess, Upper

Q

And you saw the problems that were caused

Lane was gone.

So, you know,

General Campbell was gone.

I

Our whole team was gone.

And

So, it was all brand new faces with the

So, when you were there, were there two

separate facilities, one to house Iraqi prisoners?

12

A

Three.

13

Q

Yes.

14

A

Three.

You are talking about in Abughraib?

When I say first got there, there was

15

Camp Victory, which it was inside the walls, but it was

16

nothing more than concertino wire and dirt.

17

I left, they had put tents in there and latrines.

18

then they also opened another unit which they referred

19

to as IFs, interment facilities.

20

grounds, in a huge, huge area, you know, Abughraib is a

21

place, but in this case it was three separate places.

22

And the interment facility was built in units of 500.

23

You would have tents and support facilities also in

24

tents for 500 inmates at a time.

25

left there was somewhere between 2,000 and 2500 in Camp

By the time
But

Also, on the Abughraib

I think at the time I

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Gancie -- G-a-n-c-i-e, if I remember the spelling

2

correctly.

3

operations going on simultaneously at Abughraib, a

4

prisoner of war camp, a IF facility unit, and then what

5

we were building for the Iraqi government.

6
7
8
9
10
11

Q

So, there were three facilities, three

What was the part that you were building

called?
A

Just simply referred to it as Abughraib.

it was the hardened facilities.

It was the brick and

mortar.
Q

So, is it your testimony that they moved, the

12

military intelligence unit moved into the brick and

13

mortar facility that you had participated in putting

14

together?

15

A

Yes.

Which my understanding was that they

16

weren't supposed to do that.

17

came out of this plot which was to do things for the

18

Iraqi Government.

That was money, you know,

19

Q

So, who were you funded by?

20

A

We were funded by CPA.

21
22
23
24
25

But

The military funded

the other two operations over there.
Q

Have you given any presentations at

conferences about prisoner mail issues?
A

Maybe a long time ago.

I can't think of

anything in recent days that I have.

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Q

You don't remember anything particular in the

3

A

Well, what do you mean past?

4

Q

You say a long time ago.

5

A

Oh, back in the days when I was, you know,

2

past?

6

working with NIC a lot, I did a lot of training at ACA

7

and whatnot.

8

included that, among other things, that I have been

9

talking on.

10
11

There could have been a program which

But I don't recall it being a specific

topic that I actually provided training on.
Q

Did you give a presentation at the National

12

Sheriff's Association conference in Nashville this year

13

about prisoner mail issues?

14

A

No.

15

Q

Were you going to give a presentation there?

16

A

Before the explosion, you mean?

17

Q

Yes.

18

A

Well, we were all sitting around having dinner

What happened?

19

one night, about 9 o'clock.

20

explosion which took out about 75 yards of that big

21

hotel complex.

22
23
24
25

Q

And there was a hellacious

So, what was the presentation you were going

to give?
A

The next day it was going to be on, basically,

the PLN issues.

It was becoming a hot topic.

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Q

What do you mean by PLN issues?

2

A

Well, publications.

But PLN, there are a lot

3

of cases around the country, as you know, where PLN has

4

sued.

5

up in Washington, Oregon.

6

attention was given to that.

7

didn't know until I got to the conference I was speaking

8

on that.

9

searches.

You know, the DeWitt case, and a bunch of cases

10

Pick a state.

So, a lot of

So, in fact, even then I

I thought I was speaking on use of force and
But things had gotten juggled.
But, in any event, I would have been happy to

11

speak on it except the place blew up.

12

all the training programs which were due on that, I

13

believe it was a Wednesday.

14

training that was going to go on that was jail related.

15
16
17

Q

So, they canceled

And we had a whole track of

What do you mean you thought you were speaking

about use of force?
A

Well, when I originally talked to Tate

18

McCotter, he said, would you be willing to do a couple

19

of workshops?

20

He said, what do you want to do?

21

preference would be those two.

22

work it out.

Sure.

What do you want me to talk on?
I said, well, my
He says, okay.

We'll

23

Q

What do you mean those two?

24

A

Oh, those two would be use of force and

25

searches.

The Florence decision, I think, by then had

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come down.

In any event, when I got there, I had found

2

that Carrie Hill had wanted to do one of those topics.

3

They had requested different kinds.

4

would you mind doing that?

5

take lesson outlines to those national conferences

6

anyway, because you don't know how many people you are

7

going to have in your room.

8

could have 210.

9

when I go there, so I'm not going to put out the money
to develop outlines.

11

on what I already know.

13
14

Q

That's fine.

I don't

You could have 10.

You

And besides, I don't get paid to train

10

12

No.

They just said,

I simply stand up and talk based

So, you didn't have any materials for that

discussion on -A

No.

I probably wouldn't have anyway, not

15

knowing that I was going to be speaking on that.

But I

16

didn't prepare any materials on the two topics I thought

17

I was going to teach either.

18

being paid, you are just asked to come in and do a brief

19

workshop, or a couple of them --

Like I say, if you are not

20

Q

So, what were you planning on talking about?

21

A

Well, what would have been talked about was,

22

as I had worked it out in my mind, I would talk about,

23

first of all, what the First Amendment requires with

24

respect to being able to communicate with people in the

25

outside world, who people should be able to talk to.

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Talk about the fact that others may want to communicate

2

with inmates and, perhaps, have an editorial interest

3

such as publishers.

4

Second would be, you know, how you screen

5

materials.

Are you allowed to read it.

Those kind of

6

things, third.

7

our discussion would be, if you are not going to allow

8

it in, what are the criteria that you can use, how you

9

avoid content based screening, and then how you go about

Fourth, wherever we are at this point in

10

allowing appeals, usually the grievance process for

11

staff -- or inmates.

12

instructions to the sender, you know, the publisher, in

13

this case, you know, PLN or Time Magazine or whoever it

14

would be that may want to send something in.

And then written notice with

15

Q

So, those are all kind of general topics?

16

A

Yeah.

17

Q

Was it going to be specifically about PLN in

18

any way?

19

A

PLN was the catalyst more than the star of the

20

show.

21

guess is that would be one way to get people in there,

22

is to put PLN somewhere in your discussion, in your

23

description.

24

I don't remember how they advertised it.

My

(Exhibit No. 3 was marked for identification.)

25

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2

BY MR. THOMPSON:
Q

So, for the record, this is a 5-page document.

3

It's not the whole conference program, but it was a

4

couple hundred pages.

5

pages.

6

discussion we have been having.

But this is the introductory

And then on the page it describes this
Do you see that?

7

A

Yes, I do.

8

Q

On page 57, the program?

9

A

Yes.

10

Q

So, is that the presentation we have been

11

discussing?

12

A

13

blurb here.

14

probably.

15

more basic approach to it so there was a foundation

16

against which to apply anything I was going to be

17

talking to.

18

talk about rights to receive, rights to inspect and

19

review, all those things, and then got to PLN, since

20

that's also listed here.

21

Q

It is.

Like I say, I didn't write this little

But I would have talked about those things,
But I would have started, you know, with the

So, we did talk First Amendment.

We did

What does it mean that PLN is trying to sucker

22

jail administrators into rejecting subscriptions to

23

their publication?

24
25

A

Well, I didn't write that, so -MS. STATON:

Wait.

Objection.

Form and

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foundation.

2

Go ahead, Gary.

THE WITNESS:

Okay.

Like I say, I didn't

3

write that.

I do know there's a general feeling among a

4

lot of administrators, and even some trainers, that PLN

5

puts out actually a pretty good product.

6

it.

7

pursue litigation almost as much as publish.

8

mean calling jails and saying we are going to send a

9

whole bunch of free subscriptions into your jail,

I subscribe to

They had gotten to where they seem to be trying to
By that, I

10

knowing it would be a very difficult thing for jails to

11

accommodate that.

12

Now, suddenly knowing that you can't get

13

pornographic materials into a jail, putting ads for

14

porn, now, I don't think the ads themselves are a

15

problem, because there's nothing titillating about the

16

ad itself.

17

to when I am doing training sessions around, or when I

18

am listening to Carrie Hill do a training session raise

19

that issue, you know, can't we keep it out because of

20

the ad?

21

jail, and turning materials away if they try to get them

22

in.

23

But, a lot of jail commanders I have talked

No.

But the materials we can't have in the

So, I'm sure that's why this was crafted in

24

the fashion that it was, is that PLN has become a very,

25

very important issue to jail commanders.

They see all

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these big awards.

2

in attorneys fees, mostly.

3

the state of Washington in one of the classes we did a

4

while back that said they had two or three cases there

5

with six figure awards.

6

I see the awards listed periodically on the internet

7

when I am doing research on the PLN.

8

surprising that that kind of rhetoric would be used by

9

the people who put these programs together.

10

Q

I think DeWitt was nearly $600,000,
But there was somebody from

So, I know they are out there.

So, it's not

So, do you agree with that statement that's

11

written here, that PLN seems to be trying to sucker jail

12

administrators into rejecting subscriptions to their

13

publication?

14

A

I don't know if I would use the word "sucker,"

15

but I do think it's fair to infer that they are

16

encouraging people to turn down what they are offering.

17

You know, take Cache County, for example.

18

said there is no way we can handle all of that.

19

well, I have already written your policy and procedures

20

on that.

21

have got subscriptions in the library.

22

matters.

23

prisoners we weren't keeping PLN out, for example.

24

were simply deciding how they would achieve access to

25

it.

You don't have to worry about it.

They just
I said,

And you

That's all that

As long as you can get the materials to the
We

And so, we were ahead of the curve.

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You know, I get called a lot on cases,

2

probably four or five times I can think of, where they

3

say we have been sued by PLN.

4

I say, can I ask you a question upfront?

5

what your policy says with respect to publishers.

6

Because you win these kinds of cases at the front end,

7

not the back end.

8

place, then it makes it tougher for you to deal with it.

Would you take the case?
Yes.

Tell me

If you don't have the policies in

9

Q

What do you mean, what kind of policies?

10

A

For example, take the case we are dealing

11

with.

12

the suit was filed that specifically provided a remedy

13

for the publisher.

14

if you didn't get at the front end, that's the policy

15

that provided for that.

16

is going to be at best, incredibly difficult to defend.

17

Pinal County did not have a policy at the time

Q

So, that's one of those cases where

You already have an issue that

Is there anything else about the Pinal County

18

policy here that fits that description of kind of

19

waiting too long and not handling it at the front end

20

that's caused a problem here, in your opinion?

21

A

22
23
24
25

No.

But if they had called me before --

MS. STATON:
the form.
A

Excuse me.

Let me just object to

Go ahead, Gary.
If they had called me in advance, prior to all

of this when the case was first filed, I would have made

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the same observation then as I have with these other

2

individuals who have contacted me.

3

BY MR. THOMPSON:

4

Q

What do you mean made the same observation?

5

A

That you need to have in policy a remedy, an

6

appeal process for publishers who have a right to expect

7

that their editorial comments will be available to the

8

prisoners unless it meets a criteria based on safety,

9

security, order, discipline, whatever that would be a

10

legitimate penological interest.

11
12

Q

So, is there anything else you would have

advised them before this litigation had been filed?

13

A

Just on the basis of the phone call, probably

15

Q

Have you ever viewed their policy?

16

A

If I reviewed their policies, I can't think of

14

not.

17

anything off the top of my head.

I'm sure we are going

18

to get into their policies at some point today.

19

can look at that directly.

20

issue.

21

Q

Then we

But that would be the main

That's the one that makes it tough to defend.
You said earlier that you thought it would be

22

fair to infer that PLN was encouraging correctional

23

facilities to not accept their terms.

24

opinion?

25

A

Is that your

At least not accept the materials in the

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fashion they are provided.

And the reason I say that is

2

not just some thought that's been bouncing around in my

3

head, but from being in training classes, talking to

4

jail and prison officials, you know, at conferences I

5

attend or speak at or whatever else.

6

that's one of the first things that we used -- when we

7

see somebody saying we are going to send all these

8

subscriptions in that have suddenly overburdened our

9

mail room, or when we see ads for materials the inmates

When PLN comes up,

10

couldn't get sent to their cells anyway, that's the

11

impression that a lot of my fellow corrections

12

professionals have inferred from that.

13

Q

I guess I'm trying to understand where PLN, in

14

your opinion, that PLN is encouraging the materials they

15

rejected.

16

PLN may be including the ads so that the materials are

17

rejected?

18

A

With respect to the ads, you are saying that

I'm telling you that's been something that's

19

been discussed among other corrections professionals

20

that I come in contact with on a very frequent basis.

21

PLN would probably be pleased to know how much they are

22

talked about in the system.

23

to exactly what PLN have in mind when they do that, so I

24

won't say what their intentions are.

25

that that is a very commonly held inference among many

Or not.

But I can't speak

But I can tell you

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of the people that I have talked to, or who have called

2

me with respect to, hey, we just got something in from

3

PLN demanding we do all these things, and include all

4

these subscriptions and so on.

5

Q

So, you referenced a number of subscriptions.

6

I'm trying to understand how that fits in with your

7

statement about PLN encouraging jails who reject them.

8

Can you explain that?

9

A

Well, again, I'm not going to say what their

10

intent is, okay, but in terms of how it's being

11

discussed nationally, if you have a mail room that is

12

already working somewhat near capacity, and they'll

13

assign a number of staff there that it takes to do that,

14

then, all of a sudden, you are starting to receive large

15

numbers of subscriptions that you have to process.

16

you have to understand as well, jails only house

17

prisoners normally for a relatively short period of

18

time, which also then creates the problem of, what do I

19

do with the subscription after the inmate's gone?

20

do we process that?

Can we just throw it away?

Do we

21

have to forward it?

Where do we forward it to?

There

22

are all kinds of problems that go with subscriptions.

23

And because of those issues, jail officials are

24

reluctant to accept subscriptions.

25

for them.

And

How

Prisons, it's easy

They have people for a long time.

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do what they are going to do.

2

So, one of the things I have recommended, when

3

I have been asked, is that you can get around that by

4

putting subscriptions in your library.

5

prisoner can check it out whenever he wants to.

6

we are talking about now is based on this blurb in here,

7

is, what are the impressions of PLN?

8

that's a commonly held impression by any number of

9

people that I talk to around, at the conferences,

10
11
12

Then any
But all

I can tell you

training programs, whatnot.
Q

The impression is sending a quantity of

subscriptions so that they will be rejected?

13

A

Yeah.

14

Q

To try to overwhelm the mail room?

15

A

Well, I don't think they care about, that's

16

their intent, overwhelming the mail room per se.

17

like I said, the impression, the inference that's being

18

drawn by any number of other people in the system is

19

that PLN does this to make it more likely they will

20

litigate.

21

But,

You know, I share that opinion to some degree.

22

Like I say, I don't have anything to know what's going

23

on in the minds of those people at PLN.

24

been -- when I ran the prison, for example, PLN came in.

25

Since that time, it was, I know by a director after me,

But that's

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they stopped accepting it.

2

think they lost.

3

why every single, you know -- not every single

4

prisoner -- but a whole group of prisoners, many of who

5

may not be there by the time the first subscription

6

arrives, they are going to get free subscriptions, when

7

we can just as easily put it in the library and

8

negotiate that with PLN any time they wanted to, it does

9

certainly leave that inference hanging in the air.

10

Q

And they got sued.

And I

But until somebody can explain to me

So, you said you share that opinion to some

11

degree, that PLN is sending subscriptions in order to

12

pursue litigation; is that correct?

13

A

Yeah.

What I am basically saying is, I can

14

certainly see how people could arrive at that conclusion

15

or that inference.

16

why they need a whole bunch of subscriptions if we are

17

more than willing to provide subscriptions through a

18

library, or why there would be ads for pornographic

19

materials which inmates couldn't receive anyway.

20

Because I have trouble figuring out

You know, if somebody in PLN said we do it for

21

these reasons, and they have any kind of logical

22

justification for that practice, then it might make more

23

sense to me.

24

understanding the why.

25

come to some pretty firm conclusions about that as they

Right now, I just have trouble
And a lot of other people have

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have had to deal with some issues.

2
3

Q

County that you have talked to?

4

A

5
6

THE WITNESS:
little quicker.

We need to have this delay a

Yeah.

I'm doing the best I can

here.
THE WITNESS:

Yeah, I know.

Okay.

Could you

re-ask the question since I got us off track?

13

MR. THOMPSON:

14

(Record read.)

15

Object to the form and

Sorry.

MS. STATON:

11
12

Wait.

foundation.

9
10

I don't recall talking about -MS. STATON:

7
8

So, is that the opinion of people in Pinal

A

Can you read that back?

I don't remember addressing that specifically

16

with them.

17

just know it's a, like I said, a fairly common theme

18

across other jail people around the country that I deal

19

with on a fairly frequent and random basis.

20

BY MR. THOMPSON:

21
22
23

Q

That conversation has been too long ago.

I

So, you don't remember talking to anybody at

Pinal County about why this litigation happened?
A

No.

I could -- if somebody corrected me that

24

I did, that would be fine.

25

conversation.

I just don't recall any such

My only concern, when I was talking to

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Kimble and Montano on those interviews, was about how

2

they handled the publications, you know, the timeline

3

for when those things changed, what they remembered

4

about the process and why different changes took place.

5

I don't recall ever getting into any proposed inferences

6

with respect to why PLN does what they do.

7
8

Q

Have you worked on other cases in which you

have worked for defendants who are being sued by PLN?

9

A

Yes.

10

Q

Which cases are those?

11

A

PLN vs. Cheshire.

That was a Cache County,

12

Utah case.

I was called at the 11th hour when they

13

decided that they were not happy with their current

14

expert in DeWitt, PLN vs. DeWitt or PLN vs. Bertha

15

County, however it's captioned, and did write a quick

16

expert report there.

And I was also contacted by PLN

17

vs. Columbia County.

Initially, I wasn't going to take

18

it.

19

to mediation.

20

got called back and asked if I would put an expert

21

report together.

Then I agreed.

Then they decided they were going

So, just short of shredding the file, I

22

Q

So, are you drafting that report now?

23

A

No.

I told them that the timeline they had

24

was too short.

I already told them what my schedule was

25

like, and they would to have to do without it.

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Q

So, you are not working on that case?

2

A

Well, they haven't fired me yet.

3

know.

4

they have or if they are even trying.

5

reason I had time to do an adequate report for them.

6

am not going to just change the caption on an expert

7

report I have already done and send it to them.

8

right now, no.

9

again, seeing if there was anything I can do to knock

10

If they get an extension.

I don't

that out.

11

Q

12

cases?

13

A

And I don't know that
But if for some
I

But

They called us recently as last week

And the answer was no.
How did you become involved in those PLN

Did you know the attorneys?
People called me.

I did not know the

14

attorneys in DeWitt.

I did not know the attorney in

15

Columbia.

16

Staton.

17

used to work in my legal office when I ran the

18

Department of Corrections, so I knew him very well.

19

Frank Myler.

I did know previous, from other cases, Miss
And the attorney on the Cheshire case actually

20

Q

So, the attorneys in those cases all reached

21

out to you?

22

A

Everybody did.

You know, I certainly didn't

23

call Pinal County or, even though it was in my own

24

state, I didn't call Cache County.

25

turn down probably about one out of every five or six

I am plenty busy.

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cases I get called on just for nothing more than I don't

2

have time or they have too tight of a requirement for

3

deliverables.

4

Q

5
6

All right.

Let's take a break.

(Whereupon, a brief recess was taken.)
BY MR. THOMPSON:

7

Q

I want to move on to page 17 of your report.

8

A

Okay.

9

Q

So, the bottom paragraph, you say that

10

defendant's existing policies and procedures

11

unambiguously allowed approved publications to be

12

received for PCJ prisoners.

13

constitutes a publication under defendants' policies,

14

you know, when this litigation was filed?

15

A

In your opinion, what

In general it would be something that is sent

16

by a publisher, someone who publishes any sort of

17

document and then wants it to be sent in by subscription

18

or whatever other means by purchase.

19

magazine.

20

course.

21
22
23

Q

It could be a newspaper.

So, it could be a
It could be PLN, of

And why do you understand publications to be

defined that way?
A

Because those are the things that normally are

24

being sent to jails that fall into that category.

25

know, that's basically the way that jails, including

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when I am writing, they may be defined as a publisher

2

publishes something and gets subscribed to and sent in.

3

We normally separate those from books.

4

though there's a publisher, obviously, for books as

5

well, but those are usually dealt with as a separate

6

issue.

7

Q

8
9

You know, even

So, when you refer to publications for

support, you are not referring to books?
A

No.

There's a very similar process for

10

reviewing them to see whether they can come in or not.

11

But there's a different, you know, process with respect

12

to what you do if you deny them.

13

are some differences.

14

talking about in this context would be, you know,

15

magazines, documents such as PLN, anything that a

16

publisher sends in, some type of periodical, perhaps.

17

But it could be one or several issues of a periodical.

18

Q

So, you know, there

But the publications that we are

I just want to understand.

So, when you talk

19

about publications here, you are not talking about

20

books; is that correct?

21

A

No.

They are a separate related issue.

If I

22

don't allow a particular book in, we don't send to the

23

publisher and the author and everybody else an

24

opportunity to argue about that.

25

periodicals.

But we do with

We do with publications as I have

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described them.

2
3

Q

But book issues are not covered in your expert

report; is that correct?

4

A

No.

I don't think I wrote anything on books.

5

I wouldn't have intended to, because I didn't recall

6

being any -- I may have referenced library or something,

7

but --

8

Q

9

So, if we go to the first opinion on page 18,

A-1.1 --

10

A

Yes.

11

Q

-- can you explain what you mean on the bottom

12

of page 18 when you say in the last paragraph, "Clark,

13

in his expert report, neither discusses nor seems to

14

understand that changes must be made in a deliberate,

15

thoughtful and effective manner."

16

that?

17

A

What do you mean by

Looking over Clark's background in his

18

material that he submitted, he's worked for the Bureau

19

of Prisons, sufficiently familiar with them or

20

Corrections Corporation of America, other large firms

21

that have facilities scattered about the country, that

22

there is, even though there may be some minor

23

differences from facility to facility, the core policy

24

and procedures tend to be the same.

25

Prisons, I think, publishes theirs in the CRFs.

In fact, Bureau of

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event, that's quite different.

And he did not seem in

2

his report to give any attention to that.

3

different from coming in to a new operation where there

4

is no central theme where the operational philosophy,

5

the understanding of laws, where the organizational

6

structure is so much different than what you are going

7

to put into place.

8

wondering what he would have done.

9

took over the Department of Corrections, where it was

It's quite

You know, reading his, then
For example, when I

10

really a horrible operation, what was there to rely

11

upon?

12

that would have been terribly useful to us.

13

having to start from scratch.

14

took two or three years to get all of the basics of

15

policies in place.

16

first month we were there, writing them.

You know, they didn't have anything in writing

17

We ended up

That process actually

And we were starting, literally, the

So, I did not think that Clark gave any

18

attention or had any interest in looking at what it

19

means to come into something totally fresh with nothing

20

in place, or very little in place, perhaps, that you

21

plan on keeping, that you want to take a bad situation

22

and make it good.

23

Q

And what do you mean on page 18?

You kind of

24

talk about this same issue in the second to last

25

paragraph on page 18 about, "I have had the experience

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of completely reorganizing and changing existing

2

policies, procedures, practices and culture of the Utah

3

State Department of Corrections, and previous to that

4

the Salt Lake County Jail."

5

A

Yes.

6

Q

So, is that your understanding of what was

7
8
9

required here in Pinal County?
A

Yes.

For example, when I ran the Salt Lake

County Jail, they didn't have written policy and

10

procedures when I came down.

11

Department of Corrections, they didn't have a policy

12

manual such.

13

instructions, which were a whole bunch of contradictory

14

memoranda and, you know, some cases, letters that were

15

stuck in one file that you could go through and see if

16

you could find anything that made any sense.

17

When I took over the

They had what they call letters of

So, when we started looking at how we were

18

going to classify it, looking at the classification

19

system, it was not going to work the way we needed to

20

work it to work.

21

discipline process.

22

over their mail issues on how they were handling mail,

23

including attorney mail.

24

doing was not just starting from scratch, but changing

25

the culture, having to find people to put in place that

They had no written prisoner
They had already recently been sued

So, basically, what we are

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could actually make it happen.

2

things you want at the top, but they don't hit the

3

bottom through the chain of command.

4

restructuring.

5

outside, because I found that a lot of the people I was

6

going to be working with were not capable of doing or

7

not willing to do what we needed to do to turn this

8

place around.

9

Q

You can order all the

So, we were

I brought in a lot of folks from the

So, my question was, is that your

10

understanding of what the situation was in Pinal County

11

before this current administration came in?

12

A

Very much so, yes.

13

Q

Why do you think that?

14

A

Because that came out of discussions that I

15

have had with the two individuals that I talked about.

16

And long before the suit was filed, I just remember in

17

casual conversation with Paul Babeu when he put on a

18

presentation in an NSA conference I was at.

19

to him.

20

sort of thing.

21

change, turn the whole thing around.

22

the same people at the top.

23

in that have experience.

24

Kimble and Montano in connection with this particular

25

case.

How arre things going?

New sheriff.

We talked
All that

And he said, Well, we are trying to
I am not keeping

I am bringing other people

I also know from talking to

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2
3

Q

So, what is your understanding with what the

issues they had when they came in?
A

They felt the operation itself was too loose.

4

That, perhaps, people were promoted to the top that

5

couldn't get the job done.

6

there were some policy and procedures that were outdated

7

or certainly not what they were going to be looking at.

8

I think I mentioned earlier one of the best grievance

9

policies I have seen, including better than some I have

They felt, you know, that

10

written, is the one that they use there that Michele

11

Yusif and, I think, Montano put together.

12

Michele Yusif did.

13

But I think

So, what they have been trying to do is

14

professionalize.

15

knew from the Department of Corrections in Arizona and

16

Illinois.

17

in Arizona.

18

from the various places they worked to see what would

19

work a heck of a lot better than was the case in Pinal

20

County.

21

wrote.

22

Q

23
24
25

You know, Kimble can rely on what he

Montano, I think, had background, he told me
So, they were trying to pick and choose

So, you know, that's the basis for what I

So, did you know Sheriff Babeu before he

became sheriff of Pinal County?
A

No.

I only knew him after he got elected.

He

had a very distinctive appearance, bald headed, and

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young handsome fellow.

2

conference, you know, National Sheriff's Conference, the

3

first time I ever talked to him, because he was doing a

4

presentation to one of the committees, I liked his

5

presentation.

6

same thing, was would you like to come out and do a

7

presentation at our annual conference, which he agreed

8

to do.

9

So, when I saw him at the

So, the next thing I talked to him about,

Beyond that, if I see Paul at a conference, or

10

if I happen to run into him when I'm there doing a

11

training session, not the first one, but I did the last

12

one, then we say hello and talk like with any other

13

sheriff that I know.

14

Q

So, when you come into a situation like you

15

described at Utah State Department of Corrections, what

16

are the most important steps to take to identify what

17

the problem areas are?

18

A

Well, the first thing you do is, you have to

19

try to look at everything that's going on in the system.

20

So, you know, for example, I would go to the prisons

21

themselves.

22

Three at the time I left.

23

administrators themselves to find out what their view

24

was of what they were doing, you know, what their

25

objectives and philosophies were, that kind of thing,

We had two of them at the time I got there.
And I talked first to the

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find out how much that was going to square with what I

2

wanted.

3

Also talked to supervisors to see how they

4

went about moving the messages up and down the chain of

5

command and what their own views were of the system.

6

lot of them were very candid.

7

would turn out, were terribly competent, which was

8

another problem.

9

people, because you found out you have a somewhat

10

A

Not all of them, as it

And then spend time with line level

different message at each level of the system.

11

But I found that even making these

12

walk-arounds, you know, was not sufficient to know all

13

this stuff.

14

had the resources that they do not have, for example, at

15

Pinal County.

16

person auditing unit plus support staff, secretaries and

17

whatnot that had been put in place by the legislature

18

slightly before I was hired to take the job.

19

So, I had something going for me, because I

And that was I had an eight man or eight

So, I sat down with them.

And I gave them

20

their marching orders.

One of the things I need is, how

21

competent are my people?

22

the training that's been done, which turned out to be

23

almost none; the personnel files, to see what kind of

24

discipline issues we are dealing with; performance

25

evaluations to see how they are being rated there.

So, I need you to go into all

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sadly found out a crappy system, had 93 percent of their

2

people that were rated as top level superior, which told

3

me a great deal about my supervisors who were rating

4

them.

So, there were all kinds of things we did.

5

First of all, I had to find out who the

6

players were.

Second thing is I had to become very

7

familiar with the physical plants, the different

8

facilities.

9

you all the names so you won't have to spell them.

The Oquirrh units, you know.

I won't give
But

10

we have a number of different prison units at each site,

11

and so I wanted to see how they operated and see what we

12

were going to have to do differently, then look for

13

policy and procedures.

14

disappointment there.

15

Then had that very big

Look at their training system.

Found out what

16

training money they had went to train the high

17

executives at retreats and almost no training at all for

18

lower staff levels.

19

training requirement under state law that really put

20

them under the gun.

21

get that changed.

22
23
24
25

Q

And, at that time, there was no

So, I went to the legislature to

So, like in Pinal County, how do you recommend

people go about implementing a training system?
A

With respect to training, there is probably

two main things I would have them look to.

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is, what are the basic training requirements that will

2

provide you an understanding of the legal and

3

operational requirements for your facility.

4

are some standard models out there.

5

Arizona they have an academy system they can go through.

6

So, that's a good start.

7

developing training programs that are targeted.

8

example, you know, obviously, SWAT teams are going to be

9

trained to the things that they do.

And there

In fact, even in

The other is to look at
So, for

If you are going to

10

have people responsible for investigating major

11

incidents, that they understand what laws they are

12

applying, use of force is different in the street, the

13

laws are different in the street than they are in a

14

jail.

So, get those properly trained.

15

If you have people who are responsible for

16

prisoner discipline, are they up to speed on everything

17

that's now required are or they simply using old systems

18

they have used forever, which may be outdated under the

19

law.

20

Q

Is there any particular training for mail room

21

staff that you would recommend to someone like Pinal

22

County?

23

A

I didn't in this case.

This was over with by

24

then.

But what they had already told me was that after

25

they found out things were not going well, they

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developed a training program on their own.

2

the supervisors train the staff then as to what the

3

appropriate measures were that they should be taking.

4

So, where they had already done that and they weren't

5

asking me at this point, there was no need to, you know,

6

tell them to start training, they were already doing

7

that.

8
9

And they had

In my own mail room, since it was actually
part of one of the early lawsuits that had taken place

10

just both before I got there and another one right after

11

I arrived, it required going in, sitting down, having

12

them explain how they functioned, how they came to the

13

conclusions which things could be rejected and which

14

couldn't, why they were calling some things legal mail

15

one day and not legal mail the next and so on.

16

we had had that opportunity, then simply put new

17

policies together and said this is how you function from

18

now on.

19

So, once

So, we did have mail room issues as well.

20

once we got that together, we did it mostly by policy

21

and procedure, although, we did have a couple of

22

two-hour training programs to lay out the basics that

23

they needed to know.

And

And I taught those personally.

24

Q

When was this?

25

A

1985.

You know, it was kind of a running

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thing that went on.

2

of the explosion hit corrections when I arrived, where

3

we start making major changes in terms of how we did

4

business there.

5

Q

But 1985 was when the biggest part

When you are talking about kind of job

6

specific training, my question was whether mail room

7

staff are the type of staff that would generally get job

8

specific training in terms of what you recommend to

9

people?

10

A

Yes.

Yes.

You know, if you've got people who

11

are going to be working only in the medical unit, I

12

don't need to train them in mail.

13

going to be in the mail room, I don't need to train them

14

on medical.

15

training as nearly as possible job specific.

16

can provide the general training as well.

17

are specific things that you need your grievance people

18

or classification people or discipline people to know,

19

then they need to receive some training in that area.

20
21

Q

That kind of thing.

If they are only

So, you want to have
Then you

But if there

You talked about going in and sitting in the

mail room, visiting with the staff?

22

A

At the Department of Corrections?

23

Q

At the Department of Corrections.

24

A

Yes.

25

Q

So, as you are advising sheriffs or jail

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management, do you advise them to go visit the mail room

2

in any kind of --

3

A

No.

The reason that it jumped to the top of

4

my priority lists, ordinarily it would have been way

5

down the list, you know, important security issues, use

6

of force, you know, those things that keep the prison

7

secure and the inmates safe, staff safe would be the top

8

issues.

9

case just before and a mail case right after where we

But, as I mentioned, we had already had a mail

10

had screwed up.

11

sued, that immediately changes your priorities very

12

quickly.

13

of went, back to our priority list.

14

Q

So, that got my attention.

So, that's what happened.

You get

Got that taken care

So, this discussion in A-1.1 about

15

reorganizing and restructuring major organizations, is

16

that responding to something specifically in Mr. Clark's

17

report?

18

A

In a sense, yes.

Because, as I mentioned

19

before, in reading Clark's report, he was opining with

20

respect to things they should have done and so on

21

without being able to look at the environment in which

22

they worked.

23

that different places through here that there's a big

24

difference between moving from one facility to another

25

in the Bureau of Prisons and then basing your opinions

You know, I have tried to make a point

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on your experience in that regard and having to come

2

into a jail you have never been in before with policies

3

that are remarkably different than anything you have

4

seen before, I can take you to 10 jails and you can get

5

10 entirely different approaches to running it, because

6

sheriffs are elected, and they run it accordingly.

7

Q

What's your experience with the Bureau of

8

Prisons that leads you to believe that underlies the

9

description of differences in a BOP and county jails

10
11

that you described in your report?
A

For one thing, I had the opportunity to review

12

large numbers of their policies which they make

13

available.

14

things I found in them is that those policies tend to be

15

written to be system wide.

16

upon, you know, they have minimum security and maximum

17

security facilities and so on, but how they handle mail,

18

for example, is not going to change through the system.

19

How they handle prisoner discipline is going to be the

20

same, my experience, pretty much through the system.

21

And it's not hard to do.

And one of the

You can tweak a policy based

In some of my training classes, we have had

22

Bureau of Prisons' personnel in there.

In fact, back in

23

the, gosh, late '70s early '80s I did a training program

24

or two that were largely for or were heavily attended,

25

that would be a better way to put it, by Bureau of

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Prisons' personnel.

2

from time to time with Bureau of Prisons' people.

3

forgot his name now, but one of their attorneys that

4

handled a lot of the litigation for them.

5

opportunity over the years to talk.

6

I have also been on speaking panels
And

So, I had an

You know, and an analogy to that would be CCA,

7

Corrections Corporation of America, where they have

8

80,000 prisoners.

9

I'm in Michigan, or wherever I may be, if they have

10

facilities, there are certain commonalties that run

11

through it.

12

require very specific things separately, like they do in

13

Idaho.

14

and then adjust them to fit.

15

If I am in Idaho or I'm in Arizona or

Now, maybe who they contract with will

But they still maintain their own setup policies

So, you know, it's just hard to, if you

16

haven't done it before, to see how much different it is

17

to walk into an environment, jails, plural, where there

18

is the commonalty of approach is not there at all

19

compared to what you would get in a big organization

20

that needs to have, you know, a common theme on how they

21

run things.

22

Q

23

Okay.

Can I point you to page 19 of the

report?

24

A

Sure.

25

Q

The last paragraph.

Well, let me just give

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you a minute to read that last paragraph.

2

A

Okay.

3

Q

So, that paragraph is talking about how long

4

it takes to write policies and procedures, correct?

5

A

Right.

A single policy, you can write in a

6

fairly short time.

7

and go through the priorities that you need, that takes

8

a long time.

9

Q

But to put together what you need

So, how does that relate to what your opinion

10

is about Pinal County?

11

policies, you know, or do you have some opinion about

12

how long it took them to write policies in Pinal County?

13

I am trying to understand how this is relevant to this

14

case.

15

MS. STATON:

16

form of that question.

17

Gary.

18

A

Okay.

Do you have an opinion about the

Hold it.

Let me object to the

A form objection.

Go ahead,

I don't know exactly how long it took

19

them to write any policy or their policy as a whole, or

20

even if they are totally through it now.

21

talking to them -- and, also, it seems like I got some

22

of that from Kimble's deposition, they had to

23

prioritize, which is the same thing I have done.

24

are the policies we have to have the quickest?

25

are the ones that have the greatest impact on personal

But, in

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safety, on institutional security and so on.

2

what I am trying to make sure that whoever reads this

3

report understands is, that's not like turning on a

4

light switch.

5

policies without understanding your system reasonably

6

well, then you are completely rewriting them later

7

because you screwed up one.

8
9

Q

And so,

And, in fact, you start quickly writing

So, do you have any opinion about whether the

length of time it took them to write policies caused the

10

problems that happened that are the subject of this

11

litigation?

12

A

13
14

Well, it certainly would contribute.
MS. STATON:

Object to the form.

Go ahead,

Gary.

15

A

It would certainly contribute to them becoming

16

aware of any problems in the mail room, because if what

17

you are really focusing on, your primary intent is the

18

safety, security related policies and procedures or the

19

prisoner management things, such as discipline and

20

classification, which, you know, and supervision that

21

drive the system, obviously, you are going to put those

22

at the top.

23

their way into doing a complete evaluation of the mail

24

room.

25

writing, some of those don't get done until the second

So, it would take longer for them to work

Just like with lower priority policies when I was

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year.

But, on the other hand, they weren't causing us

2

problems.

3

as quickly as it did but for a couple of lawsuits, one

4

before and one after I got there.

5

Mail probably wouldn't have got done with me

So, that's basically what I was trying to

6

point out, is, you can't flip a witch.

To write

7

policies, you have to begin to understand, you know, the

8

organization.

9

the sheriff are both new to the process.

And if you think about it, Kimble, and
They are new

10

to the system.

11

Kimble came from outside, Montano and some others.

12

that provided that lack of institutional knowledge and

13

the need to become more acquainted with the system

14

before you start launching a whole bunch of policies.

15

BY MR. THOMPSON:

16

Q

They are new to the sheriff's office.
So,

So, on page 21, having that opinion A-1.3, so

17

here you are saying, as I understand it, that, again,

18

you are saying to expect a perfect knowledge of all

19

constitutional and statutory law that defines prisoners'

20

rights is asking a lot.

21

A

It is.

22

Q

Are you saying that as a legal matter or as

A

As a practical matter.

23
24
25

a -For example, we

stopped doing it now, but we used to do a pretest and a

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posttest for our three-day training programs.

You have

2

a lot of people with a lot of experience in jails, a lot

3

of administrators and supervisors.

4

passing the tests that we provided them on legal

5

questions sometimes as low as 60 percent, and a high

6

mark might be in the 80s, low to mid 80s.

7

there's 60 to 15 percent of information you don't know

8

and you don't -- you know, I have always asked the

9

question when you start, how many of you spend 20 hours

And they were

That means

10

a week in the law library, before I talk about where you

11

can get the information that you need.

12

That was one thing I was trying to point out.

13

It does not excuse not following clearly established

14

law.

15

were supposed to send stuff to the publisher doesn't

16

mean, okay, you are exempt then.

17

an appeal notice to the publisher.

18

is, it's very hard to know all of that stuff.

19

notice the next page, I transitioned into the Prison

20

Litigation Reform Act where Congress tried to deal with

21

that by having a grievance process that prisoners,

22

unfortunately, not PLN, but prisoners had to go through

23

if they were suing to give us a chance to fix things.

24

That was a great way for people who can't have that

25

perfect knowledge of everything that's expected of them

Okay?

The fact that they didn't know that they

You still had to send
But what it does say

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to be able to fix it, you know, as Pinal County

2

ultimately did without having to litigate all these

3

things.

4

more effective way to do things than simply litigate

5

them.

6
7

Q

Is it your understanding here that no prisoner

alerted the jail to their inability to receive PLN?

8
9

Congress found that there was an easier way, a

A

I don't know, to tell you the truth.

I am

sure at some point when I read that I would have known

10

that.

11

know what specific notice.

12

I won't try to.

13

But I don't recall now.

Q

I apologize.

I don't

My guess isn't important, so

Did you review any documents in which any

14

prisoners notified the jail that they were unable to get

15

PLN?

16

A

You know, I may very well have.

I don't

17

recall whether that was in the form of a grievance or --

18

I would say one of the problems with taking a number of

19

cases at the same time and then having this many 3-ring

20

binders full of information is you can't remember every

21

single thing you read.

22

important to the individual opinions I went back and

23

reviewed.

24

whether I ever read any particular prisoner complaining

25

about PLN.

So, those things that were

But I can't tell you, as we sit here now,

If they did, who they complained to, whether

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it was the mail room and it stayed there or whether it

2

was the sheriff or somebody else up the line.

3
4
5

Q

So, this opinion A-1.3, is that responding to

something that Mr. Clark had opined about?
A

It all is in the same basis that I talked

6

about the previous opinion, that, you know, again, from

7

a slightly different tack, Mr. Clark worked for a system

8

with enormous resources, a large legal staff, and people

9

who can vett policy and procedure when it's written

10

initially, and then get it out into the system.

11

policy and procedures when a law changes take place, get

12

it out of the system.

13

lawyer because his organization is well staffed with

14

those kinds of folks.

15

That

Mr. Clark would not have to be a

So, one of the things I was trying to point

16

out, or two things, actually, from that opinion.

One

17

is, that just simply electing somebody or hiring

18

somebody doesn't make them a constitutional expert,

19

number one.

20

recognition of that, required everything to go through a

21

grievance system.

22

PLN, the courts already required theirs to go through

23

the grievance system because they had a court approved

24

grievance system.

25

could sue.

And number two, that Congress, somewhat in

Mr. Clark's organization, prior to

So, you went through that before you

They had that benefit for years.

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PLRA, which has been around, I think since '95, '96,

2

that extended to everybody, but it only applies to the

3

prison you are suing, is my understanding.

4

wouldn't have required PLN, I guess, to go through that

5

process, at least not to my awareness.

6

Q

So, it

You were talking about vetting policies.

What

7

is your understanding about whether the mail policies at

8

issue in this litigation were vetted by anyone outside

9

the jail?

10

A

I'm sure that they were not.

If they had

11

been, I'm sure they would have told me about that.

In

12

fact, Kimble said the first thing that he really knew

13

about the mail policies is an issue is when they were

14

sued.

15

accordingly when he had some outside expert come in and

16

evaluate it.

So, I would be very surprised if he could testify

17

Q

So, in opinion A-1.5 on page 22 --

18

A

Sure.

19

Q

I don't think there is an A-1.4.

20

A

No.

21

Q

In A-1.5 --

22

A

Yes.

23

Q

-- what is your understanding of how Chief

Looks like we skipped 1.4.

I misnumbered them.

24

Kimble and Commander Montano learned about the problems

25

in the mail room?

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A

They got sued by PLN in the incident case.

2

Q

So, is it your understanding they had no

3

previous awareness that newspapers and magazines were

4

not being allowed?

5

A

That's my understanding.

6

Q

And what's your understanding, from speaking

7

to them, about what they did once they learned about the

8

lawsuit?

9

A

What I was told, I believe by both of them,

10

but for sure Kimble, was that once they did that they

11

looked at their written policies as they were, trying to

12

figure out exactly what they were required to do, then

13

over time, published a series of policies 4.5 to resolve

14

that.

15

have -- I can't remember whether it had the procedures

16

for appeal the way they are now.

17

tried to do is just keep fixing that policy, moving it

18

forward to where they thought it needed to be, again,

19

similar to the approach that I have recommended with

20

people, write it, review it, write it, review it.

21

I think the first policy they published may not

Q

But what they have

So, is it your understanding that they were

22

revising the policy before this litigation was filed or

23

only after?

24

A

25

it after.

My understanding was that they were revising
I think, I don't remember the words he used,

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but it seemed like Kimble had said something to the

2

order that that was not on his radar, or that was not

3

his high priority at the time, that he was working on

4

bigger issues when the suit came down.

5

Q

So, if this new administration had put forth a

6

mail policy before this litigation was filed, would that

7

change any of your opinions?

8
9

A

Well, it might.

But they already had a policy

that you had to accept publications that was established

10

before the lawsuit was ever filed.

11

in the mail room weren't following that policy.

12

would it have helped?

13

can lead a horse to water thing.

14

which they had clearly in place, with reference after

15

reference after reference to publications being

16

accepted, and they still didn't.

17

Q

And, yet, the people
So,

Hopefully so, but, under that you
You can have a policy,

What do you recommend to jail management when

18

they implement a new written policy?

19

recommend they do to make sure it's followed through?

20

A

What do you

First thing, to make sure that staff read it

21

and have continued access to it.

The second is that

22

they put a training/orientation session together so that

23

they can explain the new policy, explain where the

24

changes have occurred, and instruct staff that they will

25

be enforcing the policy from hereafter now that it's in

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place.

2

something like a mail room and that the whole issue has

3

to do with publications, it's not a long training

4

program.

5

Here's how you receive them.

6

determining whether they can or can not be accepted.

7

And here is the procedures that you will implement to

8

ensure that the sender and the receiver both have their

9

opportunity to challenge your decision, and that you

10

will not be making those decisions in the mail room.

11

The decision will go up to the chief deputy or to a

12

commander or captain, somebody of higher rank than the

13

people that made the original decision.

14

basically what would go into the training.

15
16

Q

And, you know, if you are talking about

Here's what we consider publications to be.
Here's the criteria for

So, that's

In A-1.6, you talk about Chief Kimble becoming

aware of the misapplication of the policy?

17

A

Yes.

18

Q

And so, what is your understanding of what the

19
20

mail room staff misunderstood or misapplied?
A

Well, what they were misapplying is the policy

21

itself, because the policy did not prohibit

22

publications, newspapers or publications.

23

understanding is, although the policy was in existence

24

they were not following it.

25

looking at some of the depositions of the people in the

So, my

In fact, I know from

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mail room that Sergeant Martinez or Kuykendall or other

2

unnamed persons told them when they came in it was a

3

progressive knowledge, if you will, knowledge in

4

italics, upon which they were relying on this

5

institutional history.

6

relying on rather than somebody saying maybe I should

7

look at the policy.

8
9

Q

And why, in your opinion, were they relying on

that progressive history?

10
11

So, that's what they were

MS. STATON:

Wait.

to the form of the question.

12

A

Objection to form.

Object

Foundation.

Well, that would not be terribly unusual.

13

Across the board, one of the things that I find I have

14

to do in my training a lot is -- well, when I am talking

15

about writing policy, for example, rationale statements.

16

Why?

17

have a policy of opening inmate mail, or we are going to

18

have a policy of reading inmate mail, why?

19

serve some legitimate penological interest.

20

has to be some legal requirement for it.

21

has to come up with a damn good reason why we should be

22

doing it.

23

rationale for what you are doing.

24

of your question.

Why do we have this policy?

If we are going to

It has to
Or there

Or somebody

So, there needs to be a stated and understood
I kind of lost part

Am I at all --

25

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BY MR. THOMPSON:

2
3

Q

My question is, why do you think the staff was

relying on --

4

A

Right.

In that process, in doing that

5

training, I ask people, where did you get your policy

6

manual from?

7

finally get to somebody who does, or when you are doing

8

a technical assistance assignment or doing a jail

9

review, it usually is, well, it came out of the ACL

Most of them don't know.

But when you

10

manual, which is not a good place.

11

county next door does.

12

write ours.

13

seemed like a good idea at the time without realizing

14

the courts, or even state statues may have a different

15

view of how you should be handling it.

16
17

Q

That's how the

We borrowed their manual to

Or, it's conventional wisdom, it just

What's your understanding of where the mail

policies at issue here came from?

18

A

Prior administrations.

That seemed fairly

19

clear from the depositions of the mail room officers I

20

read.

21

Q

But the mail policies that were drafted under

22

this administration, it is your understanding those were

23

drafted from scratch by the jail management or was there

24

some template that they were using?

25

A

You know, that's a question I should have

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asked but did not.

2
3
4

MS. STATON:
and foundation.
A

Let me object.

Object on form

Go ahead.

I don't know where that first policy signed by

5

Kimble came from, how he put that together.

6

question I asked nor was it information volunteered.

7

BY MR. THOMPSON:

8
9

Q

It wasn't a

Do you suggest that jail staff use a

particular template when starting, say, a new mail

10

policy?

11

think are maybe not a good idea, which is the ACA, the

12

jail next door, conventional wisdom.

13

you do recommend people use to draft a mail policy?

14

A

I mean, you described a couple of things you

Yeah.

Is there anything

Legal requirements, for starters.

You

15

know, this wouldn't be an issue if they had met all the

16

legal requirements.

17

So, that's the first thing.

18

constitutions or statutes of the United States or your

19

home state in this case, Arizona, that would be the

20

first thing.

21

We would not be sitting here now.
What is required by the

The other is then to take those policies and

22

tailor them to the manpower, the philosophical approach

23

that you want to take.

24

mail, but maybe you don't want to.

25

things.

You may have a right to read
All those kinds of

So, you stand between the ditches, so to speak,

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tailor that to fit how you choose to operate your own

2

facility.

3

the legal requirements and then validate or vett their

4

policies accordingly if they already exist, or write

5

them originally, keeping those things at the front of

6

the parade.

7

Q

But first thing I recommend people look at is

So, Opinion A-1.7 on page 23, where you say

8

that the mail room practices began prior to election of

9

Sheriff Babeu and Chief Kimble.

10
11

What's the relevance of

that to this case?
A

Only that they did have something in place

12

that caused the people in the mail room to believe they

13

were properly handling the mail.

14

information and looking at those depositions, you know,

15

it provides an explanation, not an excuse, but an

16

explanation for why they were handling things the way

17

they did.

18

Q

So, taking that

Circling back to my previous questions about

19

your process for gathering information, so when you met

20

with Chief Kimble and Commander Montano, you took

21

written notes, correct?

22

A

Yes.

23

Q

How many pages are we talking about?

24

A

There weren't that many, because there weren't

25

that many questions.

There might have been two or three

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pages, two pages, probably, of, and this is just

2

guessing, but mostly what I was concerned about was, you

3

know, how the matter was being currently handled, how

4

they discovered it.

5

that time much of the case, so I was verifying some

6

information somewhat.

7

lot of notes.

8
9

Q

I had already read, of course, by

But it didn't require an awful

What did they tell you?

You said you were

asking how the matter was being currently handled?

10

how did they tell you about what they were doing in

11

August that --

So,

12

A

What they were doing when I had that

13

discussion?

14

Q

Yes.

15

A

They believed that they had finally fixed the

16

problem, because they had plugged in the missing pieces

17

of that.

18

had had training sessions with the individuals involved,

19

had the supervisors participate in that training so that

20

the message was coming from the horse's mouth, so to

21

speak, the people who would be supervising the mail room

22

would also be participating in the training.

23

Then, in terms of enforcing compliance, they

And then, from that time on, using that,

24

basically, that AARMS system, that would become an issue

25

that they would check to see that it remained current.

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2
3

Q

So, how is that being tracked in the AARMS

system?
A

Well, on the AARMS system, you know, policy is

4

clearly there.

And when you have an outside auditor

5

come in, the outside auditor can then, especially

6

knowing this is an existing problem, or a previous

7

problem, I should say, not existing, check to make sure

8

the mail staff is indeed handling things the way they

9

were supposed to.

But the primary things they did was

10

change the policy, provide the training.

11

two critical issues.

12

of how they went about choosing to enforce it that they

13

did, you know, that they made sure that that was

14

continuing to, or move forward now that they have

15

retrained them.

16

Q

Those were the

Then a third would be irrespective

So, I'm trying to understand what your

17

understanding is about how they are enforcing it.

18

are they doing now, to your knowledge?

19

A

What

Well, they, for the most part, put the onus

20

back on the individual supervisors.

They have a

21

responsibility, if they want to remain supervisors, to

22

supervise.

23

ensuring the policy would be followed would be relying

24

on the supervisors who now know the new policy for sure,

25

who participated in the training and are now going to be

But my understanding was the onus for

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the ones that oversee that group of folks.

2

will also be the ones that evaluate, do performance

3

evaluations and so on.

4

to assign that responsibility to.

5

understanding of how they did it.

6
7
8
9

Q

So, they

So, they are the proper people
And that's my

And is it your understanding that mail

practices are being tracked through the AARMS system?
A

Only in a general way.

The individual, you

know, the AARMS system's probably not looking over

10

anybody's shoulder, obviously, except when the inspector

11

comes in, then the inspector would talk to staff, would

12

look at any documentation they might have on how they

13

function.

14

be, you know, wide intervals, really, the onus falls to

15

them to do it themselves.

16

themselves.

17

AARMS system was requiring internal auditing.

18

then can go in, yeah, we know our policies are in place,

19

we know this, this and this, but periodically check to

20

make sure it's being followed.

21

Q

But since any outside inspection is going to

And they can internally audit

That's the main purpose for having the
And they

So, is your opinion in this case based on any

22

knowledge about whether there has been any AARMS

23

inspection related to the mail room recently?

24
25

A

There had been AARMS inspection, but I don't

know if it was related to the mail room per se.

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have an opinion as to what impact the AARMS system has

2

had or necessarily will have.

3

to be from the self-audit portion of that system where

4

the administration and supervisors determine how they

5

are going to ensure that that is enforced.

6

Q

The real impact is going

But your opinion is not based on any knowledge

7

of whether or how they are using, whether or not Pinal

8

County is using the self-audit system; is that right?

9

A

No.

No.

That's kind of a side issue.

The

10

primary way you should do that is, because that's not

11

specifically what AARMS would be looking at, is through

12

your supervisors and then you supervising your

13

supervisors.

14

Q

And on page 24, on the end of the first

15

paragraph, I just want to ask you about the last

16

sentence.

17

publications was not a policy adopted by all these

18

people?

19

A

What do you mean by the practice of denying

Well, the last policy that was written before

20

the suit was filed was clear that these publications

21

were allowed in.

22

July 8th, 2010, and then became effective on July 18th,

23

2010.

24

was filed.

25

publications was not a policy adopted by Sheriff Babeu,

That was the one that was changed on

So, the policy was in place at the time the suit
So, when I say the practice of denying

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Deputy Kimble or the commanders, that's what I mean.

2

Kimble had signed a policy that was in existence prior

3

to the lawsuit being filed, which has reference after

4

reference to allowing those things in.

5
6

MR. THOMPSON:

MS. STATON:

8

only.

9

a side, one side only.

13
14

Yeah.

I would like a mini script

I don't want the full size so it's four pages to
All exhibits attached plus an

E-Tran.

11
12

Let's take a break.

Half hour?

7

10

Okay.

(Whereupon, a lunch recess was taken.)
BY MR. THOMPSON:
Q

So, I want to ask you about opinion A-2.1 on

page 24 about evaluating the credibility of witnesses.

15

A

Yes.

16

Q

What is the basis for that opinion?

17

A

Well, my understanding is that the credibility

18

of witnesses is a jury question.

So, I try to avoid

19

anything I write of saying somebody is or is not

20

credible.

21

opinion, or something of that order, and call those into

22

question.

23

Mr. Clark or a particular witness is not credible.

24

That's, my understanding, is a jury question.

25

all that means.

I might look at facts that are contrary to an

But I'm not going to say at any point that

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2

Q

So, as a legal matter, you are saying you

think it's a jury question?

3

A

Right.

4

Q

Okay.

On page 25, A-2.2, can you explain why

5

Mr. Clark's experience at the BOP does not assist him in

6

understanding the operation of a county jail?

7

A

It may assist him in understanding the

8

operation of the county jail, but it does not, in my

9

judgment, since he hasn't had the experience of running

10

county jails or having to deal with the fact that every

11

county jail is unique and operates with a separate set

12

of policies, philosophies and whatnot, that he has the

13

same background to make that evaluation, or, even as a

14

good one, for example, where Kimble does, where Kimble's

15

worked in different procedures, all in entirely

16

different systems.

17

Q

Sorry.

It's an experiential thing.
I didn't understand the last part

18

where you said about comparing them to Kimble.

19

explain?

20

A

Yeah.

Can you

For example, Kimble has worked in

21

Illinois Department of Corrections.

So, that was a

22

system independent on its own.

23

quite a different system, different philosophy of

24

operation, different policies, different procedures,

25

different requirements.

Then he went to Arizona,

And then he was asked to come

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to Pinal County, which is now a big switch, is no longer

2

in a prison system with its resources, and prison

3

systems have more resources than jails, generally.

4

Now, he's had to take on yet another entirely

5

different approach to running a corrections facility.

6

And each time he moves from one to another, the quality

7

of the agency that he's going to, and the quality of

8

their policies, the manner in which they function is

9

going to be quite different and, in this case, a

10

substantial drop in terms of how well an organization

11

was running before they got there.

12

Q

So, you are drawing a distinction between,

13

like, a system of correctional facilities and a single

14

kind of jail facility like we have in Pinal County here,

15

is that what I am understanding?

16

A

Well, perhaps I'm not explaining myself

17

clearly.

Basically, what I am trying to say is, that if

18

Clark, you know, he's a corrections professional.

19

got a very decent background.

20

the slightest.

21

into an independent jail system at any time in his

22

career or move from one entirely different system to

23

another.

24

within the same umbrella of the Bureau of Prisons.

25

don't think very many people appreciate the degree of

He's

I don't question that in

But he has not had to insert himself

You know, he's been able to, enviably, stay

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difference among jails even in the same state in terms

2

of how they function and how an elected official brands

3

what he's doing in his own way.

4

So, it would have been much more helpful, I

5

suppose, if Mr. Clark had that background.

But he seems

6

to be, in my judgment, and he references the Bureau of

7

Prisons from time to time, he seems to be coming at

8

things from his experience in that well funded, well

9

ordered, heavily resourced, great legal team approach to

10

running a facility.

11

system, pick up on the mild differences between the

12

facilities and go on.

13

Q

And then you just move within that

So, you have referenced a couple times the

14

difference in resources between the BOP and the Pinal

15

County Jail.

16

A

Can you explain why that's relevant here?

It's huge.

If you have people who are, as the

17

Bureau of Prisons does, who are steeped in, trained in,

18

are constantly involved in dealing with corrections law

19

issues, then you've got people who can provide the

20

necessary information to people who do the manual

21

writing.

22

together and make sure that everything that's written is

23

in a similar format is consistent with what the basic

24

needs, objectives, and mission of the agency are, then,

25

you know, you have a great step up on anybody else.

If you have people who can put the manuals

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that's not what happens when you move from prison system

2

to prison system to jail system, as was the case with

3

Kimble.

4

Then the move to the third one was a huge difference.

5

And jails don't run the same as prisons.

6

classifications systems have to be different by

7

necessity.

8

prisoners from jails.

9

investigation reports, so we know all about their

10

The first two are a substantial difference.

Their

Prisons receive their, well, receive
They come with presentence

background, those kinds of things.

11

Jails get whoever comes in off the street.

12

You could have somebody that's wanted in nine states for

13

murder, and if they only shoplifted at the 7-Eleven, you

14

don't know that about them.

15

procedures, how well do you know the people that are

16

working for you?

17

jails and prisons.

18

would had to have begin to learn and master as he moved

19

from prison systems into the unique nature of jails.

20

Q

So, classification, intake

There is a variety of differences from
And these are things that Kimble

So, if you look on page 26 of your report in

21

the bottom of the first paragraph, the last sentence of

22

that paragraph says, "And in the latter assignment,

23

Kimble was responsible for undertaking the daunting task

24

of reorganizing and redirecting the operation,

25

management, policies and culture of that jail."

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1

A

Yes.

2

Q

So, what is your understanding of how Chief

3

Kimble is responsible for reorganizing the operation of

4

the jail?

5

A

Where did I get that information?

6

Q

Yes.

7

A

I got it from him that that was the task he

8

was given by Sheriff Babeu.

9

not running at the level they believed it should have.

10

That there were things that were known before they got

11

there, I don't know what all those things might be, that

12

the facility was not one of the better operations in the

13

state.

14

direction had to change.

15

evaluating, doing all the things we have talked about

16

before.

17
18
19
20
21

That particular jail was

But, for whatever reason, they determined the

Q

And then that requires

So, were there specific issues that they were

aware they needed to solve?
A

Undoubtedly.

But he didn't get into what

those individually were.
Q

And what do you mean by that he was

22

responsible for reorganizing and redirecting the

23

policies?

24
25

A

Well, that's what the sheriff asked him to do,

is reorganize the entire operation.

When you do that,

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you can't leave the policies behind, obviously, because

2

the policies are what document what you are doing

3

differently.

4

how you require it to be done.

5

as you evaluate the need for change, you have to also

6

make a part of that being changing policies and

7

providing training to implement the policies.

8
9
10
11

Q

They document what you are requiring and
So, as you make changes,

So, is there anything in particular about the

policies of Pinal County that he explained to you to be
re-organized?
A

He didn't talk about any specific policy.

12

just talked in general about how much they believed

13

changes had to take place in order to have this be a

14

quality facility.

15
16
17

Q

He

And what's your understanding of why their

culture needed to be reorganized?
A

Well, culture, generally, deals with, when we

18

talk about it in the terms that I am, has to do with how

19

people view their responsibilities, their job, how they

20

view the function at the jail, all of those things

21

independent of necessarily particular policies or

22

procedures.

23

particular case, there, apparently, is not a lot of

24

follow-up in terms of whether policy and procedures are

25

accurate, whether there was an inadequate amount of

In this instance, well, as we see in this

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training, that the things they were doing at various

2

levels in the jail may not comport with the legal

3

requirements.

4

security, make sure that a variety of things that they

5

considered to be high priority items got dealt with

6

quickly.

7

way to discuss it is to look at what I found myself

8

going into the Utah State Prison system.

9

So, you had, you know, to make sure that

But when you are changing -- maybe a better

Basically, it had been run by people who had

10

an entirely different approach.

11

were not the big issues.

12

social work aspect of things.

13

I replaced.

14

there, they looked at everything differently.

15

whether it's a more modest change or a big change, you

16

still have to alter the culture.

17

writing policies, training and supervising and letting

18

people know where things are changing and what you

19

expect of them.

20

Q

Security and safety

It was the more touchy, feely
Those are the people that

When you talk about changing the culture
So,

And the process is

So, when you talk about policies and

21

procedures not being adequate, not having an adequate

22

amount of training, are you referring to what happened

23

in the previous administration of Pinal County?

24
25

A

Yes.

It's something that we have already

talked about in my deposition, is how they got their

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information on what is the policy of the facility.

And

2

that was, well, it was just passed on from one

3

individual to the next as opposed to having those things

4

dealt with in policy and training, you know.

5

know, that's basically what I am referring to is that if

6

that's the administrative approach, if that's the

7

administrative culture, you know, that everything's

8

running fine, so why worry about it, we'll worry about

9

things when they go wrong, that's something that needs

So, you

10

to change.

11

they were setting their priorities in areas that they

12

considered it to be more important, as Kimble explained

13

it to me.

14

Q

And that's what they were trying to do.

Okay.

But

On page 26, opinion A-2.3, I am having

15

a little trouble following what you are saying here.

16

Can you read that and try to explain to me?

17

A

From the beginning to the end?

18

Q

Just the opinion part.

19

A

Okay.

That one sentence.

It's my opinion that Clark's rush to

20

brush aside as not credible the failure of so-called low

21

level staff to forward any questions regarding what the

22

correct policy was regarding magazines, newspapers and

23

pamphlets is wrong.

24

writes about administrative staff incorrectly blaming

25

lower level staff for what happened.

In his opinion, if you recall, he

And, you know, if

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they had questions about what policy was, they had the

2

opportunity to ask them.

3

referring to his opinion in that regard, that he

4

discounted and strongly opined against the

5

administration saying they should have told us if they

6

had any questions about this, we did not know that they

7

were not following policy, that they had misinterpreted

8

the policy.

9

misinterpretation and how much wasn't even -- it wasn't

And so, this is basically

I don't know how much it was

10

even being referenced, because the language is pretty

11

clear that we do accept publications.

12

Q

So, it says above that is not credible, the

13

failure of so-called lower level staff.

14

saying that lower level staff did forward questions?

15

A

Right.

You are not

What I am saying is, the extent the

16

opinion that he was giving, that, essentially, it was

17

the administration's fault and that low level staff

18

can't be blamed for any of this, and I am paraphrasing

19

what he said, of course, I don't think that was

20

credible, you know, the action, or the opinion, I should

21

say, was not credible in light of the facts that are out

22

there.

23

Q

So, I just want to clarify.

I think you said

24

this earlier, but is it your opinion that Chief Kimble

25

and the jail commanders were not aware of the mail room

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1
2
3
4
5
6

staff practice of denying newspapers and magazines?
A

That's my understanding from what I have read

and from my discussions with both Kimble and Montano.
Q

And is your opinion that that lack of

knowledge on their part was reasonable?
A

Well, in light of the frame of reference that

7

I applied, that when you come into a new system, and

8

you've got several hundred things to change, or a

9

hundred things to change, you know, number 99 on the

10

list, you know, you can't learn everything at once.

11

can't know everything that's happening at once.

12

system that runs 24/7.

13

going on.

14

for them to approach it in the way that they did, by

15

setting priorities and trying to resolve those

16

priorities as they went.

17

a grievance capability of what, under ordinary

18

circumstances, where if there's a problem, that staff,

19

or prisoners, I should say, could bring to the attention

20

of their concerns, and they get a chance to fix it

21

before litigation is filed.

22

litigation came from outside, which makes that

23

problematic for them.

24
25

You

It's a

And there's all kinds of things

So, I think that it's absolutely reasonable

And, especially where you have

Second, in this case the

But there's any number of things, I would say,
in any jail in the country, and probably any facility

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that I have ever run, clearly, there are things that go

2

on that I don't know about, and things that any

3

administrator is going to be surprised exist.

4

you can do is continue to push forward to find out as

5

much as you can, when these things come up, deal with

6

them.

7

Q

But all

So, if I'm understanding you correctly, you

8

are saying it's reasonable that their lack of

9

acknowledgment was reasonable in the mail room, was

10

reasonable because they weren't prioritizing the most

11

important issues, and so it's reasonable that they

12

hadn't gotten to that issue yet; is that correct?

13

A

14
15
16

Yes.

And it's also reasonable --

MS. STATON:
of that question.
A

Wait.

Wait.

Object to the form

Now go ahead, Gary.

The reasonableness would also be based upon

17

the fact that they can't be all places at all times.

At

18

some point in time, if you have this many things to do,

19

you can't do them all by flipping a light switch.

20

that's why I said it's reasonable.

21

adopt an approach where you try to prioritize the most

22

important issues, those issues that involve life,

23

safety, those issues that involve serious security

24

concerns, supervision of inmates, meeting the basic

25

essentials of life for prisoners.

So,

It's reasonable to

Then, as you move

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through that priority list, hopefully, you get to mail

2

before it becomes a problem.

3

In this case, that was not true.

But they

4

then did what they had to do.

5

determined that the change was needed, made it, then

6

conducted training to implement it.

7

not unreasonable.

8
9

Q

They went ahead,

So, the approach is

On page 27, your opinion A-2.4, it's your

opinion that mail room staff misunderstood the written

10

publications, policies and procedures.

11

they misunderstood the written policies and procedures?

12

A

For two reasons.

Why do you think

One, they were relying on

13

passed down information.

14

appear anybody bothered to read the policies where the

15

language was very clear that publications are allowed.

16

Reference after reference after reference to how you

17

accept, how you turn away, the whole issue of the

18

acceptance of publications.

19
20
21

Q

And, secondly, it doesn't

And what do you advise jail staff on how to

avoid this problem of relying on oral histories?
A

Well, I tell you only what I have done.

And

22

it does crop up in my training.

When I took over the

23

Department of Corrections, we rewrote policies.

24

put out tests on each policy.

25

supervisor would be required to administer a test which

We also

At any given time, a

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1

I decided was the appropriate one, you know, this

2

policy, that policy.

3

their people knew about it.

4

variety of ways to do it.

5

supervisors, give them their marching orders, and let

6

them know they have to meet their supervisory

7

responsibilities, which include, in this case, the mail,

8

and to enforce policies if they want to continue to be

9

supervisors.

10

And then we found out how much
That's one way.

There's a

One is to appoint competent

You know, the problem with delegation, and the

11

only way we can run an operation is through delegation,

12

you have to depend on the quality of the people to whom

13

you delegate.

14

might like it to be.

15

command for the information that flow up and down.

16

an imperfect approach that you have to delegate.

17

yet, it's essential.

18

things.

19

simply put things in place and then deal with the

20

problems that flow out of it anyway.

And that's not always everything you
You have to depend on the chain of
It's
And,

And it's the only way you can run

So, those of us who live in that environment

21

Cognitive skills of individuals, motivation of

22

individuals, attention to detail of individuals all play

23

into that.

24

change because we staff jails with human beings, not

25

robots.

And there is no way it's ever going to

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1

Q

On page 28, in opinion A-2.5, in paragraph A

2

you talk about the difference between policies and

3

procedures and practices.

4

A

Yes.

5

Q

So, what is your opinion here about policy 4.5

6

that you have referenced in your report?

7

your understanding, a policy or a procedure?

8
9
10

A

It's both.

want you to do.

It's a policy, which is what we

And it's a procedure, which means how

we want you to implement it.

11

Q

Is that, in

So, it's both.

And when you train jail staff, do you usually

12

have two separate documents, a policy document and a

13

procedure document, or do you have one document?

14

A

I recommend you have one document so you don't

15

have to go look in two places.

16

with here are policy statements, and then you can finish

17

with procedures.

18

have two or three sections where you repeat that

19

process.

20

know, one might talk about reading mail.

21

about screening mail.

22

mail.

23

what our policy is, then the procedures of how you carry

24

it out, but all in the same document, I recommend.

25

Start out the chapter

And you may, within a single policy,

In this section of this particular policy, you
One might talk

One might talk about rejecting

But in each one of those sections you'll have

Q

Then in paragraph B you talk about official

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practices versus unofficial practices.

2

A

Yes.

3

Q

Can you explain the difference between those

A

Yes.

4
5

two?
This is an area I had a strong

6

disagreement with Mr. Clark.

He talked about there was

7

an official practice.

8

Well, what's official is what's written.

9

official is what has been adopted.

And that was not to accept it.
What's

And what's official

10

is what Kimble affixed his signature to.

11

official.

12

procedure may be, is simply how people actually perform.

13

So, in this case, you have a policy and procedure

14

Chapter 4.5, that say, publication, publication,

15

publication, publication.

16

which they were engaged in, which was to avoid allowing

17

those things to come in.

18

procedure.

19

That's

A practice, irrespective of what a policy or

Then you have a practice

So, practice is different than

Practice is different than policy.

They can

20

be the same if you have a written policy and procedure,

21

and the practice carries that out.

22

becomes official at that point.

23

as Clark has said in his expert report, an official

24

practice when it's never been blessed, if you will, by

25

the administration, and where it is clearly, clearly

Then the practice

But you can not have,

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1

contrary to what has already been written, signed and

2

was in place before the lawsuit was filed.

3
4

Q

exist if it's contrary to the procedure?

5
6

So, you are saying official practice can't

A

No.

A practice can exist, but not an official

practice.

7

Q

Correct.

8

A

Because the only thing that's official is what

9

the agency and the responsible authority have deemed to

10

be how we are -- what we want and how we are going to do

11

it.

12

guess, if you want to attach that word to them, once

13

they become in alignment with what the official policies

14

and procedures require.

15

So, you know, practices can become official, I

Q

And if jail management was aware of a

16

practice, but it was contrary to what was written down

17

in the policy, would you consider that an official

18

practice?

19
20
21

A

I'm not sure I understood the question.

Can

you try again?
Q

If jail management were aware of a practice,

22

and it was contrary to what was in the written policy,

23

would you consider that an official practice?

24
25

A

Arguably so.
MS. STATON:

If they -Let me object.

Let me object to

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1

form and foundation.

2

A

Arguably so.

Go ahead.
If they have full knowledge that

3

this is what's going on and are basically just saying,

4

oh, hell, we don't have time to change our written

5

policy and procedures, let's just leave it there, they

6

are doing it the way we want it done, so why bother

7

ourselves with changing policy, then they have probably,

8

by omission, created an official practice.

9

would require actual knowledge of how things were done

10

and a reasonably conscious decision to let it continue

11

on.

12

BY MR. THOMPSON:

13
14
15
16

Q

Okay.

But that

So, let's move on to the actual written

policy.
(Exhibit No. 4 was marked for identification.)
BY MR. THOMPSON:

17

Q

This is the January 31st, 2010 policy.

18

A

Okay.

Take a second to look at it.

Okay.

19

haven't read it all, but I have read enough to get a

20

sense of what's there.

21

Q

Okay.

So, you say in your opinion B-1.1 that

22

it was the official policy of the PCJ to permit

23

publications to be received by prisoners?

24
25

A

Yes.

I

The time the lawsuit was filed, that was

the case.

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1

Q

So, I asked you this earlier, in general, but

2

in relation to this specific policy, do you understand

3

publications refer to newspapers and magazines and

4

books?

5

A

Yes.

6

Q

So, you think it include books?

7

A

Yeah.

Individual policies, individual

8

agencies can choose to list those any way they want.

9

policies I have written, I have separated books from,

10

basically, what you might call periodicals or

11

subscription items.

12

them is different.

13

them are somewhat different.

14

not published.

15

they are published, but we don't have to notify the

16

author and the book publishing company that this

17

particular book is not on our list of allowed books.

18

So, it's not that it's not a publication.

19

like separating them in the policies and procedures so

20

that we group like things together.

21

Q

In

Because the way that you review
And the way that the law applies to
So, it's not that they are

As I mentioned earlier in my testimony,

It's simply I

So, what in this policy, in the Pinal County

22

policy makes it clear to you that publications refers to

23

newspapers and magazines and books?

24
25

A

Let me go back to what I was looking at here

until I find it.

Okay.

The first thing they talk about

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1

at 4.5.6 on publications.

2

to screening and review.

3

them, there's no reason to screen them or review them.

4

You just send them back where they came from.

5
6
7

Q

All publications are subject
If you are not going to accept

My question is, how do you know how

publication is defined?
A

Oh.

Let's see.

Let me move to the front.

8

They have a definitions section.

9

there.

They don't.

See if they have it in

They don't define it there.

So, it

10

could be defined the way I defined it or it could be

11

different.

12

the same context, then they would be defining it

13

somewhat differently than I do.

14

problem.

15

But books weren't an issue in this particular case, so I

16

didn't worry about books.

17
18

Q

In this case, if they talk about books in

And that's not a

It just simply means we define it differently.

Do you see on page PCSO38 of this policy on

Exhibit 4 in 4.5.6.2?

19

A

Yes.

20

Q

What do you understand recognized publisher,

21
22

distributor or authorized retailer to mean?
A

It's not defined, so I couldn't tell you.

For

23

sure, obviously, the publisher and the distributor,

24

which -- ordinarily, what I certainly write in policy is

25

the publisher and book clubs.

Those are the two hardest

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1

things to manipulate.

Distributors could mean book

2

stores.

3

would not agree with.

4

about book stores, here in St. George there used to be a

5

book store called the Avalet.

6

mine and a law abiding woman happened to mention to me

7

when we were having coffee over there one day that she

8

buys books for friends at the Texas Department of

9

Corrections prisons, and then she takes a bunch of books

It could mean Ebay, I suppose.

And that, I

For example, when you are talking

A very close friend of

10

she's read and includes them, and then they mail them

11

all off at once.

12

violating the policies and procedures of the Texas

13

prison system, nor did the bookstore.

14

nefarious.

15

those books.

16

manipulate.

17

and is willing to do that for you, that's very easy to

18

do.

19

things in the binding where they are hard to get.

So, she didn't realize she was

And she was not

She didn't have hacksaw blades and drugs in
But the point is, it's very easy to
If you know someone who owns a book store

You buy a book and insert what you need to, hide

20

One of the reasons why, especially hard-bound

21

books need to come from those sources, is because they

22

are incredibly difficult to search.

23

needles into the hard bindings.

24

things.

25

Q

You can slide

You can do all kinds of

So, this policy of January 2010, why do you

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1

think that after 18 months of this policy being in place

2

the mail room staff still misunderstood it, in your

3

opinion?

4

correct?

5

A

This lawsuit was filed in September of 2011,

Right.

As I said before, I can't explain why

6

mail room people didn't bother to read policy, so I

7

don't have an answer to your question specifically as

8

you have asked it.

9

allowed it.

I can only say that the policy

It was in place.

A series of policies

10

after this continued to allow publications and went

11

further in their discussions.

12

read it.

13

asked in deposition to one of them.

14

Q

So, I don't know why.

And, still, they didn't
That's a question best

Do you see on the first page of this policy,

15

it says in the top right-hand corner that it supersedes

16

the April 5th, 2005 policy?

17

A

I do.

18

Q

Did you review the April 5th, 2005 policy?

19

A

No.

20

Didn't consider it necessary to what I

was opining on.

21

Q

Why is that?

22

A

Well, because that policy was no longer valid,

23

and that it had already been replaced a couple of times,

24

at least, by the time the suit was filed.

25

concerned about what the policies were that were in

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1

place at the time that the suit was filed.

2

know, in future cases, that's how I would look at it

3

unless there was some overriding reason to go back and

4

do a historical review, you know, back to the beginnings

5

of the jail.

6
7
8
9

Q

And, you

So, do you know whether newspapers and

magazines were allowed under that April 5, 2005 policy?
A

I don't know it under policy.

I only know

what people testified to in their depositions, that they

10

were relying on word passed on to what the policy was.

11

So, where that came from, whether that was in that

12

earlier addition, I couldn't tell you.

13

they did it, I don't know.

14

didn't do what they were supposed to do, and that was

15

relate their responsibilities back to what was written

16

in policy.

17

Q

It's just why

I can only tell you they

So, if someone came to you and said they were

18

putting in place a new policy like this one in Exhibit 4

19

to allow newspapers and magazines for the first time,

20

what would you advise them as to how to implement that

21

policy?

22
23

A

What steps would you take?
Well, the first thing -- to implement the

policy or to write the policy?

24

Q

Implement the policy.

25

A

Follow it.

Here's the policy.

Here's what it

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1

says to do.

2

an hour.

3

training class.

4

policy.

5

to carry it out.

6

implement it, when that's what you are dealing with, is

7

to make sure that they understand they are supposed to

8

follow it.

9

Q

Do you have any questions?

We'll give you

Give them an hour or two orientation or
And then, when it's through, here's the

You have heard the explanations.

It's your job

So, at that point, the way you

Now -- well, that answered the question.
So, the orientation that you described, would

10

that be for mail room staff or for all officers at a

11

jail?

12

A

It would only be for officers in the jail who

13

in some way had to deal with the mail.

14

room policy, as written, may also talk about how it gets

15

handed off, for example, to staff from the mail room to

16

get from that to individual prisoners.

17

case, yes, you would provide training at least on those

18

portions of the policy that were germane to the duties

19

of those other persons.

20
21
22

Q

Now, the mail

So, in that

And what would you do to make sure that that

policy was being implemented?
A

Well, we have gone over this several times.

23

But the main way that you do that is you assign

24

competent supervisory staff who understands the policy

25

to be present in the mail room on a daily basis to make

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1

sure it happens.

2

do is you notify your grievance staff if they are

3

getting grievances on people not being provided the

4

publications that they were entitled to, that the

5

grievance officers know to bring that to your attention.

6

So, you know, there's a variety of ways that might take

7

place.

8

Q

9
10
11

Okay.

And, certainly, another thing that you

I want to mark the expert report of

John Clark as Exhibit 5.
(Exhibit No. 5 was marked for identification.)
BY MR. THOMPSON:

12

Q

13

his report.

14

A

Okay.

15

Q

Do you see those bullet points in paragraph --

16

A

I see the bullet points to which you are

17
18
19

I want to turn your attention to page 12 of

referring, yes.
Q

So, do you disagree with Mr. Clark on that

those steps should have been taken?

20

A

To some degree.

21

Q

Which ones do you disagree with?

22

A

Well, obviously, the first one changed the

23

policy.

That's good.

Change the inmate handbook,

24

obviously, at some point, that should be done as well.

25

The policy writers and handbook writers might be two

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different groups of people, so that may potentially fall

2

between the cracks.

3

and saw where that could potentially have happened.

4

But, yes, you should change the handbook.

5

website.

6

my website about that.

7

sure if policy writers would ever think about.

8

be something you should probably do, yes.

9

have any effect on how staff operated?

I was thinking of my own operation

Change the

Heck, I wouldn't have known I had anything on
That's one area that I'm not
It would

But did it

Did the handbook

10

have any effect on how the staff operated?

11

disagreement is only to the extent that these apply to

12

this particular case.

13

do, nor did the website have anything to do with what

14

they were doing.

15

I guess my

And the handbook had nothing to

The other thing is promulgating the new policy

16

through brief announcements and locations generally

17

visible to all the prisoner population, such as bulletin

18

boards in housing areas.

19

policies we write, including the mail policies, that we

20

don't want them to have access to.

21

have access to information included in there, some

22

limited information, but the security procedures and

23

other kinds of things dealing with mail we would never

24

want the inmates to have.

25

it says the new policy, it doesn't say portions of the

Well, there's an awful lot of

We will let them

So, if what he was saying --

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new policy or the fact that we are now accepting

2

publications.

3

through brief announcements and locations visible to all

4

prisoner population."

5

he means there, but if he means they should have the

6

policy, they shouldn't.

7

bulletin board.

8

be awfully thick.

9

to have all that information.

10

Q

He says "promulgate the new policy

So, I am not entirely sure what

It should not be on their

For one thing, the bulletin board would

Sure.

The second, you just don't want them

So, you disagree with promulgating or

11

putting actual policy on the bulletin board, but if by

12

brief announcements he meant a short summary of the

13

policy, do you disagree with that?

14

A

No.

If all he was intending to do was, say,

15

on a prisoner bulletin board or announcement or

16

whatever, we just changed the policy, I don't have a

17

problem with that.

18

That's fine.

19

Q

You can now get publications.

I think we just talked about that.

Sure.

But to

20

clarify, you don't disagree with that that says ensure

21

the jail staff are trained on the new policy?

22

A

Oh, no.

Quite the opposite.

I think that was

23

well stated.

You know, and the other couple of things

24

that I talked about aren't bad things to do.

25

they are very good things to do.

In fact,

But it just doesn't

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have much to do with how the mail room operates.

2

Q

I want to clarify.

On page 13 of his report,

3

he talks about jail staff members not being aware of a

4

policy to change -- of the policy changed to allow

5

newspapers or magazines.

6

I want to clarify.

7

they were unaware, right?

8

that right?

9

A

I think you said this before.

You don't have any opinion on why

That's right.

You said you didn't know; is

I did bring up the fact that

10

someone testified why they were doing it the way they

11

did.

12

But beyond that, no.
Q

Okay.

And do you have any opinion on why, as

13

it says on page 13, the inmates reported that

14

correctional officers had told them that newspapers and

15

magazines were not allowed?

16

they might have been told that?

Do you have any opinion why

17

A

No.

18

Q

On page 31 of your report, opinion B-1.3, you

19

talk about the jail adopted a process of routinely

20

updating policies and procedures?

21

A

Yes.

22

Q

And then, in the basis for opinion, you talk

23

about you know what that process of updating was.

24

you explain what your opinion is about how they were

25

routinely updating policies and procedures?

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A

Well, obviously, the one policy came out prior

2

to the lawsuit which allowed publications but did not

3

have a specific requirement with regard to how to deal

4

with publishers and how they can appeal the process.

5

So, once they got sued, they found out that was

6

necessary to change.

7

They also deal, I know, with ICE prisoners and

8

others.

So, I know that I have seen within their policy

9

and procedures they have several places where they have

10

to make exception for ICE prisoners.

11

obviously, plays into it when those started appearing in

12

the policy and procedures.

13

So, that,

I think I mentioned early on that when I do

14

train with respect to policy and procedures, I tell

15

folks to review an update on a constant basis.

16

what they were trying to do.

17

major constitutional violation that you are facing.

18

just find that what we are doing could be done better in

19

a different way, or we now have a different client on

20

board like ICE or the marshal service that needs these

21

things done somewhat differently.

22

that inmates are complaining about something and, quite

23

frankly, it's legitimate, so, we'll change it.

24
25

That's

It doesn't have to be a
You

Or we are finding out

So, there is an endless number of reasons why
you update.

But I noticed that they have done so.

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there were updates even after the initial policy drafted

2

following the lawsuit.

3

Q

So, is it your opinion about this, just based

4

on seeing the different mail policies, or was there

5

something that Chief Kimble told you that leads you to

6

believe that they have a process of routinely updating

7

the policies?

8

A

Combination of the two.

9

Q

So, what is it that he told you?

10

A

Just that they continued to update their

11

policies.

Not just mail room policies, but all the

12

policies that they find.

13

and you are having to move as quickly as possible,

14

something I'm quite familiar with, you'll find that the

15

stuff you put together to get it out quickly, after

16

further consideration could have been better written,

17

could have been more clear in its explanations.

18

number of things.

19

you've gotten through most of your priorities, you fix

20

that.

21

you haven't got to it, there's a variety of ways you put

22

yourself in a position of changing things.

23

recall exactly how we discussed it, only that we did

24

discuss his ongoing process of trying to keep these

25

policies up to snuff.

You know, when you come in,

Any

So, when you then have the time

Or, when it's called to your attention, even if

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2

Q

And do you have anything on the jail's

practices for implementing new written policies?

3

A

Well, the only one that I am directly familiar

4

with -- well, actually, that's not true.

There's two

5

that I am somewhat familiar with.

6

room.

7

depositions of staff.

And then, also, discussions, I

8

suspect, with Kimble.

I can't remember that precisely

9

at this moment, of what they did to implement it.

10

was provide the new policy, to provide a training

11

program, have the supervisors who were key to the

12

process participate in the training.

One would be the mail

And there was testimony that I picked up from

13

That

The only other one I can think of that I have

14

been familiar with where they went through that process,

15

and I happen to know about it, were the grievance

16

policies.

17

grievance policies that I sat down and talked to those

18

that were involved and went through that process with

19

them and ended up asking Nicole to come actually train

20

for us.

21

Q

That's because I was so impressed with their

So, on page 32, you list five different

22

policies.

I just want to clarify.

The only policy

23

about which you are expressing an opinion about how it

24

was implemented is the policy after this lawsuit was

25

filed, right?

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A

Well, yes.

Although, I do reference the

2

failure to implement that one aspect of things in the

3

previous policy.

4

obviously.

5

Q

Okay.

So, one plays off the other,

But you don't have any opinion about

6

whether what they did to implement these 2010 and early

7

2011 policies was adequate or not?

8
9

A

The only thing that I asked about was how they

implemented the policy changes period.

And I don't

10

recall asking them, did you repeat that process exactly

11

each time this thing went out?

12

changes, they probably didn't do anything except call it

13

to the attention of their supervisors.

14

saying that because that's how I would do it, and that's

15

how it would normally be done.

16

If there were only minor

But I'm only

When you have major change, that's when he was

17

talking to me about how they went ahead and fixed the

18

problem that got them into trouble.

19

Q

The policy change after the lawsuit was filed?

20

A

Right.

21

Q

Okay.

B-1.4 on page 32, you talk about the

22

process for appeal which you referenced a couple times

23

earlier today?

24

A

Yes.

25

Q

My question is, what's the basis for your

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opinion about the need for an appeal process?

2

legal opinion or opinion about what is good corrections

3

practice or both?

4

A

Is it a

Well, certainly it's good corrections

5

practices.

But I base it even more on the supreme

6

courts recognizing that it was necessary.

7

based on the fact, if you don't mind my talking about my

8

impressions of what the court has said, that the

9

publisher had a right to have the editorial content

And that was

10

received by others.

11

affect safety, security, order, discipline, you know,

12

that sort of thing, no, you couldn't keep it out.

13
14
15

Q

And unless there was content that

So, why do you say it's good correction

practice?
A

Well, it's good corrections practice because

16

there's a certain amount of follow-through then that's

17

necessary on any decisions that you make.

18

documents decisions.

19

or, say, you know, put another stamp on this and send it

20

back, the process doesn't get documented.

21

it's good corrections practice, because now that you

22

have the responsibility to give both the prisoner and

23

the publisher their day in court, so to speak, you have

24

one documented in the grievance system, and you've got

25

one documented in whatever logs or files that you

And it also

If all do is throw the item away

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contain that information.

2

Q

Why is that documentation helpful?

3

A

Well, it's very helpful because of situations

4

like that we are in right now, number one.

It's also

5

very helpful because if you have that documentation

6

available, then you've got something for Kimble and his

7

supervisors to review.

8

know, if you just send it back and there is no notation

9

made, there's no documentation that occurs as to what

What was it to review?

You

10

happened.

11

administration, maybe even your supervisors in the dark

12

if there's no requirement that you document.

13

the documentation becomes automatic with either the

14

grievance system or the publisher's appeal.

15

Q

So, it's a nice way to leave the

And so,

So, in opinion B-2.1, about the handbook, you

16

say on page 33 that Clark's reliance on the handbook

17

language was mistaken.

18

A

Why do you think it's mistaken?

Well, because it had nothing to do with how

19

the mail room operated.

The handbook did not have to be

20

distributed to the mail room.

21

to the prisoners.

22

in the mail room, the prisoners didn't, you know,

23

process mail, then it was -- might be useful to them,

24

but it wouldn't have any impact on the mail room besides

25

not reading their own policies and procedures, why would

It had to be distributed

And since the prisoners didn't work

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2

they read the handbook.
Q

You don't think the prisoners' understanding

3

of the policy as described in the handbook would have

4

any effect on whether the jail might receive notice that

5

the policy's not being followed?

6

A

Potentially so.

My experience with prisoners,

7

if they are unhappy, whether it's a matter of policy or

8

matter of practice, if they are unhappy with what they

9

are doing, and they have a grievance system available to

10

them that allows them to grieve it, they are more

11

concerned about getting the item to the attention of the

12

people who may or may not do something about it rather

13

than concerning themselves with whether a practice and

14

policy are in perfect alignment.

15

surprised that there are many, if any, prisoners that

16

would say, oh, heavens, I can't file a grievance because

17

it says right here that this is their policy.

18

got their policy, you can grieve their policy.

19

don't see how that had any effect on the prisoners.

20

There might be somebody that looks at that and decides

21

not to, I suppose, but I don't think so.

22
23

Q

So, I would be

If you've
So, I

And so, when you ran the Salt Lake County

Jail, did you have an inmate handbook at that point?

24

A

Yeah.

Actually, we did.

We did.

25

Q

So, did you, I guess in that situation, or in

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other situations, have you drafted inmate handbooks

2

before?

3

A

Yes.

4

Q

And do you give jail management any training

5

or recommendation as to how an inmate handbook should be

6

revised?

7

A

No.

To tell you the truth, I never give them

8

any advice like that.

The only thing we had in our own

9

system is when policies changed.

There was a list of --

10

it was called a distribution list.

11

would not want to testify under oath that I am

12

absolutely sure, that the handbook was on that list.

13
14
15

And I believe, but

Q

What do you mean by the handbook was on the

A

The distribution list.

list?
What we provided to

16

the prisoners was two things:

One was the handbook.

17

What they relied on the most, however, was what we

18

called the resource manual, prisoner resource manual.

19

And I don't necessarily recommend others do this.

20

fact, sometimes I recommend they don't.

21

do is take our actual policy and procedures on certain

22

key issues, eliminate those pages that had things that

23

inmates should not see, and redact other things.

24

they had our policies minus those that they were not

25

allowed to have.

In

What we would

Then

That made it a lot easier than going

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back to change handbooks, because as we wrote a new

2

policy on the distribution list, the redacted policy of

3

this will go in the resource handbook.

4

book in each of the living areas that they could

5

reference.

6

Q

So, you had a

I just want to clarify what you were saying

7

with the distribution list.

8

person who is responsible for updating the handbook was

9

on the distribution list?

10

A

You are saying that the

What I am saying, I believe so, but I would

11

not want to testify absolutely that that was true.

12

Elliot, I recall, was the name of the person who handled

13

policy and procedures.

14

for her.

15

would have been.

16

was.

17

Q

Pam

We did have a distribution list

And it would have been logical to assume it
But I don't recall for sure that it

And what's your experience as to how often

18

prisoners rely on and review an inmate handbook in jail

19

facilities?

20

A

21

I have no idea.
MS. STATON:

22

foundation.

23

A

Okay.

I am objecting to form and

The answer remains the same.

I have no

24

idea.

I have never done a study and asked them how many

25

times a week they do or don't reference these things.

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2
3
4

BY MR. THOMPSON:
Q

I mean, is it important to document, in your

opinion, for setting rules for prisoners?
A

Well, the handbook serves, it's most important

5

purpose is the inmates use it properly, is to understand

6

how they file a medical request, how they do, how they

7

do, how they do.

8

then the other things are prohibited.

9

things that you either can not do or must do in order to

It's mostly a book of how to do.

And

These are the

10

avoid being disciplined.

11

serves.

12

appropriate and inappropriate conduct.

13

to provide information to prisoners on how they access

14

various services in systems.

15

it's approached in Pinal County.

16

Q

So, those are the purposes it

One is to constrain conduct or define
And the other is

I don't know exactly how

When you do training for jail management

17

staff, do you address how to use the inmate handbook or

18

what to put in it or anything like that?

19

A

I don't recall ever having done a training

20

program where I have taught about the handbook.

21

entirely possible at some point it's come up.

22

not in my lesson outline, certainly.

23

prisoner orientation.

24

do it however you want to.

It's
But it's

I do talk about

Then there's, you know, you can

25

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Q

So, when you talk about prisoner orientation,

2

is there any training you give about how to involve a

3

handbook in that orientation?

4

A

No.

I have written policies on it, but I

5

haven't actually -- well, that's not true, now that I

6

think about it.

7

talking about admission processes.

8

need to have some means of notifying prisoners about the

9

things that I just talked about.

It does come up in training when we are
And that is that you

You know, the Los

10

Angeles County Jail, for example, has a major production

11

on screen, you know, in English and one in Spanish.

12

people who speak Farsi, or some other language, can have

13

a telephone on their ear while they lay out a lengthy

14

explanation.

15

ask.

And

Then you are told if you have questions,

16

A lot of times handbooks become what the Sears

17

Catalog used to be in the old days in an outdoor toilet,

18

something that's used for scratch paper, used for

19

purposes unintended.

20

handbooks out in the Salt Lake County Jail, for example,

21

we put them up on the wall, and half of them were torn

22

up the next day.

23

need to know this is your ticket to have the television

24

on.

25

having these on the wall.

I know when I first put the

So, then we put them on and said, you

If you want the television on, let us know that by
If you decide you don't want

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to watch television for the next 30 days, tear these up.

2

Then they stayed up.

3

The Department of Corrections, we relied much

4

more.

5

handbook, but we relied much more on this resource

6

manual because it had much more information on it.

7

I think we still had a handbook.

Q

8
9

Let's take a break.

(Whereupon, a brief recess was taken.)
BY MR. THOMPSON:

10
11

Okay.

I know we had a

Q

Do you have an opinion about whether prisoner

mail rules should be on a jail's website?

12

A

I suppose they are useful to people who are

13

writing in, but I don't recall that we ever had ours on

14

a website.

15

type.

16

Q

So, no, I don't have an opinion of that

Do you do any training now on, you know, what

17

jail rules or practices should be on a website open to

18

the public?

19

A

20
21

No.

I don't think the word "website" has come

up in my training in all the time I have been doing it.
Q

And do you have an opinion on whether the

22

information on the jail's website in this case would

23

have affected the problems at the jail in terms of

24

rejecting newspapers and magazines?

25

A

Not at all.

Like I said --

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2
3

MS. STATON:

Hold it.

Let me object to the

form and foundation.
A

Not at all.

Mail staff -- or, excuse me --

4

yeah, the mail room staff was not going to go to the

5

website to see what they ought to do if they really

6

wanted to know written signed policy and procedures.

7

And I doubt PLN checks websites before they send their

8

stuff out.

9

the time.

They send it out all over.
They are going to send it.

Jails get it all
And they are

10

going to expect the jails to deal with it appropriately.

11

So, the website, I think, is a total nonstarter in this.

12

Q

I want to clarify.

I was asking if you have

13

an opinion on whether or not the website affected a

14

problem here.

15

do have an opinion you don't think it had any impact on

16

the rejection of newspapers and magazines?

17
18
19
20

A

And your answer was not at all.

And you

Yeah.

When I said not at all, that is my

Okay.

Moving to Section C of your report on

opinion.
Q
page 34.

21

A

Yes.

22

Q

So, is it your understanding that the jail

23

previously had a policy that limited mail to post cards

24

and one-page letters?

25

A

Yes.

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Q

And is it your understanding, did the jail

2

previously have a policy which limited incoming mail to

3

postcards only?

4

A

Since the postcards was not on the table, I

5

read it, but I can't tell you exactly what was in there.

6

I know that they had a postcard in one page.

7

recall, I thought perhaps the one page actually made

8

their defense of the postcards more difficult.

9

that's all.

I don't recall.

As I

But

Since I wasn't asked to

10

opine on it I became vaguely familiar with it, and it

11

would be inappropriate for me to opine much about that.

12

Q

You say, in your opinion C-1.1, the changes

13

made have adequately addressed the issues in this

14

litigation.

15

based on?

16

A

So, can you explain what that opinion is

Pretty much everything we have talked about so

17

far.

18

adequate due process to publishers, and they now have a

19

policy that requires them to do so, and they have a

20

process that has to be followed, if they had a policy

21

that didn't even allow publications to come in and

22

that's now been addressed, not just through policy, but

23

now through training and stricter oversight, that's what

24

that refers to.

25

If the issue is that they are not providing

Q

So, is that based on a written policy you

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reviewed?

2

A

Based on written policy and discussions with

3

the two officials that I have referred to, Montano and

4

Kimble.

5

Q

What do you mean, in subsection (c) of C-1.1,

6

that any question about allowing publications were not

7

resolved?

8
9

A

Point me to where that is.

Oh, I see it.

Yeah, there should no longer be -- I mean, the policies

10

have now addressed the topic.

11

question in anybody's mind that publications are

12

allowed.

13

that due process is required through the grievance

14

system for prisoners and through the mails with an

15

appropriate opportunity for appeal for the publisher.

16

So, I'm not sure what there is left to resolve.

17

Q

There should be no

There should be no doubt in anybody's mind

Was there something in the updated policy that

18

specifically clarified the issue for you?

And I can

19

show you --

20

A

Yes.

21

Q

-- the policy, if that's helpful.

22

A

Well, I can't remember exactly where

23

everything appears in all the policies.

But let me look

24

at them one at a time until I find what I am looking

25

for.

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2
3

Q

(Exhibit No. 6 was marked for identification.)
BY MR. THOMPSON:

4
5

Sure.

Q

So, this is the November 20th, 2011 policy,

which was the first policy that followed the lawsuit.

6

A

Okay.

Let me just quickly move through it.

7

Okay.

There's two places where it discusses it,

8

actually.

9

starts at Mail Refusal, 4.58.

The first, if I can refind it.

The first

And the general statement

10

procedures with respect to mail refusal, they deal with

11

the issue for inmates and also for the publisher.

12

at 4.5.8.5, any publication or other mail is rejected if

13

any publication or other mail is rejected.

14

shall also be notified in writing of the reason the mail

15

was rejected and the process for informally appealing

16

the rejection.

17

Then it goes on 4.5.8.6.

And

The sender

If the sender wants

18

to appeal the denial of the publication, the challenge

19

shall be forwarded to the chief deputy within seven

20

working days of the sender receiving the notification of

21

denied mail.

22

will do.

23

discusses publication review process --

Then it goes on from there about what he

Also, if you move to 4.5.13, where the policy

24

Q

Sorry.

25

A

4.5.13.

Can you clarify what number?

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Q

Okay.

2

A

Let me see what I am looking for now there.

3

Okay.

4

of denied mail form shall be completed and sent to the

5

inmate and sender of the affected publication.

6

then, of course, that would refer back to what they have

7

already talked about.

8

general mail, and it also appears -- general incoming

9

mail, and it also appears in the publication review

10
11

Moving on down the page at 4.5.13.5, notification

And

So, it appears both in the

process.
Q

So, in reference to your statement about any

12

question about allowing approved publications is now

13

resolved?

14

A

To me, yes, it is.

15

Q

So, the two sections you just pointed me to

16

were about notifications of denied mail, right?

17

A

Right.

To both inmates and to the publisher.

18

Q

So, what in the publication leads you to

19

believe that the question about allowing publications at

20

all is resolved?

21

A

Well, that was resolved even before the

22

lawsuit.

If you look on page 29 of my report, there's

23

an exhaustive list of the issues with respect to

24

allowance of publication.

25

actually required to read policy, they are actually

So, now that the mail room's

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required to apply that instead of what somebody told

2

them has been the practice for some number of years.

3

That issue is resolved already.

4

taking care of the publishers and their appeals.

5

and they did not strip out of the policy, you know, as

6

they wrote subsequent policies, the fact that

7

publications are allowed.

8

it's allowed now.

9

publications can come in.

The second issue is

So, it was allowed before,

So, there should be no question that
The second question is what

10

happens if you have to turn one down.

11

resolved in this one.

12

Q

So,

And that is

So, on page 34, part C that we were looking

13

at, about allowing approved publications, there's

14

nothing in the policy that's changed that leads you to

15

believe that?

16

based on conversations with jail management or --

17

A

18

Is that something that in your opinion is

My opinion is based on the fact that -MS. STATON:

19

form of that question.

20

answer.

21

THE WITNESS:

Hold it.

Let me object to the

Okay.

You can go ahead and

Okay.

Is there any way to turn

22

her volume up?

Well, we are near the end of the depo

23

anyway.

Well, I am basing my opinion on, just

24

conversations you ask?

25

the fact that the requirements are all now in one place.

Okay.

No.

I'm basing my opinion on

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You know, each new policy has taken care of that.

2

now they have been trained to it.

3

supervisors are being held responsible for ensuring they

4

carry it out.

5

inappropriate information to develop a nonofficial

6

practice, now they have official policies, official

7

training, if you will, and supervisors who have been

8

given their marching orders.

9

BY MR. THOMPSON:

10

Q

And

And now that the

So, where before they were going on

You mentioned supervisors being held

11

responsible a couple times.

12

particular that you are aware of that they are doing to

13

hold supervisors responsible that they weren't doing

14

before?

15

A

Well, yes.

Is there anything in

And I can't tell you exactly how

16

they deal with their supervisors in all situations.

But

17

there was certainly a level of frustration that Kimble

18

mentioned to me that, apparently, the supervisors hadn't

19

been reading the policy either because, for the most

20

part, the immediate supervisors knew what was going on

21

or had participated in the process.

22

do know, now that they have to carry it out, it would be

23

a violation of their -- I don't remember what they call

24

it, code of conduct or what, that requires officers to

25

carry out policy and procedures as written and leaves

So, now that they

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them subject to discipline if they don't.

2

pretty much a standard approach for dealing with that.

3
4

Q

So that's

I want to clarify one thing on page 36 of your

report.

5

A

Sure.

6

Q

Paragraph 4.

7

A

Okay.

8

Q

You discuss that you have written policy and

9
10

procedure manuals.

This is in opinion C-1.2.

And you describe this process to do

so.

11

A

Yes.

12

Q

I want to clarify, is this the process that

13

you generally use to write a policy and procedure

14

manual?

15

A

It's exactly the process I use.

16

Q

All right.

17

A

The review that it mentions there I do before

18

I send it out.

Then the client agency also reviews it.

19

And then, when all those reviews have taken place, then

20

it's written in final form.

21

Q

Can I bring you back to Mr. Clark's report?

22

A

Okay.

23

Q

It's on page 15 of his report in paragraph 28.

24

A

Okay.

25

Q

Sure.

Let me read that.

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A

Okay.

This has to do with an inmate receiving

2

four pages of material that had been copied from a book.

3

Those materials were denied with notification.

4
5

Q

Sorry.

That's paragraph 29, I think.

Can I

have you focus on 28 first?

6

A

Oh, sorry.

Let me read that then.

7

Q

So, my question is, did you review any logs

8

showing what publications have been denied since this

9

lawsuit was filed?

10

A

No.

11

Q

Okay.

I guess I have the same question with

12

respect to paragraph 29.

13

did you review any notifications of mail being returned?

14
15

A

No.

Q

Yes.

17

A

No.

21

I'm not aware of that.

It wasn't -- the

first time I saw that was in his expert report.

19
20

You are talking about the pages copied

out of books?

16

18

If you had a chance to read,

Q

And you haven't reviewed those documents since

A

No.

then?
And I would agree with him, by the way,

22

that they should have allowed those in.

23

problem.

24

Q

In paragraph 28 or 29?

25

A

Twenty-nine.

That's not a

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1
2
3

Q

You agree that pages copied out of books

should be allowed?
A

Right.

There's nothing in the policies and

4

procedures that allows that.

5

says you can't tear things out of books, because that

6

alters the book itself.

7

is that was somehow a misunderstanding of what the

8

provision of policy wanted.

9

Q

There's something that

So, the only thing I can assume

And then at the end of paragraph 29 about

10

inmates being notified of newspaper clippings or pages

11

copied from magazines, do you also agree that would not

12

be problematic?

13

A

Yeah, those should be allowed.

14

Q

So, based on page 37 in your report, paragraph

15

B3 of C-1.3 --

16

A

Yeah.

17

Q

-- so you are discussing the jail's efforts to

18

train staff?

19

A

Um-hmm.

20

Q

And you say staff received training and

21

instruction from supervisors.

22

of what that training or instruction was?

23

A

Not specifically.

Do you have any knowledge

I mean, that is, I haven't

24

seen any training outlines or whatnot.

Chief Kimble,

25

when we talked, indicated that what they were training

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1

to was the new policy itself.

2

discussion about it, asking for anybody, you know, any

3

questions anybody might have about the policies as

4

written.

5

Q

And then, having

So, is there any other basis for your opinion

6

that that training was adequate other than what Chief

7

Kimble told you?

8
9

A

No.

explanations.

That's what it would be based on, his
And then, of course, in Linderholm's

10

deposition, in several of the individual officers'

11

depositions they talk about having, you know, Linderholm

12

helped deliver it, the other individuals talked about

13

having received it.

14

of testimony with respect to what happened with respect

15

to the training.

16

Q

So, there seems to be a commonalty

I think we have covered this, but I want to

17

clarify as it relates to this opinion.

18

expressing an opinion on whether the training that

19

occurred before the litigation was adequate or

20

inadequate, are you?

21
22
23
24
25

A

You are not

I don't even know if they did it before.

I

never asked.
Q

Okay.

So, you are not expressing any opinion

on that?
A

No.

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1

Q

Okay.

In subsection (c)(2), on page 37 of

2

your report, you say that the PCJ recognizes the value

3

of reading material for prisoners.

4

that opinion?

5

A

What's the basis for

Well, they have a jail library.

They have

6

jail library services, for one.

You don't put a library

7

together, I guess you don't think they ought to have

8

reading materials available to them.

9

lawsuit, they have made sure now they can also get their

And, since the

10

publications.

11

books, as long as it was within the procedures that were

12

required.

13
14
15

Q

They have always been allowed to get

What's your knowledge of the jail library

services based on?
A

No.

Have you visited a library?

I asked if they had a library.

Yes.

16

They said an extensive library is, I think how it was

17

described to me.

18

probably asked to, you know, the officials themselves on

19

how extensive their library is.

20
21

Q

But that would be better questions

So, your opinion is based on the fact that

they have a library?

22

A

Yes.

23

Q

So, you are not aware of what materials are in

24

the libraries, so just books or just magazines or just

25

newspapers?

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A

Yes.

2

Q

You are not aware of that?

3

A

Yes, you are correct, I'm not.

4
5

Is that a

better way to answer that?
Q

Yes.

So, on page 38, you express an opinion

6

about Pinal County policies as compared to the BOP

7

policies?

8

A

I do.

9

Q

So, have you reviewed the BOP mail publication

10
11

policies?
A

I don't know that I have looked at that

12

particular policy.

13

different policies and procedures at different times

14

from the Bureau of Prisons.

15

them, I couldn't tell you, certainly not in recent

16

times, if I did.

17

know they are very competent policy and procedures, well

18

written, well researched.

19

Q

I have looked at lots and lots of

But whether that was one of

But I have read them enough that I

So, you say that the jail is free to adopt its

20

own policies and procedures.

Is there anything about

21

the BOP policies that you think is not appropriate for a

22

county jail facility like Pinal?

23

A

Sure.

24

Q

What would that be?

25

A

Oh, classification, housing.

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1

Q

Sorry.

2

A

Oh.

Just in terms of mail and publication?

No.

They are entitled to receive

3

publications.

4

appeals from both inmate and the publisher.

5

they choose to put those together so they accomplish

6

those things is up to them.

7

Q

And they are entitled to, you know, have
But how

So, I just want to clarify, because you say in

8

C-2.2, that the BOP policies and procedures are neither

9

binding or likely the best approach for PCJ?

10

A

Right.

11

Q

I want to understand what you mean by they are

12

not the best approach.

13

other than mail, or is there something particularly

14

about the mail policies that are not the best approach?

15

A

Are you talking about procedures

I am talking about procedures other than mail.

16

He references in his report, as you may have noted,

17

their policy and procedures from time to time, but as if

18

that was, you know, perhaps where these folks ought to

19

be.

20

helpful in many respects in drafting initial policies

21

before Babeu and those people got there, or even in the

22

first set of policies afterwards.

23

jail is unique.

24

according to how they believe they ought to come

25

together as long as they meet the necessary

You know, their policies probably would have been

But each individual

And they are going to craft those

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1

requirements.

2

deal with volumes issues that small jails don't.

3

There's a variety of things that could come into play,

4

how they are distributed in a huge facility or huge sets

5

of facilities.

6

You know, the Bureau of Prisons has to

Whether or not you can communicate by mail

7

between prisons isn't an issue.

For example, for Pinal

8

County, because it's one facility, so there would be

9

issues.

But in terms of the specific things we are

10

talking about in this case, I don't have a problem with

11

the general requirement that those three things occur.

12
13

Q

All right.

I

need to check on something real quick.

14

A

Absolutely.

15

Q

About done.

16
17

Can I take a two-minute break?

(Whereupon, a brief recess was taken.)
BY MR. THOMPSON:

18

Q

One thing I forgot, the very last opinion.

19

A

Mine or his?

20

Q

Yours.

I just wanted to confirm, so you are

21

not expressing any opinion on the postcard and one-page

22

letter policy, right?

23
24
25

A

No.

I understood the issue had been conceded,

so there was no sense going there.
MR. THOMPSON:

I have no further questions.

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1

But we would reserve our right to recall Mr. DeLand if

2

there are other documents that are produced that were

3

relevant.

4

Georgia, do you have any questions?
MS. STATON:

5

reservation.

6

court.

I reject your so-called

That's an issue you can take up with the

7

MR. THOMPSON:

8

MS. STATON:

And we will read and sign.

9

MS. STATON:

Why don't you send it to me.

10
11

Okay.

Then I'll pass it on to you.
THE WITNESS:

Good.

That will provide a good

12

record of where it's been.

13

(Whereupon, the proceedings were concluded at 2:51 p.m..)

14
15
16
17
18
19
20
21
22
23
24
25

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1

C E R T I F I C A T E

2
3

STATE OF UTAH

4

COUNTY OF WASHINGTON

5

THIS IS TO CERTIFY THAT THE FOREGOING PROCEEDINGS WERE

6

TAKEN BEFORE ME, RUSSEL D. MORGAN, A CERTIFIED SHORTHAND

7

REPORTER IN AND FOR THE STATE OF UTAH, RESIDING AT

8

WASHINGTON COUNTY, UTAH;

9

THAT THE PROCEEDINGS WERE REPORTED BY ME IN STENOTYPE,

10

AND THEREAFTER CAUSED BY ME TO BE TRANSCRIBED INTO

11

TYPEWRITING, AND THAT A TRUE AND CORRECT TRANSCRIPTION OF

12

SAID TESTIMONY SO TAKEN AND TRANSCRIBED TO THE BEST OF MY

13

ABILITY IS SET FORTH IN THE FOREGOING PAGES 5 to 177.

14
15
16

___________________________

17

RUSSEL D. MORGAN, CSR
LICENSE #87-108442-7801

18
19
20

November 11, 2012.

21
22
23
24
25

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1
2
3

November 13, 2012
Gary Deland
c/o Georgia A. Staton
Jones Skeleton & Hochuli
Phoenix, AZ 85012

4
IN RE: Prison Legal News v. Paul Babeu, et al.
5
Dear Mr. Deland:
6
7
8
9
10
11
12

Please be advised that, pursuant to California Code
of Civil Procedure Section 2025.520 or Federal Rule of
Civil Procedure 30, the original transcript of your
deposition, taken October 31, 2012, in the
above-referenced matter, has been completed and is now
ready for your reading, correcting, and signing, by
appointment at our office, Capital Reporting Company,
1050 Northgate Drive, Suite 180, San Rafael, California
94903.
Pursuant to the applicable rules, the transcript
will be available for 30 days. Any errata changes must
be signed by the deponent within the 30-day time
period.

13
14

The official transcript for the noticing counsel,
with exhibits, will be mailed in accordance with said
rules, depending on the action of the deponent.

15
16

Please do not hesitate to contact us if you have
any questions.

17
18

Best Regards,

19
20

RUSSEL D. MORGAN, CSR
LICENSE #87-108442-7801

21
22
23

cc:

Original Transcript
All Counsel

24
25

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1

A C K N O W L E D G E M E N T

O F

D E P O N E N T

2
3

I, GARY DELAND,

do hereby

4

acknowledge I have read and examined the foregoing pages

5

of testimony, and the same is a true, correct and

6

complete transcription of the testimony given by me,

7

and any changes or corrections, if any, appear

8

in the attached errata sheet signed by me.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

_________________

______________________________

25

Date

GARY DELAND

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1
2

Capital Reporting Company
1050 Northgate Drive, Suite 180
San Rafael, California 94903
(415) 499-DEPO (3376)

3
4
5
6

E R R A T A
S H E E T
Case Name: Prison Legal News v. Paul Babeu, et al.
Witness Name: GARY DELAND
Deposition Date: October 31, 2012
Page No.
Line No.
Change/Reason for Change

7
8
9
10
11
12
13
14
15
16
17
18
19
20
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23
24

__________________________

______________

25

Signature

Date

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Page 1
16th 34:8,11

2025.520 179:7

38 174:5

17 46:23 48:15
88:7

203A 2:15

3-ring 108:19

175,000 63:16

21 106:16

177 178:13

210 74:8

18 48:15 62:16,21
90:8,12 91:23,25
143:1

22 110:17
23 117:7

4
4 4:3,10 46:3 65:15
66:7 139:15
141:18 144:18
169:6

180 63:16 179:10
181:1

24 121:14 122:14

4,000 67:12

18th 121:22

25 123:4

4.3s 36:18

19 103:22

2500 70:25

1979 51:14

26 126:20 130:14

4.5 36:15,19
111:13 136:5
137:14 165:24

1.4 110:18

1980s 6:6 63:25

27 134:8

4.5.13 165:22,25

10 31:23 37:4
60:24 74:7
102:4,5

1983 42:16

2710 2:15

4.5.13.5 166:3

1985 99:25 100:1

28 46:14 136:1
169:23 170:5,24

4.5.6 141:1

$
$2,500 40:7,10
$600,000 78:1
|
|
1:4,5,6,7,8,9,10,
11,12,13,14,15,1
6,17,18,19,20,21
,22,23,24,25
2:1,2,3,4,5,6,7,8,
9
1
1 4:7 8:4,5

1988 42:16

1050 179:10 181:1

1990s 65:13

108442-7801 2:18

1992 50:20

11 178:20
11-01761-PHXGMS 1:6

2
2 4:8 45:23 46:1
66:7,23

11th 59:1 86:12

2,000 70:25

12 146:12

11/09/11 4:12

20th 165:4

24/7 132:12

29 46:14 166:22
170:4,12,24
171:9
2901 3:9

4.3 36:16,17

4.5.6.2 141:18
4.5.8.5 165:12
4.5.8.6 165:17
4.58 165:9
40 41:16 42:9

3
3 4:9 75:24

400,000 63:14

2:51 177:13

30 47:5 161:1
179:7,11

415 181:2

13 20:15 22:19
60:22 149:2,13
179:1

20 31:18 107:9

300 45:9

415)433-6830 3:4

200 61:8

30-day 179:12

45 4:8 59:17

2003 69:4,5

499-DEPO 181:2

137 4:10

2004 5:25

31 2:13 149:18
179:8 181:5

14 22:20
60:21,22,23 63:2

2005 143:16,18
144:7

315 3:3

144 4:11

31st 139:17

2010 121:22,23
139:17 142:25
153:6

5
5 4:11 53:20 144:7
146:9,10 178:13

32 152:21 153:21

5,000 55:3

33 155:16

2011 44:9 57:12
143:3 153:7
165:4

3376 181:2

50 41:15,16,20
45:15 47:4 55:3

34 162:20 167:12

500 70:22,24

35 47:5

55,000 47:4

2012 2:13 4:9
34:4,8,11 178:20
179:1,8 181:5

36 169:3

57 76:8

37 171:14 173:1

5-page 76:2

15 31:23 58:2
107:7 169:23
15,000 45:12
150 61:8
16 46:23
162 4:12
169 2:15

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5th 143:16,18

A-1.3 106:16 109:3
A-1.4 110:19

6
6 4:12 53:17 165:2
60 107:5,7
602)263-1700 3:10

A-1.5 110:17,21
A-1.6 113:15
A-1.7 117:7
A-2.1 122:13

7
70s 102:23

A-2.2 123:4

72nd 70:1

A-2.4 134:8

73rd 70:1

A-2.5 136:1

75 4:9 72:20

AARMS 17:5,7,17
19:12,17,24
20:2,13,14,19
21:4 22:1
37:24,25 118:24
119:1,3
120:7,9,17,22,24
121:1,11

7-Eleven 126:13
8
8 4:7
80,000 103:8

A-2.3 130:14

113:6
accepting 25:13
84:1 148:1
access 78:24
112:21
147:20,21
159:13
accommodate
77:11
accomplish 25:16
175:5
accordance 179:14
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close 59:18 142:5

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