Crime Labs Still in Crisis
by Matt Clarke
The October 2010 Prison Legal News cover story, “Crime Labs in Crisis: Shoddy Forensics Used to Secure Convictions,” provided an extensive examination of problems at crime labs nationwide. Apparently, and unfortunately, little has changed since that time.
In 2012, the U.S. Department of Justice (DOJ) announced a review of thousands of old cases in which FBI agents presented testimony about forensic hair comparison analysis. The announcement followed a series of articles in the Washington Post reporting that FBI crime lab experts had exaggerated results of hair analysis, resulting in the wrongful convictions of at least three defendants. The review will encompass all cases processed by the FBI lab’s hair and fiber unit prior to 2000 – which includes thousands of convictions. Not included in the review are cases processed by forensic examiners at state and local crime labs who were trained by FBI agents to use the same methods and standards now being examined at the FBI lab.
Additionally, a number of state and local crime labs are under investigation for a variety of issues, ranging from blatant misconduct by lab analysts to improper testing methods.
Previous FBI Lab Scandal ...
Lost and Improperly Destroyed Evidence Thwarts Post-Conviction DNA Testing
by Matt Clarke
While crime labs across the country have been in the news for improper testing of forensic evidence in criminal cases, the problem with misplaced and improperly destroyed evidence is much more widespread.
Not just crime labs, but local police departments and sheriff’s offices often store evidence in a haphazard fashion that makes retrieving it virtually impossible. Joseph Latta, executive director of the International Association for Property and Evidence, who retired after 31 years as a Burbank, California police officer, said there is “no consistency anywhere you look.” This is because it is police officials who are in charge of evidence and the police are trained to “chase bad guys,” not to store evidence used in criminal prosecutions.
“It doesn’t matter whether you’re in Houston or Corpus Christi, Albuquerque or L.A.,” Latta said. “We may end up with the stuff, but we don’t know how to take care of it.”
Opening most police evidence rooms makes “you just want to cry,” stated Rebecca Brown, an Innocence Project policy advisor who is working with Latta and others in a U.S. Department of Justice-funded ...
From the Editor
by Paul Wright
In 25 years of publishing Prison Legal News, we have reported a number of recurring themes where the only specifics that change are the names, dates and locations. But the broader issues – prison slavery, government corruption, guards raping prisoners, brutality, medical neglect, etc. – continue unabated. So too with crime labs. Crime labs have as much to do with science as the military does with music. In the real world, crime labs function as extensions of the police and prosecutors to provide dramatic props to secure convictions regardless of any connection to reality and even less reliance on scientific methods. With respect to the many crime lab analysts who fabricate evidence and dry-lab samples, we can note they only concoct evidence to convict, never to acquit, which indicates their pro-government pathology.
Once more the brunt of crime lab misconduct and corruption falls most heavily on the backs of indigent defendants who are too poor to hire their own experts and must rely on the government’s crime lab reports and the ability of their attorneys to cross examine lab workers about the accuracy and manner in which their tests are conducted. As we have ...
Tennessee County Not Required to Pay for Medical Costs after Prisoner’s Release
by David Reutter
The Tennessee Court of Appeals has held that a prisoner does not have a private right of action for being released early from jail, in a case in which a prisoner alleged he was freed so the jail could avoid paying for his medical care.
Stanley Walker was taken into custody on April 28, 2009 after reporting to his probation officer, who determined he had failed to comply with his probation terms. A court later sentenced him to 30 days in jail “to be counted day for day.”
On May 20, 2009, Walker reported a medical condition to staff at the Bradley County Jail. He was diagnosed with a staph infection and placed in isolation. A memo was issued detailing the cost of treating Walker, and based on that cost he was freed on May 22.
Walker went to a hospital for medical treatment following his release. He sued Bradley County in August 2011, alleging he had been released early so the jail could avoid the cost of his medical care.
The trial court granted Bradley County’s motion to strike and dismiss the claims ...
Tenth Circuit Misses Chance to Limit Long-Term Solitary Confinement
by Derek Gilna
The Tenth Circuit Court of Appeals has upheld a prisoner’s more than three-decades-long stint in solitary confinement, sidestepping an opportunity to meaningfully address the appropriateness of such long-term isolation.
Thomas Silverstein, 62, has been held in solitary confinement in the federal prison system for 31 years, and is currently housed at ADX Florence in Colorado. He was sentenced to three consecutive life sentences plus forty-five years for three murder convictions, including fatally stabbing prison guard Merle Clutts at USP Marion in October 1983. He had previously killed rival gang members while incarcerated, and was implicated in other murders.
Silverstein filed suit in federal district court in Colorado in 2007, challenging his prolonged placement in solitary confinement based on the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court granted summary judgment to the defendants.
In a May 22, 2014 unpublished opinion, the Court of Appeals focused on Silverstein’s past record of extreme violence. “Irrespective of the length of his confinement, Mr. Silverstein’s history with regard to both his violent conduct and leadership in the Aryan Brotherhood makes this a deeply atypical case and it is clear ...
The Spread of Electronic Monitoring: No Quick Fix for Mass Incarceration
by James Kilgore
In a troubled criminal justice system desperately looking for alternatives to incarceration, electronic monitoring is trending. North Carolina has tripled the use of electronic monitors since 2011. California has placed 7,500 people on GPS ankle bracelets as part of a realignment program aimed to reduce prison populations. SuperCom, an Israeli-based Smart ID and electronic monitor producer, announced in early July 2014 that they were jumping full force into the U.S. market, predicting this will be a $6 billion-a-year global industry by 2018.
The praise singers of electronic monitoring are also re-surfacing. In late June 2014, high-profile blogger Dylan Matthews posted a story on Vox Media, headlined “Prisons are terrible and there’s finally a way to get rid of them.” He enthusiastically argued that the most “promising” alternative “fits on an ankle.” Joshua Earnest, press secretary for the Obama White House, even suggested ankle bracelets as a solution to getting the 52,000 unaccompanied immigrant children out of border detention centers and military bases in the U.S. Southwest.
The reasons behind this popular surge of electronic monitoring are obvious: Prisons and jails (along with immigrant detention ...
California Prisoner’s Conviction for Smuggling Tobacco Overturned
by Lonnie Burton
A California state prisoner convicted of a felony offense for smuggling tobacco into prison has had his conviction reversed by a California appellate court, although a related conviction for smuggling cell phones was affirmed.
In September 2011, Sherman Redd, incarcerated at Avenal State Prison, was the subject of an anonymous tip that claimed he had asked staff member Alcadio Cornil to smuggle in cell phones and tobacco. When Cornil arrived for work the next day he was met by two prison investigators. Asked to empty his pockets, he immediately responded, “I give up. I surrender.”
Cornil then produced bundles that contained four cell phones, two “tennis -ball sized” packages of tobacco and several cell phone chargers, two earbuds, four cables for the cell phones, an HDMI cable and a micro SD adaptor.
When questioned, Cornil admitted that he had been paid $1,200 to deliver the items to Redd, who worked for Cornil in the prison’s kitchen. Both Cornil and Redd were charged with felony offenses. Cornil pleaded guilty to one count of conspiracy to communicate with a prisoner without permission and one count of bribery, and received a ...
Philadelphia Traffic Court Abolished; Seven Judges Convicted
The first black woman to be named president judge of Philadelphia’s Traffic Court has been sentenced to two years in federal prison in connection with a widespread ticket-fixing scandal that also led to the convictions or guilty pleas of six other judges. Another Traffic Court judge charged in the case was acquitted at trial.
At her sentencing hearing on December 5, 2014, former judge Thomasine Tynes, 71, became the first member of the court to publicly admit that she had participated in fixing traffic tickets for family members, friends and political allies for the entire 20 years she served on the bench.
“I didn’t invent the system at Traffic Court,” she explained, tearfully. “I went along to get along.”
Tynes’ admission marked a stunning reversal of her previous comments. When she and the other defendants were first charged with conspiracy, perjury and mail and wire fraud on January 31, 2013, Tynes maintained in an interview with the PhiladelphiaDaily News that she was innocent, insisting she never took money to fix a traffic case.
“It’s devastating to me, mentally and physically,” she stated at the time. “I had a gorgeous ...
Maryland Cannot Compel Retroactive Sex Offender Registration
he Maryland Court of Appeals held in June 2014 that circuit courts have the power to order the removal of sex offenders from the state’s registry, thereby impacting federal databases as well; the decision followed a prior ruling in which the Court found the state’s sex offender registry requirements could not be imposed retroactively.
The decision capped lengthy litigation challenging Maryland’s sex offender registration laws and how they are applied. The state enacted its first registration statute in 1995, which applied only to crimes committed after the law’s October 1, 1995 effective date. However, the Maryland legislature amended the statute in 2001, 2009 and 2010 to allow for registration to be required retroactively. The 2010 amendment also created a tier classification system for sex offenders that outlined registration requirements, with Tier III designated as the most severe, requiring registration every three months for life.
The case in this appeal involved John Doe, a former junior high school teacher who was charged with sex crimes after a former student came forward in 2005 to report abuse that had occurred in the 1980s.
Doe pleaded guilty in 2006 to a single count of child sexual ...
Unexhausted Oregon Parole Claims Not Cognizable
by Mark Wilson
On March 19, 2014, the Oregon Court of Appeals held that a pro se prisoner’s parole decision claims were not cognizable on appeal because he failed to raise those issues in his administrative review request.
The Oregon Board of Parole and Post-Prison Supervision (Board) establishes prison terms and parole release dates for prisoners who committed their crimes before November 1, 1989. A prisoner may seek judicial review of a Board decision, but first must exhaust available administrative review remedies, which requires a prisoner to “specifically identify how the challenged board action is alleged to be in violation of statutes or board rules or in what other way the offender believes the board’s action to be in error.” OAR 255-080-0008(1)(d).
In July 2011, the Board held a prison term hearing for Ridge Fleming. Based upon findings of aggravation, the Board imposed a 72-month enhancement above the top of Fleming’s applicable matrix range, establishing a 360-month prison term and an April 30, 2016 parole release date. Prior to the hearing, Fleming asserted that it would be an error to exceed his applicable matrix range on a finding of aggravation. He ...
Forty Defendants, Including 24 Guards, Convicted in Widespread Corruption Scandal at Baltimore City Jail
by Christopher Zoukis
The confessed leader of a powerful gang inside the Baltimore City Detention Center was the government’s star witness at the trial of eight remaining defendants in a widespread racketeering, drug smuggling, bribery, extortion and money laundering operation that resulted in criminal charges against dozens of guards, prisoners, jail workers and other defendants.
Tavon “Bulldog” White, 36, who pleaded guilty on August 6, 2013 to one count of racketeering, admitted that he headed the Black Guerilla Family (BGF) at the state-run Baltimore jail. Under the terms of a plea agreement, White confessed to conspiring with guards to smuggle contraband into the facility. He also admitted to impregnating four female guards – one of them twice – including two who were tattooed with his name. Altogether, he fathered five children with the women.
A sweeping federal indictment announced in April 2013 alleged that White directed the BGF operation that supplied contraband ranging from cell phones and tobacco to prescription pills and other drugs to fellow gang members, who then sold them for a huge profit. He was the first prisoner to plead guilty in the ...
Sixteen Maryland Prison Guards Sentenced for Severely Beating Prisoner
Sixteen guards formerly employed atthe Roxbury Correctional Institution (RCI) near Hagerstown, Maryland have received sentences ranging from probation to five years in prison in connection with two assaults on a prisoner and conspiring to cover up those incidents. Fourteen of the former guards were named in a federal indictment and two pleaded guilty to state charges. [See: PLN, Sept. 2013, p.56; May 2009, p.14; Aug. 2009, p.20].
A federal indictment handed down in February 2013 alleged the guards beat prisoner Kenneth Davis on two consecutive shifts on March 9, 2008 after he had punched another guard. One assault occurred on the midnight shift and the second on the day shift, just hours following the first beating. U.S. Department of Justice investigators said Davis was punched and kicked in his cell severely enough to send him to a hospital with broken ribs and fractured bones in his face and back.
Six former RCI guards were sentenced in March 2014 on federal charges that included conspiracy, falsification of a document and witness tampering. Lanny Harris received 30 months in prison and two years of supervised release; Philip Mayo was ...
Unauthorized Oregon “Offense Surcharges” Reversed
by Mark Wilson
On June 11, 2014, the Oregon Court of Appeals vacated $140 in “offense surcharges” imposed on crimes committed prior to the date the surcharges were authorized.
An Oregon law (Ore. Laws 2009, ch 659, § 2(3)) allows a sentencing court to impose an offense surcharge upon each conviction of an offense committed between October 1, 2009 and July 1, 2011.
Steven Patrick Simkins was indicted on theft and criminal mistreatment charges which were allegedly committed between December 1, 2008 and May 30, 2009. The evidence at trial established that the crimes were, in fact, committed between those dates.
Simkins was convicted on two counts of theft and two counts of criminal mistreatment; no evidence was introduced that he had committed the offenses on or after October 1, 2009. Nevertheless, the sentencing court ordered him to pay a $35 offense surcharge on each conviction for a total of $140. The court also imposed other fines and fees that totaled approximately $8,500.
Although Simkins did not object when the surcharges were imposed, he argued on appeal they should be reversed as “plain error” that is “apparent on the face of the record ...
Oregon: State Must Prove Defendant’s Ability to Pay Attorney Fees
by Mark Wilson
On July 23, 2014, the Oregon Court of Appeals vacated $36,000 in court-appointed attorney and indigent contribution fees, as there was no evidence the defendant had the ability to pay them.
Oregon law authorizes trial courts to order criminal defendants to pay court-appointed attorney fees and other costs. However, “there must be evidence that the defendant ‘is or may be able to pay’ the fees and costs.” The state bears the burden of proving ability to pay, and fees may not be imposed “on pure speculation that a defendant has funds to pay the fees or may acquire them in the future.”
Mitchell Alan Below, 52, was charged with murder and applied for a court-appointed attorney. The trial court waived the $20 application fee and appointed counsel.
Below asserted an extreme emotional disturbance defense based on expert testimony concerning his history of alcohol abuse, depression and other problems. The court rejected the defense, found Below guilty of murder and sentenced him to life in prison with the possibility of parole after 25 years.
The trial court also ordered Below to pay $673 in assessments ...
New York’s Appellate Division, First Department, has reversed a Bronx County supreme court’s dismissal of a 42 U.S.C. § 1983 complaint that also raised claims of negligence and medical malpractice.
The suit was filed by the estate of Eva Luckey, 46, who died at a Rikers Island jail facility in April 2002. Luckey had been treated for chronic asthma during the two weeks prior to her death. While the trial court allowed medical malpractice claims to proceed based on failure to prescribe medication, it dismissed the civil rights and negligence claims in a December 2012 order.
That dismissal, the appellate court stated, was error as it pertained to defendant Connie Rashid, who had a default judgment entered against her. As to most of the other § 1983 claims, the court found there were triable issues.
The City of New York could be found negligent for a breach of duty “to protect decedent from reasonably foreseeable harm in providing emergency medical assistance once she complained of difficulty breathing and otherwise exhibited signs of an asthma attack,” the appellate court wrote. “Dozens of eyewitnesses provided conflicting accounts regarding, among other things, the timing of the officers’ calls for medical ...
Second Circuit Affirms Muslim Prisoner’s Right Not to Drink Water during Ramadan
by Lonnie Burton
Darryl Holland, a Muslim prisoner at the Wende Correctional Facility in New York, was faced with a tough choice on November 20, 2003. Unable to provide a urine sample when ordered to do so by prison staff, he either had to drink water to be able to provide the sample (and therefore violate the rules of Ramadan, a holy month of fasting), or refuse the water (and violate prison rules by failing to provide a urine sample).
Holland chose the latter.
As a result, he was issued a disciplinary report and spent 77 days in “keeplock,” a version of the hole. Initially sentenced to 90 days in keeplock and 90 days loss of privileges, Holland was released early when an appeal was finally resolved in his favor by the Director of Special Housing/Inmate Discipline.
As stated at his hearing and in his appeals, when confronted with the request to provide a urine sample, Holland informed Wende captain Martin Kearney that he would gladly drink water and provide the urine sample after sunset, but could not do so during the day due to the ...
Washington Enacts Wrongful Conviction Compensation Law; County Reneges on $10.5 Million Settlement with Exonerated Prisoners
Washington has joined the list of states that provide compensation for defendants who were wrongfully convicted and subsequently exonerated. Governor Jay Inslee signed the legislation on May 10, 2013, and it went into effect that summer.
The law allows prisoners who have been proven innocent to file claims with the state for $50,000 for each year they were incarcerated. Those who were sentenced to death are eligible to receive an additional $50,000 per year, while claimants can receive $25,000 for each year served on parole, community custody or as a registered sex offender.
Further, the statute provides compensation for “child support payments owed by the claimant that became due and interest on child support arrearages that accrued while the claimant was in custody on the felony or felonies that are grounds for the compensation claim,” with such compensation payable to the Department of Social and Health Services. Successful claimants can also receive reimbursement for restitution, fees and court costs related to their wrongful conviction; tuition payments at state universities and community colleges; and attorney fees for bringing the claim, up ...
Oregon Prison Guard Union Sues Mentally Ill Prisoners
Oregon prison officials report that around 16 percent of the state’s 14,500 prisoners are “severely mentally ill.” In 2013 the union representing Oregon guards began suing some of those prisoners, in part to “hold them accountable” for physical altercations involving prison staff, according to Mike Van Patten, an Oregon State Penitentiary (OSP) sergeant and president of the Association of Oregon Correctional Employees (AOCE).
On January 4, 2013, Oregon State Correctional Institution (OSCI) guard Jeffrey Parnell filed suit in state court against prisoner Nikolas John Hainz, 22, seeking damages for assault, battery and intentional infliction of emotional distress. Parnell alleged that Hainz, who is HIV-positive, bit the inside of his cheek until it bled and then spat on him.
In March 2013, two other guards sued three more prisoners. OSCI guard James Cory West filed suit against prisoner Andrew Jacob McKay for sticking a finger in West’s eye during an altercation. Likewise, OSP guard John Helm sued two different prisoners. He alleged that one, Troy Stokke, had punched him about 20 times after knocking him down; when another prisoner came to Helm’s aid, Stokke stabbed him with a pencil.
Like Parnell ...
Second Circuit: Requiring Pretrial Detainees to Perform Forced Labor Unconstitutional; $15,000 Settlement on Remand
by Matt Clarke
On August 3, 2012, the Second Circuit Court of Appeals held it is unconstitutional to force a pretrial detainee to perform labor other than that associated with personal housekeeping chores.
Finbar Patrick ...
Pharmacist Associations Take Stand Against Death Penalty
by Greg Dober
On March 2015, two professional associations that represent pharmacists urged their members to stop providing drugs used in executions.
The International Academy of Compounding Pharmacists issued a statement to its membership that the organization’s Board of Directors had adopted a position discouraging participation in the preparation, dispensing or distribution of compounded medications for use in lethal injections. In its statement, the Academy reminded its members that states are turning to compounding pharmacies for execution drugs as a result of manufacturers deciding to stop selling certain drugs that can be used in lethal injections. [See: PLN, June 2011, p.1].
Additionally, on March 30, 2015, the House of Delegates of the American Pharmacists Association (APhA) voted to adopt a policy dissuading its 62,000 members from assisting in executions. The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.” A statement released by APhA Executive Vice President and CEO Thomas E. Menighan noted, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on ...
Doctor of Death: Former Jail Physician Leaves Trail of Prisoner Deaths, Injuries
by Matt Clarke
An Illinois doctor whose medical care – or lack thereof – was linked to the deaths of prisoners in multiple states has lost his license to practice medicine, has been fined at least $50,000 ...
Locked Down, Locked Out: Why Prison Doesn’t Work and How We Can Do Better, by Maya Schenwar
(Berrett-Koehler Publishers, 2014). 214 pages, $15.00-$25.00 paperback
Book review by Gary Hunter
Few books achieve that delicate balance between being equally empathetic and educational. In Locked Down, Locked Out: Why Prison Doesn’t Work and How We Can Do Better, the author, Maya Schenwar, invites readers to share her personal experiences with an imprisoned family member while educating them about the failed practices and policies of our nation’s prison system. As Schenwar puts it, “Incarceration serves as the default answer to many of the worst social problems plaguing this country – not because it solves them, but because it buries them ... prisons do not disappear problems, they disappear human beings.”
Schenwar’s sister has a problem with addiction that lands her in jail over and over again. In Locked Down, Locked Out, she unfolds the tangible complexities experienced by both her family and the families of those forced to deal with the plight of an incarcerated loved one. Schenwar couples her personal experience with statistical data and research materials to create a text that gives her first-hand account a firm factual ...
A preliminary report by two human rights organizations concluded that a toxic fly ash dump which surrounds State Correctional Institution (SCI) Fayette in Pennsylvania may be causing cancer and other serious health ailments to both prisoners and staff at the facility. While more study is needed to empirically prove the connection between pollution from the ash dump and illnesses at the prison, the report indicated there was a strong causal relationship.
SCI Fayette opened in 2003 at a cost of about $119 million; it sits on 237 acres and houses just over 2,000 prisoners. The facility was built on top of a former coal mine and sits adjacent to a 506-acre coal ash dump owned and operated by Matt Canestrale Contracting (MCC).
The dump receives ash waste from coal-fired power plants throughout the region. Before it became a fly ash dump, the site was one of the world’s largest coal preparation plants, which left over 40 million tons of coal waste. MCC recently renewed its permit to dump 416,000 tons of coal ash per year at the site.
Coal ash contains mercury, lead, arsenic, hexavalent chromium, cadmium and thallium. Those chemicals can cause or contribute to many serious ...
$12,500 Settlement for Pennsylvania Prisoner Denied Medication
by David Reutter
Pennsylvania’s Allegheny County Jail (ACJ) agreed to pay $12,500 to settle two lawsuits claiming guards and medical staff had failed to treat a prisoner’s epilepsy.
The suits involved the treatment of prisoner Tonja Jackson at ACJ. Following her ...
Overdose, Taser and Restraint Chair Combine to Kill Washington Prisoner
Authorities in Washington State have said no charges will be filed in the death of a 33-year-old diabetic prisoner at the Spokane County Jail, even though his death was ruled a homicide after he was tased twice and placed in a restraint chair as he was suffering from extremely high blood sugar and a methamphetamine overdose.
Spokane County prosecutor Steve Tucker said even though “homicide” was listed as the cause of death for Christopher Parker, that determination does not by itself establish criminal intent or liability.
“A combination of everything is why [Parker] passed away,” Tucker stated. “The tasering didn’t kill him. The restraint didn’t kill him. It’s only in combination with the meth.”
Tucker’s February 21, 2014 decision not to prosecute came three days before the one-year anniversary of Parker’s death in a holding cell at the jail. Video surveillance showed Parker had wrestled with sheriff’s deputies as they attempted to place him in the cell; when deputies forced his head into his lap to secure him in a restraint chair, he lost consciousness and went into cardiac arrest. Officials said he died within minutes.
Chief Criminal ...
Video Shows Tulsa Jail Prisoner Subjected to “Horrific” Treatment Prior to Death
An Oklahoma federal district court denied a request to modify a protective order to allow the release of video footage of the treatment of a prisoner prior to his death at the Tulsa County Jail (TCJ). The court further held the plaintiff’s description of the video in the motion did not violate the protective order because the description was made in furtherance of the litigation.
The civil rights action at issue was filed by the estate of Elliott Earl Williams, 37, who died in a cell at TCJ on October 27, 2011. The suit alleged that Williams was subjected to cruel and unusual punishment following his arrest five days earlier.
“I have never seen a more horrific, egregious violation of a human being’s civil rights in the United States as I have in what is displayed in the Elliott Williams video,” stated attorney Daniel Smolen.
Williams exhibited signs of mental illness at booking, according to the motion that sought to release surveillance video of the last 51 hours of his life. He reportedly crawled on his hands and knees, and barked and screamed. He tried to hurt ...
Fifth Circuit Dismisses Female Immigration Detainees’ Sexual Assault Claims
by Matt Clarke
The Fifth Circuit Court of Appeals held on May 6, 2014 that federal employees responsible for overseeing immigration detainee contracts were entitled to qualified immunity even if they knew that female detainees were being transported by a single male employee in violation of contractual requirements, prior to the women being sexually assaulted by the employee.
This case was brought by eight female immigration detainees who, in separate incidents, were sexually assaulted while being transported from the T. Don Hutto Residential Center (Hutto) in Williamson County, Texas to the airport or bus station. [See: PLN, Dec. 2011, p.42].
Pursuant to an Intergovernmental Service Agreement, U.S. Immigration and Customs Enforcement (ICE) contracts with Williamson County to manage the Hutto facility, and the county subcontracts with Corrections Corporation of America (CCA). Detainees are held at Hutto while waiting to be interviewed by asylum officers; if they establish a preliminary justification for asylum, they are released and transported to the bus station or airport. The eight plaintiffs were transported by CCA employee Donald Dunn, who sexually assaulted them.
Dunn pleaded guilty to charges related to the assaults and was sentenced ...
Tasering Detainee as Corporal Inducement Violates Eighth Amendment
by David Reutter
The Eighth Circuit Court of Appeals has held a pre-trial detainee’s claim that a guard used excessive force could proceed where a jury could find the guard used a Taser on a non-aggressive detainee as corporal inducement to comply with verbal orders.
A few hours after being booked into jail in Conway County, Arkansas on drug charges, Dwain Smith began yelling that he was in pain from pre-existing lower back problems. Jail administrator Rick Emerson instructed guards Jacob Zulpo and Jansen Choate to take Smith to the a medical observation cell.
When the guards entered Smith’s cell, he “was lying down rocking back and forth, moaning” on top of his bunk. Subsequent events were disputed. According to Zulpo, Smith began to “push and kick at him” and “started to turn violent” after he placed his hand on Smith’s shoulder. Smith then retreated back into the bunk, away from the guards. “Zulpo was trying to get ahold of [Smith], to kind of control him, and when doing this, Zulpo was accidentally kicked in the mouth,” Choate stated.
In response to the guards’ orders “to get up off of [his ...
Dismissal of Wrongfully Convicted Prisoner’s Fabricated Evidence Claims Upheld on Appeal
by David Reutter
The Fourth Circuit Court of Appeals has affirmed a grant of judgment on the pleadings to two officers from North Carolina’s Charlotte-Mecklenburg Police Department in a civil rights case that alleged they had fabricated evidence.
In 1999, Shawn Massey was convicted of robbery with a dangerous weapon, felonious breaking and entering, and three counts of second-degree kidnapping, which resulted in an aggregate sentence of 137 to 183 months.
The convictions stemmed from a May 22, 1998 incident in which the victim, Samantha Wood, said she returned home at around 10 a.m. with her two young children and found an armed man at the door of her apartment. He held a gun to her eighteen-month-old child, pushed the family into the apartment and attempted to rape her.
Because Wood was menstruating, the man instead searched for money and Wood gave him over sixty dollars from her purse. After 30 minutes the man left the apartment. Despite his threat to kill Wood and her family if they reported the incident, she called the police.
The description she gave to Officer J.J. Ojaniit was of a black ...
New York Settles Wrongful Conviction Claim for $2.7 Million
by Michael Brodheim
On November 2012, the State of New York agreed to pay $2.7 million to settle a claim filed by a woman who was wrongfully convicted and imprisoned for over 13 years.
Lynn DeJac was convicted in ...
San Antonio, Texas Leads the State in Jail Suicides
by Matt Clarke
A 2013 study of jail deaths in four densely-populated Texas counties found that Bexar County leads the state in the number of prisoners who commit suicide. From 2009 through 2013, Bexar County, which includes San Antonio, reported 12 jail suicides according to data compiled by a KSAT-TV investigative news team.
Since the results of the study were published on November 18, 2013, two more suicides occurred at the Bexar County Adult Detention Center in 2014.
The news team determined that the Harris County Jail in Houston reported six suicides during the same time period; Travis County (Austin) reported three, while Tarrant County (Fort Worth) had just one jail suicide. The report said Dallas County officials refused to respond to requests for information.
Bexar County Jail Administrator Raul Banasco maintained that even though the facility takes precautions to prevent self-inflicted deaths, the number of suicides is not unusual for a jail of its size.
“The detention staff [and] the detention deputies, are responsible to do supervision checks,” Banasco stated. “Depending on the category of the individual, we provide them with the appropriate supervision.”
Banasco said that prior ...
$1.56 Million Settlement for Texas Jail Death Due to Drug Withdrawal
by Matt Clarke
One day before a trial was scheduled to begin in a Texas federal district court, Gregg County officials agreed to settle a case involving the death of a prisoner who was denied the prescription medications ...
by Hannah K. Gold
By the time I was 7 years old I knew drugs were bad. I didn’t need a parent to sit me down on their knee and tell me this because Saturday morning cartoons were frequently interrupted by an advertisement brought to me by Partnership for a Drug-Free America in which an 18-year-old Rachael Leigh Cook smashed an egg, and then her entire kitchen, and told me this was so.
I didn’t know this mid-90s commercial was a revamp of an even more famous 1987 advertisement featuring a white, male authority figure and that same sinister egg. I didn’t know about the war on drugs, but I knew that Cook had the haircut I wanted. I couldn’t have known from this advertisement that kids not too much older than myself, swept up in the hysterical rhetoric of an inner-city epidemic of drugs and violence, were being locked up in droves, and that increasingly, these were children of color. The advertisement said drugs crack kids’ brains on stovetops; the other, silent reality was that the war on drugs cracked kids’ brains in solitary.
That’s still the reality today. In the United States, it tends to be the case that ...
$345,000 Settlement in Michigan Detainee’s Suicide
by David M. Reutter
A $345,000 settlement was reached between Wayne County, Michigan, the City of Detroit and the estate of a prisoner who committed suicide at the Wayne County Jail (WCJ).
Jason L. Smith was arrested on April 29, 2009 and ...
Third Circuit: No Supervisory Qualified Immunity for Prisoner Suicide
by Mark Wilson
On September 5, 2014, the Third Circuit Court of Appeals affirmed the denial of qualified immunity to supervisory prison officials for inadequate third-party medical care resulting in a prisoner’s suicide.
The Delaware Department of Corrections (DOC) operates the Howard R. Young Correctional Institution (HRYCI). On June 17, 2002, the DOC contracted with First Correctional Medical, Inc. (FCM), a for-profit company, to provide medical care to prisoners at HRYCI. The contract outlined FCM’s required standards of care, and specified that “[t]o the extent that the health care standards of the American Correctional Association and the National Commission on Correctional Health Care (‘NCCHC’) differed, FCM was to adhere to the higher standard.”
In 1997, the NCCHC published intake screening standards for correctional facilities. Those standards were updated in 2003, but FCM violated its contract by failing to implement the NCCHC’s 2003 guidelines. It also did not properly implement the 1997 standards.
Then-DOC Commissioner Stanley Taylor and HRYCI Warden Ralph Williams were aware of the deteriorating quality of FCM’s medical services. Williams admitted he knew that 1) “FCM’s performance had degraded significantly”; 2) “FCM may not have been ...
Reading Death Row Prisoner’s Legal Mail States Sixth Amendment Claim
by David Reutter
The Ninth Circuit has held that a prison guard’s act of reading a prisoner’s legal mail – not merely inspecting or scanning it – constitutes a Sixth Amendment violation.
The Court of Appeals reversed a district court’s order dismissing, at the screening stage, a pro se civil rights action filed by Arizona death row prisoner Scott D. Nordstrom. Nordstrom alleged in his complaint that on May 2, 2011, he prepared a letter to mail to an attorney challenging his murder conviction.
The letter was placed in an envelope marked legal mail and addressed to “Attorney at Law Sharmila Roy, Esq.” Prison guard F. Hawthorne was conducting a security walk when Nordstrom informed him that he had legal mail ready to be processed. Hawthorne removed the correspondence from the envelope and “read the content.”
Nordstrom protested that the letter was a confidential attorney-client communication that should not be read. Hawthorne, according to the Ninth Circuit, “told him to go pound sand.” After exhausting his administrative remedies Nordstrom filed a lawsuit claiming that he was forced “to cease conveying critically sensitive information concerning necessary aspects of ...
Civilly Committed Sex Offenders Increasingly Released in Wisconsin
by Matt Clarke
he State of Wisconsin is releasing more violent sex offenders who were civilly committed following their prison sentences, in part, officials say, because the state’s treatment program is working and the offenders are less likely to recidivate than previously believed.
According to a Wisconsin Center for Investigative Journalism analysis of data from the Sand Ridge Secure Treatment Center, the state’s civil commitment facility, the number of releases more than tripled from 2009 to 2013. The analysis found that 114 offenders were released during that period, up from only 31 during the previous five years.
Many of those discharged were required to wear electronic monitors but did not have to undergo further treatment. However, an increasing number of the released sex offenders were placed on “supervised release,” meaning they must participate in intensive treatment in addition to monitoring. Officials said the use of such supervision for released sex offenders will expand under legislation signed into law by Governor Scott Walker in December 2013.
“The increased number of patients on supervised release in Wisconsin does not place communities at greater risk, as long as those patients have been treated and ...
Lawsuit Over Suicide of Oregon Prisoner Settles for $100,000
by Mark Wilson
The mother of an autistic Oregon prisoner who committed suicide shortly before his scheduled release accepted $100,000 to settle her suit against state prison officials.
As previously reported in Prison Legal News, Richard Gifford, 22, suffered ...
Oregon Courts Must Give Notice before Amending Judgment
by Mark Wilson
On August 6, 2014, the Oregon Court of Appeals reversed a lower court’s second amended judgment that reinstated a former prisoner’s lifetime term of post-prison supervision (PPS). The lower court lacked authority to amend the judgment, because the parties were not provided notice or an opportunity to be heard.
In 1994, Larry Nobles, aka Henry Jackson, pleaded no contest to murder and was sentenced to 144 months in prison and a lifetime PPS term.
Oregon trial courts retain jurisdiction to delete or modify erroneous aspects of a judgment under ORS 138.083(l)(a): “The court may correct the judgment either on the motion of one of the parties or on the court’s own motion after written notice to all the parties.”
Invoking ORS 138.083(l)(a), Nobles moved the trial court for the reduction of his PPS term to three years. The trial court granted the motion and entered an amended judgment reflecting the change.
Two days later, however, acting sua sponte and without notice to either party, the trial court issued an “amended amended judgment,” reversing its earlier PPS reduction and reinstating the lifetime ...
Dismissal of Challenge to Texas City’s Sex Offender Restrictions Reversed
by Matt Clarke
The Fifth Circuit Court of Appeals has reversed the dismissal of a challenge to the constitutionality of a city’s sex offender residency restrictions.
In 2008, Lewisville, Texas enacted an ordinance prohibiting registered sex offenders whose offenses involved a minor from establishing a residence within 1,500 feet “of any premises where children commonly gather.” That included public and private schools, public parks and playgrounds, public and semi-public swimming pools, public or non-profit recreation facilities, day care centers and video arcades.
Aurelio Duarte was convicted of online solicitation of a minor, sentenced to eight years in prison and subsequently released. His family lived in Lewisville, where his daughters were enrolled in school. His wife worked nearby and they wanted to remain in the city.
Mrs. Duarte began looking for suitable housing even before her husband was released from prison. On nine occasions she contacted the Lewisville Sex Offender Registry to check whether houses she was interested in purchasing were outside the areas prohibited by the ordinance. Six were within prohibited areas and two sold before she received an answer. She was told not to purchase the last ...
Seventh Circuit Reinstates Prisoner’s Eighth Amendment Suit; $26,875 Settlement on Remand
by Lonnie Burton
n July 17, 2014, the Seventh Circuit Court of Appeals reinstated a lawsuit filed by a mentally ill Wisconsin prisoner who claimed he was subjected to months of cruel and inhumane living conditions.
While incarcerated at the Green Bay Correctional Institution (GBCI), John Townsend had a mental condition that caused him to engage in disruptive behavior. In response to his behavior, which included fights and repeated suicide attempts, GBCI imposed a “Behavior Action Plan,” or BAP, which included loss of property and privileges.
BAPs, which do not afford the prisoner a hearing or chance to object, are reviewed on an “ongoing and regular basis” according to GBCI officials. In Townsend’s case, he was subjected to BAPs numerous times, including one for 259 days. For at least 90 of those days he was either naked or issued only a paper gown. For 106 days he was not given a mattress, pillow or sheets and was forced to sleep on a concrete slab. Townsend was also not allowed a towel, soap or toilet paper; he was let out of his cell for one hour a week ...
Deferred Sentence Completion Automatically Restores Civil Rights in New Mexico
by Mark Wilson
n May 1, 2014, the New Mexico Supreme Court held that satisfaction of the conditions of a deferred sentence fully restores a defendant’s civil rights by operation of law, without the need for a gubernatorial pardon.
In 1992, James Oliver Reese was convicted of a felony tampering with evidence charge in New Mexico. The court deferred sentencing, and once Reese satisfied the conditions of deferment the charge was dismissed.
In 2011, a federal grand jury indicted Reese for being a felon in possession of a firearm on the basis of his 1992 tampering with evidence conviction. Restoration of a defendant’s civil rights can bar a federal felon in possession charge under 18 U.S.C. § 921(a)(20). Nevertheless, the district court denied Reese’s motion to dismiss; he pleaded guilty to one count and was allowed to appeal the denial of his motion.
The Tenth Circuit asked the New Mexico Supreme Court to determine whether Reese’s civil rights were restored automatically after completion of his deferred sentence, or if he needed a pardon from the governor before his rights were fully restored.
Following an extensive statutory ...
California Supreme Court Restricts Life Without Parole Sentences for Juveniles
The California Supreme Court has held that mandatory sentences of life without parole can no longer be applied to juvenile offenders. Even cases involving juveniles convicted of homicide must undergo intense scrutiny before a term of life without parole can be applied.
Handed down on May 5, 2014, the Court consolidated People v. Gutierrez and People v. Moffett, and required trial courts to consider a variety of factors before sentencing a juvenile to life without parole. Based on the U.S. Supreme Court’s decision in Miller v. Alabama,132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), California’s high court held that trial courts “must consider all relevant evidence bearing on the distinctive attributes discussed in Miller.” See: People v. Gutierrez, 58 Cal. 4th 1354, 324 P.3d 245 (Cal. 2014).
In 2012 the California legislature enacted a statute – California Penal Code § 1170(d) – that allows for reviews of cases in which juveniles were sentenced to life without parole. In opposition to the issues raised in Gutierrez, the Attorney General argued that § 1170(d) had eliminated any constitutional concerns related to sentencing juveniles to ...
New York: Companies Settle Claims for Discriminating against Ex-Felons
by Gary Hunter
National retailer Bed Bath & Beyond forked over a large settlement in April 2014 after New York’s Attorney General caught the company illegally discriminating against ex-offenders seeking employment. The housewares mega-chain, which operates 62 stores in New York, will pay a settlement totaling $125,000. Of that amount, $40,000 is for restitution to job applicants who were denied employment, and $45,000 will be split equally among the Center for Employment Opportunities, the Osborne Association and the Doe Fund, which provide services for former prisoners. Bed Bath & Beyond will also “ban the box” that asks about prior felony convictions on its job applications.
“This agreement puts employers on notice that slamming the door on jobseekers based on past conduct without deciding whether that conduct is relevant to the current job is not only wrong – it’s unlawful,” stated Attorney General Eric T. Schneiderman.
New York law prohibits businesses from applying blanket bans on hiring ex-offenders, though companies are not prohibited from checking a job applicant’s background so long as they take mitigating factors into consideration, such as the nature of a conviction, the length of ...
Nebraska Supreme Court Upholds One-Hour Law Library Access
by Mark Wilson
On June 13, 2014, the Nebraska Supreme Court held that a prisoner did not state a cognizable access to court claim because he failed to show actual injury resulting from a one-hour daily law library limitation.
Prisoners at Nebraska’s Tecumseh State Correctional Institution (TSCI) are generally permitted access to the law library for just one hour a day. Upon proof of a court date and exigent need, a prisoner may request an extra hour of library time. Such a request must be submitted 30 days in advance.
Library capacity is limited to 28 people, including staff, clerks and prisoners. Without the one-hour time limit, “TSCI would be unable to provide availability to all inmates,” the librarian claimed. The law library is intended only for legal research, taking notes and making copies; prisoners are expected to prepare their legal documents in their housing unit.
Prisoner Christopher M. Payne filed a state court declaratory judgment action in 2011, alleging that the one-hour law library limitation violated his constitutional right of access to the courts. He claimed that he needed additional library time because he had seven pending legal actions. The ...
Third Circuit: Lack of Training for Jail Guards Bars Summary Judgment; $150,000 Settlement
by Mark Wilson
On April 11, 2014, the Third Circuit Court of Appeals held that a jail’s failure to train guards in conflict de-escalation and intervention techniques precluded summary judgment on a failure-to-train claim. The case subsequently settled on remand.
New Jersey’s Cumberland County Correctional Facility (CCCF) “is considered a tough prison, due in large part to gang activity. At least four or five fights are seen and reported every day, and up to twenty or thirty are estimated to be unseen and unreported.”
Lawrence Thomas entered CCCF on June 4, 2008 on a shoplifting charge. He was classified as minimum security, but housed with minimum- and medium-security detainees.
Thomas quickly became known as a bully and a thief. On July 27, 2008, he stole someone’s food and was confronted by around twelve angry prisoners.
Newly-hired guards Fernando Martinez and James Wilde were working the unit during the altercation; neither had received conflict de-escalation or intervention training. They took no action to de-escalate or intervene in the argument, even though other prisoners later testified that it was obvious a fight was imminent.
“If you guys ...
Maine Jail Raises Pigs to Feed Prisoners, Expands Organic Farm
The slop at the Somerset County Jail in East Madison, Maine is quite popular, at least among the jail’s porcine residents.
To help feed the facility’s prisoners and cultivate the New England soil, officials decided to raise eight Yorkshire pigs on land behind the jail. A handful of the prisoners, meanwhile, will receive some hands-on vocational training – slopping the pigs with cow’s milk and leftovers from the jail’s dining hall mixed with corn silage from a local farm – as well as much-needed outdoor activity.
“The cow’s milk really packs on the weight,” said guard Ryan Moore, who came up with the idea to raise pigs. Grain isn’t needed, he added, since the swine will be used exclusively for producing sausage.
“We’re not making ham,” he said. “We’re not making pork chops.”
The pigs reside in a 12-by-8-foot mobile pen, built by prisoners, that was modeled on a “pig tractor” developed by the Maine Organic Farmers and Gardeners Association. The pen is moved from spot to spot while the pigs turn over the soil with their snouts, tilling the land while fertilizing it.
Since 2009, when ...
News in Brief
Arizona: The Maricopa County Attorney’s Office announced on May 28, 2014 that it would not seek criminal charges against state prison guard Jesse Dorantes for the death of his K9 service dog, Ike, who was left in an unattended vehicle in the summer heat for seven hours. The DA’s office cited a 2007 case in which Chandler police officer Thomas Lovejoy’s K9, Bandit, was abandoned for over 13 hours and died due to heat exposure; Lovejoy was charged with but acquitted of animal cruelty. “We have even less favorable evidence now than what was presented in that previous matter,” said County Attorney Bill Montgomery.
Arkansas: On July 29, 2014, the Baxter Bulletin reported that Baxter County Quorum Court member Gary Tennison had proposed an ordinance that would change the uniforms worn by jail detainees from black and white stripes with flip flops to green scrubs and deck shoes. Tennison said the current striped uniforms were dehumanizing and contributed to recidivism. “The more you humiliate people, the angrier they become,” he toldthe Bulletin. Sheriff John Montgomery disagreed, claiming the current uniforms reduced potential hazards to the community. On August 5, 2014 the proposed ordinance was defeated ...