God Bless her, and may she nail them with a large award!
Excerpts from the Article:
A 63-year-old grandmother filed a lawsuit on October 8, 2020 after she was arrested and jailed while having a mental health crisis. While jailed, she was forced into a restraint chair and then placed in a cell without access to water for days, forcing her to drink from a contaminated toilet. No charges were filed against her within 48 hours, so state law required she be released. Instead, she was held for 27 days without access to her medications or mental health treatment.
Tamara Barnicoat was having a psychotic episode on October 10, 2019. Police had twice been called to a business where she was yelling, “I am God.” On a third call, to a car wash where she continued to proclaim her deification and threw a cup of water she thought was poisoned at the car wash attendant, police arrested her and took her to the Gila County Jail.
During booking, it was clear Barnicoat was psychotic and delusional. She gave her name as “God,” but with her correct Social Security number. She continued to yell, “I am God,” and mumble incoherently.
Instead of obtaining mental health services for Barnicoat, deputies forced her to disrobe and placed her in a filthy, windowless concrete holding cell. The next day, she was taken to court for an initial appearance. She was nearly naked and not wearing the shoes, socks, panties, pants, or sweatshirt she had on at the time of her arrest. The only clothing she was wearing was a light blue shirt.
When the deputies came to take Barnicoat to her initial appearance, which was by video link, she did not understand what was happening. She told them, “I’m not going anywhere with you. You’ll have to kill me first. Fuck you.”
Instead of seeking mental health care for Barnicoat or assuring her she would not be harmed, six members of the jail staff gang tackled her and violently forced her into a restraint chair. They placed a blanket over her and wheeled her into the jail’s chapel for her initial appearance.
It was clear to the judge that Barnicoat was suffering from mental illness. She was “yelling” and “making noises” and unresponsive to the judge’s questions. He assigned her counsel and ordered an immediate mental health evaluation. Instead of obeying the judge’s order, deputies wheeled Barnicoat back to the holding cell.
Jail Sgt. Dustin Burdess cut off the water to the cell, rendering it a “dry cell.” The water in a dry cell is supposed to be restored briefly every two hours to allow the prisoner to flush the toilet and drink water. But Burdess never logged that he was making the cell a “dry cell,” so none of the jail staff knew to turn on the water periodically.
Three days later, Deputy Brook Griffin noticed that Barnicoat was still nearly naked in her cell and there was an overpowering smell of urine coming from it. She investigated and discovered that Barnicoat had been without water since her arrest and had been forced to drink from the fouled toilet. Further, she had not been given a jail uniform, an opportunity to shower, hygiene supplies, or a clean towel. Griffin supplied all of those to her, then noted it down in a report. She also noted that her “dry cell” status had not been logged and she had not seen any medical or mental health personnel.
Barnicoat was released 27 days later, as no charges had been filed against her. Arizona law requires a prisoner be immediately released from jail if charges are not filed within 48 hours.
On February 7, 2020, Gila County Sheriff J. Adam Shepherd and Jail Commander Justin Solberg gave an interview to ABC Channel 15 investigative reporter Melissa Blasius during which they admitted Barnicoat’s civil rights had been violated. Five weeks later, a deputy went to Barnicoat’s home and convinced her to sign a “Release of all Claims.” Barnicoat, who has a fourth-grade reading ability, did not understand the form, but was pressured into signing it and accepting a check for $7,500, which she eventually returned.
Represented by Phoenix attorney Robert Campos of Robert J. Campos & Associates and Peoria, Arizona attorney Kevin Garrison of the Garrison Law Firm, Barnicoat filed a Notice of Claim with the Gila County Attorney’s Office on April 3, 2020. On April 29, 2020, that office filed criminal charges against Barnicoat for misdemeanor assault and trespass, and misdemeanor disorderly conduct. The office then had the Maricopa County Attorney’s Office take over the case due to conflicts. They promptly dismissed all charges.
The attorneys helped Barnicoat file a state civil action alleging civil rights violations and state statutory violations and torts.
“Most people who are in jail are presumed innocent, they haven’t been convicted of anything. And they’re just starting the process in the criminal justice system. We should expect some basic human rights and civil rights to be protected,” said Campos, who noted that the lawsuit was not about a big payout but about correcting a big injustice. “I have not encountered a case where the inmate who’s presumed innocent and has no charges has to resort to drinking out of a toilet. And I have never encountered a case where the sheriff on television confesses that he did in fact violate the inmate’s rights.”
“I want them to change things at the jail because it was so devastating,” said Barnicoat, who admitted considering suicide because of the severity of the conditions in which she was held. See: Barnicoat v. Gila County, Case No. 2:2020-cv-02260, U.S.D.C. (D. Ariz.).
Virginia is using dogs to ‘terrify and attack’ prisoners, say lawsuits that describe one man as mauled in his cell
More outrageous prison abuse. It will not end until YOU speak out! Who do you think is going to pay for this? YOU are!
Excerpts from the Article:
Curtis Garrett was standing in cell 3C38 on Christmas Day, four months shy of his release date, when the dogs showed up.
The inmate had retreated to his cell and closed the door after fighting with another prisoner who attacked him with a broom handle in the mess hall. When Garrett saw two members of the Patrol Canine Unit with two dogs outside his window, he turned around and put his hands behind his back. He expected the officers to cuff him.
But they didn’t, at least not immediately, that day in Sussex I State Prison, according to a recently filed lawsuit against Virginia and employees of the state’s Department of Corrections. It lays out the details above and describes a violent scene moments later when “without warning or provocation” the dogs were unleashed and ordered to attack.
“The two canines bit Mr. Garrett’s left arm and right leg while the two Officers punched and kicked Mr. Garrett repeatedly,” the lawsuit reads. “Mr. Garrett collapsed to the ground under the force of the Patrol Canine Unit’s attack.”
The officers, it says, then pulled him up, without ordering the dogs to release their hold.
“The canines sank their teeth deeper into Mr. Garrett’s arm and leg when he was pulled up into the air, causing them to hang in the air, still attached to Mr. Garrett by their teeth as he was lifted,” it reads. “While the canines’ jaws clenched down on Mr. Garrett’s left arm and right leg, [the officers] slammed Mr. Garrett’s body against the wall of his cell. The Officers proceeded to cuff Mr. Garrett’s hands behind him.”
Using dogs as weapons against prisoners has been prohibited by many states and even the U.S. military. Revised regulations from 2019 for the Military Working Dog Program state that canines “will not guard detainees, U.S. military prisoners, or dislocated civilians. Units will not use MWD teams to harass, intimidate, threaten, or coerce detainees for interrogation purposes.”
And yet, two recently filed lawsuits and numerous letters from inmates sent to a human rights organization describe Virginia’s maximum-security prisons as regularly using “unmuzzled canines to terrify and attack prisoners.”
More than that, they depict officers as ordering dogs to bite inmates who were already lying on the ground or alone in cells, and then failing to provide adequate medical treatment for their injuries.
After reading through the lawsuits and letters, I sent a request for comment to the Virginia Department of Corrections. On Friday, spokeswoman Lisa Kinney said the department could not comment on the newly pending litigation and had not yet filed a response to the legal complaints.
The urge to dismiss convicted criminals as unreliable sources is understandable, and we should view these claims with skepticism. What we shouldn’t do is ignore them. Even if we give the department the benefit of the doubt and assume that the dogs are used only in extreme circumstances against the unruliest inmates, the lawsuits and letters raise concerning questions about what is happening inside institutions charged with rehabilitating people.
‘I’m angry & rageful & sad’: A Virginia inmate’s letters show why solitary confinement should concern us all. They also pose important questions for us as a society: Is this who we are? Are we okay with a state’s prison system maintaining a practice that has roots in the most shameful moments of our country’s history and that other places have already determined is not acceptable?
The lawsuits, which were filed in amended form in January, come at a time when many prisons have put in place programs that allow inmates to train dogs and have moved away from ones that rely on inmates fearing dogs.
Kelly Jo Popkin of Rights Behind Bars, which, along with D.C.-based firm Arnold & Porter Kaye Scholer is representing the two men, describes Virginia as an “outlier state” when it comes to using dogs as weapons in prisons.
She also points to the historical context that makes the practice especially disturbing given the disproportionate rates of Black Americans who are incarcerated.
“Dogs have been used by law enforcement to terrorize, threaten, and subordinate African Americans since the birth of this country, and the use of these dogs against incarcerated individuals in Virginia state prisons is just one example of many,” she says. “The symbolism of this is not lost on our clients and their families.”
One inmate’s mother, she says, at one point compared her son’s wounds to those caused by whips.
Opinion: Don’t overlook one of the most brutal and unnecessary parts of policing: Police dogs
Before Rights Behind Bars got involved in the recent cases, Popkin says more than a dozen other legal complaints had been filed in Virginia related to dog attacks against inmates. Inmates were representing themselves in those cases, and the challenges of doing so eventually resulted in those cases not moving forward, she says.
“Ultimately, Virginia lawmakers are the ones who need to recognize the use of canine attack dogs as a systemic concern and act accordingly to ban the practice of using attack dogs against prisoners,” Popkin says. “There’s something about these stories that show how the use of dogs against prisoners is so degrading, and completely dehumanizing.”
A statement provided by a representative of Arnold & Porter Kaye Scholer reads: “The correct course is clear: The VADOC policies permitting the use of dogs to attack people in custody must be changed.”
Gay Gardner of the Virginia-based organization Interfaith Action for Human Rights says she has received letters over the last several years from inmates at the state’s maximum-security prisons that describe dog attacks. In many of them, she says, inmates describe the dogs being brought in when an altercation or another event alarms the staff — and the attacks as occurring after the situation has already calmed down.
Garrett, in his lawsuit, is described as being unable to write or clutch anything with his dominant left hand, and as having a “dead leg” that is almost completely numb and pain that radiates up his leg if he puts weight on his right foot.
He was taken to the hospital after the incident on Christmas in 2018, the lawsuit says, but when he returned, he was placed in solitary confinement for about five weeks “with almost no medical care.” He received medical attention, it says, only after his wounds grew infected and he pretended to be dead in his cell.
This may seem a distant concern, affecting people locked behind walls, but one part of the lawsuit illustrates too clearly why what happens within prisons affects those outside of them. Many inmates eventually get released, and the hope is that they leave prison in a better position to contribute to society than when then entered it.
Garrett’s release date came in May 2019. The lawsuit describes his mental health as having substantially deteriorated since that day.
“He self-isolates in his room and at times panics because he thinks he hears dogs barking outside his door,” it reads. “Mr. Garrett was institutionalized at Tucker Mental Institution on Wednesday, December 2, 2020 for a mental breakdown caused by trauma associated with the canine attack and its aftermath.”
Thank God! His next step is prison, where he belongs.
Excerpts from the Article:
The Supreme Court on Monday turned away the final challenge brought as part of Donald Trump’s effort to overturn last year’s presidential election, bringing an understated close to a legal drama that consumed the nation for weeks.
Without explanation, the justices declined to hear Trump’s challenge to more than 221,000 Wisconsin ballots that Republican attorneys said were counted only because of voting procedures implemented for the pandemic.
Trump argued election officials erred by allowing voters to submit ballots via drop boxes. He said voters circumvented ID requirements by claiming an exception to the law meant to cover people who are “indefinitely confined.” The state’s highest court ruled last year that voters could decide for themselves whether they were “confined” by the pandemic.
The litigation was one of several high-profile cases Trump brought to the Supreme Court in an effort to overturn an election he falsely asserted had been stolen from him. Even though Trump appointed three of the nine justices – and conservatives hold a 6-3 majority – the high court repeatedly brushed aside pro-Trump efforts to change the election results.
A Trump spokeswoman did not respond to a request for comment.
Six and a half years is too long. Ya think?! This case demonstrates how generally screwed up the system is.
I note that the prosecutor tried to pull a fast one: “The State argued that Watson only officially asserted his right to a speedy trial when his counsel filed the motion to dismiss on November 15, 2018. ” That’s bullshit because the defendant had written several letters to the Court requesting his retrial.
Excerpts from the Article:
The Supreme Court of Indiana held that a defendant’s right to a speedy trial was violated where he was made to wait six-and-a-half years before he was retried on a pending 30-year habitual-offender enhancement.
Stanley V. Watson was convicted by a jury in 2001 of dealing cocaine and, being a repeat offender, was sentenced to 50 years for the drug conviction and 30 years for the habitual-offender enhancement. After filing a postconviction motion alleging his prior offenses could not be used to justify the enhancement, the State conceded, and the court vacated the 30-year enhancement. In July 2012, the State was granted the right to retry Watson on the enhancement.
From that time until November 27, 2018 (2,325 days), Watson repeatedly sent letters to the court asking to be retried. On November 15, 2018, his counsel filed a motion to dismiss based on violation of Watson’s right to a speedy trial. After his trial was concluded and he was reconvicted, the trial court denied his motion for dismissal. On appeal, the Court of Appeals vacated the conviction based on Indiana Criminal Rule 4(C).
On review by the Indiana Supreme Court, the Court first considered Rule 4(C)’s application. Rule 4(C) requires the State to bring a defendant to trial within one year of charges being filed or the defendant’s arrest, whichever is later.
Watson argued that based on Poore v. State, 685 N.E.2d 36 (Ind. 1997), which found Rule 4(B)’s speedy trial mandate applies to habitual offender proceedings, that Rule 4(C) also applies. The Court rejected this argument as it had previously done in State ex rel. Brumfield v. Perry Cir. Ct., 426 N.E.2d 692 (Ind. 1981) (Rule 4(C)’s triggering mechanisms not applicable to retrial of a habitual-offender allegation).
In determining whether a delay in prosecution violates a defendant’s right under the Sixth Amendment to the U.S. Constitution, courts apply the test from Barker v. Wingo, 407 U.S. 514 (1972). This test also applies to the speedy trial right claims brought under Art. 1, Sec. 12 of the Indiana Constitution. Crawford v. State, 669 N.E.2d 141 (Ind. 1996). Barker’s four factors are: “(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the speedy trial right, and (4) any resulting prejudice.”
These factors are nonexclusive and must be considered together in the context of a particular case. Barker. Delays approaching one year generally satisfy the presumptively prejudicial threshold. Doggett v. United States, 505 U.S. 647 (1992); Vermillion v. State, 719 N.E.2d 1201 (Ind. 1999).
The Court observed that the delay in this case (6.5 years) “is over six times the length of the presumptively prejudicial threshold; it exceeds the five-plus years the Barker Court called ‘extraordinary.’” Further, while some longer delays may be justified “dependent on the complexity of a particular case,” the Court said habitual offender allegations are not complex prosecutions.
The Court also assigned a majority of the blame for the delay to the State. While it decided this delay was for neutral reasons and not bad faith, the State was still responsible for 1,360 days – nearly four years.
The State argued that Watson only officially asserted his right to a speedy trial when his counsel filed the motion to dismiss on November 15, 2018. The Court rejected this argument, finding that Watson had repeatedly asserted his right in letters to the court and objections to the State’s continuances. United States v. Tigano, 880 F.3d 602 (2d Cir. 2018) (a defendant’s assertion – regardless of actions by counsel – is the relevant consideration).
As to prejudice, the Court found Watson suffered significant anxiety over his pending prosecution. “For over six years – nearly four of which are attributable to the government – Watson was left to wonder whether he would be released at age seventy-six or die in prison.” Barker (“minimizing the anxiety and concern of the accused” is an “interest the speedy trial guarantee was designed to protect”).
The Court found that all four Barker factors weighed in Watson’s favor and thus his right to a speedy trial was violated.
Accordingly, the Court remanded with instructions to vacate Watson’s enhancement conviction. See: Watson v. State, 155 N.E.3d 608 (Ind. 2020).
NY Federal Court Denies Summary Judgment on Claims of Improper Medication Seizure, Evidence Fabrication, Improper Frisk During Prison Visit
This is good news not just for Ms. Bobbit; ten years ago nearly every judge would not have let her proceed, because they had no idea what really goes on in our prisons. They are starting to see the light.
Excerpts from the Article:
On September 21, 2020, a New York federal court issued an order denying the state summary judgment on some claims arising from a woman’s visit to a prison that resulted in her prosecution for bringing her seizure and pain medications into the prison.
Lisa Bobbit arrived at Green Haven Correctional Facility, a maximum-security New York Department of Corrections and Community Supervision (DOCCS) prison, to visit a prisoner in 2015. She was carrying Lamotrigine pills and a small vial of Tramadol, which was wrapped together with a small piece of bread in plastic wrap. She did not declare the medications at the gate when she was issued a visitor’s pass.
DOCCS guard Monica Marzan claimed she noticed a bulge in Bobbit’s sock while performing a scan of her and asked her to remove it, revealing the medications. Bobbit said she removed it from her pocket. Marzan detained Bobbit and reported the incident to her supervisor who called the New York State Patrol (NYSP).
NYSP Trooper Robert Murtha arrested Bobbit and frisked her. She was eventually released from custody and given desk appearance tickets for violating N.Y. Penal Law § 205.20 and N.Y. Public Health Law § 3345.
Based in part on Mazan’s version, the prosecutor pressed charges. Bobbit had to appear in court at least three times before her defense attorney could explain her version and supporting documents to the prosecutor. This resulted in an adjournment in contemplation of dismissal requiring the charges to be dismissed if Bobbit stayed out of trouble for a year.
Bobbit filed a federal civil rights lawsuit alleging, among other claims, that Marzan fabricated evidence by creating false information, Murtha excessively groped her breasts during the frisk search, and the DOCCS violated the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) by denying her a reasonable accommodation when she explained she needed the medication because she suffers from epileptic seizures, which she treated with Lamotrigine, and severe sciatic pain, which she treated with Tramadol.
Defendants filed a motion for summary judgment, which was granted with respect to all of the other claims and defendants except those outlined above. The court noted that, whereas DOCCS policy requires that medication be declared at the gate and securely stored by DOCCS personnel until needed, it also contains an accommodation for visitors who inadvertently bring medication into a prison and does not require that law enforcement be notified in such cases.
Bobbit allegedly informed DOCCS staff of her need for the medication and offered to take them immediately, but this was not allowed. As a result, she felt lightheaded and nauseous, her legs started twitching, and the symptoms lasted until she was able to return home and take medication. She also alleged one DOCCS official mocked her and made light of her epilepsy, saying it was not a serious condition.
Much of the prosecutor’s initial attitude toward Bobbit was colored by Marzan’s claim that the medication was hidden in a sock. Thus, although she could not claim the false statements led to her arrest, she could maintain a claim they caused additional deprivations of liberty, such as the three court appearances, related to her prosecution.
Material issues of fact precluded summary judgment on the above claims, including the claim that Murtha groped Bobbit during the frisk search. Those claims remained for trial and all other claims were dismissed. See: Bobbit v. Marzan, 2020 U.S. Dist. LEXIS 172422 (S.D.N.Y. Sep. 21, 2020).
Finally, police departments across the nation are seeing that many 911 calls need a M H person.
Excerpts from the Article:
The Milford Police Department has officially started its behavioral health unit. Chief Kenneth Brown said the department plans to bring someone on part time in the coming days.
“We’re actually doing background on a clinician now, so if that all is OK, then we’ll bring them in on March 1,” the chief said.
He’s contracting the mental health professional through Partners in Public Safety Solutions Inc., a nonprofit run by Amy Kevis, a former New Castle County police officer who gave a presentation to City Council in November.
“We cannot arrest our way out of this anymore,” she said then of the mental health and substance abuse crises plaguing the nation and the state.
“I understand the challenges that law enforcement is dealing with these days in trying to figure out how to handle these folks and get them the best health they need,” Ms. Kevis said. “I think it would be helpful for the officers of Delaware to be part of the treatment continuum, in that they can refer people to treatment.”
The chief said he will look to Partners in Public Safety for guidance on getting the program off the ground.
“This is new to us. I’m reliant on them to give us a lot of guidance here,” he said. “The way I see it is they’ll come in and ride with the officers, really on a part-time basis right now.”
That would come out to roughly 25 hours a week. “At some point, hopefully, we’ll move into a full-time status” if the program works well, the chief said.
He said the department will look to the community and its officers for feedback on how the program is going and if it should be continued or expanded. As of Monday morning, the chief said his officers had not officially been notified about the program’s impending commencement.
“I’m sure they’ve heard things here and there, but I haven’t officially told them yet,” he said. “This has moved so quickly that I just literally had a staff meeting where I told the staff that we’re going to need to do a department-wide meeting on Zoom this week to tell them because they don’t know about it.”
Vice Mayor Jason James, who has been instrumental in making the behavioral health unit a reality, said it will be greatly appreciated by the Milford community. “Everybody nationwide, and in Milford, also, wants to elevate mental health issues,” he said.
“Even though some of the officers go through crisis-intervention training, they’re not behavioral health experts,” Vice Mayor James said. “Their focus is primarily on public safety and crime-fighting.” He said that “the behavioral health specialist is that person who knows how to have those conversations.”
So far, Chief Brown said $20,000 from the police budget has been allocated to the behavioral health unit through June 30, the end of the fiscal year.
For reference, the chief said his department spends $10,000 annually on the K-9 unit and $45,000 annually to train its officers.
One reason Chief Brown said he is eager to get the behavioral health unit underway is the upcoming construction of a new police station. “We’re in the planning and blueprint phase for the new building, and we want to see what kind of space they will need,” he said.
Milford is not the only community downstate with a mental health unit. Both Smyrna and Georgetown have had programs like this for over a year.
“That program really comes in handy for us when people are in crisis,” he said. “We have clinicians here that can go with us to talk with the individuals so we can avoid an arrest or escalating a situation that can be deescalated.”
In Georgetown, these clinicians stand by in the station rather than riding around on calls. “That was a part of the plan in the beginning, then this thing called COVID came along,” Chief Hughes said. “We didn’t want to put folks in the car that close for a period of time.”
“Because our jurisdiction is not that large, we’re only patrolling less than five square miles, we can get them quickly to a scene if we need to,” the chief said. He said that if an officer can get “the person (to) agree to come back, they can do their session right here in the police department.”
In December 2018, Smyrna launched its mental health program with a $47,000 federal grant from the Connections Community Support Programs. They hired Jim Deel, a mental health clinician.
“My tongue is my equipment, whether it’s talking people through something, asking questions to better understand the situation or de-escalating an incident,” he said in 2018. “If (police) feel like there’s any potential for any kind of mental health or substance abuse concern, they usually bring me into that situation, and I more or less at that point take the lead on it,” he said.
While the Dover Police Department rejected local efforts to put something similar together in their jurisdiction under former Chief Marvin Mailey’s leadership, the department is now reconsidering it under Chief Thomas Johnson. “A couple of years ago, Chief Mailey was presented the opportunity to have a social worker riding with the cops,” Dover City Councilman Ralph Taylor Jr., who was a Dover policeman for 20 years, said in October. “It appeared that there was some kind of disconnect between the law enforcement professionals, as well as the social professionals.”
But by October 2020, Chief Johnson was working closely with Ms. Kevis to try to bring a mental health expert to the state’s capitol.
Let us pray that the courts re-open soon, and that there is no further delay.
Excerpts from the Article:
Navigating a balancing act of providing justice for all and courthouse safety due to COVID-19 concerns, the state’s legal system continues to operate under an officially declared judicial emergency.
Minus a lone DUI case in Kent County last fall, criminal jury trials within the state haven’t been held in nearly a year as hundreds of defendants await their day in court.
There’s hope for jury trials to resume by early summer, Delaware Supreme Court Chief Justice Collins J. Seitz said Friday, but that’s dependent on the upcoming reach of judicial staff vaccinations for the coronavirus.
There are currently 544 criminal pending cases in New Castle County ready for trial, 395 in Kent County and 296 in Sussex County. Juries won’t be needed for most of them, however, as many cases are often resolved by a plea beforehand, Chief Justice Seitz said.
As part of a judicial emergency order, Chief Justice Seitz suspended speedy trial rights but acknowledged a need for swift scheduling upon their resumption.
Some in-person hearings are scheduled to resume March 15, and a New Castle County grand jury is planned to convene next week with Sussex County sometime this month. Kent County held a grand jury hearing this week as indictments were returned.
“It’s obviously of great concern to the judiciary that people need to get their cases to trial and not just criminal cases but civil cases,” Chief Justice Seitz said.
“But criminal cases will take priority. We have got a schedule in place to get those cases to trial just as soon as we can get vaccines for the judiciary.”
Chief Justice Seitz said cases will be prioritized by seriousness of the alleged offenses and how long the matters have been pending.
“You’re in custody and presumed innocent but for circumstances certainly beyond the client’s control, that trial is not happening,” Mr. O’Neill said.
“At some point there’s going to be a tipping point where the clients through their lawyers are going to say ‘Hey I don’t care about this COVID thing, I have my rights and I want my trial.’” Some attorneys have filed motions for case dismissals for lack of a speedy trial “but to date those motions have not succeeded.”
According to Mr. O’Neill, “It’s hard to say when the tipping point is but every day we get closer to it.
“I think everyone is aware that this is an approaching crisis but I have to say the court system is doing its best to balance the need for safety while honoring the rights of people to have their days in court.”
After meeting with other stakeholders Thursday, Mr. O’Neill emerged believing that some in-court proceedings, including preliminary hearings, violations of probation, arraignments and pleas by appointment may resume on March 15.
“We’re going to crawl before we walk and we’re going to walk before we run,” Mr. O’Neill said. “All these goals are subject to change based on factors including the vaccination rate. If the virus spikes in the community, the level of compliance we get (from the public.).
“Obviously for either side, the state of the defense, if you have a number of witnesses that you’re relying on to present your case, the passage of time not only causes memories to fade, but also it’s harder for either side to reassemble their cast,” Mr. O’Neill said. “People move, they lose interest, they don’t answer subpoenas. It’s harder to get the people to actually identify the people to locate them, to get them into court, it gets harder and harder as time passes.”
Delaware Attorney General Kathy Jennings agrees. “Despite adversity, the DOJ’s staff continues to demonstrate why we are Delaware’s best law firm,” she said in an email. “The pandemic weighs on everyone, including the entire criminal justice system — but our prosecutors, paralegals, social workers and support staff continue to work day and night to safeguard public safety and to ensure that our office is ready when the courts are reopened.”
Last week, Chief Justice Seitz extended Phase Two of the judicial emergency until it expires on April 2. Non-jury criminal and civil trials have continued under Phase Two, with safety precautions mandated.
The standard face covering and social distancing requirements exist to limit the potential of exposure to the virus and entry into the courtroom is limited to no more than 10 people, not including court staff and attorneys. Any gathering of people needed for court proceedings should be conducted in other courtrooms or the public area adjacent to courtrooms with the same limitations, according to Phase Two guidelines.
Through video, proceedings for incarcerated defendants have been conducted.
Under Phase Two, courthouses are open, though no more than 50% of building capacity is allowed. Admissions are monitored and “corrective action” is taken when the maximum allowed occupancy is reached, according to guidelines. In-person staffing is limited to no more than 50%.
No more than 10 people are allowed in a courtroom or related public area, and all non-courtroom public areas are closed.
Other events that can be held under Phase Two include:
• Civil hearings that require witnesses or client participation.
• Final case reviews of incarcerated defendants by video
• First case reviews of incarcerated defendants by video to the extent a waiver form has not been filed
• Involuntary outpatient hearings in Sussex and Kent Counties; actions are held by video in New Castle County
• Sentencing of non-incarcerated defendants
• Pre-sentence interview of incarcerated defendants by video
• Gun relinquishment hearings
• Case reviews for non-incarcerated defendants
• Problem solving courts for non-incarcerated defendants.
Many of these fees just keep the prison revolving door spinning!
There is great interest across Delaware in ending the system of fines and fees embedded in our criminal justice system that is self-defeating in its application. When someone is found guilty of a criminal or traffic offense, he is imposed a series of fees that can often turn a mere $100 fine into a $500 obligation. Failure to pay these fines and fees – even if the person cannot afford them— can lead to a person being issued an arrest warrant and suspension of his driver’s license. Non-payment can even result in being jailed.
This creates an enormous burden on the poor, often for minor misdemeanors like traffic tickets or loitering. In 2017, nearly 45,000 warrants for arrest were issued, solely for non-payment of fines.
We can do better. Courts need the flexibility to waive fees for those who are unable to pay and must analyze a person’s ability to pay before fees are imposed. By providing a defendant upfront with the knowledge of what court costs may be, we would provide more clarity for the defendant. Let’s craft legislation to end suspension of driver’s licenses, often critical to a family’s financial survival. End late fees, and provide easy payment options before jailing an offender. And let’s have a hard look at government entities that claim to need these fees for their budgets.
The 2021 General Assembly must take up this issue and end debtor’s prison!
— Bruce Dalleo, Wilmington
My friend, Kathy Jennings, is doing a great job as AG. We all should pray that she meets her goals. Kathy is a person of integrity; if she says that charges should not be brought, then that is correct! i. e. when a cop shoots a black man.
Attorney General Kathy Jennings released Tuesday a legislative agenda outlining ten policy priorities that she will advocate to the 151st General Assembly in 2021.
“I know what we’re capable of in 2021, because I know what we accomplished together in the last two years,” said Attorney General Jennings. “We’ve made real progress, from historic criminal justice reforms, to reducing Delaware’s prison population, to major victories in the courts. But our work isn’t over. All of these priorities are common sense policies that everyone should be able to get behind. Together, we can get it done – so let’s get to work.”
In a video message, the Attorney General outlines some of the DOJ’s major accomplishments since December 2018 – including unprecedented progress on criminal justice reform, a 25% reduction in Delaware’s sentenced inmate population, and more than $100 million secured for Delawareans in 2020 alone – and lists ten key priorities for 2021:
Requiring a permit to purchase firearms, a policy that has led in red and blue states alike to significant reductions in gun homicides and gun suicides
Banning assault weapons and high-capacity magazines, policies the Attorney General has supported for years
Regulating homemade gun kits, which are playing an increasing role in Delaware’s shootings
Funding body cameras for every police officer in Delaware, which was one of 15 police reform proposals AG Jennings proposed in 2020, and for which Gov. Carney included significant funding in his recommended budget for 2021
Creating a consistent, objective use of force standard to replace Delaware law’s current subjective, vague, and confusing standard
Ending cash bail to ensure that violent offenders can’t go free because of their wealth and that people are not detained simply because of their poverty
Ending excessive court fines and fees which contribute to recidivism and have created a modern-day debtor’s prison for those who are clearly unable to pay
Outlawing unfair business practices, aligning Delaware law with current policy in 46 states and the District of Columbia
Securing the right to vote, including expanding the right to vote early and making permanent the right to vote by mail
Banning guns in polling places, an anti-voter intimidation measure that closes a gap in Delaware law
The list is non-exhaustive. All ten priorities, along with the Attorney General’s video message and accompanying graphics, are available at de.gov/agenda2021.
N.J. man brutally beaten by correctional officers, left in own feces, lawsuit alleges. He died days later. Abuse, Neglect, Cover Up – kra
If I had just $5.00 for every similar case I have seen, I would be wealthy! YOU should be outraged, because, in every state, YOU are paying for all of this preventable abuse!
Excerpts from the Article:
The last time Elizabeth McNair spoke to her younger brother in August 2019, she said he relayed a haunting threat from a correctional officer at the Adult Diagnostic and Treatment Center in Avenel.
“You are gonna die up in here,” his sister said one of the officers told him.
Over the next few days, McNair didn’t hear from her brother. It was odd, she said, because they typically spoke five or six times a week.
Later she would find out why. Darrell Smith was in near comatose state after he was allegedly attacked twice by a group of correctional officers in “gang-style” assaults at the facility, according to a federal civil rights lawsuit filed in late January.
“Mr. Smith was tortured, beaten, kicked, punched, stomped, placed in an illegal chokehold, slammed to the ground, and had his head slammed into a glass door,” the lawsuit alleges.
The lawsuit claims he was was “denied prompt and critical medical care” after the first alleged attack. When he was allegedly attacked a second time within a day or two of the first incident, he suffered “catastrophic injuries that left him in an unresponsive and catatonic state” in a prison cell covered in his own feces, urine and vomit, according to the lawsuit.
On Aug. 26, four days after the initial attack, Smith, 50, was transported to a hospital where he arrived unresponsive. Even so, his leg was cuffed to the bed, McNair said. He was placed on life support and was declared brain dead.
He died two days later.
In a recent interview, McNair detailed how her family first learned of Smith’s injuries, as well as how more than a dozen residents at the facility reached out in the aftermath to provide first-hand accounts of the alleged attack and the lack of medical care Smith received.
Smith’s family claim they were left in the dark by prison officials, and is still searching for answers surrounding his death. McNair said more than a year later, no one from the Department of Corrections (DOC) has contacted the family about the what happened to Smith.
Smith served more than 23 years in state prison on kidnapping charges and aggravated assault on a law enforcement officer. In 2016, he was civilly committed to the Adult Diagnostic and Treatment Center, the facility that provides treatment to sex offenders after he served a lengthy state prison sentence after being convicted of kidnapping, according to the DOC.
Smith’s death “is being investigated by the Department of Criminal Justice and is currently pending grand jury,” said Liz Velez, a DOC spokeswoman. The individuals involved were “removed from their stations and reassigned” pending the investigation, she said. “The Department does not comment on active investigations or pending lawsuits,” Velez added.
The lawsuit comes on the heels of a violent attack at Edna Mahan Correctional Facility for Women, in which state prosecutors allege a group of officers beat multiple women and then lied about it to cover it up.
Smith had recently been promoted to cook at the Adult Diagnostic and Treatment Center.
Around 7 a.m. on Aug. 23, 2019, Smith wrapped up his shift serving food in the kitchen at the facility, according to the lawsuit, when he asked another resident to bring some leftover peanut butter and bananas to his room while Smith finished cleaning the kitchen. A female officer allegedly stopped the man from bringing the leftovers to Smith’s room, the lawsuit alleges. She then reportedly went into Smith’s room and took other items out. When Smith left the kitchen to retrieve trays on the officer’s desk, she allegedly began to “verbally assault” Smith, calling him a “thief.”
As he walked back to his room after returning the trays to the kitchen, Smith reportedly told the officer and another officer that they couldn’t go in his room and just take items, according to the lawsuit, and he was bombarded with derogatory language from both officers.
Smith had told his sister over the last six months, he became a constant target of harassment by correctional officers. He told a therapist at the facility, according to the lawsuit, that one officer allegedly threatened to kill him.
As Smith continued to walk to his room, the lawsuit alleges “multiple witnesses” saw the male officer track Smith down before pressing him against the wall, slamming his head into a thick glass door and tackling him to the ground.
The officer summoned backup and a group of officers allegedly arrived and put Smith in an illegal chokehold and “repeatedly stomped, punched, and kicked Mr. Smith in his back, head, face, legs, ribs, and sides, as he lay prone and helpless on the ground,” according to the lawsuit.
After suffering injuries in the first reported attack that went untreated, Smith was again allegedly assaulted a day or two later by a group of officers, according to the lawsuit.
Details of the alleged second attack are scarce, but the lawsuit claims the attack left him with “catastrophic injuries that left him in an unresponsive and catatonic state,” causing Smith to defecate on himself.
Even so, Smith was left in the cell in the suicide watch wing of the facility and allegedly “denied access to the medication, water, and medical care that he needed to survive,” according to the lawsuit.
After the alleged attacks, according to the lawsuit, Smith reportedly could no longer speak or respond to verbal commands. He couldn’t even stand, the lawsuit says.
On Aug. 25, correctional and medical staff allegedly did not offer Smith medical assistance. Instead, according to the lawsuit, they “shook him violently, attempted to lift his arm up which just flopped back to his side, and snatched his shoes off his feet.” The lawsuit says witnesses reported that nurses were called in. They allegedly fanned their faces and covered their noses because of the stench before walking away, according to the lawsuit.
Correctional and medical staff “essentially stood by and watched as he languished, deteriorated,” the lawsuit alleges.
It wasn’t until Aug. 26 — nearly four days after he was first allegedly attacked — that outside medical personnel was brought in. When emergency medical services workers arrived at 5:27 p.m., Smith was unconscious, unresponsive, seizing, and still unable to stand or walk without assistance, according to the lawsuit.
McNair said a social worker called to tell her Smith was rushed out of the prison and she was told McNair had “stroke-like” symptoms.
When Smith arrived at JFK Medical Center he was placed on a ventilator, but “by that time, nothing could be done to save his life,” the lawsuit says.
The lawsuit claims after Smith’s death, the officers who allegedly attacked Smith “engaged in a cover up in which lies, and false accounts” were used to identify Smith as the aggressor who attacked first. The lawsuit says that assertion is a “blatant lie” based on multiple witness accounts.
The DOC declined to comment on specifics of the lawsuit. “I honestly think that they just don’t care and they are going to do whatever they are going to do,” McNair said.
According to the lawsuit, Smith’s “autopsy report was significantly delayed” due to state and DOC investigators allegedly failing to “to provide the medical examiner with the investigative file, including reports, videos, and other material related to the beatings that killed Mr. Smith despite multiple requests from the (medical examiner’s) office.”
The family waited nearly a year before they were provided with some details surrounding his death. The autopsy report still has not been publicly released, according to the lawsuit.
But from information the family has received from medical records, according to the lawsuit, Smith “sustained a severe catastrophic brain injury” as a result “of the brutal beatings.”