Gracias Dan.E. + Update:
Sheriff's, prosecutor offices spar; critics question conduct.
By Dorothy Korber and Christina Jewett
-- Bee Staff Writers
Published 12:01 am PDT Saturday, June 10, 2006
Published 12:01 am PDT Saturday, June 10, 2006
The notorious "flash-bang" incident in the Sacramento County jail continued to reverberate Friday as the Sheriff's Department and the district attorney exchanged jabs -- and community members questioned the actions of both agencies.
The District Attorney's Office, which issued a report Thursday about the incident, says there is insufficient evidence to bring criminal charges related to the incident Dec. 1, when two inmates were burned after deputies exploded stun grenades in six cells. In part, District Attorney Jan Scully blames that lack of evidence on a lack of cooperation from the Sheriff's Department.
On Friday, Scully's Multicultural Community Council asked for an emergency meeting with the district attorney, said Jerry Chong, one of its co-chairmen. The 15-member group is appointed by Scully and represents a cross-section of the county.
"The Sacramento Sheriff's Department is stonewalling and blocking the DA's Office from being able to make a solid decision on whether or not they can prove this case beyond a reasonable doubt," said Chong, a Sacramento defense attorney. "I think all of us are concerned -- if this is the way we treat our prisoners, then we are in some deep trouble as civilized people."
The DA's team was weighing whether deputies violated California law prohibiting inhumane treatment of a prisoner, assault by an officer or corporal punishment of a prisoner. In the incident, jail deputies dressed in riot gear threw the grenades in response to an earlier inmate protest: Five prisoners clogged their toilets to flood their cells.
The stun grenades -- which produce a loud report and blinding flash -- were used to disorient the inmates, who were then removed from their cells. One, Michael Toro, was struck four or five times with a closed fist by a deputy, who knocked out a tooth and broke his nose, the report said. Later, all six prisoners were tightly strapped into "prostraint" chairs for more than two hours.
The report commented: "One might argue that the extended period of time the inmates were confined to the prostraint chairs was a form of retaliation or punishment." Still, it said, the evidence doesn't prove the confinement in the chairs was criminal.
Use of the chairs for punishment was the crux of a suit brought by attorney Stewart Katz on behalf of nine inmates who were tortured in the prostraint chair in "mock executions." Sacramento County paid $755,000 to settle the case in 1999.
The DA's highly critical -- and unprecedented -- report released Thursday blamed the sheriff for delaying and hindering its investigation into the flash-bang incident. A key problem, the report said, was the sheriff's longtime policy of giving criminal immunity -- officially called the "Lybarger admonition" -- to all deputies who make statements to the sheriff's internal affairs officers.
For those outside law enforcement, the Lybarger procedure is puzzling because it seems to shield law enforcement from policing itself.
Assistant Sheriff David Lind, an attorney, said Friday that the admonition is necessary to preserve deputies' Fifth Amendment protection against incriminating themselves. Peace officers are compelled to make statements in internal affairs probes, he said, but they could incriminate themselves in those statements.
The Sacramento sheriff's practice of giving the Lybarger protection to everyone interviewed was negotiated with its deputies' union. Law enforcement agencies elsewhere also employ the practice, said Ron Cottingham, president of Peace Officers Research Association of California.
But not in Los Angeles County, where the criminal investigation is completed before the internal affairs statements are taken, according to Michael J. Gennaco, who heads up independent oversight of that county's jail.
Assistant Sheriff David Lind, an attorney, said Friday that the admonition is necessary to preserve deputies' Fifth Amendment protection against incriminating themselves. Peace officers are compelled to make statements in internal affairs probes, he said, but they could incriminate themselves in those statements.
The Sacramento sheriff's practice of giving the Lybarger protection to everyone interviewed was negotiated with its deputies' union. Law enforcement agencies elsewhere also employ the practice, said Ron Cottingham, president of Peace Officers Research Association of California.
But not in Los Angeles County, where the criminal investigation is completed before the internal affairs statements are taken, according to Michael J. Gennaco, who heads up independent oversight of that county's jail.
Steven Fisk, president of the Sacramento County Deputy Sheriffs' Association, said the blanket immunity is crucial.
"We have to protect everybody as though they are a suspect because no one seems to know who's going to be a suspect until they start focusing the investigation down," Fisk said.
But the Sacramento sheriff "Lybargers" everyone, witnesses as well as suspects, said Albert Locher, assistant chief deputy DA. He said this complicates any prosecution enormously.
For four months, the Sheriff's Department balked at turning over any of the internal statements to the district attorney.
"Here's the rub," said Lind. "For 20 years, we've never turned these statements over. In this case, for the very first time, the DA demanded them. We said: 'Go talk to these people if you want to, but we don't have the authority to order people to give up their Fifth Amendment rights.' "
Locher said it's not that simple -- without a criminal prosecution or a grand jury indictment, witnesses cannot be subpoenaed and compelled to talk.
"We have to protect everybody as though they are a suspect because no one seems to know who's going to be a suspect until they start focusing the investigation down," Fisk said.
But the Sacramento sheriff "Lybargers" everyone, witnesses as well as suspects, said Albert Locher, assistant chief deputy DA. He said this complicates any prosecution enormously.
For four months, the Sheriff's Department balked at turning over any of the internal statements to the district attorney.
"Here's the rub," said Lind. "For 20 years, we've never turned these statements over. In this case, for the very first time, the DA demanded them. We said: 'Go talk to these people if you want to, but we don't have the authority to order people to give up their Fifth Amendment rights.' "
Locher said it's not that simple -- without a criminal prosecution or a grand jury indictment, witnesses cannot be subpoenaed and compelled to talk.
Scully's team persisted in their pursuit, and on April 10 the sheriff surrendered the material.
"Using a Lybarger admonition to compel the statements of mere witnesses ... does less to protect the witness officer's right than to insulate any suspect officer from effective review of possible misconduct," Locher wrote in the report.
"Using a Lybarger admonition to compel the statements of mere witnesses ... does less to protect the witness officer's right than to insulate any suspect officer from effective review of possible misconduct," Locher wrote in the report.
Partly due to this policy, Scully's staff decided the available evidence was insufficient to bring criminal charges against the sergeant who was in charge of the jail that night.
The tug-of-war between the sheriff and the DA is highly unusual in Sacramento County. On Friday, it generated skeptical response from critics of both agencies, including attorney Katz, who has filed a claim on behalf of Claudis Jefferson, one of the six inmates.
DA investigations of law enforcement agencies are usually "superficial at best," Katz said. "If (Scully's staff) conducted criminal investigations the way they conduct (law enforcement) investigations, they wouldn't have any problems in the jail -- because the jail would be empty."
The Rev. Ashiya Odeye is the director of the Jail Reform Coalition, a community organization that coalesced over recent allegations of excessive force at the jail. Odeye said the difficulty the District Attorney's Office faced in the investigation proves that the Sheriff's Department needs strong independent oversight.
The tug-of-war between the sheriff and the DA is highly unusual in Sacramento County. On Friday, it generated skeptical response from critics of both agencies, including attorney Katz, who has filed a claim on behalf of Claudis Jefferson, one of the six inmates.
DA investigations of law enforcement agencies are usually "superficial at best," Katz said. "If (Scully's staff) conducted criminal investigations the way they conduct (law enforcement) investigations, they wouldn't have any problems in the jail -- because the jail would be empty."
The Rev. Ashiya Odeye is the director of the Jail Reform Coalition, a community organization that coalesced over recent allegations of excessive force at the jail. Odeye said the difficulty the District Attorney's Office faced in the investigation proves that the Sheriff's Department needs strong independent oversight.
"Without the oversight, there's no way to keep them under control," he said. "The (district attorney) can't even get what they want from them to do an investigation."
About the writer:
- The Bee's Dorothy Korber can be reached at (916) 321-1061 or dkorber@sacbee.com; Christina Jewett can be reached at (916) 321-1201 or cjewett@sacbee.com.
Re: Report on jail ruckus
Dan Elliott <cuibono@rcip.com> wrote:
Dan Elliott <cuibono@rcip.com> wrote:
This story is taken from Metro/Regional News at sacbee.com.
Report on jail ruckus issued
DA assails use of stun grenades, stops short of criminal inquiry.
By Dorothy Korber -- Bee Staff Writer
Investigators for the Sacramento County District Attorney's Office issued a biting report Thursday detailing the results of their investigation into an incident in which sheriff's deputies used "flash-bang" stun grenades after a disturbance at the Main Jail.
Published 12:01 am PDT Friday, June 9, 2006"This case raises significant questions regarding jail operations and the treatment of inmates," according to the report, signed by Albert C. Locher, assistant chief deputy to District Attorney Jan Scully.Still, the investigation concludes that the evidence is insufficient to warrant criminal prosecution of Sgt. Donald Black, the probationary supervisor in charge that night, or any of the other deputies involved.
In the Dec. 1 incident, jail deputies in riot gear tossed the grenades into six cells in response to an earlier inmate protest -- several prisoners had flooded the floor by clogging their toilets. The flash-bangs were supposed to stun and disorient inmates to ease their removal from their cells.
Two inmates were burned when the grenades exploded next to their prone bodies, another inmate's nose and teeth were broken in a scuffle with deputies afterward, and all six inmates were tightly strapped into "prostraint" chairs for more than two hours, according to the investigation.
The 26-page report sharply criticizes the Sacramento County Sheriff's Department for what it characterizes as delaying and hindering the DA's investigation. It vigorously details in three single-spaced pages the frustrations investigators said they faced in getting information from the Sheriff's Department -- a litany Assistant Sheriff David Lind disputes.
"The collective reaction by our department is that it's (the district attorney's) decision not to prosecute and theirs alone," Lind said Thursday. "However we are surprised at the manner of this."Usually, he said, a decision not to initiate a criminal prosecution is transmitted in a short letter. Lind said the report released Thursday was unnecessary.
"It's frankly a cheap shot at us," he said. "The last thing we want to do is get into a pitched battle with the DA. But, the bottom line is, we did our job."
The report itself notes how unusual it is for the district attorney to comment on another agency's cooperation: "In this instance, however … the Sheriff's Department significantly impacted our ability to discover and evaluate the facts of this case."
One major impediment, according to the district attorney's report, was the sheriff's long-standing practice of promising criminal immunity to deputies who give statements to internal affairs officers. And, the report states, "then refusing, at one point, to turn such statements over to our office."
However, Lind said that for 18 years those kinds of statements have not been given to the district attorney because they are part of internal investigations, not criminal probes.
After four months of wrangling, the statements eventually were turned over, on April 10. Meanwhile, on March 23 the district attorney's staff wrote letters to 15 deputies involved, asking them to cooperate with the investigation. Only one responded, and she declined to cooperate.
District Attorney Jan Scully said Thursday that it is in the public interest to complete such an investigation in a timely manner -- especially in light of recent allegations of excessive force at the Main Jail.
"We were asked by the sheriff to do an independent investigation," Scully said. "When we have interested citizens following a case -- calling and asking us about it -- we need to get our job done in a timely way. That's in our interest and in the sheriff's interest."A serious problem, the investigators found, was the lack of adequate administrative supervision in the jail that night. All four sergeants on duty were probationary supervisors. Another issue raised in the report was that the inmates were not given an opportunity to leave their cells voluntarily -- indeed, this option never was considered by Sgt. Black and his team, according to the report.
The grenades were tossed through the food port in the cell doors just seconds after Black directed each inmate to lie down on the floor of his cell, the report found, and without anyone first determining whether the order had been followed.
"The inmates were not afforded the opportunity to submit to handcuffing … nor to voluntarily leave their cells," the report states.It cites the sheriff's own leading authority on the use of flash-bangs, Lt. Gordon Smith, commenting on the burns and powder marks suffered by some of the inmates.
"He stated that the device would burn if it came into contact with a person as it detonates," the report states. "The device should not be deployed in such as way as to come into contact with a person."Smith told district attorney's investigators that in the case of one inmate, Daniel Lucas, injuries clearly indicated that the grenade detonated between his upper legs as he lay on the floor.Lind said inmates involved in the incident were among the most potentially violent prisoners in the jail, which he said affected the deputies' decisions.
Black was put on paid administrative leave immediately afterward and Lind said the department's internal investigation of the incident would be finished within a few days.
In April, Black filed suit against the county and the Sheriff's Department, seeking reinstatement of his sergeant's salary and asking that penalties be levied against the department for failing to allow him to challenge his demotion.
While Thursday's findings appear to rule out a criminal case, one of the six inmates, Claudis Jefferson, has filed a claim with the county, the first step toward a civil lawsuit.About the writers:
- The Bee's Dorothy Korber can be reached at (916) 321-1061 or dkorber@sacbee.com. Bee staff writer Christina Jewett contributed to this report.
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