Attorney Erik Heipt Discusses Jail Death Investigations in Virginian-Pilot Feature

The Virginian-Pilot is reporting about the need for accountability in cases relating to deaths of mentally ill inmates in American Jails. The article quotes Budge & Heipt attorney Erik Heipt, who comments on the need for thorough investigations of jail deaths.

From the Virginian-Pilot, December 13, 2018:

The biggest obstacle to reforming how American jails handle mentally ill inmates: a lack of accountability

A comprehensive Virginian-Pilot investigation

Jimi Lee Johnson did not survive his time in jail.

On New Year’s Eve 2012, Johnson was arrested in the Washington state hospital bed where he lay suffering from schizophrenia and recovering from a suicide attempt.

Jailed in Crisis

Johnson had failed to register as a sex offender, which he was required to do after a conviction in 2008. At 17, he broke into the home of a 21-year-old woman he had visited earlier in the day and crawled into bed with her. He was convicted of first-degree burglary with sexual motivation and indecent liberties. Another burglary conviction followed for breaking into the bedroom of a 17-year-old girl.

As a result, the court barred Johnson, a Skokomish Indian, from the reservation where he had lived. His grandmother, Peggy Johnson, managed to get him a small trailer nearby when he got out of prison. It had no running water or electricity.

At night, when the hallucinations worsened, she would often pick up Johnson and drive around with him to keep him out of trouble.

“I think the hallucinations started before he went to prison,” she said. “I think he was really abused there. I think he was gang raped and that probably made them worse.”

There were nights when Peggy Johnson and Jimi’s father would rent a motel room and lock him inside with them.

“We just protected the door so he wouldn’t get out and hurt himself or get in trouble real bad. He was hearing voices and seeing people that weren’t there.”

In the hospital room, police told Peggy they were arresting Johnson for a parole violation because he was at Peggy’s house on the reservation when he tried to commit suicide.

As soon as doctors allowed, police took Johnson to the Mason County Jail. As his stay went from days to weeks to months in isolation, Peggy did what she could to help.

She visited her grandson at least 16 times and attended his court hearings whenever possible. She watched as his condition worsened and his hopelessness grew.

The jail did not have him under suicide watch; nor had staff evaluated his mental condition. But they had found letters in his cell.

“I feel close to death,” he wrote in one.

On April 22, 2013, Peggy called the jail and begged for someone to help her grandson. Jail officials told her to call his attorney.

The day after his grandmother’s plea, Johnson, having now spent about four months alone in his cell with untreated schizophrenia, tied a sheet to his bed frame.

Like at least 186 other people with mental illness locked in jails since 2010, he killed himself.

Sometimes deaths like Johnson’s prompt reform. But not in this case. It took another death.

More than two years later, Brandon Dahl, who had a history of mental illness, hanged himself while at the same Washington state jail.



Hampton Roads Regional Jail



The Hampton Roads Regional Jail in Portsmouth photographed on Thursday, Aug. 16, 2018.

Reform rarely happens without accountability, yet accountability for jail deaths is rare.

When it does happen, it’s the result of a lawsuit, local government investigation or — rarest of all — a federal investigation.

Two jails are going through that process now.

Jamycheal Mitchell
Jamycheal Mitchell was waiting on a transfer to a state mental hospital when he was found dead inside the Hampton Roads Regional Jail.

At the Hampton Roads Regional Jail, Jamycheal Mitchell, who had schizophrenia and bipolar disorder, starved to death in his cell in 2015. A federal investigation was started in late 2016 but appears to be in limbo. Meanwhile, there have been at least 13 more deaths at the jail.

Such investigations often lead to consent decrees — civil agreements in federal court that outline oversight and reform for departments. The agreements usually install an independent monitor and are the teeth of federal pattern-and-practice investigations.

This type of investigation first began after the acquittal of the police officers who beat Rodney King in 1991 in Los Angeles. After the riots that followed, Congress authorized the U.S. Department of Justice to investigate and sue when a “pattern or practice of conduct by law enforcement officers” violates the Constitution or federal law.

The investigations focus on systemic misconduct. It’s not about the individual, it’s about the institution. Local officials seeking reforms can use the investigations to their advantage, pushing for changes departments might resist and for money for improvements politicians might otherwise refuse.

Still, they’ve been used sparingly. Since 1994, hundreds of preliminary inquiries have been opened but only about 70 have led to official investigations.

None appear to have been opened under the Trump administration, though one California jail claims the justice department has recently been in contact.

Jeff Sessions, attorney general under President Donald Trump until early November, has been a critic of such investigations, believing they circumvent the authority of local officials.

In October, the justice department announced it will try to block a consent decree agreement with the Chicago Police Department that was set up under the Obama administration and requires independent monitoring.

Just before his resignation, Sessions also signed a memo that severely curtails when consent decrees can be issued. Now they require approval by the attorney general or assistant attorney general, who must follow a narrow set of guidelines.

Under previous administrations, DOJ lawyers could sue or threaten to sue a department, knowing that a consent decree would likely be the outcome. Now it’s more difficult.

The last two pattern-or-practice investigations were announced in the final days of the Obama Administration.

One of those was into the Hampton Roads Regional Jail.

“The investigation will focus on whether the jail violates the constitutional rights of inmates to adequate medical and mental health care; violates the constitutional rights of inmates who have mental illness by secluding them in isolation for prolonged time periods; and violates the rights of inmates who have mental illness by denying them access to services, programs and activities because of their disability,” a press release stated at the time.

By several accounts, the investigation concluded months ago, yet no report has been released.

In Milwaukee, after the death of a man named Terrill Thomas, who had bipolar disorder and died in a cell in 2016, Wisconsin Rep. Gwen Moore called for a justice department investigation into the Milwaukee County Jail. Three days after announcing its investigation into the Hampton Roads Regional Jail, on Dec. 15, 2016, the DOJ responded to Moore.

“We will carefully consider your letter along with other information we may receive regarding the Milwaukee County Jail in order to determine whether a pattern or practice investigation may be necessary,” Assistant Attorney General Peter J. Kadzik wrote.

Less than two months later, Sessions was sworn in as attorney general. The Milwaukee investigation never happened.


Last chance for justice

Terrill Thomas
Terrill Thomas

The last chance to force reform comes from local prosecutors willing to take on individuals whose actions lead to a death. But prosecutors are often reluctant to investigate local jails.

Of the 434 deaths of people with mental illness found and examined by The Virginian-Pilot, only 14 have resulted in criminal charges. Eight ended with convictions. Five of the six remaining have pending cases.

Erik Heipt, who represents the estate of Terrill Thomas, has been bringing lawsuits in jail deaths for more than 20 years. Thomas’ case is the first he’s worked on in which someone was charged with a crime. Accountability, if there is any at all, usually comes in the form of a lawsuit, he said. That’s far from perfect, but it’s all most families will ever get.

“I think the main problem is the investigations are almost always a sham,” Heipt said.

Instead of an independent law enforcement agency, the jail usually investigates itself — a conflict, since, if any wrongdoing were found, its officers would be charged and the jail would be held liable for what happened.

If a jail does get an outside agency to conduct the investigation, it’s usually one that’s nearby and often works with the jail.

“They don’t provide adequate information to make a prosecutorial decision,” Heipt said.

But in Thomas’ case, an investigation by the local newspaper, a medical examiner’s ruling and then a prosecutor determined to find the truth led to more than the usual scrutiny.

Milwaukee County Jail
The Milwaukee County Jail building in Milwaukee. Seen Monday, Oct. 24, 2016.

Thomas was arrested, charged with shooting a man and then later firing a gun inside a casino. He was taken to the Milwaukee County Jail, which is run by the sheriff’s department. Thomas flooded one cell by stuffing a mattress cover into a toilet. When he was moved to another cell, Lt. Kashka Meadors ordered his water be cut off.

On April 24, 2016, eight days after entering the cell, Thomas was found dead. His water had never been turned back on.

In July 2016, The Milwaukee Journal-Sentinel reported that Thomas had begged for water. It also reported that investigators looking into the death, who were from the Milwaukee police department, did not speak to a jail inmate who witnessed Thomas’ decline.

“I could tell he was getting weaker,” one inmate told the Journal-Sentinel. “One day he just lay down, dehydrated and hungry.”

After the Journal-Sentinel story, Milwaukee police expanded their investigation.

That September, the Milwaukee County Medical Examiner’s Office reported that Thomas had died of dehydration and ruled his death a homicide.

A homicide ruling from a medical examiner does not mean charges will be brought. It simply means that someone did something that caused a death.

Had Thomas’ water been on, he likely would have lived. But did anyone commit a crime that resulted in the homicide?

Milwaukee County District Attorney John Chisholm decided to conduct a judicial inquest, a rare public airing of the facts of a case.

John Chisholm
District Attorney John Chisholm discusses criminal charges he filed against three county jail staffers, Monday, Feb. 12, 2018, in Milwaukee, for the dehydration death of an inmate in 2016.

Chisholm, who has been in office since 2007, has a history of taking on public corruption in Wisconsin. He’s successfully prosecuted Milwaukee police officers for sexual assault and unlawful searches and, controversially, prosecuted political misconduct of associates of Wisconsin Gov. Scott Walker when Walker was a county executive, which resulted in several convictions.

Deaths in custody are different than police shootings or other use-of-force deaths, Chisholm said. Use of force generally involves officers making a decision while facing the threat of death or bodily harm. The whole incident happens in seconds, and then prosecutors have to decide whether police acted reasonably given the evidence.

“Deaths in custody are almost never like that. They’re almost always system issues and … you almost never have one person making one bad decision that results in a catastrophic result,” he said. “It is almost always a function of multiple system failures.”

At the Thomas inquest, jail guards denied any wrongdoing but admitted Thomas’ water should have been on.

The medical examiner described conducting Thomas’ autopsy.

“In most of the cases when I do dissections and I cut the blood vessels, those vessels would be bleeding, and in his case the vessels were filled with blood but his blood looked almost like clotted blood,” Dr. Wieslawa Tlomak testified.

When he died, Thomas had been so dehydrated his blood had nearly dried in his veins, according to the medical examiner.

The jury found probable cause that a crime had been committed, and Chisholm brought charges.

In February 2018, Maj. Nancy Evans was charged with felony misconduct in office and obstructing an officer. Meadors and officer James Ramsey-Guy were charged with neglecting an inmate, a felony. Days later, Chisholm, in a rare move, charged the jail’s medical contractor, Armor Correctional Health Services, with falsifying health care records.

Between the time of Thomas’ death and the charges — nearly two years — seven other people died at that same jail.

After Thomas’ death and the inquest, Sheriff David. A Clarke Jr., a conservative pundit and one-time potential cabinet appointee of Trump’s, resigned. Richard Schmidt took over as acting sheriff.

Schmidt, who lost an August election, stressed in an interview earlier this year that he had made changes at the jail designed to help inmates suffering from mental illness. Among the changes: placing three captains inside the mental health unit, at a total cost of more than $375,000 a year for their salaries.

“They literally go cell to cell. They stand there and talk to every inmate,” Schmidt said. “They basically do a kind of forensic evaluation from their standpoint. ‘Are they decompensating? Are they as good as they were yesterday? Are they eating? Are they drinking?’ … These are resources I took off the streets, just to keep inmates healthy.”

The incoming sheriff has indicated he does not plan to continue using the captains that way.

Chisholm said it’s possible to run a jail that treats inmates with mental illness and everyone else fairly and safely.

“It’s not rocket science, right? There is a wealth of information available in terms of how you run a high-functioning institution for confinement,” he said.

When Chisholm conducts an investigation into a jail death, he said, the first thing he looks for is whether the guards and other employees actually understand how a jail should operate.

“It seems like a simple place to start,” he said. “But it’s not that simple.”

Marquette University student Diana Dombrowski contributed to this report.

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