Reasonable Doubt

FEDERAL JUDGE QUESTIONS CREDIBILITY OF ARIZONA DOC DIRECTOR

BY PATTI EPLER AND BRUCE RUSHTON

A federal judge in Missouri is refusing to admit sworn testimony from Arizona Department of Corrections Director Dora Schriro in a lawsuit brought by an inmate, saying that Schriro and other jail officials can't be trusted to tell the truth because they had previously given misleading evidence under oath.

In issuing the ruling on February 3, U.S. District Court Judge Carol Jackson threw out affidavits filed by Schriro and others in the case, saying the sworn statements suffered from "demonstrated unreliability."

In the nine-page ruling, Jackson blasted corrections officials, including Schriro, saying "it is beyond dispute that the defendants' affidavits contain false statements" and that "some of the defendants chose to play fast and loose with the truth."

The judge also ordered Schriro and the others to pay the inmate's attorneys' fees and other expenses related to a hearing she held to sort out the truth about evidence that turned up missing after a prison riot.

The ruling comes as Schriro is being scrutinized for her oversight of the recent hostage crisis at the Arizona State Prison Complex-Lewis. The state Senate also has yet to confirm her appointment, a decision that must be made by June.

Schriro did not return several phone calls seeking comment for this story.

Paul Allvin, communications director for Governor Janet Napolitano, says the governor is looking at Schriro's 30 years in the corrections field, not just a ruling in a single case, as evidence she made the right choice in hiring Schriro to run this state's prison system.

"This certainly doesn't shake the governor's faith in what the director is accomplishing," Allvin says.

Napolitano has convened a multipronged review of how the hostage situation was handled and whether deeper troubles within the prison system -- staffing, pay, training and other issues -- may have contributed to the standoff. Her panels include many of her own top-level employees plus a few national corrections experts and a couple of Arizona law enforcement officials.

Maricopa County Attorney Rick Romley last week took over a criminal investigation into the two inmates who seized control of an observation tower, and has filed numerous charges against them. He also is refusing to acknowledge a deal negotiators made with the inmates to transfer them out of Arizona and into the federal prison system.

Romley, a Republican, is a well-known political rival of the Democrat Napolitano and has indicated he likely will run for governor in 2006.

Also last week, Republican lawmakers asked Romley to conduct a full review of the hostage situation on their behalf. Legislative leaders say Romley will report back to a bipartisan panel of lawmakers. Romley has hired former U.S. attorney Mel McDonald to conduct that review for him. McDonald recently filled a similar "special prosecutor" role in an investigation of Arizona Corporation Commissioner Jim Irvin, also a Republican, who in 1999 interfered in a deal between two utility companies. Irvin resigned after McDonald made it clear his investigation produced evidence that Irvin should be impeached.

Napolitano and Republican leaders have been at odds over how best to bolster the state's burgeoning correctional system at the same time the state is finding itself woefully short of cash. A special legislative session last fall ended with Republicans pushing through a proposal to privatize some prisons, a plan Napolitano and Schriro both opposed.

Napolitano and Schriro have recently been congratulating themselves and state employees for ending without bloodshed what's being called the longest-running prison siege in U.S. history. Others, including tactical experts, are more critical, particularly since a female correctional officer was raped during the standoff.

According to reports released by the state and Romley, the hostage crisis began about 3 a.m. on January 18 when two inmates, Ricky Wassenaar and Steven Coy, using handmade knives, overpowered a guard in the prison's kitchen office. Wassenaar donned the guard's uniform and shaved his beard, then gained access to an observation tower. Correctional officer Jason Auch buzzed Wassenaar through the locked doors, thinking he was another officer.

Wassenaar overpowered Auch and the other tower guard, Lois Fraley. He handcuffed them and took their weapons, and a short time later fired on other correctional officers in the prison yard while Coy ran to join him in the tower. That began a standoff with state prison officials and law enforcement agencies from around the Valley, including four SWAT teams, that stretched on for more than two weeks.

Coy, who was incarcerated for sexual assault, among other crimes, raped a female kitchen worker before going to the tower, DOC now says. The state has acknowledged that Coy also sexually assaulted Fraley in the tower.

Wassenaar and Coy released Auch after a week but held Fraley until they finally surrendered on February 1. A detailed timeline of the hostage situation put together by DOC shows the state delivered food, water, alcohol and cigarettes to the tower for two weeks, while the inmates handed over what appears to be small amounts of ammunition and a weapon or two.

Schriro, according to the DOC timeline, was out of state when the crisis began. She flew back and took charge of the rescue operation even though, the timeline shows, a state Department of Public Safety SWAT team was in place for about four hours before Schriro arrived at the command center.

Schriro then directed the state response, including to continue prolonged negotiations instead of sending in tactical teams to rescue the hostages. Tactical experts, who devised a plan they thought would end the situation without injuring the hostages, are critical of that strategy because they believed there was a great likelihood that Fraley was being sexually assaulted while SWAT teams were ordered by Schriro to hold off.

Now, Napolitano, who also was closely involved in the handling of the hostage situation, according to documents released by her office, has convened several reviews of the state's response to the crisis and conditions at the prison. Her top political appointee, chief of staff Dennis Burke, is heading the review along with former state attorney general Grant Woods, a Republican, and Herb Guenther, Napolitano's director of the Department of Water Resources who was a Democratic state senator.

Many of those involved in Napolitano's panels are state employees who, in essence, work for her. In addition, the governor has asked several national corrections experts to help examine prison operations and conditions at Lewis with an eye toward potential changes that could help avoid trouble in the future. She wants a preliminary report by March 4.

Schriro came to Arizona in June 2003 from St. Louis, where she headed that city's long-troubled corrections department for less than two years before being tapped by Napolitano.

Schriro was suspended from her St. Louis post for two weeks in 2002 after five inmates escaped from the city's medium-security lockup, commonly called the workhouse. After the breakout, investigators from the U.S. Department of Justice found a laundry list of lax security measures at the workhouse, which was being used to house high-security prisoners while a new jail was being built. Besides surveillance cameras that pointed at ceilings, keys weren't inventoried, guards weren't regularly counting inmates and visitors weren't asked to empty their pockets before stepping inside an overcrowded lockup filled with the city's most dangerous inmates. At least two workhouse uprisings occurred during Schriro's tenure, and one of them led to an inmate lawsuit against Schriro and several other St. Louis corrections officials.

In his lawsuit, Jamar Welch, who suffered a concussion, sought a videotape of guards restoring order along with reports from guards that detailed their use of force during a 2002 uprising. In depositions, top corrections officials and rank-and-file guards testified under oath that reports had been written, then reviewed by supervisors. In subsequent sworn statements, they changed their stories, saying the reports were never prepared. Corrections officials also swore that the videotape had been lost.

In August, Jackson, the federal judge, ordered the city to produce the evidence. Officials swore they'd searched hard for the videotape, both before and after the judge's order. Schriro, according to other corrections officials who testified at an October 6 evidentiary hearing, was the last person to have the missing videotape.

In a deposition, Schriro said she remembered giving it to her secretary. But her secretary testified in October that she'd never seen the tape. A city investigator who looked into the riot testified that he repeatedly asked Schriro to give him the tape, but she never did, and that she never told him she'd given it to her secretary.

Jackson refused to allow Schriro to testify by telephone at the October hearing. "There's some credibility issues here," the judge said during the hearing. "I'm not entirely comfortable taking testimony by telephone when I want to have the opportunity to see the witness."

In her February 3 ruling, Jackson accepted the city's explanation that the videotape had been lost, but said she could not determine whether reports were written.

Besides fibbing about the reports, officials also didn't tell the truth about efforts to locate the videotape, wrote Jackson, who noted two corrections employees, contrary to their sworn affidavits, testified that they didn't look for the videotape until after the city received a court order compelling officials to produce the evidence.

Jackson ordered the defendants to reimburse Welch's attorney for his time and expenses in seeking the reports and videotape. Jackson also refused to consider affidavits from Schriro and five other corrections officials that were filed in support of the city's motion to dismiss the case. And without those affidavits, Jackson wrote, the city couldn't make a case for summary judgment. (In her affidavit, Schriro says, among other things, that she didn't violate Welch's constitutional rights, that she never disregarded any risk toward him and that she never acted with "deliberate indifference" toward the staff, their training and their supervision.)

Essentially, the judge said that because corrections officials including Schriro can't be trusted to tell the truth about reports and videotapes, they can't be trusted to tell the truth about other aspects of the case.

Kevin Hormuth, Welch's attorney, says he'll ask that those officials, including Schriro, be prohibited from testifying at trial. If they do, Hormuth says, he'll use the faulty sworn statements to convince jurors that they're not trustworthy.

Michael Hughes, associate city counselor, declined comment. But in a brief filed shortly after an October hearing in which Jackson scolded assistant city counselor Thomas J. Goeddel for submitting false affidavits, Hughes and Goeddel admitted that the judge's admonishments were deserved.

"The lesson was clearly learned," the two attorneys wrote. "It will not happen again."

The St. Louis case isn't the first time that videotapes chronicling use of force by guards have disappeared under a Schriro administration. While she was head of the Missouri Department of Corrections, three videotapes turned up missing after inmates sued the state. In one case, the state eventually produced an edited tape, but tapes in the other two cases remained missing.

The pattern was noted by the Eighth Circuit Court of Appeals, which in 2002 upheld a $10,002 verdict against the state in the case involving the edited tape.

"We are aware that large bureaucracies cannot have a foolproof system for preserving records," the court wrote. "However, three missing videotapes in approximately five years of incidents giving rise to litigation within one prison system strikes us as more than mere coincidence."

Schriro, who holds a law degree, testified during an August deposition that she wasn't aware of any videotapes disappearing while she was director of the Missouri Department of Corrections.

Bruce Rushton is a staff writer for the Riverfront Times in St. Louis.

phoenixnewtimes.com | originally published: February 19, 2004