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"[W]as that a sufficient showing?" the AG asked.
"It was ridiculous," Greenwald said.
DOC, Greenwald testified, had begun an aggressive policy to identify and isolate gang members, as well as crack down on gang activity. More than 160 gang members had been identified and moved "out of the mainstream." And a new policy promised protection for those inmates who renounced the gangs.
Stewart testified that there was even a contract on his head by the gangs because of his efforts--which he took as a good sign.
"When the STG population is trying to impact the director . . . there is no question that it [the new policy] is having an impact on them and an adverse one," Stewart said.
At one point, it looked like DOC had put Bilby's mind at ease about the threat to PS inmates from gangs. "If you are assuring me now that a gang member who renounces the gang will either be put into protective segregation or will be sent out of the state, you have assuaged a lot of the problems that Judge Hardy was concerned about," Bilby told Stewart near the close of the first day of the hearing.
But under Hammond's cross-examination, Stewart was forced to admit that not much had really changed in a number of areas in DOC.
As a mark of his success, Stewart brought a list of 60 PS inmates who had been reviewed under the new classification policies implemented since Judge Hardy's trial. He told the court that 58 out of 60 were put in protective custody against their wishes. In fact, Hammond proved, exactly the opposite was true: All 60 of those people were slated to be removed from protection against their wishes. Further, all 60 had been recommended for removal before Judge Hardy's order two and a half years earlier. In short, nothing had changed--except the policy.
But the most powerful moment in the three-day hearing came when Hammond, while cross-examining Stewart, asked about the apparent gang slaying of inmate Steve Benitez. And it was a murder the plaintiffs almost never learned about.
While preparing for the hearing before Bilby, Debbie Hill went to the Santa Rita facility to interview an inmate who'd been assaulted a year earlier. When she arrived, she found the place locked down. An inmate had been killed, she discovered.
At first, DOC refused to tell the plaintiff's legal team anything about Benitez's death. Hill filed a motion to get information from DOC. What she learned became a turning point in the appeal.
"It was like something from the Heart of Darkness," Hammond says. "What happened to that man went to the center of every issue in the case."
Benitez was an informer who had helped prevent a gang war inside the system. The New Mexican Mafia put a contract out on his head for his betrayal, and he spent the rest of his sentence in PS. After he got out, Benitez violated parole by stealing beer.
In a presentencing report for that violation, a Maricopa County sheriff's deputy spoke on Benitez's behalf: "Let's not kill him for a 12-pack of beer. He gave us righteous information. Give him one opportunity, just one more time."
But Benitez blew that second chance by violating parole again, and was sent back into the system. Prison officials who knew his history ordered him to the facility in Globe, but through an error which has not yet been explained by DOC, Benitez was sent to the Santa Rita facility near Tucson on December 16. Benitez, according to DOC records, refused, but after he was "counseled" by a correctional officer, he ended up getting on the bus to Tucson.
On January 25, Benitez was killed in his cell, a handmade shank buried so deep between his ribs it was first thought he'd died of a heart attack.
Hammond drove his point home just as deeply when questioning Stewart. Benitez was sent to a yard where DOC officials knew "the New Mexican Mafia is alive and well," Hammond said.
"Can you possibly explain then how it is possible that a man who has a contract on his life from the New Mexican Mafia is being sent there?" Hammond demanded.
Stewart said he could not.
Since Benitez could not name a specific inmate who threatened him at Santa Rita, DOC's policy required he go there.
"So what does that tell us?" Hammond asked. "That inmate is just out of luck. . . . Director Stewart, why isn't every person in DOC up in arms over this thing?"
"Mr. Hammond, I can't explain that," Stewart said. "I can tell you I wish very, very deeply that this had not happened. . . . We moved expeditiously to try to correct the situation so that it will never happen again."
"No, sir," Hammond shot back. "What you did is you drafted another piece of paper."
The exchange clearly had an impact on Judge Bilby.
"You keep telling me, 'The reason this policy works, Judge, is because I have all these qualified people down here doing it.' Boy, if this is an example of it, you are being ill served," Bilby said.
Bilby then singled out Stewart's press release as creating an attitude "that just eviscerates your policy."