Brnovich Disappointed with State Attorney's Language in Prison Rape Case
Roxana Bacon really should know better.
A former president of the State Bar of Arizona, she recently penned an op-ed for the Arizona Republic wherein she blasted state Attorney General Mark Brnovich for a blame-the-victim "you asked for it" opinion of rape.
"In Brnovich's view," she wrote, "prisons are places where guards and administrators have no responsibility to maintain safety or protect its citizens. If there is no duty to protect, we should not be surprised that there is no protection. Under Brnovich's view of Arizona's law, his only duty is to post signs that say 'enter at your own risk.'"
Hey, guess whose name is not on this motion to dismiss that everyone's worked up about? Um, Brnovich's.
That would be outrageous if it were true. But it's not.
See, Bacon and other wrong-way opinionators are blasting the new Republican AG for an argument he didn't make, in a case he inherited from the administration of Attorney General Tom Horne.
It involves a civilian worker for the Arizona Department of Corrections, who was brutally raped when left alone and unprotected as she administered pre-GED tests to inmates at the state prison in Eyman.
The circumstances surrounding her sexual assault are horrendous and unforgivable.
According to court paperwork, rape suspect Jacob Harvey already had been sentenced to nearly 30 years in prison for "a daytime home invasion where he raped and savagely beat a woman in front of her young child."
Yet, Harvey had been assigned to medium custody and was part of a group of prisoners that the victim was handling all by herself about a year ago.
When the other inmates left the class, Harvey hung back and eventually stabbed the woman "multiple times in the head with a pen."
The room they were in was unmonitored. The teacher had been given a radio to alert corrections officers if she needed help, but the radio was set to the wrong channel.
Ironically, it was her rapist who made the original call for help, but the C.O.'s were late in getting to the room because of the snafu with the radio.
The woman is suing in federal court, and I hope she gets every penny coming to her.
The AG's office is representing the ADC, as required under state law.
In December, Assistant Attorney General Jonathan Weisbard, who has been with the AG's Office since 2011 (though he was admitted to the bar in 1988 and may have worked for the AG before), submitted a motion to dismiss the case, using an argument that I'm sure he regrets now.
In the filing, Weisbard writes:
Here, Plaintiff is an ADOC employee who routinely worked at the prison complex. By being placed in a classroom at the complex, the officers were not placing Plaintiff in any type of situation that she would not normally face. The risk of harm, including assault, always existed at a prison like Eyman.
U.S. District Court Judge Susan Bolton has since denied the motion, following oral arguments earlier this week.
Many rightly have been outraged by the language in Weisbard's filing.
However, Bacon and various individuals on Twitter and Facebook wrongly have asserted that Brnovich himself made this argument or at the very least approves of it.
Indeed, to read Bacon's op-ed, you'd think it was the policy of Brnovich's office to blame victims of rape for their victimhood.
She also unfairly lumped Brnovich in with purveyors of "right-wing rhetoric" about rape, a clear attempt to "Todd Akin" the AG.
In another ridiculous passage, she writes:
So what would Brnovich's response be to rape and assault of a visitor to our prisons, or to violence directed to guards (who surely know what to expect)? According to the remarks in his motion to dismiss, it would be "too bad. You showed up, so you asked for it."
Actually, when I spoke to Brnovich on Friday about the case, he expressed his disapproval of the motion's language.
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"As a father of two girls, a husband, and a prosecutor who has dealt with a lot of victims over the course of my career, it was disheartening to read the language in the pleading," he admitted.
He would not comment on the case's specifics, nor would he say if the prosecutor would be disciplined or admonished. He would only go so far as to signal that the case, along with others he inherited, was being examined.
"One of our priorities during our first hundred days here in the office is to evaluate the status of all litigation," he explained. "And while I will not comment on any individual case, I want to ensure that all the victims involved in any litigation with this office are treated with dignity and respect."
I asked him what he thought about people blaming him for the assistant AG's language, and in some cases actually attributing it to him.
He observed what Bacon no doubt knows as well: That the original motion had been filed by Weisbard before he'd taken office.
For the record, the criminal case against Harvey is being prosecuted by the Pinal County Attorney's Office, not the AG.
What's weird to me about all this outrage over the language in a seven-page legal motion, is that some people seem more concerned with the filing than the underlying conditions in Arizona's prisons.
Consider for a moment the announcement in early January that Governor Doug Ducey would be retaining ADC director and Brewer appointee Charles Ryan.
Ryan's tenure at ADC has been controversial to say the least.
For example, does anyone recall the horrific 2009 cage death of inmate Marcia Powell?
Or Tony Lester, the suicidal, mentally ill ADC inmate to whom corrections officers gave razor blades?
When Lester inevitably slit his wrists and throat, corrections officers watched him bleed to death, refusing to render first aid, while they videotaped him.
In 2013, a female corrections officer was beaten nearly to death by two inmates, while she was on her own, escorting 50 unrestrained prisoners.
During that same year, Ryan made a startling admission on the ADC website, writing that "in the past four and a half years, there have been 640 [prison] staff arrests," of which, 433 "were for behaviors like domestic violence, fighting, assaults, harassment, drug use and possession, and drinking-related offenses."
ADC has been a horror show for years. There have been calls, most notably from former state House Minority Leader Chad Campbell, for Ryan's ouster, and yet, he remains as ADC honcho, year after year, surviving even changes in administrations, so far.
Ryan's latest insult to the public is ADC's refusal to pay a $14,000 fine by the Industrial Commission of Arizona for failing to protect the teacher in the prison rape incident.
ADC's history is one reason I think Bacon's indignation is misdirected. Brnovich's office has little choice in defending ADC.
Additionally, the AG's office has a fiduciary responsibility to the taxpayers to obtain the best financial settlement possible.
This puts Brnovich's office in a difficult position, sort of like the defense counsel who is appointed by the court to represent a serial killer.
Ducey should fire Ryan and start fresh. And Brnovich should push Ducey and fellow Republicans to embrace real reform of our public prisons.
I know some folks think private prisons are inherently evil. And they have a point.
But look at the kind of nightmares that play out in public facilities like Ryan's ADC, and Sheriff Joe Arpaio's jails, for example.
Those upset their candidate for AG didn't win in November may enjoy assigning blame for Weisbard's distasteful legal pleadings to Brnovich.
By doing so, they score some short term points, and the approval of Internet lemmings, but they do nothing to address the underlying flaws of Arizona's prisons, or make them any safer than the day this woman was raped.
Let me put it this way: Brnovich is going to take some hits during the next four years, some deserved, some not deserved.
I'll be first in line to get some whacks in if he screws up for real. This just isn't one of those times.
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