For more than two years, the Maricopa County Sheriff's Office withheld a videotape that contains key evidence in a multimillion-dollar lawsuit brought by a paraplegic, Richard Post, whose single night strapped to a restraint chair in Madison Street Jail in 1996 caused him permanent neck damage.
When the sheriff's office finally turned over the tape in December, the video seemed to have been altered in a way to prevent it from being useful. But a videotape expert has extracted the original images from the tape, images that may prove costly to a county still smarting from the $8.25 million settlement in the restraint-chair death of jail inmate Scott Norberg.
In the Norberg case, the sheriff's office also withheld important, and damaging, evidence: surveillance videotapes and a toxicologist's report that cast doubt on Sheriff Joe Arpaio's version of events. Norberg family attorney Mike Manning accused the sheriff's office of obstructing justice and covering up its role in Norberg's death. He says that when the county could no longer hold back the damaging evidence in the case, it sought the settlement, the largest of its kind in state history.
Now, in a lawsuit that could cost the county nearly as much--Post says he won't settle for less than $6.5 million--it appears that the sheriff's office has once again suppressed evidence that may hurt its position.
Post gave a copy of the videotape to New Times last week.
More than two years ago, Post was given a jail surveillance video that documented events up to the time when he was placed in a restraint chair by guards. The sheriff's office told Post there were no other tapes relevant to his case. But in December, the sheriff's office turned over the new tape, which includes clear views of what happened during the three-plus hours Post was actually in the chair.
The tape appears to corroborate much of Post's story, that he was placed in the restraint chair by vengeful guards who sought to punish him for flooding his cell, that the guards held a stun gun to his neck, and that a guard cinched the chair's straps down so tightly that Post suffered permanent neck damage. Being so securely strapped to the hard chair also caused Post, who is paralyzed from the waist down, to suffer deep tissue sores that left him bedridden for several months after the 1996 incident. As a result of his neck damage (a doctor told Post that essentially, his neck is permanently broken), Post has lost most of the use of his right arm, and can no longer propel himself in a wheelchair.
Arpaio didn't return calls to his home, but his attorney in the case, Georgia Staton, tells New Times that several tapes have been given to Post, and that she didn't want to comment about their contents with the case in litigation. As for why it took the sheriff's office two years to turn over tapes clearly relevant to the case, she says: "You can conclude whatever you want. All I can say is the plaintiffs have had tapes. And I'm really not going to talk about it."
Post's attorney, Joel Robbins, also declined to discuss the case. Told of Staton's comments, he said: "Yes, you can conclude what you want. But I think it's odd it would take this long for them to turn it over."
Arpaio's spokeswoman Lisa Allen said she was unaware of new evidence in the case. "We didn't withhold any tape," she says. If New Times has such a tape, she added, she couldn't comment on it until the newspaper could provide her with a copy--even though the tape came from her own office. Asked if she or Arpaio had viewed the videos in the multimillion-dollar case, she said that the sheriff was too busy to pay attention "to every little lawsuit against the office."
Richard Post's incarceration is one of the most bizarre in the six-year history of Sheriff Joe Arpaio's campaign to make Maricopa County's jails such tough places of punishment that inmates--most of whom simply await trial--will not want to come back.
Before he spent one night in Madison Street Jail, Post had no criminal record. A paraplegic and wheelchair athlete with a strong upper body, he owned a home, was raising a daughter on his own, held a part-time job and was attending classes at Glendale Community College. He was 35 years old and had been in a wheelchair for 10 years after being paralyzed in an automobile accident.
Post was arrested on St. Patrick's Day 1996 after James O'Connor, the owner of O'Connor's Pub, called Phoenix police and asked them to remove Post from his bar. When officers Jeffrey Howell and James Ray arrived, according to their arrest report, O'Connor complained to them that Post had harassed him by calling him a "Protestant and an Englishman."
O'Connor later admitted in Post's criminal trial that he had been drinking that night. Post says the "Englishman" comment apparently originated when Post asked the bar's singer to announce to the crowd that boxer Mike Tyson had defeated English champion Frank Bruno earlier that evening. After the announcement, O'Connor told Post he wanted the paraplegic to leave. Confused, Post asked him, "Why? Did you bet on the Englishman?"
Unclear why O'Connor wanted him out, Post elected to wait for police to arrive. O'Connor himself wasn't clear why he wanted Post to leave when he talked to New Times a year later: "He just seemed like the kind of person who has four or five drinks and then becomes belligerent," O'Connor said for a 1997 story on Post. O'Connor also said that Post didn't seem drunk, contradicting the police, who wrote that Post was "extremely intoxicated." Post says that he had been drinking, but denies that he was drunk or belligerent.
The officers told Post to leave the bar or they would arrest him. Post explains that he refused to drive his specially equipped car because he thought the officers would follow him and arrest him for DUI. Post offered to roll home in his wheelchair, but the officers refused. Post thinks they didn't understand that the three or four miles to his home would have been no problem for the wheelchair athlete. Instead, they told him to take a cab or accept a ride from a bar patron. But Post felt vulnerable in taxis and the cars of people he didn't know, since he would have to be lifted in and out by the driver, and he refused. Howell and Ray told him they had no alternative but to arrest him. Then, searching Post's backpack, the officers found 1.1 grams of marijuana and a pipe. (Eventually, he would serve six months probation and pay a $750 fine after being convicted of criminal trespass as well as possession of marijuana and marijuana paraphernalia.)
At Madison Street Jail, Post was searched and booked. In subsequent reports, jailers wrote that Post was argumentative and uncooperative. But in the first videotapes released by the sheriff's office, the opposite seems to be the case: Post can be seen calmly assenting to instructions as he's searched.
Post says he hadn't planned to be out late, and he didn't have an internal catheter with him, a piece of equipment he needs to urinate. He asked for one, and was told that a nurse would talk to him.
In court documents, nurse Beverly Hunter claims that Post was rude to her when she asked him if he had any special needs. "I'm in a fucking wheelchair, you bitch," she says Post replied.
Post says, "I didn't curse at the nurse at all. I just told her I needed a catheter and she didn't say a word to me."
Denied the equipment and placed in an isolation cell, Post begged detention officers to give him the catheter so he could relieve the pressure in his bladder. (Medical literature warns that the single greatest killer of paraplegics is kidney disease brought on by unsanitary and infrequent urinations.) When detention officers ignored him, Post began to hit the door of his cell with his fist to get their attention. In the first videotape released by the sheriff's office, Post can be seen in his isolation cell repeatedly rolling to the door to hit it, then rolling back and sitting, waiting.
Angry that he was being ignored, Post caused the toilet in his cell to overflow. Guards turned off the water in Post's cell and had trusties begin cleaning up the standing water. Then, Sergeant Rocky Medina decided that Post, a man paralyzed from the waist down, should be strapped down in a medieval-looking restraint chair.
In court documents, the sheriff's office argues that Medina had no choice: If Post wasn't strapped to the device, he would go on hitting the door's window until he broke it. Post says that assertion is ridiculous. The windows are made out of Lexan, he points out. Even a standing person would have difficulty breaking the glass, and Post was sitting in a wheelchair. Post says it's obvious that Medina simply wanted to punish him for overflowing his toilet.
There's much evidence to suggest that by the early months of 1996, the restraint chair had become a standard device for punishing inmates in Arpaio's jail.
Post's incarceration occurred just as the Department of Justice was completing a two-year investigation of the jails. On March 25--a week after Post's incarceration--Justice officials notified the Maricopa County Board of Supervisors that its investigation had found a pattern of unconstitutional treatment of inmates in the jails. The investigation particularly condemned the way Arpaio's jailers used the restraint chair. Only three months after this letter was sent warning the county of problems in the jails (and another month before the letter was made public), Scott Norberg would die as a dozen detention officers crammed him into one of the chairs after they had already handcuffed him and pinned him to the floor.
Post says he has evidence of another instance where the chair was clearly used as punishment rather than for controlling a combative inmate. He showed New Times the surveillance video of unruly inmate David Hoyle, who in 1995 was tackled by several detention officers, then placed in the same isolation cell where Post would land a year later. For a half-hour, Hoyle alternately paces the floor and sits on a bench in the cell. Then guards bring the restraint chair and strap him in--for no other visible reason than to punish him for being unruly a half-hour earlier.
In Post's case, simply strapping him down into the chair put him at risk. Medina and three other officers put Post into the chair without putting his wheelchair's gel pad underneath him. Post says he told the officers that in only 20 minutes, a paraplegic sitting on a hard surface can develop sores that can require surgery. Ignoring his pleas, the officers left Post in the chair for 70 minutes before putting the pad underneath him. Because of his time on the hard surface, Post developed ulcers on his anus. Bedridden for six months afterward, he narrowly avoided surgery.
In 1997, Post told New Times that the guards had terrorized him during his hours in the restraint chair. In his account, Post said that a nurse only spent a few seconds to check that Post could wiggle his fingers. He said that guards came to gawk at him despite his crying and begging that his gel pad be put underneath him. He said that another officer (identified in sheriff's office reports as Damian Leffler) did come to loosen his straps and shove the pad under him, but Leffler first handed his stun gun to another officer and told him: "Stick him in his neck if he fucking moves." The second officer then held the device close to Post and sparked it, terrifying Post. (In the sheriff's office investigation, detention officers did not describe using or seeing the use of a stun gun.) Post also claimed that another officer later put his feet on the chair between Post's legs to get leverage, then pulled down so hard on straps improperly draped over his shoulders, rather than across his biceps, that the force exerted by the officer caused Post's neck damage. (Officers denied that this occurred.)
When Post's mother, Joan, went to the sheriff's office with these complaints the day after Post's incarceration, Lieutenant Scott Frye began an investigation of the incident. In his report, Frye says that he watched surveillance videotapes of the event, but stopped making notes of them after Post was initially put into the chair. And that's all he turned over to Post, a tape that ended at 4:20 a.m., just as detention officers strapped him in. Although Post would be kept in the chair for more than three additional hours, Frye didn't make notes of further tapes. Post says Frye told his mother none of the surveillance videos showed anything relevant to his case.
Nearly three years later, in December, the sheriff's office turned the remaining footage over to Post.
Jail surveillance tapes are inherently poor in quality. A single four-part screen contains images made by four different cameras, meaning that each individual image is small and grainy. But the tape the sheriff's office turned over to Post in December was remarkably bad, even by jail surveillance video standards.
The quadrant that would show the view from a camera looking directly into Post's isolation cell was almost completely black.
Post says his attorney took the tape to a videotape expert who told them that the tape seemed to have been purposely degraded.
Mike Manning says that's not surprising. In the Scott Norberg case, Manning says the sheriff's office turned over several tapes of terrible quality. "It was clear what happened. They copied it several times to degrade the image so a jury couldn't see what was happening.
"Their discovery behavior was I think the most grotesque abuse of the litigation process I've seen since the Keating era. Not even Symington's discovery abuse, which was significant, was as bad as the sheriff's discovery abuse in the Norberg case," Manning says. Eventually, with the help of the courts, Manning got the sheriff's office to produce key evidence, including new videotapes and a toxicologist's report. "It had an impact. They knew they were wrongfully withholding documents," Manning says. "Their gamble was that we wouldn't push the production and never see these documents."
In January, Manning pushed for the court to force Arpaio to turn over thousands of pages of even more evidence. Instead, the county chose to fork over $8.25 million, which will be paid from a county insurance policy.
Manning says that under pressure, the sheriff's office eventually gave them better videotapes. "We pushed and pushed and made them show us the master. It was tenfold easier to watch."
Richard Post's attorney took another approach. He gave the nearly blacked-out tape to an expert who was able to extract images which, by jail surveillance video standards, are remarkably clear. Post says he received the new, clearer video about two weeks ago.
The new tape shows Post's isolation cell for the hours he was strapped to the chair. While grainy and jerky, the tape does suggest that Post's account is accurate. Nurse Beverly Hunter does visit his cell for all of 10 seconds to make sure that Post can wiggle his fingers. Guards can be seen stopping by to watch as Post writhes in the chair and pleads with them, his gel pad sitting just two feet away from him. When Leffler comes to put the pad under Post, he goes through all of the machinations that Post had detailed. And Leffler can be seen handing something from his belt to a second officer, who then appears to hold the device toward Post. Later, the second officer can be seen closer to the camera, handing a rectangular black box--what appears to be a stun gun--back to Leffler. And the tape does show another officer adjusting the straps of the chair while putting his feet up between Post's legs, just as Post had described.
Watching the tape and narrating while sitting in an electric wheelchair in his living room, Post becomes emotional and asks his teenage daughter to leave the room.
"He [the guard pulling down his straps] starts to lecture me at this point. I was asking to call my house because of my kid. This is where he says he feels sorry for anyone who has me as a father." Post pauses, fighting tears. "It's hard for me to go through all this crap again."
In the video, after the straps have been tightened down, all Post can move is his head. Still, the detention officer stands over him. "He's just cursing at me, calling me an asshole. He was just being a jerk," Post says.
None of the detention officer's words can be heard on the tape, which carries no sound. The sheriff's office defense, meanwhile, rests almost entirely on what it says was Post's verbal behavior--that he used abusive language. However, none of what Post said can be heard on the tape, either. The images on the tapes, however, seem to lend credence to Post's version of events.
But the sheriff's office initially only released a video that documented Post banging on his door and flooding his cell. "They put out what they thought would help their case. But they held on to this tape, and it shows that I was telling the truth. They all lied on their reports. They lied about everything," Post says.
Post has become bitter in the time since New Times first wrote his story two years ago. He says he's become a virtual prisoner in his house, and only leaves it to visit doctors and his lawyer.
The restraint chair's straps, cinched down tight into his shoulders, caused permanent damage to his brachial plexus nerve, which runs from his neck into his right arm. Torn from his spinal cord, the nerve is useless. He can now only move his index finger and thumb on his right hand. His right tricep muscles and forearm muscles have atrophied, and he has limited motion in the arm. "Essentially, I'm a one-armed guy in a wheelchair," he says.
No longer able to drive, Post says he can't afford a specially equipped van that would allow his parents to drive him places. At about $40,000, the van was too expensive for his insurance plan to cover.
In court documents filed last summer, the sheriff's office claimed that Post's injuries happened prior to the March 17 incident, based on Joan Post's estimate to a doctor that, 10 months after the incarceration, her son had had difficulty with his arm "for about a year."
"Such an argument is indeed grasping at straws when the records of Dr. Timothy Harrington of the Barrow Neurological Institute, Dr. Mazan Khayata of the Arizona Heart Institute, and the sworn affidavit of Dr. [Vito] Del Deo pinpoint the March 17 incidents as the cause of the cervical injuries," writes Post's attorney, Joel Robbins, in a reply.
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"No medical records are produced to substantiate the claim that Richard's cervical impairment was pre-existing in March 17, 1996, because none exists. There is, on the other hand, evidence that Richard had an extremely mobile and strong upper body prior to March 17, 1996. He drove, held down a part-time job, attended Phoenix College [actually Glendale College], romped with his dog and his daughter and friends, lived an independent and productive life. That all ended for Richard Post on March 17, 1996."
Post says he's determined that his case gets to trial. He says he wants the tape to be shown, and Arpaio's tactics unmasked. "He's either incompetent or a liar," Post says of Arpaio. "His guards handled the tape. His internal investigator edited the first tape. Someone doctored the second tape. Finally we have an unmasked version.
"I want people to see this tape. I want people to know what they did."
Contact Tony Ortega at his online address: firstname.lastname@example.org