Almost two years after Sheriff Joe Arpaio cleared his detention officers of wrongdoing in the death of inmate Scott Norberg, the prospect of county employees facing criminal prosecution has been revived.
Norberg family attorney Mike Manning filed a motion on Friday charging that Maricopa County and the sheriff's office deliberately destroyed evidence in the case. Manning accuses the county of disposing of Norberg's larynx as well as the handwritten notes of a detention officer in order to protect its version of events.
County Attorney Rick Romley responded by noting that manslaughter and obstruction of justice investigations in the Norberg matter have never been closed.
"The allegations of cover-up are very serious," Romley says. "We have an ongoing investigation into the death of Norberg, and if the allegations in this motion are true, we will expand our investigation and take that very seriously."
Romley says Arpaio is upset that Romley has kept the investigations open. "I empathize," Romley tells New Times. "But if it weren't for the actions of the sheriff's office, maybe I wouldn't have had to do that."
Arpaio blasted Romley in the past when the county attorney criticized the way the sheriff's office had conducted its probe into Norberg's death, which included commingling criminal and internal affairs investigations and failing to tape witnesses whose testimony contradicted the sheriff's interpretation of events.
For that reason, Romley says, he had to keep the possibility of criminal charges open until the end of the civil lawsuit.
"I don't care how popular he [Arpaio] is, I'm going to wait until this is over and do what I think is necessary," Romley says.
In his motion, Manning asked U.S. District Judge Paul Rosenblatt to sanction the county and sheriff's office for destroying the evidence. Specifically, Manning asked the judge to prohibit the county from contesting that Norberg died from an attack by the jailers.
"[The sheriff's office] and the County knew that Scott's larynx and any contemporaneous notes created by one of the jailers who participated in the killing were crucial pieces of irreplaceable evidence," Manning writes. "But [the sheriff's office] was busy [going] about its business of knowingly misleading the Norbergs and the public about Scott's death. . . ."
After feeding the press its version, the sheriff had an incentive to make the evidence conform to his story, Manning charges.
"MCSO's and the County's solution--the only way to fortify their 'fix' was to destroy the damaging evidence which did not fit their fiction," Manning writes. "Intentional destruction of vital evidence by the County and its law enforcement agency has occurred."
Romley says he'll wait to see what evidence emerges to back up Manning's claims.
At least one detention officer is concerned about the possibility of criminal prosecution.
Martin Spidell was one of several officers who held Norberg's head in a position that prevented Norberg from breathing, according to the sheriff's own investigation of the June 1, 1996, incident. The investigation also found that when another officer noted that Norberg had turned purple, Spidell responded: "Who gives a fuck?"
Two weeks ago, Manning tried to depose Spidell in the Norberg family's $20 million civil lawsuit, but the jail guard refused to answer Manning's questions, citing his Fifth Amendment right against self-incrimination.
"Spidell took the Fifth to everything but his name and address," Manning says.
Spidell was unavailable for comment, but his attorney, Paul Lazarus, confirms that Spidell exercised his Fifth Amendment rights.
In the days following Norberg's death, the sheriff's office repeatedly claimed that no electronic device or stranglehold had been used against Norberg. After the autopsy showed that Norberg had, indeed, been stunned dozens of times with electronic stun guns, the sheriff's office continued to insist that "there was no damage to the neck, no breakage of the neck. . . . There was nothing consistent with any choking or chokehold in the autopsy."
Manning, however, says that the autopsy had been performed by a newly certified assistant at the Medical Examiner's Office, Dr. Mary Dudley, while two or more sheriff's deputies stood watch. Dudley noticed nothing unusual about Norberg's larynx.
In a subsequent autopsy, Dr. Karen Griest, who had been hired by the Norbergs for a second analysis, found that Norberg's larynx had been fractured and that bleeding had occurred as a result of the fracture. Griest also found that Dudley had failed to note injuries to Norberg's groin, including a gouge on his penis and stun-gun burns.
"There was no doubt that Scott's injuries were not a product of any ordinary jail restraint; but rather, a full-scale beating administered by a team of assailants," Manning writes.
When Griest confronted Dudley with the damaged larynx, Dudley explained that the fracture could have occurred during her autopsy. But Manning's motion contains testimony by experts who say the bleeding in the larynx could not have occurred during the autopsy, which was performed two days after Norberg's death.
"They're saying he died of a heart attack or--you're going to love this--excited delirium, that he died of his own adrenaline, I guess," says Manning. "We're saying that he was suffocated, which is what they found originally, that he died of positional asphyxiation."
Further examination of the larynx itself could settle the matter. But the larynx has been discarded. County records show that Dudley took the organ from Griest and stored it. Since the sheriff's office and medical examiner had ruled the death an accident rather than a homicide, it was thrown away after a year.
"Although the County maintained other tissue and fluid samples from Scott, his fractured larynx was destroyed by defendants sometime after the County knew that Scott had been forcefully asphyxiated, knew that a Homicide investigation was under way, and knew that claims were filed against the County arising from Scott's death," Manning writes.
Manning also insists that notes taken by Spidell, the guard who allegedly had cursed at fellow officer Kimberley Walsh, are also important evidence in the case. "They are the only written narrative made by any defendant at the precise time of Scott's killing," Manning writes. "The critical nature of the notes has recently been made more acute by Spidell's refusal to testify under oath."
Like the larynx, however, Spidell's notes have disappeared.
Spidell made several references to his written notes when he was interviewed by sheriff's investigators the night of June 1, 1996.
That afternoon, Spidell had responded to his co-workers' calls for help by joining the melee happening in a hallway of Madison Street Jail.
"I ran out there around the corner, and I saw what appeared to be nothing but brown shirts [detention officers] all the way around this guy," Spidell said.
Norberg had been booked the day before in Mesa after he alarmed residents with erratic behavior. Norberg had been using methamphetamines and was dehydrated; he wrestled with a Mesa police officer who attempted to arrest him. Booked on aggravated assault for punching the officer, Norberg spent several uneventful hours in Mesa's jail before he was moved to Madison Street Jail downtown. There, he was described by inmates as being "out of it," and he refused to respond when guards attempted to take him to an initial court appearance for the setting of his bail. Instead, a judge and clerk were brought to his cell, but Norberg refused to follow a guard's orders to stand up. A fight then broke out between that guard, David Gurney, and Norberg. The sheriff's office blamed Norberg for starting that altercation, but inmates claimed Gurney was at fault. In a sworn statement, the court clerk agreed that Gurney tackled Norberg.
A videotape of the incident showed that nine detention officers poured into Norberg's cell, dragged him to the hallway, pinned him to the floor and handcuffed him. That's when Spidell showed up. "He appeared to me to be secured," Spidell told investigators that day.
The officers, however, decided to put Norberg into a restraint chair. Spidell joined them, bringing leg irons to secure Norberg's feet.
Two female officers, meanwhile, held a towel over Norberg's face to keep him from spitting. Spidell told sheriff's investigators that the towel nearly covered Norberg's entire face.
But when Spidell was asked why he and other officers pushed Norberg's head down into his chest, Spidell responded: "Their head has to go down, because it doesn't allow them to focus in on anybody, doesn't allow them to set anybody else off just because he's looking at them in a certain way." Spidell didn't explain how Norberg could have "set someone off" with his face when it was covered with a towel.
The sheriff's investigators had already interviewed one of the female officers, Kimberley Walsh, who told them that while she was holding the towel, she noticed that Norberg had turned purple and didn't seem to be breathing. She warned the others, and said Spidell barked back: "Who gives a fuck?"
Walsh claimed that the officers held Norberg's head down for several more minutes until it was obvious the inmate was limp. Spidell confirmed that Walsh had told them Norberg seemed to be in trouble, according to a transcript of the interview in the sheriff's 2,000-page report of Norberg's death:
Detective Todd Bates: "Okay, what did you say to Officer Walsh when she said to you that he's not breathing?"
Bates: "Did you hear any statements made by any detention officers like, 'Fuck this guy, who cares,' anything like that?"
Bates: "Did you make a statement like that?"
Spidell: "Uh, when he was fighting, I, uh, I said, 'Maybe we should just kick his ass so he quits fighting.'"
Later, Lieutenant Gary Gregory told Spidell that Walsh had heard an officer say, "Who gives a fuck?"
Gregory: "Do you remember hearing that?"
Spidell: "No. The only way I may have heard, I don't know that, uh, not that he wouldn't have been breathing, but my concern was securing his arm. And I told her, 'Who gives a fuck,' or 'Who gives a shit,' or whatever I said, it was to get that arm secure. I didn't not care that he wasn't breathing. I would have merely meant that, that we were after the arm secure."
Gregory: "Okay, and I understand that part. So let me ask you, did you say something along that line?"
Spidell: "I may have. I honestly do not remember. . . ."
Bates then asked for clarification: If Spidell had barked at Walsh, why had he done so? Spidell answered that he was concerned Norberg might be faking his inability to breathe, and would attack them if they let up.
Instead, Norberg died while being held with his chin forced down to his chest.
There was still more news about the jails last Friday.
Richard Post, the paraplegic whose neck was broken during a single night in jail, told New Times he's finally been given a trial date (in April) and has set the level of damages he's seeking at $10 million.
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Meanwhile, a new jail abuse lawsuit was filed Friday. Annette Romo claims that on April 20, 1997, jail guards were indifferent as she lost her fetus and bled for hours. She was eventually rushed to a hospital, where she was given five pints of blood. Later, she claims, she was assaulted by a guard.
Since January, Amnesty International has been requesting information on Romo's case from the sheriff's office and has received no response. The sheriff's office tells New Times that Romo's claims are "groundless." Romo is seeking $5 million.
Contact Tony Ortega at his online address: firstname.lastname@example.org