TALE OF THE TAPE
In his 52 years, James Osipenkof has developed strong, if unremarkable, habits. He smokes two packs of unfiltered Old Gold cigarettes per day, and drinks whatever coffee is at hand, no matter how bad.
His life is arranged so that, come evening, there is a familiar bar within walking distance, and he walks there often.
A failed inventor, among other things, Osipenkof has spent the past year and a half living sparely at the Whole Life Foundation homeless shelter near downtown. The shelter gives him his two packs per day and the use of a dubious coffee maker.
In exchange, Osipenkof solicits contributions for the place--finding people to donate lumber or pipe or anything else needed to keep the shelter patched together.
A Russian emigrant, he arrived in this country in 1951 and came to Phoenix 13 years ago. But all of that, and his two marriages and various business failures, are in the past, and he does not care to talk about old things.
After more than five decades of hard wear, the six-foot Russian is holding up well. At least he was until February of last year, when he took an unexpected--and very painful--trip to the Madison Street Jail.
Arrested on an outstanding misdemeanor warrant while walking home from a bar, Osipenkof ended up with eight broken ribs and various head, neck and wrist injuries.
He had to be hospitalized for two weeks, he says, and it took months for him to recover. He is still taking medication for lingering pains.
His injuries, Osipenkof contends, came at the hands of two police officers and several jailers who beat him while he was handcuffed. More than a year after the fact, Osipenkof now discusses the events with dark glee.
The way Osipenkof figures it, he is poised to become the Rodney King of Phoenix. He has filed a civil suit that he hopes will make him at least comfortable, if not wealthy, and that will also stick it to the cops who felt at liberty to beat a 50-year-old man picked up on his way home from a bar.
"These guys are total morons to pull this stuff," he says. "What they did was malicious. They were like 12-year-old kids playing a game."
Like the infamous King case, Osipenkof's treatment at the hands of the law was captured on a videotape, and Osipenkof believes the tape is money in the bank.
In Osipenkof's case, the video monitoring system at the Madison Street Jail recorded the fateful moments of his scuffle with Phoenix police officer Charles Willrich and Chandler police officer Michael Bluse. It also captured another incident in which Osipenkof says unknown jailers beat him in a holding cell.
After severely injuring him, Osipenkof says and court records reflect, the cops then turned around and charged him with aggravated assault on a police officer. Several months later--after viewing the jail tapes--a jury acquitted him swiftly, with little internal disagreement.
The video captured by the jail's camera system, according to two jurors from the trial, was crucial in determining what happened, and the jury decided that Osipenkof was not guilty of starting the altercation that left him badly injured.
"If the tape wouldn't have been there, the whole trial would have been all different," says one juror. "It was quick. It was unanimous. I don't think we were in [the jury room] ten minutes."
But now that Osipenkof has filed his civil case, seeking redress for having his rib cage crunched while in custody, a curious thing has happened. The tape of the night he was admitted to the Madison Street Jail has been destroyed.
All that remains of the evidence crucial to Osipenkof's claim is a bad copy of the original jail tape, recorded at the wrong speed, from which it is virtually impossible to tell what happened.
Although Osipenkof remains optimistic that he will win his case, his civil lawyer and the public defender who represented him in his criminal trial say the loss of the original video may gut Osipenkof's chances of convincing a jury he was wronged.
Arrested for breaking down a door, Osipenkof wound up with eight broken ribs and then spent four months in jail before the jury acquitted him.
But the tale of the tape may prove to be a final, grim joke on the Russian.
@body:It was a little before midnight on February 13, 1992, when Osipenkof was drifting back home from his then-favored bar on the corner of 19th Avenue and Camelback.
There had been a disturbance in the area. Police were about, and Officer Charles Willrich stopped Osipenkof to check him out.
A few months earlier, Osipenkof says, he had had a disagreement with his then girlfriend. She locked him out of their apartment. He broke down the door. Osipenkof had appeared in court on the matter, and thought it was resolved, but it turned out a warrant for his arrest still existed.
Osipenkof says he didn't think there was any cause for his arrest on the old dispute, but he didn't fight it.
"I just went along with it, knowing the arrest was a mistake," he says.
The arrest probably would have remained routine, Osipenkof says, were it not for a peculiarity of Willrich's. Or, more specifically, a peculiarity of the handcuffs Willrich used that night.
On standard handcuffs, a short length of chain attaches the two cuffs to each other. The chain provides a small, but welcome, measure of flexibility for someone with his arms shackled behind his back.
But some officers--including Willrich--prefer what are known as "hinge handcuffs," which are exactly what the name indicates. Instead of a chain, the cuffs are joined at the middle by an inflexible hinge that allows virtually no movement of the arms.
"When you have your hands behind your back, your hands twist," says David Anderson, the public defender who represented Osipenkof at his criminal trial. "Willrich had these special kind of cuffs. There is no twist or give in them."
Throughout the ride to the jail, Osipenkof says, he repeatedly complained that the cuffs were cutting into his wrists, and that he could not sit up in the back seat of the patrol car without hurting himself even more.
Willrich, Osipenkof says, stopped the car a couple of times and forced him to sit upright. The officer would not loosen the cuffs to make them more tolerable.
"My wrists were bleeding," Osipenkof says. "He said, 'Quit being such a baby.'"
At the booking area of the jail, Osipenkof stood where he was told to, still handcuffed, while Willrich checked him in. Officer Michael Bluse and another Chandler officer happened to come into the jail with a suspect of their own.
Absent any sympathy from Willrich, Osipenkof asked Bluse to loosen his cuffs.
What happened in the next few minutes is the crux of Osipenkof's case, and all of it was captured on the jail videotape that has since been destroyed.
(Contacted at his home, Bluse declined to discuss the incident, and referred New Times to his department, which also declined to answer questions about the case. Kevin Robinson, spokesman for the Phoenix Police Department, declined to comment on the case, or to allow Willrich to comment.)
According to Osipenkof; his attorney, Anderson; and two jurors who viewed the original tape before it was destroyed, Bluse did not loosen the cuffs. Instead, it appeared that he yanked them upward, hurting Osipenkof even more.
Osipenkof reacted by spinning away from Bluse and Willrich, who by that time had returned his attention to his prisoner.
After spinning away from the officers, those who have seen the original tape agree, Osipenkof raised his right leg in a motion that might be construed as an attempt to knee Bluse in the groin. Osipenkof says it was an instinctive, defensive reaction.
What is clear in the minds of the two jurors--and can still be seen fleetingly on the remaining, bad copy of the jail tape--is that Bluse reached out and grabbed Osipenkof's knee well before it reached the officer's body.
Yet at preliminary hearing and trial, Bluse would testify that Osipenkof did knee him--and hard enough to cause a serious bruise on the officer's thigh.
(The two jurors said they gave little credence to Bluse's claims at Osipenkof's criminal trial. Not only did the tape directly contradict the officer's sworn testimony, but jurors found it unbelievable that, if Bluse had suffered an injury, no one would bother to take a picture of it for use at the trial.)
The alleged assault on Bluse, nonetheless, was proffered by the prosecution at trial as explanation for what happened after Osipenkof raised his knee.
While Bluse held Osipenkof's arm, Willrich did a "leg sweep," knocking Osipenkof's legs out from under him and sending him crashing to the floor.
Osipenkof says Willrich then landed a knee in his back, causing the broken ribs. The two officers then rolled him onto his stomach, hog-tied him and left him face down on the floor while Willrich continued filling out his paperwork.
The original jail tape, say Anderson and the two jurors, supported Osipenkof's version of the events, showing that, at a minimum, the two officers overreacted and were too zealous in subduing the prisoner.
"It appeared to me that they went well beyond what was necessary to protect themselves and to control this man," Anderson says.
After he was booked, Osipenkof was placed in a holding cell, where he says his calls for some sort of medical help were ignored by jailers. After several hours, Osipenkof says, some jailers entered the holding cell and beat on him some more for making noise.
Anderson says the destroyed videotape also captured that incident, but the holding-cell portion of the tape was not played for the jury in the criminal trial because it did not bear directly on Osipenkof's alleged assault on Bluse.
"A big, major tussle ensues and Mr. Osipenkof is on the ground the entire time," Anderson recalls from seeing the original tape. "You clearly see them [the jailers] fighting with him, hitting him, trying to restrain him."
There is no question, Anderson says, that between the booking-room incident and the holding-cell fracas, Osipenkof was badly hurt.
"I didn't see him until maybe eight days after it happened, and he was in pretty bad shape still then," Anderson says.
As he prepared to defend Osipenkof, Anderson says, it became clear that the original jail tape was the cornerstone of his case.
@body:The various cameras installed around Maricopa County's jails do not work like home video cameras. Running standard video would require that tapes be changed constantly, and would create a logistical mess as jailers tried to store complete, 24-hour-per-day videotapes of jail activities.
The jail, therefore, uses time-lapse cameras. While the typical video camera shoots 30 images per second, the jail cameras shoot only three images per second, according to Lieutenant Tom Stroup, who oversees the monitoring system at the Madison Street Jail. The time-lapse system allows a day's worth of activity to be recorded on one two-hour-plus tape, he says.
Because they are time-lapse tapes, Stroup says, the jail videos aren't worth much if they are played on standard videocassette recorders. The result of trying to copy a time-lapse tape and play it on a regular VCR is a jerky, fuzzy sequence of images that fades in and out and looks like a bad cartoon.
Anderson learned how bad the copies are when he first saw a copy of the videotape of Osipenkof's arrival at the jail's booking room. "You couldn't get any benefit out of a copy," he says.
Several times before his trial, Osipenkof was offered plea-bargains, Anderson says, but he refused. Osipenkof says he was willing to risk a jury trial--and a possible seven-year sentence--because he was certain the tape would clear him.
At trial, Anderson says he insisted that the original tape and the jail's time-lapse playing machine be brought to the courtroom, so the jury could clearly see what happened early that morning.
After three days of testimony, the jury had no trouble reaching a verdict. Osipenkof did not even take the stand in his own defense.
Without the tape, though, Anderson and the two jurors say, the trial's outcome could have been quite different. The case would have boiled down to Osipenkof's word against that of two police officers, and Anderson has no doubt that testimony from peace officers in uniform would have carried more weight.
"Can you imagine [Osipenkof] going up against police officers?" Anderson asks. "They would have convicted him in a heartbeat."
Freed, finally, from jail, Osipenkof hired attorney Bruce Feder to file suit against every individual and agency involved in his arrest, including the cities of Phoenix and Chandler, Maricopa County and officers Willrich and Bluse.
One of the first things he did, Feder says, was try to obtain the original jail tape to make sure it would be available for Osipenkof's civil case.
But when he asked the sheriff's department for it, Feder says, a letter came back with bad news. "It just said, 'It's been destroyed. Thank you very much,'" Feder says.
Court records show that, after Osipenkof's acquittal, all of the evidence presented at his trial--including the tape--was returned to the attorneys involved.
Since there was no conviction and no possibility of an appeal, Anderson says, the court did not ship the evidence to the clerk's office for safekeeping, as it would after a conviction. According to the court records, the jail tape was returned to assistant county attorney Monique Branscomb, the lead prosecutor in the case.
Branscomb, now in private practice, says she can't remember for sure what she did with the tape, but assumes she gave it back to the sheriff's department.
"I can't imagine what else I might have done with it," she says. "I don't generally keep evidence from trials with me wherever I go."
Stroup, the official in charge of the jail taping system, says the original tape probably came back to the department and was reused. Generally, he says, the jail only keeps videotapes for six months before reusing them, and he believes that is what happened with the Osipenkof tape.
All that was kept for a possible civil trial was a copy of the original tape--which is of problematic quality, at best--retained by the County Attorney's Office, according to Lisa Allen, spokesman for the sheriff's department.
But that tape will probably be of little use, Anderson says, because of its poor quality. (An independent video expert given a copy of the tape by New Times said there was almost nothing that could be done to enhance its quality.)
That leaves Osipenkof wondering if he is once again a victim of the process. It strikes him as odd that the county took great pains to save the tape when it wanted to prosecute him, but lost track of it when he wanted it for his own case.
He says he is still hopeful that he will be able to recover damages for his suffering. But without the tape, he is facing an uphill battle.
"If I hadn't had that tape, I definitely would have been found guilty [at the criminal trial]," he says. "I was hurt bad, and I imagine that's why they're covering this up.
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