Some backstory: In July, a handful of inmates traveled to Phoenix to testify about the dismal medical care in Arizona state prisons. All four said they were worried about facing retaliation when they returned to prison.
Two mentioned that they'd already had all their possessions removed from their cells — suggesting that they would either find themselves relocated to a less-favorable housing assignment when they returned, or would come back to find some of their belongings missing.
"I think that it is fair to call that intimidating and chilling," Judge David K. Duncan later told the Department of Corrections' lawyers, who claimed that the "roll-ups," as they're called, weren't intended to be retaliatory.
But it didn't end there. Two days after the hearing, one inmate who had provided a written statement was moved into a cell shared by a reputed gang member with a documented history of violence. The transferred inmate claimed she'd received no explanation about why the move was taking place, and believed it was an attempt at intimidation.
So, last week, after an emergency hearing, Duncan issued an order formally telling the ADOC that it couldn't "harass, intimidate, or otherwise retaliate against" witnesses who had testified in court.
Shouldn't be a big deal, right? Especially if you weren't trying to harass inmates to begin with? But it seems to have irritated Ryan to no end.
Per the judge's instructions, he sent an email sent to his staff tersely telling them that "there will be no 'real or perceived' retaliation, intimidation, or abuse of any kind toward any inmate."
Then, he went off on a lengthy rant:
As you work to ensure absolute adherence to this order, please remember that Magistrate Judge Duncan issued his order after hearing only one side of the story, the bare allegations of two inmates. Our attorneys were not given an opportunity to present any evidence — which we have in abundance — to refute the inmates' bare allegations. So, while the order states that we 'offered no rationale' for what was a legitimate inmate housing decision, that is because our attorneys were not allowed to offer any evidence in support of that decision. Thankfully, our attorneys ultimately were able to convince Magistrate Judge Duncan to provide us with an evidentiary hearing to present actual evidence to refute the bare allegations of these two inmates. That hearing will happen soon.
While it certainly is disappointing, and even troubling, that Magistrate Judge Duncan issued his order before hearing any, let alone all, of the actual evidence, and that he accepted as unalterable truth the bare allegations of two inmates, please know that I and our entire legal team are working closely together to convince Magistrate Judge Duncan to rescind his order after listening to ADOC's side of the story at the upcoming evidentiary hearing.
Please also know that I recognize and sincerely appreciate the honor and integrity that the thousands of you bring to your challenging jobs every day. You all deserve much better than this preconceived order and the jaundiced media reporting of it. Thank you for your devotion and service.
"It’s really quite extraordinary," David Fathi of the ACLU says. "I've been doing these cases since 1990, but I've never seen anything quite like this."
He describes Ryan's claim that the ADOC was not given the opportunity to refute the inmates' allegations as "categorically false."
"We presented our evidence by providing written statements to the court," he explains. "They could have done that, but chose not to. The idea that they were somehow deprived of the opportunity to submit evidence is just false."
And transcripts from the emergency hearing show that Rachel Love, an attorney representing the Arizona Department of Corrections, did try to argue that no intimidation or retaliation had taken place — only to have Duncan knock down her explanations as "preposterous."
The ADOC has not returned a message from Phoenix New Times seeking comment. New Times also was unable to reach Judge Duncan for comment, but it's safe to say that Ryan's email — which, bizarrely, was submitted as evidence that the ADOC is complying with his order — is probably not going to engender much goodwill.
well over $2 million — just for the violations accrued in a one-month period alone. And, of course, it's taxpayers who will ultimately end up bearing that cost.
Meanwhile, Fathi says that he and the other attorneys who represent Arizona inmates in the ongoing class action lawsuit are still hearing reports of guards retaliating against inmates who speak up, despite the judge's order.
Ryan's message to Department of Corrections employees, Fathi says, is "a really troubling attack on the authority of the federal courts."
"It begins by saying all staff should comply with this order, but then proceeds to undermine and delegitimize the order," he explains. "I think it sends the unmistakable message that this order is not legitimate and should not be obeyed, and that’s very troubling."
He adds, "In litigation, nobody likes to lose, but this kind of public attack on the legitimacy of the court — coming from a top state official — is very disturbing."