The Maricopa County Attorney's Office did not review a 3,000 page internal Arizona Department of Corrections investigation into the 2009 cage death of Perryville Prison inmate Marcia Powell.
The County Attorney's office last week declined to prosecute anyone involved in Powell's heat-related death. The ADC had asked for charges of negligent homicide to be brought against seven corrections officers on duty May 19, 2009, the day Powell was kept in an outside enclosure for four hours in 107 degree heat.
Powell collapsed and was never revived. She later died at West Valley Hospital in the early morning hours of May 20, after ADC director Charles Ryan authorized doctors to suspend life support.
A 3,000 page internal investigation released by ADC last year revealed accounts by inmates that Powell was never given water and that she was mocked or ignored by ADC staff when she asked for water, to go to the bathroom, or to be taken back inside.
Though corrections officers maintained that Powell had been given water, her desiccated corpse argued otherwise. She had been kept outside in the blazing Arizona sun hours past the department's own two-hour cutoff for such en plein air detention. Also, her body was covered in excrement, as she soiled herself while in the enclosure.
But according to ADC spokesman Barrett Marson, the County Attorney's office never reviewed the 3,000 page report released last year. Instead, the CA received a copy of ADC's separate, criminal investigation, which Marson characterized as "even more voluminous."
Based on that criminal investigation, the CA's office concluded that there was "insufficient evidence" to go forward with a prosecution.
Why didn't the CA get to see the internal investigation, which was made public and reported on by several news outlets? This has to do with something called "the Garrity rule," based on the U.S. Supreme Court decision Garrity vs. New Jersey.
According to the Garrity rule, law enforcement officers can be compelled to answer certain questions by their employers, but those statements cannot be used against a LEO in criminal proceedings.
The CA's office is currently preparing the criminal case file for release. In the meantime, they have released a PowerPoint presentation given by ADC staff to the CA's office. You can see a copy of it, here. (Warning, it contains some blurry photos of Powell's corpse.)
"That was like reading the Reader's Digest condensed version of things," said prison reform advocate Donna Hamm after reviewing the document. "Clearly they left out a lot of relevant, very important stuff, like the fact that she had soiled herself a couple of times. It was a cleaned-up condensed version."
Nevertheless, the PowerPoint is damning. It notes that some officers were aware that the mentally ill Powell was on psychotropic drugs that could cause "an elevation of the body temperature."
And you would think that staff psychologist Dr. Susan Kaz, the person who (according to the PowerPoint) directed the c.o.'s to move Powell from her cell to the outside enclosure, would have been aware of this as well.
When Powell's body was examined by the county coroner, it was found to have a core body temperature of 108 degrees Fahrenheit. It may have been higher, as medical thermometers only go as far as 108 degrees.
Corrections officers provided conflicting statements according to the PowerPoint. They didn't keep proper logs and notes. And some displayed callous indifference to Powell's suffering.
When officers discovered that Powell had collapsed, one asked officer Esmeralda Pegues, who was stationed nearby the enclosure, how long Powell had been on the ground.
"Officer Pegues replied with words to the effect of, `several minutes,'" the PowerPoint states.
Pegues was one of the seven officers the ADC requested felony charges on. The others were Evan Hazelton, Iain Fenyves, Electra Allen, Cortez Agnew, Anita Macias and Ariana Mena.
Hamm told me that she doesn't believe that conflicting statements from the c.o.'s should be enough to stop a prosecution.
"In any big crime, there are conflicting witnesses," she argued. "That shouldn't scare off the county attorney."
The CA's decision on this matter is disappointing. I'm left to wonder if things might have been different if Powell had next-of-kin willing to push for indictments on her behalf.
Indeed, there's no one around to even sue. Her aged, estranged adoptive mother, who lives in California, reportedly wanted nothing to do with Powell's case.
More than 16 ADC employees were ultimately fired or disciplined in the fallout from the Powell incident, but that's hardly justice. Powell's death deserves more.
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