MCSO Abuse of Vulnerable Adults and the Rule of Law

UPDATE (10/20/11):
Gerster's Sentencing


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Montgomery's Follow-up Here
(9/11/2011)

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That law being Arizona Revised Statute 13-3623, which is supposed to protect children and vulnerable adults from abuse...

William Franklin Hughes III

I did a little research on MCSO detention officers Gerster's and Keesee's victim, William Franklin Hughes III. He was arrested on a couple of different occasions in October for things like criminal damage, disorderly conduct, and indecent exposure. He had only one other prior, according to court records - a charge for possession of marijuana two years ago, for which he did probation.

This is the mugshot of a "vulnerable adult,"
one who wasn't even yet found competent to stand trial

Looking at William's mugshot (directly above), it actually appears he may have been roughed up during one of those recent arrests, but the big smile on his face - and the judges' November 9 order that he have a Rule 11 (competency) hearing - suggests that he is indeed mentally impaired. His attorney appears to have tried to get him released from jail that same day - just before the assault - but the judge denied the motion.


In any event, William was a pre-trial detainee, not a criminal serving a jail sentence, for those of you to whom that matters. He was a nuisance, perhaps, but there's no evidence he posed a real threat to anyone except himself. I suspect that the only reason the judge kept him in jail was because she thought he would be safe there, and might otherwise get in trouble again back out on the street.


Too bad no one with the power to do so decided to protect him in a psychiatric hospital instead.

Some of the news accounts I've read of Gerster and Keesee's assault on William suggest that just before Gerster jumped up on the table and stepped on his neck, the other officers had bent him over the table preparing to remove his handcuffs. Whether or not that was the case, Gerster clearly assaulted a prisoner who was not only restrained but also subdued.

It was also reported that Gerster assaulted William a third time, slamming his head up against the wall out of the view of cameras once he got him into his cell. That left the poor kid not only traumatized but also bruised and bleeding. Even so, the jail staff didn't see fit to get him any medical attention. The guys who were holding William as Gerster repeatedly assaulted him - with the help of Keesee - didn't even try to protect him.


I keep looking at his photos and wondering if they weren't giving him such a hard time because he was smiling or laughing at them. That's just what a lot of mentally disabled people do.

This is an abuser's mugshot...

The excuses Arpaio's new right-hand man, Jerry Sheridan, makes for why they didn't already nail Gerster for breaking another mentally ill prisoner's jaw in June are pathetic: if that was an officer who was assaulted, they would have arrested him within 24 hours - and neither William nor the couple that Gerster's friend attacked (with his help) would have ended up getting hurt by him.


As I see it, that guy's responsible for 3 counts of assault against William, one against Michael Flores (who was naked in 4-point restraints when Gerster attacked him), and conspiracy to to do great bodily harm to his buddy's ex-wife and the former prisoner she was dating (what did he think that guy was going to do with the address he illegally provided him with? Deliver flowers?). Those are all violent crimes - which sure makes him look like a repeat offender. I don't know how it is that he's out on bond in less than 24 hours, when William apparently didn't even have that option and he didn't hurt a soul.


What turns my stomach the most is that both Gerster and Keesee were responsible for taking care of mentally impaired prisoners - and you know these weren't the only times they abused them, by how casual and public they were about it. It seems like it was just a fluke that they got reported. The fact that they seemed to think they could get away with it indefinitely, even though they had to know they were on candid camera, is pretty disturbing.


Looking at how often staff in the MCSO jails have outright killed prisoners and faced no criminal consequences explains a lot, though. Arizona's big, bad tough-on-crime politicians are always saying that we need to "make an example of criminals", or everyone else with think they can get away with it too. Where were they when the Maricopa County Attorney decided not to prosecute anyone from the Arizona Department of Corrections for Marcia Powell's death?

And where were our representatives and public officials for all of Arpaio's victims of abuse and neglect? I don't recall them demanding that anyone be held accountable for Charles Agster, Scott Norberg, Juan Mendoza Farias, the unborn child of Michelle McCollum, Jose Rodriguez, Steve Cervantes, Jefferson Davis McGee, Eric Vogel, Matthew Creamer, Lance Hawthorne, Clint Yarborough, Kevin Holschlag, Brian Crenshaw...the list goes on and on. What could possibly be taking the feds so long, anyway?


Maybe I missed something, but in all those stories about the MCSO jails I haven't found one case of someone being held criminally responsible for their abuse or neglect. They murder people in there and get a pass every time. Yet if one of us gets shoved into a police horse during a protest, we're charged with assaulting an officer (even if it was a cop who did the pushing). If the banner we carry bumps someone with a badge and a gun in the midst of a panicking crowd, we face ten years in prison for accosting a public servant with a "deadly weapon" (ironically, that all really happened at an anti-Arpaio demonstration).


And where are those tough-on-crime, big-on-victims'-rights lawmakers and enforcers now, for all those sick, troubled, and despairing prisoners being abused in the custody of the MCSO? Too many of them are busy defending Arpaio's kind of "justice" instead of protecting his victims. Read some of those stories, and tell me how anyone with any ethical foundation at all can justify Arpaio's rule of law. I'm a citizen of this state, a tax-payer, a part of the public that the MCSO is sworn to protect and defend, and I can't help but wonder: what if my brother was in their hands? What if it was me?


What a sad thing it is to fear that someone I love is more likely to get hurt by the police in this state than by almost anyone else they encounter on the street.


It angers me that after all those tragedies - horrible traumas and deaths in his care - Arpaio still makes his devaluation of his prisoners' lives and welfare a point of pride. It's no wonder Flores and William Hughes were assaulted while fully restrained. The "tough" leadership at the MCSO provides a model for officers like Gerster and Keesee to emulate. Tough indeed: only bullies and cowards gang up on and brutalize people in chains, then pat each other on the back for being such brave and noble public servants. Those men are criminals of the worst kind - the kind empowered by the public's trust.


Most disturbing of all is that sadists like Joe Arpaio constantly get re-elected here, despite their long history of abusing both their power and the people. That tells me there's a real soul-sickness in this place that runs deeper than the state government and the MCSO.


Arizona law - if we are indeed abiding by the almighty "rule of law" in this state - provides extra protection for mentally disabled adults from abuse, yet it doesn't appear as if anyone has the intention of invoking it to protect the people getting brutalized the most. I think those who care about vulnerable adults need to ask Mr. Montgomery at the Maricopa County Attorney's Office why Kevin Gerster and Alan Keesee aren't being prosecuted for class 2 felonies (dangerous offenses). While you're at it, ask why those officers who were present and failed to protect their mentally ill prisoners from abuse aren't being prosecuted for class 6 felonies (also dangerous offenses) - under the statute below.


For those of you who missed the elections, "Bill Montgomery was elected Maricopa County Attorney in 2010 on a pledge to fight crime, honor victims’ rights, and protect and strengthen our community." He was supported wholeheartedly by Joe Arpaio, but let's hold him to the letter of the MCAO creed to "ensure justice for all", anyway. He might just come through for us. If not, then I think we should head for the U.S. District Attorney's office and demand that they charge our rogue local lawmen for federal civil rights violations in criminal court. Otherwise, this abuse won't ever end...

“The power that accompanies a police officer’s badge does not give the officer the right to violate the civil rights of those in his or her custody. The Justice Department will aggressively prosecute any officer who abuses their power and violates the public trust in this way."

Thomas E. Perez
Assistant Attorney General, Civil Rights Division

(on the November 2010 sentencing of former Baltimore officer Gregory Mussmacher to five years in federal prison for assaulting a prisoner)

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Arizona Revised Statutes

13-3623. Child or vulnerable adult abuse; emotional abuse; classification; exceptions; definitions

A. Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense as follows:
1. If done intentionally or knowingly, the offense is a class 2 felony and if the victim is under fifteen years of age it is punishable pursuant to section 13-705.
2. If done recklessly, the offense is a class 3 felony.
3. If done with criminal negligence, the offense is a class 4 felony.
B. Under circumstances other than those likely to produce death or serious physical injury to a child or vulnerable adult, any person who causes a child or vulnerable adult to suffer physical injury or abuse or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense as follows:
1. If done intentionally or knowingly, the offense is a class 4 felony.
2. If done recklessly, the offense is a class 5 felony.
3. If done with criminal negligence, the offense is a class 6 felony.
C. For the purposes of subsections A and B of this section, the terms endangered and abuse include but are not limited to circumstances in which a child or vulnerable adult is permitted to enter or remain in any structure or vehicle in which volatile, toxic or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug in violation of section 13-3407, subsection A, paragraph 3 or 4. Notwithstanding any other provision of this section, a violation committed under the circumstances described in this subsection does not require that a person have care or custody of the child or vulnerable adult.
D. A person who intentionally or knowingly engages in emotional abuse of a vulnerable adult who is a patient or resident in any setting in which health care, health-related services or assistance with one or more of the activities of daily living is provided or, having the care or custody of a vulnerable adult, who intentionally or knowingly subjects or permits the vulnerable adult to be subjected to emotional abuse is guilty of a class 6 felony.
E. This section does not apply to:
1. A health care provider as defined in section 36-3201 who permits a patient to die or the patient's condition to deteriorate by not providing health care if that patient refuses that care directly or indirectly through a health care directive as defined in section 36-3201, through a surrogate pursuant to section 36-3231 or through a court appointed guardian as provided for in title 14, chapter 5, article 3.
2. A vulnerable adult who is being furnished spiritual treatment through prayer alone and who would not otherwise be considered to be abused, neglected or endangered if medical treatment were being furnished.
F. For the purposes of this section:
1. "Abuse", when used in reference to a child, means abuse as defined in section 8-201, except for those acts in the definition that are declared unlawful by another statute of this title and, when used in reference to a vulnerable adult, means:
(a) Intentional infliction of physical harm.
(b) Injury caused by criminally negligent acts or omissions.
(c) Unlawful imprisonment, as described in section 13-1303.
(d) Sexual abuse or sexual assault.
2. "Child" means an individual who is under eighteen years of age.
3. "Emotional abuse" means a pattern of ridiculing or demeaning a vulnerable adult, making derogatory remarks to a vulnerable adult, verbally harassing a vulnerable adult or threatening to inflict physical or emotional harm on a vulnerable adult.
4. "Physical injury" means the impairment of physical condition and includes any skin bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition that imperils health or welfare.
5. "Serious physical injury" means physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.
6. "Vulnerable adult" means an individual who is eighteen years of age or older and who is unable to protect himself from abuse, neglect or exploitation by others because of a mental or physical impairment.

Honoring the Public's Trust.

After all we've seen in recent months, how can we be confident that ANY of the people Thomas' office has locked away or whose innocence claims he ignores now are guilty of what they were charged with or truly deserving of the sentence they received?

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Civil-racketeering case may prove Andrew Thomas' undoing

by Michael Kiefer - Mar. 31, 2010 12:00 AM
The Arizona Republic

ANAYLSIS

Last fall, Maricopa County Attorney Andrew Thomas announced that he was thinking of running for Arizona attorney general in November's general elections.

He seemed a shoo-in.

But since then, he has become the subject of an FBI investigation into possible abuse of power, a state Bar investigation into possible unethical behavior, and two potential lawsuits related to prosecutions of county officials.

His high-profile criminal cases against two county supervisors and a sitting Superior Court judge have collapsed. And he has been indirectly rebuked by a ranking official in the U.S. Department of Justice for wrongly implying at a news conference that the federal government would take over wide-ranging investigations into allegations of county government corruption.

Those asking where it all went wrong may well find the answer in a major strategic blunder by Thomas: filing a federal civil-racketeering suit against a host of county officials and private attorneys that proved to be the undoing of everything else.

The suit named a long list of alleged conspirators, including county management, the county Board of Supervisors, four Superior Court judges and two attorneys in private practice.

In legal circles, it was ridiculed from its inception for its failure to meet basic legal standards like court deadlines and definitions. One opposing attorney derisively quoted "Humpty Dumpty" in a motion to dismiss the case. It had not even passed through the initial stages of court procedure when Thomas and his co-plaintiff, Maricopa County Sheriff Joe Arpaio, withdrew it March 11.

The racketeering case may have been flawed from the start because it runs afoul of a basic legal concept: You can't sue someone in civil court, then press criminal charges against them, without raising eyebrows.

That collision of intentions prompted a Superior Court judge hearing one of the criminal cases to rule that Thomas had a conflict of interest. The state Bar agreed and has since asked the Arizona Supreme Court to investigate Thomas' ethics.

Thomas won't say if he still plans to run for attorney general. But he has a tough decision to make in the face of all that has transpired since September.

The battle begins

Thomas has been battling with the Superior Court since early 2006 and with county management and the Board of Supervisors since late 2008.

Last Dec. 1, he and Arpaio launched their racketeering lawsuit alleging wrongdoing under the federal Racketeer Influenced, Corrupt Organizations Act.

"Racketeering law was originally designed and passed to go after organized crime," said Mike Piccarreta, a Tucson attorney. "Then, it has been used and abused over the years by prosecutors to cover almost every type of criminal behavior."

In their lawsuit, Thomas and Arpaio accused judges and county officials of conspiring against them by denying funding of their county budgets, thereby denying them their offices and their livelihoods. It also accused them of obstructing criminal probes into the construction of a new court tower.

The suit's accompanying narrative detailed various ongoing spats among county officers.

It even recounted a dispute over a county prosecutor's fender-bender in a county garage and how the attorneys for the county had laughed at a deputy county attorney in court. That attorney, Lisa Aubuchon, wrote the initial RICO complaint.

Thomas told The Arizona Republic he chose Aubuchon for the job because she is fearless and smart and "because our civil attorneys were terrified to try anything against the Board of Supervisors."

Thomas also said three supervisory criminal prosecutors refused to take the case for fear of retaliation by county administrators.

A week after the racketeering suit was filed, Aubuchon also became the prosecutor of record in criminal indictments against county Supervisors Don Stapley (alleging misuse of campaign funds) and Mary Rose Wilcox (alleging she did not report a loan from an organization receiving county funding). A day later, Aubuchon filed a criminal complaint against Judge Gary Donahoe alleging bribery, hindering prosecution and obstructing an investigation into a court-construction project from which Donahoe had previously disqualified Thomas because of perceived conflicts of interest.

Technically flawed

Experts theorize that Thomas filed the RICO suit to take advantage of the liberal "discovery" rules of federal civil court. Discovery is the exchange of information between plaintiff and defendant attorneys. Criminal courts strictly limit what can and cannot be divulged. Civil-court rules are broader and the level of proof required for a verdict less stringent, which, under some circumstances, might have allowed Thomas to learn more about his political opponents.

But Thomas' RICO suit was technically flawed. Racketeering statutes are precise, said Andy Hessick, an Arizona State University law professor, and "you have to show specified activities."

The suit alleged bribery and extortion, for example, but never delivered evidence that either activity took place.

"Extortion means wrongfully demanding property from someone else. It's like blackmail," Hessick said. "And bribery means to pay an official to get a result. Laughing at someone in the courtroom is neither."

James Ryan, one of the defense attorneys in the case, said the initial complaint did not identify the criminal enterprise in which the defendants supposedly engaged. And Hessick, Ryan and Piccarreta all pointed out that Thomas' claims in the RICO case vacillated between those he made as an individual and those he made as a public official.

The judges named in the case protested on the grounds that they had absolute judicial immunity in the rulings they made. Their message: You can't sue judges because you don't like their decisions.

In January, Thomas passed the RICO case to a civil attorney in his office named Rachel Alexander.

Alexander made herself something of a target for defense attorneys, occasionally running afoul of court rules and creating waves with her pro-Thomas political activities outside the office.

Those activities came into play in the racketeering case when defense attorney Ryan, in a response to one of Alexander's pleadings, attached one of her online writings in which she excoriated "cowardly federal judges" for throwing out a Thomas case for procedural errors.

Disqualified

Everything began unraveling in January.

The criminal case against Judge Donahoe was referred to a judge in Pinal County, who postponed the matter after defense attorneys pointed out Thomas' conflict: He was suing Donahoe in the civil-racketeering case.

In February, Thomas was called to testify before a Pima County judge asking why he should not be disqualified from the Wilcox case because of a potentially similar conflict. Defense attorneys argued he was engaging in political retaliation.

Thomas ultimately was disqualified and the Wilcox indictment thrown out, prompting him to dismiss the cases against Stapley and Donahoe, lest they be dismissed by court rulings as well.

Colin Campbell, Wilcox's attorney, said the RICO suit "cemented the disqualification to the point that it undid his prosecution."

Thomas nonetheless defended the racketeering suit, saying shortly after the Wilcox case was thrown out: "I don't believe, as a matter of law, that a prosecutor is prohibited from prosecuting criminal defendants who are party to a RICO suit.

"Everyone wants to mischaracterize that lawsuit as a so-called conspiracy theory, but I would challenge anyone with a sense of fairness just to read the facts."

Two weeks later, Thomas and Arpaio voluntarily withdrew the lawsuit.