The way Welch tells it, he was beaten for no good reason during an inmate uprising on August 12, 2002, at the medium-security institution at 7600 Hall Street. Guards say they used the minimum amount of force necessary to quell a riot. While one guard admits hitting Welch on his arms and legs, he insists he struck no other blows and acted only after the inmate refused orders to lie on the ground.
Welch, who is now serving a ten-year sentence for stealing at the Ozark Correctional Center in Springfield, says he was attacked after a major, who'd had some sort of liquid thrown at him, warned that the inmates would suffer the consequences if the culprit wasn't identified. Corrections officials dispute that claim, countering that inmates had spread water and baby oil on the floor and were tossing chairs, soap and dominoes after being denied television and telephone privileges. The prisoners, they say, tied their cell doors shut with sheets and challenged guards to come get them. Guards used batons, mace and a fire hose to restore order.
One thing is clear: Welch emerged from the fracas with sutures in his scalp and post-concussion syndrome. But after Welch sued city officials for cruel and unusual punishment, a videotape that could help prove who's telling the truth has disappeared. Corrections officials have also given conflicting statements about reports that are supposed to be filed by every guard who uses force or witnesses force being used by colleagues -- first saying the use-of-force reports were completed, then saying they never existed.
"This is getting a little bit crazy," said U.S. District Court Judge Carol Jackson on Monday after hearing from corrections officials whose statements under oath often contradicted sworn testimony they'd provided earlier. "There are some serious problems in this case with the credibility of some of these witnesses. I am very concerned about this. What I expected was witnesses to come in here to fill in the blanks. What I didn't expect was witnesses to come in and testify completely differently than they did in their depositions and affidavits. This is pretty ridiculous, and it should not happen."
Jackson called the hearing after guards and corrections supervisors retracted sworn statements in which they asserted that guards had completed the required reports and forwarded them to supervisors, who had read the documents. The judge noted that officials had sworn in affidavits that they'd searched for the reports. "If these use-of-force reports were not prepared, what were you looking for?" the judge asked. "I haven't seen an affidavit from any defendant saying, 'I know for a fact these weren't done.'"
Early in the proceedings, Jackson said she expected testimony to match sworn statements. "I hope they will testify consistently with their affidavits, because if they don't, that's going to create an even bigger problem," the judge warned associate city counselor Thomas J. Goeddel. "These are affidavits. These are supposed to be the words of those who signed these documents under oath. They aren't supposed to cover all the bases. They're supposed to be the truth."
But time and again corrections officials told stories that differed from what they'd previously stated. Stella Elliott, the guard who made the videotape, testified that she'd never searched for it, even though she'd sworn in an affidavit that she had done so. Jacqueline Gammill, secretary to former city corrections commissioner Dora Schriro, said she hadn't spent much time looking for the missing videotape because one of her bosses had told her it wasn't important.
Gammill also contradicted sworn statements by Schriro, the last person to admit possessing the tape. After viewing the video, Schriro said in an affidavit, she sent it back to the workhouse, most likely in care of Gammill, as was her usual practice. Gammill insisted that didn't happen, adding that Schriro, who is now director of the Arizona Department of Corrections, had never given her any videotapes during the time she was employed by the city. Meanwhile, Gary Hayes, an investigator for the city's Department of Public Safety, told the judge that he started asking Schriro for the videotape shortly after the uprising so he could formally close his investigation into the matter. Despite repeated requests, Hayes testified, Schriro never produced the video, nor did she ever tell him that she'd returned it to the workhouse or given it to her secretary. Under workhouse policy, tapes made to discourage misbehavior by guards and defeat false claims by inmates are supposed to be preserved for five years.
Schriro did not return a telephone call from the Riverfront Times, nor did she appear at Monday's hearing. Jackson declined an offer from the city's attorney to have her testify by telephone. "There's some credibility issues here," the judge said. "I'm not entirely comfortable taking testimony by telephone when I want to have the opportunity to see the witness."
The judge's frustration appeared to increase with each witness. Guard LeRonald Loper, who admits to striking Welch on his legs and arms with a baton, told the judge he never wrote a use-of-force report and that he'd "misunderstood" the inmate's lawyer when he'd asserted otherwise during a July deposition. Kevin F. Hormuth, Welch's attorney, then read Loper's deposition into the record:
Q: Did you fill out any reports after this incident?
Q: What did you fill out?
A: A [sic] incident report.
Q: Anything else?
A: And a use-of-force report.
Carl Gilmore, who was deputy superintendent of the workhouse during the uprising and is now deputy superintendent of the city's maximum-security lockup, swore in his deposition that he had read use-of-force reports that the city now claims never existed. "I believe it was a matter of semantics," Gilmore testified Monday, explaining that he'd considered other reports that had been prepared to be "reports on the use of force."
Jackson interrupted Hormuth's questioning of Gilmore, saying she was frustrated by answers provided by corrections officials. "I think everyone agrees force was used against Mr. Welch," the judge said. "The concern I have is what I'm hearing now -- that at one point everyone thought these use-of-force reports were completed. Now, no one thinks they were. It's like a moving target."
Jackson ended the day by demanding all depositions from witnesses who had appeared before her. She also lectured the city's lawyer on how to take an affidavit. "Mr. Goeddel, in the future, when you are trying to get information from your clients, make sure they are providing information to you, not the other way around," the judge admonished.
Hormuth asked Jackson to sanction the city or issue a default judgment in favor of his client. The judge stopped short of doing either, but she told Hormuth he didn't need to respond to a city motion to dismiss the case. "I'm not sure what I'm going to do on this motion [for sanctions and default judgment], but I'm not happy about any of this, I can tell you right now," she said.
Jailhouse videos can be damning evidence. In 2000, Missouri inmates won a $2.2 million settlement in a class-action lawsuit after a camera captured beatings by guards at a private prison in Texas. The money came from companies that managed the private lockup and transported inmates, but the incident forced Missouri to bring inmates back to overcrowded state prisons.
Schriro was director of the Missouri Department of Corrections at the time. She was also running state prisons when videotapes vanished in three other lawsuits.
In 1997, the Eighth Circuit Court of Appeals upheld a $20,000 verdict against state corrections employees stemming from a lawsuit filed by inmate Jeffrey L. Davis, who claimed he'd been beaten by a guard at the Potosi Correctional Center. A video of the incident disappeared, but attorney Joe Jacobson, who represented Davis, says he was able to prove the beating occurred based on Davis' injuries, as well as testimony from guards and an aide to a state senator who'd seen Davis' swollen face. But Jacobson believes his client would have won substantially more had corrections officials produced the video, which he says would have shown Davis being held down by four guards while another assaulted him. "What I had were dry medical records and written reports," Jacobson says today. "Compare that to a color videotape of a guy getting his head repeatedly smashed against the floor and blood everywhere. You ask yourself: Which is going to result in a higher award?"
In 2001, the Eighth Circuit ruled in favor of inmate Robert Foulk, who claimed he was wrongly maced at Moberly Correctional Center, upholding his award of $1 in damages but finding his lawyer was entitled to no more than $1.50 in legal fees. (The trial judge had awarded more than $12,000 in attorney's fees.) State corrections officials claimed they had either destroyed or taped over a video of the incident.
Last year the Eighth Circuit upheld a $10,002 verdict won by Potosi inmates Edward V. Lawrence and Dennis Kirksey, who claimed they were soaked with pepper spray during a search of their cell. The state claimed it couldn't find an unaltered videotape of the confrontation.
Jackson presided over the Davis and Lawrence cases. In addition to upholding the verdict, the appeals court in the Lawrence case ruled that Jackson acted properly in levying $8,712 in sanctions against the state for refusing to produce an unedited video of the incident before finally claiming that it had been lost. The court decided that Jackson had been "generous" in ordering financial penalties instead of issuing a default judgment. "We are aware that large bureaucracies cannot have a foolproof system for preserving records," wrote the appeals court. "However, three missing videotapes in approximately five years of incidents giving rise to litigation within one prison system strikes us as more than mere coincidence."
Taxpayers shelled out another $15,000 in attorney's fees in that case -- the maximum allowable under the federal Prison Litigation Reform Act, which limits legal fees to 150 percent of the underlying award.
Daniel O'Keefe, the attorney for Lawrence and Kirksey, says edited videotapes produced by the state may have swayed the jury. "The tape was running when the guards approached the [cell] door," O'Keefe recalls. "Then it was spliced. It came back on as the macing itself was occurring. There's a minute or two lapse. The problem is, of course, that the prison officials' defense was that they had been provoked. The only thing that could have shown that, aside from the testimony, was the tape itself, and the tape was edited so we couldn't see that. Certainly, my suspicion was the jury disbelieved the other side based on the gap in the tape."
On Monday, Jamar Welch's attorney reminded Jackson of the Eighth Circuit's decisions. He also noted that Schriro was in charge of state corrections when prison officials claimed they lost videotapes in those cases.
"The pattern of misplacing videotapes must be stopped," Hormuth said. "They [corrections officials] know it's important. This court should prevent the city from going down the same path as the Missouri Department of Corrections."
Welch's mother and aunt sat in the front row throughout Monday's proceedings. Afterward, they looked dumbfounded.
"They had them and then they didn't have them," said Joyce Artis, Welch's aunt. "It was like a David Copperfield thing."
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