Marcia Powell’s Death Unavenged: County Attorney Passes on Prosecuting Prison Staff
The Maricopa County Attorney’s Office has chosen not to prosecute Arizona Department of Corrections staff in the death of inmate Marcia Powell.
Powell, 48, died May 20, 2009, after being kept in a human cage in Goodyear’s Perryville Prison for at least four hours in the blazing Arizona sun. This, despite a prison policy limiting such outside confinement to a maximum of two hours.
The county medical examiner found the cause of death to be due to complications from heat exposure. Her core body temperature upon examination was 108 degrees Fahrenheit. She suffered burns and blisters all over her body.
Witnesses say she was repeatedly denied water by corrections officers, though the c.o.’s deny this. The weather the day she collapsed from the heat (May 19 — she died in the early morning hours of May 20) arched just above a 107 degree high.
According to a 3,000 page report released by the ADC, she pleaded to be taken back inside, but was ignored. Similarly, she was not allowed to use the restroom. When she was found unconscious, her body was covered with excrement from soiling herself.
Powell, who was serving a 27-month sentence for prostitution, actually expired after being transported to West Valley Hospital, where acting ADC Director Charles Ryan made the decision to have her life support suspended.
(Ryan lacked the authority to do this, but that’s another story, which you can read about, here.)
ADC conducted its own criminal investigation into Powell’s agonizing demise. The information I have indicates that ADC submitted its conclusions to the county attorney earlier this year. (Please see update below.) ADC was seeking charges of negligent homicide against at least seven c.o.’s, as well as related charges against other prison staff.
Why didn’t the county attorney’s office pursue those charges? Apparently, they didn’t think they could prevail in court.
County attorney spokesman Bill Fitzgerald issued the following terse statement.
“There is insufficient evidence to go forward with a prosecution against any of the named individuals,” he e-mailed me, declining to elaborate further.
Donna Hamm of the advocacy group Middle Ground Prison Reform wasn’t buying it.
“Having read the bulk of those 3,000 pages of reports,” she told me, “if someone in a prosecutorial position can’t find a crime in those pages, they have absolutely no credibility in my opinion.”
Hamm noted that guards passed Powell several times throughout her stay in the cage, and that some mocked her pleas for water. As for c.o. claims that Powell was given water, Hamm countered that Powell’s eyes “were as dry as parchment,” and that the autopsy results show there was no sign of hydration.
Hamm was incredulous that the county attorney couldn’t find enough evidence to bring charges.
“It’s just beyond comprehension,” she stated. “This is the same office that has prosecuted mothers who left their babies in a couple of inches of water to go outside and take a cell phone call or look in the mail.”
She also cited the case of “Buffalo Soldier” Charles Long, who was prosecuted by the MCAO for negligent homicide in the 2001 death of a kid who had enrolled in his program for troubled teens and died after being exposed to the heat and put in a bath, where he inhaled water.
The ADC did make some reforms in the wake of Powell’s death. It was discovered that the cages were being used to control unruly prisoners, and the ADC claims this practice has stopped. However, Hamm says she has uncovered a case of a man in a Tucson facility who, earlier this year, was held all day and overnight in an outside cage.
Some 16 prison employees were sanctioned in one way or another as a result of the Powell incident, and some were fired. But Hamm says she believes some of those sanctioned have been reinstated.
The outdoor cages are still in use, but have been retrofitted to provide shade, misters, water stations, and benches, which, ironically, Hamm says are metal, and would thus soak up the heat. She’s toured ADC facilities to see the redone cages, and admits that changes are positive, but too late to save Powell’s life, obviously.
“All the retrofitting in the world is worthless if the staff doesn’t follow the policy,” she insisted.
Powell had been diagnosed as mentally ill, and was on more than one psychotropic drug, drugs that increased her sensitivity to heat, sunlight and lack of water. All the more reason, according to Hamm, that prison staff should be held accountable.
The only next of kin that was located for Powell was an aged, adoptive mother in California, who had not had contact with Powell for years, and did not want to take possession of the remains.
So, with the help of Hamm and others, Powell’s ashes were interred last year at Phoenix’s Shadow Rock Church of Christ.
Brophy College Preparatory School also dedicated a plaque to Powell on school grounds this year.
But with no one with standing to bring a federal lawsuit (Hamm says the deadline for a state lawsuit has expired), and with the MCAO unwilling to bring a case against those responsible for Powell’s well-being, there looks to be no justice for the schizophrenic deceased woman.
I asked Hamm what this means for the case.
“It means they’ve gotten away with the most colossal example of brutality I have seen against a female prisoner in the history of the Arizona Department of Corrections,” remarked Hamm, adding, “And they got off scot-free.”
Update, 9/1/10 2:29 PM: ADC spokesman Barrett Marson told me today that the ADC submitted its criminal investigation to the MCAO back on August 20, 2009. He said he did not know if the ADC asked for charges on certain employees.
Marcia Powell Cage Death: County Attorney Releases ADC PowerPoint, Internal ADC Investigation Not Reviewed by CAThe 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.
Source: Feathered Bastard Blog