Attorneys for the Tulsa County Sheriff’s Office told a judge Wednesday that the agency’s own video depicting Elliott Williams dying on the floor of a medical cell over five days isn’t reliable and shouldn’t be watched by a jury.
The video actually failed to capture Williams moving around, eating and drinking despite his apparent paralysis, attorney Clark Brewster asserted during the hearing in Tulsa’s U.S. District Court.
That may be one defense that Brewster and other private attorneys for TCSO try to employ when a high-profile civil rights trial over Williams’ death kicks off next week.
If so, it could be a high-stakes gamble for taxpayers.
Attorneys representing Williams’ estate convinced a federal jury last year that the Sheriff’s Office showed deliberate indifference to a prisoner’s civil rights. Evidence in that case, involving the sexual assault of a teenage girl by a jailer, was far weaker than the evidence in Williams’ case.
The lawsuit over Williams’ death names Sheriff Vic Regalado in his official capacity, Glanz in his individual capacity and the jail’s former medical provider, Correctional Healthcare Companies Inc. CHC has already settled with Williams’ estate for an undisclosed amount and has been dismissed from the lawsuit.
Numerous exhibits expected to be used during the case reviewed by The Frontier show Williams died exactly as the tape depicts: paralyzed from a broken neck and dehydrated, without medical care and unable to help himself.
Aside from the 12-minute video — which condenses the last 50 hours of Williams’ life — there’s the state autopsy, which concludes Williams died from “complications of vertobrospinal injuries” with his body showing a “dehydration pattern” from lack of water.
The jail’s medical director also didn’t see Williams until after he died.
“People just die sometimes,” Dr. Phillip Washburn said during a deposition. The jail’s medical contractor fired Washburn after Williams’ death.
The video showing detention officers tossing trays of food at Williams’ feet and placing a cup of water barely outside of his reach is expected to be a key piece of evidence for jurors during the trial, which starts Wednesday.
In a strongly worded ruling, U.S. District Judge John Dowdell also said during the hearing that he would not remove himself from overseeing Williams’ case. Brewster filed a motion last week alleging Dowdell had a conflict of interest because his former law partner represented the city when it sued the sheriff’s office in 2008 over jail spending and costs.
In his ruling, Dowdell states an affidavit by his former law partner, Joel Wohlgemuth, claiming he and Dowdell had conversations about the 2008 case years ago is “not accurate.” In any case, it doesn’t show bias but does show Brewster “sought out” a reason to seek Dowdell’s disqualification after key rulings in the case didn’t go the county’s way, the judge wrote.
(The ruling notes Brewster represented the county in that suit but didn’t disclose that in his motion or raise Dowdell’s alleged bias until less than an hour before a pre-trial hearing last week.)
Treatment lacks ‘human decency’
Williams, a 37-year-old veteran with no criminal record, died Oct. 27, 2011, after suffering a mental breakdown at an Owasso hotel and ending up in Tulsa’s jail. At some point over the next six days, records show he broke his neck, possibly when he rammed his head into his cell door or when detention officers dumped him from a gurney onto a shower floor.
The jail’s medical and detention staff thought Williams was “faking paralysis” but he wasn’t seen by a physician — who just happened to be in the jail that day — until shortly before he died, records indicate. More than 50 hours of videotape show that jail medical staff did not perform a simple test to determine whether Williams was paralyzed.
But during a pretrial conference Wednesday, Brewster alleged there were moments outside of what the video captured where Williams was moving around. Williams also had food and water, Brewster said.
Though Williams was at the jail for six days before he died, there are only 257 minutes of video showing him in the medical cell, Brewster said.
Dan Smolen, an attorney representing Williams’ estate, said the video is short because the camera was only activated when it detected movement.
However, Brewster repeatedly insisted the camera wasn’t motion-activated, calling Smolen’s assertion that it was “disturbing.” The court and media have assumed that the video proves Williams never moved at all, Brewster said.
“No. It does not,” he said.
Brewster noted there’s also the belief that the “video captured everything in the cell.”
“I can show numerous examples that’s not true,” he said.
Brewster didn’t say what examples he was referencing. He said attorneys for Williams’ estate failed to ask questions about the reliability of the video involving its storage, settings and software.
Smolen said the video was previously produced during discovery and authenticated.
“For the very first time today, we’re hearing this argument,” Smolen said.
Brewster called the recording software complicated and said it was installed on Oct. 22, 2011, the day Williams entered TCSO custody. In fact, the video of Williams might have been the first video to be stored on the server, he said.
The county has not previously introduced this line of argument or any evidence to support it.
In a motion last year, TCSO requested the video be excluded from the trial but was denied. That ruling says the video was produced in discovery by former Sheriff Stanley Glanz and TCSO Deputy Chief Michelle Robinette.
Robinette testified she watched the video of Williams’ last hours of life, the ruling says.
During depositions, Robinette said she was disturbed by Williams’ treatment in the jail and said it “lacks human decency.”
While arguing for Dowdell’s recusal Wednesday, Brewster said even though he has “the highest respect” for the judge, Dowdell should be disqualified from overseeing the case.
Smolen said the defendants decided to seek Dowdell’s recusal at the last minute because the case wasn’t going their way.
“It’s a miscarriage of justice what they’re trying to do here,” Smolen said during Wednesday’s hearing.
Brewster’s firm missed a deadline more than 800 days ago to file portions of depositions it had hoped to use during the trial and Dowdell ruled Feb. 8 that deadline won’t be extended. That’s the same day Brewster said he called the judge’s former law partner about the alleged conflict of interest.
Dowdell joined the firm — Norman Wohlgemuth Chandler and Dowdell — in 1983 and became a shareholder in 1997. He was sworn in as a U.S. district judge for Tulsa’s Northern District in 2012.
Brewster said he was made aware of Dowdell’s involvement in the 2008 case last week, only hours before the pretrial was scheduled. Brewster said he was looking for an explanation for Dowdell’s “sensational statements” in past rulings on the case.
Dowdell called the cell Williams died in a “burial crypt” in a July 2016 ruling allowing the case by Williams’ family to go forward against the county.
“The notion that Brewster just happened to call is disingenuous at best,” Smolen said.
Dowdell’s order denying the request says he doesn’t have bias toward any party, financial interest or personal interest in the outcome of the case. He said the request was untimely and it failed to meet the standards for disqualification.
Attorneys for TCSO also requested a stay in trial for time to potentially appeal Dowdell’s decision, but that request was also denied.
Brewster said after learning of Dowdell’s prior involvement in the law firm, he would likely seek disqualifications in other cases.
Evidence, witnesses debated
During Wednesday’s pretrial conference, parties also discussed what evidence and which witnesses would be allowed to come before the jury.
Attorneys for Williams’ estate sought to permit evidence that would highlight alleged systematic issues with the medical care inmates were receiving at Tulsa’s jail. Among the evidence attorneys for the family are seeking to permit is the personnel file of Washburn, the jail’s medical director at the time.
In addition to three attorneys from the Smolen, Smolen & Roytman firm — Smolen, his brother Don Smolen and Bob Blakemore — Tulsa attorneys Thomas Mortensen, Louis Bullock and Greg Denney are assisting in the case.
Blakemore said the file shows Washburn had no experience supervising a nursing staff, no training for the position and didn’t even know what the job entailed.
Blakemore said he also wants to use records of a disciplinary action against then-LPN Kimberly Hughes which show her failure to provide medical care to Williams.
Brewster said that Hughes’ disciplinary action shouldn’t come into the trial because she died in December 2016 and allegations against her weren’t raised in pleadings. He also noted Washburn was never named as a defendant in the case and his personnel file shouldn’t be allowed.
Brewster’s argument for excluding Washburn’s file from the trial raised the issue of which employees should be held responsible for Williams’ denial and delay of medical care.
Records show more than 50 jail detention and medical staff came into contact with Williams during the six-day period. Williams’ estate wasn’t required to sue all of the employees as individual defendants, Blakemore said.
“Every individual at that jail in contact with Mr. Williams after he began complaining about being paralyzed was deliberately indifferent. This is truly a systemic violation,” Blakemore said.
Deliberate indifference is a key standard plaintiffs must prove in civil rights cases against the government in order to prevail. Attorneys must show the Sheriff’s Office allowed an environment in which the sheriff knew prisoners’ civil rights could be violated.
Washburn’s file is relevant because it shows the lack of supervision and training in Tulsa’s jail, Blakemore said.
Attorney’s for Williams’ family also sought to allow records from 2012 indicating the jail’s former medical director, Dr. Andrew Adusei, was giving inmates injections of a saltwater “placebo” — apparently because he thought they were faking illness — in their jugular veins.
Smolen said the records demonstrate a culture at the jail of believing inmates are faking illnesses.
Guy Fortney, an attorney for TCSO, said the records shouldn’t be allowed because those events came after Williams’ death.
Attorneys representing the county are seeking to use video depicting Williams’ arrest by Owasso police the day he went in TCSO custody.
On Oct. 21, 2011, Williams’ relatives took him to an Owasso hotel “because Elliott had not slept in days and was having psychological issues,” records state. A breakup with his wife had left Williams despondent and he caused a disturbance in the hotel lobby.
Owasso police responded and the situation escalated. Williams, who relatives said had been diagnosed as bipolar in the military, said he wanted to die and did not comply with officers’ commands to sit down.
Instead of waiting for a mobile mental health unit to arrive, Owasso police pepper sprayed Williams and took him to the city jail. Once there, Williams descended further into psychosis, hiding under a bench, taking off his clothes and barking like a dog.
Brewster said the jury should be allowed to watch the video to understand the decisions made in Williams’ medical care because his behavior could be interpreted as a mental health issue rather than a physical one.
However, records show that the jail’s psychiatrist also thought Williams was faking paralysis.
Blakemore said the video isn’t relevant because jail and medical staff didn’t have the information on Williams’ arrest and therefore couldn’t have made decisions based on it.
Dowdell did not issue a ruling Wednesday on what evidence and which witnesses would be permitted to be used during the trial.