Feburary 3, 2006
The recent end of a federal conspiracy trial which put two ex-Wilson County Jail guards behind bars has signaled a new beginning for a series of brutality lawsuits filed on behalf of former prisoners.
A stay put in place by a federal judge at the request of prosecutors before the start of the criminal trial has been lifted in one lawsuit, and an attorney said Thursday. He expects the same will soon happen in a pending suit filed by a second former prisoner.
Wilson County is facing at least five lawsuits on allegations similar to those which has left one former guard facing a life prison sentence and another facing up to 10 years. A third co-defendant was acquitted.
In addition, five other guards are waiting sentencing on related charges after pleading guilty and cooperating with prosecutors. A ninth former jailer charged early in the 18-month investigation has already been sentenced for assaulting a prisoner.
The county has already paid $400,000 to settle a lawsuit filed by the family of former prisoner Walter S. Kuntz, 43, whose January 2003 head injury death prompted the investigation of the jail and became the centerpiece of the prosecution's case in the just-completed criminal trial.
A lawsuit filed by one victim mentioned prominently during the trial, former inmate Sergio Martinez, has undergone a flurry of activity since a stay was lifted by a federal judge shortly after the completion of the criminal trial.
Martinez – who is also identified in the conspiracy indictment which led to the recent trial – sustained a broken jaw while in custody as a result of an assault which testimony in the criminal trial laid to ex-Sgt. Patrick Marlowe, convicted as the leader of a two-year conspiracy to violate the civil rights of inmates by beating them and falsifying reports and denying medical care to victims.
But Marlowe is not named as a defendant in the lawsuit filed on behalf of Martinez, which an attorney has filed a motion to change.
Attorney Jerry Gonzalez – who is representing four other former jail inmates – has filed a motion seeking to include Marlowe and an admitted co-conspirator in the suit, which already names as defendants former guards John McKinney and Robert Dowell as well as two 'John Doe' defendants unknown at the time the suit was filed in 2002. McKinney pleaded guilty to charges of witnessing an inmate assault but failing to report it in September 2002.
Though the identities of Marlowe and co-conspirator Gary Hale later became known, attorneys for the county argued – and a judge agreed – since the statute of limitations had passed, they could not be included as defendants in the suit.
But a motion filed by Gonzalez maintains the statute of limitations is void when it can be shown the identities of defendants in a civil suit are withheld through "fraudulent concealment."
The motion argues testimony in the criminal trial – particularly Marlowe's admission from the witness stand that he lied on official reports – prove the identities were kept from Martinez by wrongdoing.
Court documents filed in the case state Marlowe "knew that Mr. Martinez had been complaining" about his injury and he and other jailers should have been "put on notice … that the 'John Does' in the lawsuit referred to them" by the DOJ investigation.
The document also quotes McKinney as blaming Marlowe for Martinez's injury in a deposition taken after the original suit was filed answering "I guess because he did it," when asked why Marlowe would inquire about the prisoner's injury.
The motion alleges Marlowe, Hale, McKinney and other guards charged as a result of the criminal investigation – including convicted ex-jailer Shane Conatser and two others charged early in the probe, Travis Bradley and William Westmoreland – "were all acutely aware that Sergio Martinez intended to name them as defendants but for their concealment through their false reports and outright lies to the FBI."
It goes on to claim Sheriff Terry Ashe and Lt. Eddie Fitzpatrick "were aware of Mr. Martinez's claims … and did nothing to investigate the claims."
"The fraudulent concealment is now out of the bag and it is time these defendants were called to answer civilly for their crimes," the motions states.
Westmoreland – who pleaded guilty to assault and cooperated with prosecutors – was one of the first witnesses called during the criminal trial, telling the jury Marlowe punched Martinez after referring profanely to the inmate as he was being booked into jail. Testimony also touched on reports guards wrote about their encounter with Martinez, which Westmoreland and others testified were false.
A stay in place in a fifth lawsuit against the jail which names as defendant an ex-guard already serving a sentence for assault will also likely be lifted in the near future, an attorney said Thursday.
Lebanon attorney Adam Parrish said he will request the stay be dissolved if it is not lifted within the next few weeks. Parrish represents an inmate who claims he was unlawfully struck by ex-jailer Chris McCathern, who pleaded guilty to an assault and was sentenced shortly afterward to three years, five months in prison. McCathern apparently did not cooperate with federal authorities.
Senior Staff Writer Brooks Franklin can be reached at 444-3952 ext. 14 or by e-mail at firstname.lastname@example.org.
Jail brutality lawsuits may proceed
Feburary 3, 2006