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Judge rules against county on inmates
Bars attorney, staff from interviews by Justice Dept. at jail

A federal judge ruled Wednesday that the Erie County attorney and her staff may not sit in when the U.S. Justice Department interviews the Holding Center inmates who volunteer to talk about their experiences with the jail's mental health care and suicide-prevention screening.

"Requiring that inmates be deposed [or interviewed] in the presence of county attorneys or employees would likely chill their willingness to speak to investigators or to speak candidly," U.S. District Judge William M. Skretny wrote. "This, of course, defeats the whole purpose of speaking to inmates in the first place."

Further, Skretny ruled that the Justice Department's consultants -- the suicide-prevention experts he has allowed inside the Holding Center on Monday and Tuesday -- need not schedule formal depositions in order to question county employees,
as Erie County Attorney Cheryl A. Green demanded. Skretny already had ruled that Green and her staff could witness those informal conversations with employees.

"Reasonable access to employees is necessary for the consultants to form an understanding and opinion about the suicide practices and protocols," Skretny wrote.

"Moreover, there is no danger of prejudice or element of surprise to defendants," he said, referring to County Executive Chris Collins, Sheriff Timothy B. Howard and their officials who oversee the jail, "because their attorneys are permitted to accompany the consultants and advise county employees as they see fit."

But Skretny drew a line with interviews of county employees by the Justice Department's lawyers, and he granted Green one of the protections she had sought earlier this week -- formal depositions.

The Justice Department lawyers are handling a broad-based lawsuit seeking better conditions inside the Holding Center in Buffalo and the county Correctional Facility in Alden. So Skretny said the Justice Department lawyers may interview county employees only during depositions, when Green can object to the questions and a court reporter will record the back-and-forth.

He said depositions may be taken, on two days' notice, up to 14 days after the Holding Center inspection concludes Tuesday.

Skretny encouraged Green and the Justice Department to continue to work out other logistical differences as they prepare for the federal agency's inspection. But if they cannot agree, he scheduled a hearing before U.S. Magistrate Judge Jeremiah J. McCarthy for 1 p.m. Friday. McCarthy also will be available by telephone if disputes arise Monday and Tuesday, Skretny said.

"We are in the process of reviewing the decision and will evaluate what, if any, additional action should be taken," Green said Wednesday through a county spokesman.

Meanwhile, county crews continue to clean up the facility, with paint, plumbing repairs and general cleaning, to put a brighter face on a jail that even a former staff member calls a "hellhole." A county worker, witnessing the blitz this week, called it the "Extreme Jail Makeover."

After a two-year investigation, the Justice Department sued in 2009, alleging that Erie County was failing to protect the constitutional rights of inmates by condoning beatings and providing poor health care and mental health care, poor sanitation and inadequate suicide prevention, at the Holding Center and the Correctional Facility.

Skretny was considering Green's motion to dismiss the lawsuit when a spate of suicides and suicide attempts occurred in the Holding Center over 90 days. The Justice Department then sought "expedited discovery" to examine the suicide-prevention efforts, and the agency offered its nationally recognized expert to help avoid a further loss of life.

Green opposed the offer as a clear Justice Department attempt to get its foot in the door. Still, Skretny on March 6 granted the Justice Department two days of access and ordered that the county turn over several documents. He said county attorneys could accompany the inspectors and lawyers as they talked with county employees.

The county attorney then told the Justice Department that she would not give up the county's rights under the Federal Rules of Civil Procedure and said the Justice Department must schedule formal depositions to interview any county employee or even inmates, who are not parties to United States v. Erie County.

In his ruling Wednesday, Skretny acknowledged that he had not considered "the precise parameters of the Justice Department's questioning." He said the Justice Department's lawyers -- but not its suicide-prevention expert -- must schedule depositions to question county employees. "The investigative work of lawyers is different from that of consultants or experts," he explained, adding that county employees are arguably defendants in the lawsuit.

Skretny delivered his most direct language on the question of whether inmates must be deposed -- in front of a county lawyer -- if they want to offer information to the Justice Department personnel. Green argued that ad hoc interviews with inmates would pose security concerns and legal problems if they occur without their lawyers present.

The judge said that either party may interview willing inmates. They "are not entitled to counsel in this context nor are they required to speak to the Justice Department if they would prefer to have their attorneys present," he wrote.

He then ordered the county to "make appropriate security arrangements for Justice Department personnel to tour, examine, and inspect" the Holding Center, "as well as to interview inmates in an appropriate room with reasonable accommodations where the participants can be seen, but not heard, and without county lawyers or employees present."

e-mail: mspina@buffnews.com

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