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Ground rules set for federal visit
Judge establishes guidelines for Justice Department to tour Erie County Holding Center

The lawyers Friday hashed out some of the final logistics.

A magistrate handed them his cell phone number, figuring more disputes will arise next week.

But barring a surprise, the U.S. Justice Department will begin its court-ordered and long-awaited tour of the Erie County Holding Center at 8 a.m. Monday.

County Attorney Cheryl A. Green, who has maintained an almost two-year opposition to federal intervention in the busy jail, repeated after a court appearance Friday that she's still trying to protect taxpayers from the Justice Department's potentially expensive "prisoners' rights agenda."

Green has appealed U.S. District Judge William M. Skretny's order that the Justice Department's suicide-prevention experts may informally interview inmates and county employees about suicide screening and mental health programs.

Green wants those interviews conducted only during formal depositions, when she can object to the questions while a stenographer or court reporter takes down the exchanges.

She said the Federal Rules of Civil Procedure allow this, since the Justice Department's inspection next week comes as part of a broad lawsuit alleging that Erie County fails to protect inmates' rights on several fronts.

Green turned to the Second Circuit of the U.S. Court of Appeals on behalf of the defendants, County Executive Chris Collins, Sheriff Timothy B. Howard and the host of lower-level officials who supervise the jail.

She also asked Skretny to hold off on his order allowing the informal interviews, to give her time to present her appeal to the Second Circuit.

On Friday, Skretny refused.

"There have been three reported suicides and two attempted suicides at the Erie County Holding Center in the last three months, with the most recent suicide occurring just 16 days ago," he wrote in his order refusing
Green's request for a "stay."

"Further delay prevents the Justice Department's assessment of whether a preliminary injunction imposing certain changes at the ECHC could reduce this suicide rate."

Also, with county crews painting, cleaning and repairing the jail after years of neglect, Skretny said he did not want to give Erie County more time to mask the true conditions inside the Holding Center.

With the request for a stay denied, Green and the Justice Department lawyers worked with U.S. Magistrate Jeremiah J. McCarthy on Friday in a prearranged hearing to settle disputes over next week's arrangements.

Green said that even if the Second Circuit issued a stay over the weekend, she would expect the inspection to begin Monday. However, if she eventually won the appeal, it could affect the admissibility of testimony gathered Monday and Tuesday, she said.

Before McCarthy, Green revealed her next gambit in her quest for formal depositions as the consultants question county employees: She intended to have a stenographer tagging along to transcribe whatever interviews unfolded.

She said Skretny's ruling did not prohibit her from doing so.

McCarthy, brought in to iron out the logistics and not to rehear the county's arguments about proper information-gathering, halted that idea.

However, he allowed one member from the county attorney's office to carry a digital recorder and one person from the Justice Department team to do the same. They are to then exchange their recordings at a later date.

The hearing before McCarthy revealed these facts about the Justice Department's visit:

*Eleven people will arrive, including three paid consultants trained in suicide-prevention and mental health care.

*The 11 will be broken into teams of three or four, with one team allowed inside the Holding Center at a time.

*Entries will be allowed starting Monday from 8 a.m. to 1 p.m. and then from 4 to 7 p.m. The Justice Department can enter again from midnight Monday to 2 a.m. Tuesday; from 8 a.m. to 2 p.m. Tuesday; and finally from 4 to 7 p.m. Tuesday. The times are geared so the inspectors can watch multiple work shifts.

McCarthy refused Green's request to allow each inspector to enter only once during each phase: "I will not put any limit on how often a particular person may go through the facility," he said.

*Inmates will be selected for interviews based on what the Justice Department consultants find in the records they inspect. The inmates, if willing, will be questioned in rooms where they can be seen but not heard by county lawyers and other county personnel.

*Under Skretny's ruling, whenever Justice Department lawyers interview county employees, they must do so during formal depositions, which can occur up to two weeks after next week's inspection. Lawyers have different aims than consultants, Skretny reasoned.

*Justice Department lawyers can interview inmates without a county lawyer listening.

*To meet the Justice Department's records requests, Erie County has gathered thousands of documents on 140,000 pieces of paper, Green said.

*The Justice Department will bring in a vendor to make its copies.

*Because one Justice Department consultant is involved in another case against Erie County, Green wanted him barred because he might use his new information in the other case. She said it would be impossible to expect him to establish a "mental Chinese wall."

McCarthy warned the Justice Department that their expert is to confine what he learns to the Justice Department's lawsuit.

"I think that's the only protection you are entitled to," McCarthy told Green, "and that's the only protection you will have."

e-mail: mspina@buffnews.com

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