In-Custody Deaths
by Raymond Castillo
Inside our jails, the unfortunate occurrence of in-custody deaths (ICDs) stems from a wide variety of reasons. Among the most common causes are:
- Accidents (e.g. overdose)
- Health issues (e.g. pre-existing medical conditions)
- Self-harm (e.g. suicide)
- Use of Force (e.g. cell extraction)
A commonality among these types of ICDs is the likelihood that administrative and criminal investigations may occur depending on the circumstances or manner in which the decedent passed. Additionally, civil litigation sometimes follows, as plaintiffs generally allege culpability by claiming the death was the result of acts or omissions by jail staff which caused or accelerated the death.
Types of In-Custody Death Investigations
Several types of investigations by different units occur when there is an ICD. The incident could involve potential violations of criminal law, prisoners’ civil rights, and administrative policies or procedures. While each type of investigation seeks information to determine how the ICD occurred, the emphases and purposes of administrative, criminal, and civil investigations are quite different.
Administrative Investigation – An administrative investigation is conducted to determine whether involved staff acted in violation of Department policies, procedures, rules, or regulations. Additionally, some personnel-related information resulting from an administrative investigation may also have some level of protection from discovery.
Criminal Investigation – The primary purpose of a criminal investigation is determining who was criminally responsible for the death and gathering evidence and other information to help the prosecutor determine whether criminal charges should be filed and to assist in prosecuting cases taken to criminal court.
Civil Liability Investigation – The focus of a civil liability investigation is gathering information to determine possible civil rights issues and to prepare to respond to potential litigation. The elements for establishing civil culpability (burden of proof) are different from those necessary to establish criminal guilt (beyond a reasonable doubt).
In-Custody Death Response
Below is a condensed, synopsized example of what occurs at a jail following an ICD.
When an ICD occurs, it is handled and secured as a crime scene. Comm Center is notified via the shift watch commander (or their designee). Sheriff’s Homicide, Detentions Investigations Unit (DIU), and Division of Inspectional Services (DIS) respond to the jail. Facility administrators and other managers begin looking at events and protocols leading up to, during, and after the incident. Additionally, a video review or audit of the area where the ICD occurred will be conducted including a review of policies and procedures. The facility commander will also be briefed and communicate pertinent information up their chain of command.
After Homicide, DIU, and DIS arrive at the affected facility, the team watch commander will designate a sworn staff member to debrief the incident. Booking records and all pertinent information related to the decedent are collected, communicated, and distributed to the responding units to aid their investigations. At the conclusion of the initial debrief, investigators will conduct their investigations which includes interviews of jail staff and inmates, evidence collection including video(s) and reports, and photographs taken by crime lab personnel. Lastly, the medical examiner will respond to take possession of the body. In totality, it will take several hours before the crime scene is deemed clear by Homicide investigators.
Once the investigators from Homicide, DIU, and DIS have completed their initial investigations, they reconvene to share information they obtained prior to leaving the jail. The facility and team watch commanders are usually present for this second debrief.
At a later date, DIS will schedule a Critical Incident Review Board (CIRB) presentation where the ICD investigation will be discussed in greater detail with Sheriff’s Command and legal.
Sometime during or following the Department’s review of the ICD, several actions are possible:
- The initiation of an Internal Affairs investigation to determine if disciplinary action against culpable staff is warranted
- The finding that staff acted within policy, however flawed policies and procedures were identified thus prompting a change
- The finding that staff acted within policies and procedures and that the policies and procedures were adequate
Additionally, civil liability reviews are conducted under the guidance of Sheriff’s legal counsel to carefully evaluate the incident and the circumstances surrounding it, including actions taken by jail staff.
In-Custody Death DSA Representation
As previously stated, when an ICD occurs in one of our jails, Sheriff’s Homicide, DIU, and DIS respond to investigate. Their investigations are parallel but separate inquiries.
The DSA will provide attorneys to members identified and involved in ICD investigations to ensure their rights are protected. Usually, when the team watch commander (or their designee) notifies Comm Center of the incident, the DSA attorneys at Bobbitt, Pinckard & Fields, APC are included in the call-out notification. Affected members may also contact the DSA Office or a DSA Director directly to request representation. Involved deputies should refrain from providing immediate written or verbal statements (including debriefs) to investigators until they have either spoken to or met with legal counsel.
Upon arrival, the DSA attorney(s) will contact and meet with the member deputy or deputies to discuss the ICD in private. They will also accompany and be with the deputy or deputies during their interview(s) with investigators.
Witnesses do not normally receive legal representation; however, past (administrative) practices have raised some concerns on the need to consult with an attorney prior to giving statements. Although no wrongdoing occurred or was observed during the member’s direct handling of an ICD, facility and Department “audits” of involved deputies where video, not directly related to the incident, was reviewed for “other” policy violations. This sometimes led to administrative investigations to matters unrelated to the ICD. In these instances, witnesses became accused employees for being associated with an ICD, thus requiring DSA legal representation.
In Closing…
You have a duty to cooperate with the investigation, but not to forfeit your constitutional or POBAR rights. Our attorneys will guide you through the interview process, and if the incident evolves into an administrative or criminal matter, know you have the best attorneys representing you moving forward.
Additionally, and equally important, ICDs can affect everyone differently depending on the circumstances and your involvement. Peer Support and the Counseling Team can be contacted to assist members with coping during traumatic events like this. Don’t hesitate to reach out for assistance.