@NCCapitol

@NCCapitol

Feds can't use prison employee statements in investigating inmate death

Posted September 13, 2015

— With a state investigation over, possible criminal charges in the case of a mentally ill inmate who died of thirst last year now hinge on a federal investigation into his treatment at the western North Carolina prison where he was left handcuffed and unresponsive in his cell for five days.

But 18 months after Michael Kerr's death, legal experts say it's likely the U.S. Attorney's Office has been limited by the inadmissibility of statements employees made about the inmate's final days.

So-called Garrity rights guarantee that statements made during internal investigations by public employees – who are compelled to testify at the risk of losing their jobs – can't be used in criminal prosecutions.

North Carolina prison workers made dozens of such statements in the wake of Kerr's death. Although normally confidential, many of the statements were admitted into open court as employees appealed their firings. The investigation documents themselves specifically state that employees' answers "cannot be used against him/her in any subsequent criminal prosecution."

Kerr, an Army veteran diagnosed with schizoaffective disorder that went untreated for at least six months, died March 12, 2014, some time during a three-hour-long transfer from Alexander Correctional Facility in Taylorsville to Central Prison in Raleigh. Prior to his death, he spent more than a month in solitary confinement, where his water was intermittently turned off for flooding his cell.

The state announced in July it would settle with Kerr's family for $2.5 million after the Attorney General's Office concluded the state's civil liability in the case was "inescapable." In the memo justifying the settlement, a state attorney attributed Kerr's significant pain and suffering to "multiple, flagrant errors" by Alexander staff.

 Featured story: The final days of Michael Anthony Kerr

At least 25 employees were disciplined, fired or resigned from their posts, although several workers have successfully appealed their terminations or settled with the state.

But in the year and a half since Kerr's death, no one has been charged with a crime in the case, despite investigations by the U.S. Attorney's Office and the State Bureau of Investigation.

Based on the SBI's findings, Alexander County District Attorney Sarah Kirkman closed the state's case in August after deciding not to recommend any charges.

Lia Bantavani, spokesperson with the U.S. Attorney's Office, said the federal investigation is ongoing but declined to comment further.

The wait has been frustrating to Kerr's sister, Brenda Liles, who voiced her concerns about his treatment to prison officials in the weeks before he died.

"The state was responsible for his death, so whoever the workers were that did that to him, they should be charged," Liles said in a phone interview last week. "If they hadn't treated him that way, he would still be alive today."

'Garrity issue' may be extending investigation

Lisa Kern Griffin, a Duke University law professor who spent five years as a federal prosecutor in Chicago, said Garrity is something of a compromise that allows government entities to compel testimony while protecting the constitutional rights of their workers.

"Think of it as striking a balance," Griffin said. "When an incident occurs, it is critical to get information as soon as possible, and police officers and other public employees are required to cooperate."

But Griffin said it's important to remember that Garrity immunizes only the compelled statements and information derived from them, not the employees themselves.

"Garrity does not mean no one can be held accountable," she said. "It just means prosecutors can't rely on compelled statements in bringing the case."

To avoid Garrity issues, which can derail a case in court, Griffin said prosecutors will often "put up a wall" or "clean the files," essentially vetting evidence through someone outside the investigation.

In the case of a federal civil rights investigation, Griffin said, it's not surprising to find prosecutors proceeding cautiously to avoid tainting evidence.

In many cases, she said, that can take a while.

"Taking care with a defendant's constitutional rights isn't a bad use of time," Griffin said.

Meanwhile, Liles said she and other members of Kerr's family are still waiting to see what happens next. With the civil litigation settled by the state, Liles said she wants those responsible for Kerr's death brought to justice.

"I hope and pray that whoever did that to him, they go to prison and see how he felt," Liles said.

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