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IN THE SUPERIOR COURT Of THE S'l'ATE OF CALIFORNIA
IN AND FOR THE: COUNTY 01" NEVADA
PEOPLE OF THE STATE OP' CALIFORNIA,
PLAINTIFF,
vs,
RAYMOND LEE DUZAN 1 ,JONATHON SCOTT
1"12-000450 Fl3-000059 Fl2-000376 Ml2-001105
No. Ml2-001123
7 FOOTE, JOSE: EDUARDO HE:NRIQUEZ, CESAR SANTIAGO, JACOB MICHAEL SIEGFRIED,
Ml2-001618A M12-001672A M12-001776 Fl3-0001'15 Fll-00317 1"12-00023 F12·~0Q0504B
8 BRENT RAYMOND WILKINS.
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DEFENDANTS.
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JULY 23, 2013
HE:ARING - CONTACT VISITS
HONORABLE THOMAS M. ANDERSON
APPEARANCES:
FOR THE COUNTY:
FOR RAYMOND DUZAN:
FOR JONATHAN FOOTE AND BRENT WILKINS:
FOR JOSE HENRIQOEZ:
Ol;'FICE OF 1'HE COUN1'Y COUNSEL MARCOS A. KROPF DEPUTY COUNTY COUNSEL 950 Maidu Avenue Suite 240 Nevada City, CA 95959
NEVADA COUNTY PUBLIC DEFE:NDER JODY SCHUTZ DEPUTY POBLIC DEFENDER 224 Main Street Nevada City, CA 95959
IHLLIAM G. WALKER, ESQ. P.O. Box 1127 Nevada City, CA 95959
NEVADA COUNTY PUBUC DEFENDER '!'AMARA ZUROMSKIS DEPUTY PUBLIC DEl"ENDER 224 Main Street Nevada City, CA 95959
28 NANCY E. CARRILLO, CSR NO. 5868
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FOR JACOB SIEGFRIED:
FOR CESAR SANTIAGO:
APPEii.RANCES
(Continued)
STEPHEN A. MUNKELT, ESQ. 206 Providence Mine Road, U218 Nevada City, CA 95959
JENNIF<~R GRANGER 206 Providence Mine Road, 1!218 Nevada City, CA 95959
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1 INDEX
2 DEFENSE WITNESS
3 STACY ZACHARY
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Direct Examination by Mr. Munelt
JEFI'' PETTITT Direct Examination by Mr. Munkelt Redirect Examination by Mr. Munkelt cross-Examination by Mr. Kropf Redirect Examination by Mr. Munkelt Further Cross-Examination by Mr.
8 PAUL SCHMIUr
9 Direct Examination by Mr. Munkelt Cross-Examination by Mr, Kropf
10 DAVIS LEE OSBORNE
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Direct Examination by Ms. Schutz Rediret Examination by Ms. Schutz Cross-Examination by Mr. Kropf Redirect Examination by Ms. Schutz
13 EUGENE P. ROEDER
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Direct Examination by Mr. Munkelt Cross-Examination by Mr. Kroph Redirect J<:xamination by Mr. Munkel t Further Cross-Examination by Mr. Kropf
16 THOMAS LEUPP
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Direct Examination by Ms. Schutz Cross Examination by Mr. Kropf
COUNTY'S WITNESS
19 GEORGE MALHI
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Direct Examination by Mr. Kropf Cross-Examination by Mr. Munkelt Redirect F.!xamination by Mr. Kropf
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DEFENSE
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10 COUNTY'S
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Memo
Diagram
Diagram
Document
Documents
Document
Diagrant
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EXHIBITS
MARKED EVIDENCE
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24 131
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145 145
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Tuesday, July 23, 2013
9:18 a.m.
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4 THE COURT: We are here this morning for
5 hearing on the issue of contact visits. I have the
6 following cases listed as appearing today. Raymond
7 Duzan.
8 MS. SCHUTZ: Jody Schutz representing Mr.
9 Duzan. I am appearing 977.
10 TElE COURT: Henriquez.
11 MS. ZUROMSKIS: Tamara Zuromskis appearing
12 for Mr. Henriquez 977.
13 THE COURT: Santiago.
14 MS. GRANGER: Jennifer Granger appearing
15 for Mr. Santiago 977.
16 THE COURT: Siegfried.
17 MR. MUNKELT: Stephen Munkelt appearing for
18 Mr. Siegfried also pursuant to 977.
19 THE COURT: And Wilkins.
20 MR. WALKER: Bill Walker representing Mr.
21 Wilkins, who is not appearing today. 977. I think Mr.
22 Foote is also on this calendar, Judge.
23 THE COURT: Yes. Mr. Foote is also.
24 MR. WALKER: Correct. I am Bill Walker
25 retainecl to represent l-1r. Foote who I am appearing for
26 977 as well.
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THE COURT: Thank you.
MR. KROPF: for the County, Marcos Kropf,
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1 Assistant County Counsel on all cases.
2 THE COUR1': Thank you. As Vie get ready to
3 proceed -- I presume tl1at we are ready to proceed?
4 MS. SCHU1'Z: Yes.
5 MR. MUNK!•:LT: Yes.
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MR. v!ALKER: Yes.
MS. ZUROMSJ< lS: Yes.
MS. GRANGER: Yes.
9 MR. KROPF: Yes.
10 THE: COURT: Have the attorneys met and
11 conferred about how you want to present the testimony
12 since there are five defense counsel?
13 MR. MUNKELT: Yes, we have.
14 THE COURT: What is the plan?
15 MR. MUNKELT: Well, we have divided up
16 responsibilities to some extent. I have subpoenaed and
17 plan to examine Captain Pettitt, Lieutenant Schmidt and
18 then for this afternoon Eugene Roeder. I believe Ms.
19 Schutz is prepared to examine defense witness Lee
20 Osborne and then Ms. Schutz is also going to be
21 examining Thomas Leupp, who also is scheduled for this
22 afternoon.
23 THIC COUR1': Okay,
24 MR. MUNKELT: Vle have subpoenaed some
25 documents from the jail records which we will have
26 identified and I expect there will be some testimony
27 about those.
28 TH8 COURT: Let me ask if defense counsel
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1 is expecting to have five people cross-examine the
2 Countyrs witnesses.
3 MR. MlJNKEL'r: No. We' 11 do an assignment of
4 that. If there are additional witnesses we'll figure
5 out who is going to be taking them.
6 THE COURT: What I want to know is when the
7 witness is called if the County presents any witnesses
8 we need t.o know at the beginning of that who is going to
9 be responsible for the cross-exam and making objections
10 so that we can keep it tailored to something workable.
11 MR. MUNKE:LT: All dght.
12 MS. ZUROMSKIS: All right.
13 THE: COURT: Madam court reporter, do you
14 need them to identify themselves when they make
15 objections or are you comfortable with knowing who they
16 are?
17 '!'HE REPORTER: I'm fine. I know who they
18 are. Thank you.
19 THE COURT: Are you ready to proceed?
20 MR. KROE'r': Yes, Your Honor.
21 THE COURT: The floor is yours. Let me
22 see. The motions were filed initially by --
23 MR. MUNKEL'I': Your Honor, actually of the
24 five defendants consolidated for this hearing the issues
25 come up in slightly different ways.
2 6 THE COURT: Right.
27 MR. l't.UNKEJ,T: I made a motion for the Court
28 to order contact visits with my client. The County then
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1 made a motion to vacate that order which has been -- the
2 order has then been stayed pending further
3 proceedings. Others of the cases the County intervened
4 i1efore there \.,ias an orcler issued with ol)j ections to the
5 order. So I think in general what we have is all of the
6 individual Defendants who are before the Court with
7 their motions to be allowed contact visits so we' re
8 probably the moving party with County as the Respondent
9 if that makes sense.
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THE COURT: That is how you would prefer to
proceed?
MR. KROPF: Yes, Your Honor.
THE COURT: Let's do that. Mr. Munkelt.
14 MR. MONKELT: Yes, Your Honor. Thank
15 you. From that standpoint just to clarify I know the
16 County has raised and I want to briefly address at the
17 outset the questions of the Court's jurisdiction or
18 authority or power to have any say in the conditions for
19 visits with attorneys at the county jail. In the joint
20 brief in support of the order for attorney-client
21 contact visits that I filed about 10 days ago or so, we
22 addressed that question in Part 3 of the Pleadinq.
23 I think what I come away with from the
24 authorities that touch on this issue, both Attorney
25 General opinions and Appellate Court decisions, is that
26 it has been recognized in the discussion of facts in the
27 individual cases where there have been reported
28 appellate decisions that trial courts have issued orders
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1 that impacted on the attorney visiting conditions of an
2 inn1ate at the jail or in state prison.
3 And what is notable in the decisions where
4 that factual foundation is discussed is that there
5 Wctsn't any question raised about whether the trial court
6 had jurisdiction to make such orders. I think the
7 underlying reasons for that are essentially acknowledged
8 and accepted with some of the opinions of the Attorney
9 General including one cited by the County and then
10 quoted in part in my brief at page 5 where the issue the
11 Attorney General was asked to address was whether the
12 Court had the power to order an inmate to a location for
13 a private family visit. And the Attorney General said
14 no, the Court doesn't have that power but also made that
15 statement in the context of saying the Court has no
16 poi;ver to make such an order regarding communica Lions
17 with prisoners except where the regulations are not
18 reasonably related to safeguarding the prisoner or where
19 they violate a prisoner 1 s right to counsel.
20 So the exception really -- it's the
21 except.ion which really states the rule that applies to
22 this case in our view and that is that the Court has the
23 ability to manage the critical constitutional and legal
24 rights of the inmates, especially as .it relates to the
25 court proceedings and there can't be anything that has
26 more direct relationship to the court proceedings in a
27 criminal case than the relationship of the defense
2B counsel and the Defendant.
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1 So for all of those reasons we think that
2 the Court should eventually find that you do have the
3 authority to make the orders \'le' re re<.1uesting requiring
4 a contact visit with inmates at the jail, which ren1inds
5 rne of the other issue. I'm going to use the term contact
6 visit as suggested or proposed in my brief to describe a
7 situation where the attorney and the client are face to
8" face in the same space or room without a barrier of any
9 kind in between them. I'll just use it that way.
10 THE COOR'r: All right.
11 MR. MONKEI.T: Now with those preliminary
12 remarks I don't know whether Mr. Kropf wants to respond.
13 MR. KROPF: Yes, Your Honor. We have
14 briefed this issue.
15 THE COUR'f: Yes.
16 MR. KROPF: I believe the Court has
17 jurisdiction to determine whether or not there is a
18 constitutional violation in the condition o[ a prisoner
19 in the jail. However, we haven't gotten to that
20 point. When I say constitutional violation as a matter
21 of right a prisoner without restriction is believed -- I
22 believe it's defense counsel 1 s position that a prisoner
23 as a matter of right has a constitutional right to have
24 a barrier free type visit. I don't think that we have
25 made that determination or at least I don't believe that
26 the Court has made that determination yet. So unless the
27 Court makes that determination I don't think that there
28 is any jurisdiction of the Court to say well, in this
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1 particular circun1stance we have to have no barrier and
2 in this particular circutustance \Ve have to have this
3 type of a barrier. Those are functions chat are
4 exclusively relegated to the discretion of the jail and
5 the sheriff so long as he 1 s not violating anyone's
6 constitutional rights. So we have briefed that. We have
7 briefed that issue extensively in our briefs and I'll
8 leave it at that.
9 THE COURT: Okay. Thank you, counsel. Mr.
10 Munkelt?
11 MS. ZUROMSKIS: I' 11 respond briefly.
12 THE COURT: That was just an opening
13 statement. We're not having argument. This is an
14 evidentiary hearing. Let's start with evidence and we
15 can have arg\1ment at the conclusion.
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MS. ZUROMSKIS: We' 11 wait.
MR. MONKEL'r: Then for the first matter in
order that vie can get somebody out of the courtroom
quickly while they are on the clock we call the
Custodian of Records for the jail.
record.
THE COURT: All right.
THE CLERK: Does she need to be S\'lorn?
THE COURT: Yes.
Stacy Zachary,
Called by the Defense, placed under
oath, testifies as follows.
THE CLERK: State your name for the
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THE WITNESS: Stacy Zachary, Z··/\-C-ll-/\-R-Y.
THE COURT: Thank you.
DIRECT EXAMINATION
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BY MR. MUNKEL1':
Q. What do you do for work?
6 A. I am an Administrative Sergeant at the
7 jail.
Q. In that capacity do you serve as the
Custodian of Records for the jail?
A. Yes.
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11 Q. As the custodian for the jail were you --
12 did you receive a subpoena requesting a production of
13 certain records in connection with this hearing?
14 A. Yes, I did.
15 Q. Have you made a copy of those and brought
16 it with you to court today?
17 A. Yes, I have.
18 Q. So can you brie describe what records
19 you brought with you?
20 A. Okay. Can I refer to them?
21 THE COUR'r: Sure.
22 THE WITNESS: I brought one of the requests
23 was for the programs at the jail and I have brought a
24 Seven-Day Schedule of the programs for all of the
25 pods. I have also brought the records for what we
26 vlhat we give to the DOC every month of how many inmates
27 in the jail, how many were seen by medical, all of that
28 stuff.
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1 Q. If I understand it correctly the Inmate
2 Program Schedule is a document that shows up like a
3 monthly calendar and has different kinds of events
4 written into it?
Yes. 5
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A.
Q. Then the reports on the jai.l population
and different categories of population are prepared on a
form that is used by the state department?
A. Yes. They give us a recommendation and
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they have certain th they want to know like how many
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Fed inmates vie have that v1e are housing. Just different
types of classifications of inmates.
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Q. Okay.
MR. MUNKELT; 1 don't have any further
15 questions of the witness. Basically my expectation is
16 that we will have them identified as we go.
17 MR. KROPF: I will stipulate to the
18 authenticity of the documents not necessarily the
19 admissibility.
2 0 THE: COURT: Great. Thank you. If you would
21 pass the documents to me.
22 THE WITNESS: Sure.
23 THE COURT: I will give these to the
24 clerk. Counsel, have you worked out -- have hath sides
25 had an opportunity to review these yet?
2 6 MR. MUNKELT: 1;e 're working on i. t.
2 7 THE COURT: Thank you.
2 8 MR. MUN KE LT: May the witness be excused?
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Pettitt.
THE COURT: She may be excused.
MR. MUNKELT: I <10Uld like to call Captain
Jeff Pettitt,
Called by the Defense, placed under oath,
testifies as follows.
THE CLERK: Please state your name for the
record and spell }'Ollr last name.
THE WITNESS: My name is Jeff Pettitt,
P-E-T-T-I-T-T.
THE COURT: Here's some water.
THE WITNESS: Thank you.
DIRECT EXAMINATION
BY MR. MUNKEL'f:
Q. IVho is your employer?
A.
Q.
Nevada County Sheriff's Office.
How long have you been with the
18 department?
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office.
A.
Q.
A.
Q.
A.
Q.
ApproximaLely 14 years.
What is your current rank?
I'm a captain.
What is your current position?
I oversee tl1e operations of the sheriff 1 s
vlhen did you take up the position as the
26 Chief of Operations?
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Q.
I believe it was in June.
Prior to that what was your past
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1 assignrnent 1 immediate past assignment?
2 A. I was the captain overseeing corrections
3 at the jail.
4 Q. How long had you been serving in that
5 1)osition?
6 A. Approximately two years.
7 Q. During the period of time that your
8 assignment was captain of the jail can you briefly
9 describe the responsibilities that you have for that
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facility?
A. I have ultimate responsibility of
12 everything that goes on in the facility. That includes
13 everything from, like you said, inmate programs which
14 you have a schedule of, making sure they get to court,
15 the booking procedures, the medical care. I oversee all
16 of it.
17 Q. When problems occurred with staffing or
18 irunates at the jail during your tenure as the captain in
19 charge was there an administrative procedure of how
20 problems would eventually be brought to ymir attention
21 so that you had control over the responses to those
22 things?
23 A. Yes. The people that had an issue they
2,1 would bring it up to their chain of command, the next
25 person above them. They would try to resolve it. If they
26 couldn't they would eventually go up to the next person
27 and the next person and then to me.
28 Q.
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1 administrative frame work that if there \Vere any serious
2 problems at the jail you would eventually know about
3 them?
4 A. Yes.
Q. Even though the immediate response might
6 be delegated to someone else in the chain?
7 A. Correct.
Q. In January of this year did you authorize
9 a change in the visitation policy for visits of
10 attorneys with their client at the jail?
A. It v1asn' t a change in policy. It was
12 adherence to the existing policy.
13 Q. All right. Well, let's take a moment with
14 that. Prior to that point in time of January of this
15 year was there a written policy about attorney-client
16 visits at the jail?
17 A. Yes / there v1as .
18 Q. \Vhere was that maintained?
19 A. It \'las maintained on our computer system
20 on our servers.
21 Q. Was that part. of the overall sheriff's
22 department Manual of Operations tbat is maintained in
23 the computer system or is that something separate?
24 A. They are broken into sections, the jail
25 having their own set of policies, and it was I believe
26 they are called Jail Directives.
27 Q. I don't suppose that you brought with yon
28 a printed copy of the Jail Directives relating to
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1 attorney~client visits prior to January of this year?
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A.
Q.
I did not bring that with me, no.
Well, let's go with your best recollection
4 of what the policy was.
S A. Okay.
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Q. What is that?
A. The policy was specific to the
attorney-client visits. When an attorney would request
what was defined I believe as a professional contact
visit in the policy they would gelc approval from the
supervisor, typically a sergeant. At times it could be
a corporal if the sergeant is occupied or not there.
And at that point they >10uld make a determination based
on what was occurring in the jail and their ability t:o
allow that visit they would allow that visit to occur.
Q. Was that the policy with re.lation to what
I arn calling contact visits v1here the attorney \Vas
allowed to be in a room face to face with a client, no
barrier?
A.
Q.
Correct. Yes.
Prior to January of this year there was
22 there were facilities for attorney-client visits that
23 had a glass barrier between the client and
24 attorney; correct?
25 A. Yes. Those rooms were I believe built when
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t:he facility was built.
Q. Those are rooms that are part of the
inmate visiting area of the jail?
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3 bit.
A. Yes.
Q. We'll get to the layout in a little
But those situations were -- was there any
4 distinction about those visiting areas for attorneys
5 from the contact visit areas in terms of the jail policy
6 or directive prior to January?
7
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9 done.
A.
Q.
Are you asking --
Let me back up. That wasn't artfully
10 If an attorney prior to January came to
11 the jail and just said I \<Jant to visit my client was it
12 your understanding that the formal policy would be that
13 they would be directed to one of the attorney visit
14 rooms \'Ti th a glass barrier unless they made a request
15 for something more?
16 A. Prior to that corning out I think it had
17 become a practice of having the attorneys go back into
18 the booking area and having those what you are
19 describing as a contact visit in the rooms labeled as
20 interview rooms in the booking area. Does that answer
21 your question?
22
23
Q. I think so.
With respect to contact visits between
24 attorney and client, was there some kind of
25 communication that you authorized in January of 2013
26 about the policy?
27
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A.
Q.
Can you say that again?
Sure. Did you authorize some type of
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1 communication with \:be legal community about tbe
2 policies for attorney contact visits?
Oh, yes. 3
4
A.
Q. Let me shovi you what has been marked as
5 Exhibit A for the bearing. I think everybody has
6 probably seen this.
7 A. I am almost positive.
8 Q. It was still on the window as of yesterday
9 when I was there. Exhibit l would appear to be a letter
10 addressing this issue.
11 THE COURT: Do you mean Exhibit A?
12 MR. MUNI<ELT: A. Sorry.
13 THE COUR'f: Thank you.
14 Q. BY MR. MUNI<ELT: Was that something that
15 you authorized, that communication to the legal
16 community?
Yes. 17
18
A.
Q. Now, at the time if I am understanding
19 your testimony you did not view that as a change in the
20 formal policy but a change in the way that it was
21 in1plemented? Is that a fair statement?
22 A. It was a change -- yeah, in adhering to
23 the policy. You need to follow the policy. That's the
24 direction that I gave my staff.
25 Q. Prior to that communication to the legal
26 community was it yout understanding that it was routine
27 for staff to approve contact visits between attorney and
28 client upon request?
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Yes. 1
2
A.
Q. Was it your intention by publishing this
3 communication to reduce the frequency with which
4 requests for contact visits with clients ·would be
5 granted?
6 A. I can't say that was my intent. My
7 intention on this was -- well, I guess yeah, you can say
8 that. It was to limit the number of people we had
9 accessing the secure portion of the facility if that
answers it. 10
11
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16
Q. Okay. That would be by limiting the number
of times attorneys were allowed to get back
there; correct?
A. Correct. To come back there referring to
the interview rooms and booking. Yes.
Q. Now we get to the layout on of
17 that. E:veryone would tell you that I am a lousy artist,
18 but I was busy with a pad last night. Is one of the
19 areas wt1ere an attorney can have a contact visit with a
20 client in the jail a room off the A/B Hallway?
21 A. Yes.
22 THE CI.ERK: You can tear it off. Aren't
23 there clips there off to your right? Will those clip it
24 in if you tear off a single page?
25 THE WITNESS: I can tear off a single page.
26 THE CLERK; Those are not clips --
27 THE COURT: 'rhose are clips for the pad
28 that is there.
16
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1 MR. MONKELT: I would like that first page
2 marked as Exhibit B for identification.
3 THE: COURT: We' 11 mark that as E:xhibit B.
4 (Defense Exhibit B was marked for
5 identification.)
6 Q. BY MR. MUNKELT: Captain, with the
7 exception of a scale and that sort of thing can you
8 recognize that as a diagram of the portion of the jail
9 called the A/B Hallway and the various entrances and
10 exits therefrom?
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A. I can.
Q. Down at the bottom of Exhibit B there is
--- I wrote in Central Control. Are you familiar with
that area of the jail?
A. I am.
Q_ Can you briefly describe what function
17 that serves and what kind of staffing it has?
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A. Central Control just as the name suggests
is controls all movement through -- or not all
movement but the majority of the movement throughout the
facility. It's a control station that is typically
manned by one person and that person has a direct line
of sight down what what is designated on the exhibit
24 as the A/B Hallway as well as the N Section that is
25 designated by the area, those two main hallways. '!'hose
26 are the two main hallways in the facility.
27 Q. And the barrier or wall between the
28 Central Control and those areas has a window that is
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about the top half of a wall, correct, so there is a
direct line of sight?
A. Yes.
Q. Now, at the top of diagram at the other
ond we have a door on the left that I think is A Pod and
a door on the right that is B Pod. Did I get those --
A. You did.
Q. That's a reference to the main inrnate
housing areas of the jail?
A.
Q.
A.
Q.
Two of them, correct.
N Section being the third?
Correct.
So those doors off the A/B Hallway control
14 all of the access to the two pods?
15
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A.
Q.
Yes.
Those doors in the hallway are in the
17 direct line of sight to Control?
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A. Yes, they are.
Q. Also -- well, let's see. Let's talk about
that little room at the bottom sort of to the right
which I have drawn with three doors to it; one heading
to N Section, one into A/B Hall and one that I didn't
label which actually passes through to the nonsecure
area of the jail; is that correct?
A. That's correct.
Q.
A.
Q.
Call that room the what?
We call that the air lock.
The air lock?
" ----···--------------· --------
18
00023
1
2
3
4
5
6
7
8
9
10
11
12
13
14
A.
Q.
Okay. The air lock.
All of those doors are also controlled by
the staff member. in Central Control?
A. Yes, they are.
Q. Then on the -- to the left at the bottom
is a door off the A/B Hallway that I have labeled as to
Booking?
A.
Q.
A.
Q.
Central?
A.
Q.
Yes.
Roughly the right location?
Roughly the right location. Yes.
That is also a door that is controlled by
Yes.
By control what we mean is that in order
15 for that door to unlock and be opened that somebody in
16 Control has to push a button or flip a switch or do
17
18
something?
A. There are keys that can be keyed
19 open. However, the main operation is through a button or
20
21
22
23
24
25
26
27
28
actually now a computer touch screen.
Q. One aspect of the overall security of the
jail is that only a limited number of people have the
keys?
Yes. Absolutely. A.
Q. You wouldn't give one to me 1 for example?
A. Probably not.
Q. Okay. As a person is walking away from
Central down the A/B Hallway towards the pod doors on
19
00024
1
2
3
4
5
6
7
8
the left-hand side would be a door that goes into the
rnedical section?
A. Yes.
Q. And then somewhere farther down on the
right-hand side would be a series of doors that are the
inmate side of the inmate visiting from A Pod?
A. Yes.
Q. Now 1 those visit doors at one point in
9 time were keyed open, is that right, so the inmate was
10 given a key to go access the visiting area?
l1
12
13
14
15
16
17
18
19
20
21
22
23
A. That 1 s correct.
Q. 'l'hen more recently the system was up
graded so that those are now under control of Central?
rnade?
A.
Q.
Yes.
Do you remember about when that change was
A. Felt like the entire time I was there. I
don't remember when they became operational. It would be
a guess. August, September.
Q. Relatively recently compared to the
overall time that the jail has been in service?
A. Yes.
Q. Now, roughly opposite the A Pod visiting
24 doors in the hallway there is a door on the left-hand
25 side for: professional visits?
26 A. Yes. There 1 s more doors than are here. ~·Je
27 have professional visits. We have a place for
28 therapists. We have a transportation hall1<ay. But,
20
00025
1 yes. Toward the far end of that hallway, yes.
2 Q. I left out some doors but more or less
3 doM1 on the left-hand side is a door for professional
4 visits?
5
6
7
8
9
A.
Q.
Correct.
Now, that door is not at this time under
Central Control contro1 ·1
A. No.
Q. That's a poor sentence but I hope that you
10 understand it,
11
12
A.
Q.
I understood.
So when a professional visit is authorized
13 typically what would happen is that the professional is
14 given a key. They are passed through by Central into the
15 A/B Hallway and then they use the key to open the door
16 down there for the visit?
17
18
19
20
21
22
23
I\ . I believe that's correct.
Q. 'rhen because that door is not under
control from Central when the door is closed and you are
on the inside it has a handle so that you can open it
and get out?
A.
Q.
Right.
Now, I believe that that is one of the
24 aspects of this visiting area that was raised in a
25 declaration as a security concern, that it was possible
26 to get out of that room without permission or approval
27 from Central?
28 A. Correct.
······--·~·--···· ··------------ -------·····---·~·-----~
21
00026
1
2
3
4
6
7
8
9
10
11
12
13
Q. Isn't that actually sort of a mixed
bag? In other 111ords 1 that since a profe:;sional may be in
there with an inmate it is a security plus if some kind
of altercat.ion occurs that the attorney or other
professional can open the door, jump out in the hallway
and be seen so that is actually a good thing about
having .it accessible from the .inside; correct?
THE COURT: That's a little compound. Can
you break that down?
~lR. MlJNKE;I/r: Sorry. I' 11 back up and do it
again.
THE COURT: Thank you.
Q. BY MR. MUNKELT: Hypothetical1y let's
14 imagine a professional visit is going on in that
l Oi room. There is a window in the door of that room;
16 correct?
17
18
19
20
21
22
23
24
2" 26
27
28
I believe so. A.
Q. So if a staff member happens to be going
by they have some ability to visually check and make
sure that circumstances are appropriate or not out of
line in the :coom?
A. Yes.
Q. Hypothetically if the door was controlled
by Central, Central does not have a direct line of sight
into the room because it's off the halh1ay?
A. They do not, no.
Q. So if there was some kind of difficulty
that occurred between the inmate and the attorney or
22
00027
1 other professional Central wouldn't know about it? They
2 couldn't open the door or respond; correct?
3
4
5
6
room.
A. I don't recall if we alarmed that
There might be an alarm in that room.
Q. Okay.
A. But I don't recall. There might be a way
7 for them to signal.
8 Q. But let's leave the alarm question out for
g a mo1nent since v1e don 1 t know for sure one v1ay or the
10 other. If a professional is in the room and they have
11 the ability to open the door and exit into the hallway
12 1;ithout notifying any one there is a certain aspect of
13 safety provided for that professional. because they can
14 get out; correct?
15
16
17
18
19
20
21
22
23
24
25
26
A. Sure.
MR. KROPF: I object. Calls for
speculation. Incomplete hypothetical and calls for
speculation. Depends on the facts and circUinstances
present at the time.
THE COURT: Overruled.
Q. BY MR. MUNKELT: So it took some steps to
get down to this road but wouldn't you agree that there
are sort of pluses and minuses to having the ability to
open that door and exit into the hallway without
notifying any one from a security standpoint?
MR. KROPE': Objection. Vague and
27 an1biguous. Plt1ses and 1ninuses?
28 THE: COURT: Overruled. It's a preliminary
-····-----··---
23
00028
l question.
2 THE WITNESS: Yes. There are pluses and
3 minuses for the attorney visiting. Yes. Absolutely.
4
5
6
7
8
9
10
n
Q. BY MR. MUNKE:J.,T: I.et 's just continue with
geography before getting to other topics. So I have
another page that I did here which I will ask to have
marked as Exhibit C, v1hich is intended to represent rnore
or less the area around the booking area of the jail.
Q.
(Defense Exhibit C was marked for
identification.)
BY MR. MUNKELT: Have you had enough chance
12 to orient yourself?
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A.
Q.
I have.
Again, without this being accurate to
scale and all of that stuff does that generally depict
the booking area and interv iev1 roorrts surrounding the
booking area of the jail?
A. l'li th the exception of the third interview
roon1. Yes.
Q. You are referring to the one that I have
drawn up at the top of that diagram?
A. No.
Q. Which one?
A. The second one on top of the two on the
left-hand side.
Q. Okay.
A. Or it. could be --- there is only one
interview room there.
24
00029
1
2
3
4
5
6
7
8
9
10
11
12
13
________ .... _________ -------···--···· _______ .... ______ -----
Q.
IL
Therers only one there?
Yes. The other is a storage, inmate
storage, property storage.
Q. We don't really care for this purpose
which one of these it ::s so I 1 11 draw· an X through one
of those and say that's not really an interview room.
A. Okay.
Q. Now, the area that I have indicated as the
booking desk, that is actually a desk, right, where the
staff member is looking over the top of the desk and has
a line of sight to everything in their area?
A.
Q.
It's like a countertop-desk combo. Yes.
Then the area on the diagram to the right
14 of the booking desk where you have a T.V. over on the
15 far wall, what do you call that? I call it a waiting
16 room but what do you call it?
17
18
19
20
21
22
23
24
25
I'll go with waiting room. A.
Q. For simplicity of the record let's add the
word \<lai ting room or v1orcts \o1ai ting room in that
area. What is that area used for? l'lhat happens there?
A. Basically that area is a place where the
arrestee when they are brought in if there is often
times there will be a number of people in there and
there could be some amount of time before they arc
booked or to go through the booking procedure so there
26 is sorne plastic chairs. It's a carpeted area. There's a
27 restroom. 'There is a IJhone v1here they can call. 'fhey can
28 make a phone call. They can try to bail out. There is a
25
00030
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
----·---~··-------
bunch of fliers on the wall to the right where it says
'I'. v. of bail bondsmen. So just a place for them to sit
and wait until they get booked into the facility and
housed, eventually housed if they ate going to be
housed, oi:- released on their o•,;n recognizance should
that be the case.
Q. When an inmate is in the waiting room area
and not being requested to do some other activity or
tnove to another location does v1hatever staff is at the
booking desk keep an eye on them to make sure they stay
in that area?
A. They do.
Q.
A.
Q.
A.
Q.
That's for security reasons?
Yes.
Among others?
Among others.
From the waiting room a person does not
18 have the ability to view the hallway which has the two
19 interviel.-1 rooms on it, do they?
20 A. I think they might be able to see the
21 hallway when they are on the phone. There is a phone
22 that would be against just to the right of the booking
23 desk. 1'here is a phone that would kind of be -- this is
24 a rough guess. I'm not a contractor. Maybe six feet,
25 seven feet over from the booking desk to the right.
Son1ev1here here? 26
27
Q.
A. Yes. There is a wall that goes up -- let
28 me show you.
------····----··-------- -------- -----------··--
26
00031
1
2
3
4
5
6
Q. Sure. You drav1 it,
A. There is a wall right here (the witness
indicates) and this is where their photos are taken and
there is a phone right here (the witness
indicates). These are all windows so they can look up.
Q. Where you put the little X why don't you
7 write phone?
8
9
10
11
12
A. (The witness complies.)
Q, So you think they might be able to see
some portion of that hallway from that location?
A. I believe they can.
Q. But not normally from where they are
13 restricted in the waiting area generally?
14 A. They can be up to that phone in that
15 waiting area.
16 Q, Then I have indicated a portion there
17 adjacent to the waiting room with the letters S-G-T. Do
18 you know what that is referring to?
19
20
21
22
23
24
A. Yeah. The sergeant's office.
Q. Correct. '!'hat's the office used by whoever
the duty sergeant is essentially and officer in charge
of the jail?
A. Yes.
Q. That office is constructed so that it has
25 glass, a lot of windows on a couple of sides?
26
27
A.
Q.
I believe there 1 s windows on t\-10 sides.
One side facing the booking desk area and
28 the other side facing the hallway where the interview
27
00032
---------··-----.
1 rooms are located?
2 A. You can't actually see the interview but,
3 yeah, it faces out that same hallway that they are
4
5
located.
Q. Now, the doorway indicated at the top of
6 Exhibit C where it says 1\/8 Hallway, that is the same
7 one that we referred to earlier that is under the direct
8 line of sight from Control and where the door is
9 controlled by Central; correct?
lG A. Yes.
11
12
Q. But the doors in tt1e two interviev1 rooms
off the hallway that goes down to the booking
13 desk, those are not under Central Control'!
14
15
A.
Q.
No.
So if people want to use those rooms they
16 have to be keyed in?
17
10
19
2G
21
22
23
24
25
26
27
28
A.
Q.
Yes.
And unlike the professional visit room ln
the A/B Hallway where the professional may be given the
key, in the booking area it's the staff that goes and
keys open the door; correct?
A. Yes. The booking staff.
THE RI': PORTER: Book.i ng?
THE WITNESS: Staff.
Q. BY MR. MUNKELT: Now, has there been some
kind of an alarm actually installed in those two rooms?
A.
Q.
I believe so.
So that if a person is in there not being
28
00033
seen by staff has a problem they have a button they can
2 hit?
3
q
5
6
7
A. Correct.
Q. But those are also doors where they have
the ability to open the door from the inside to exit?
A.
Q.
Yes.
Prior to the change in the application of
8 your policy for professional visits in January or
9 February were the two interview· rooms in the booking
10 area often used for professional visits when they were
11 available?
12
13
A.
Q.
Yes.
Are those roorns also used for interv.i ews
14 by law enforcement?
15
16
A,
Q,
They are.
Any other particular uses of those rooms
17 that would happen routinely?
18
19
20
21
22
23
24
A. The top interview room was used by
parole, the Board of Corrections, parole hearings they
would have at the j ai 1.
Q. Was that is that room a little bigger
so it would allow them to have people in there for the
hearings?
A. I don't recall if it was bigger. They
25 there are phone lines outside that I believe that they
26 can connect _into to get the hearing officer conference
27 called in. That was the primary reason that they use
28 those. I don't recall what ~"" I believe it is maybe a
29
00034
1
2
little bit bigger.
Q. Now, I haven 1 t tried to draw that, this
3 entire area of the jail, but as I recall so1ne\·1here to
4 the left of where you have drawn the booking desk there
5 are some holding cells?
6
7
8
9
A.
Q.
A.
Q.
There are.
Hot·J n1any are there?
Seven or 8.
Those are available to hold inmates 'l'lho
10 are acting out or create other security problems?
11
12
A.
Q.
Or just to hold inmates period.
And might be an alternative to having them
13 sit in the waiting room?
14
15
A.
Q.
Yes.
Is one of those or are any of those
16 holding cells also considered a safety cell?
17
18
19
20
21
22
23
24
25
A.
Q.
A.
Q.
Yes.
Is it one or n1ore?
It's one.
Safety cell for those not familiar with
the term could you briefly describe what that is?
A. A safety cell is a cell that has some type
of soft material, foam padding that you may want to call
it along the walls as well as on the floor. There is no
running water within all the running water and
26 everything .is controlled from outside. There is not a
27 phone in there. There is an observation 1 small
28 observation window and there is also a slot in the door
30
00035
1 to pass things through that particular cell,
2
3
4
5
Q. Basically it's a bare room with slightly
padded walls and floor with a four-inch drain in the
middle of the floor?
A. I think it's bigger than a four-inch drain
6 but yeah, there's a square grate type in the floor.
7 Q. That's used for housing inmates with very
8 severe phychiatr.ic conditions would be one example?
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A. It has been used for that. It's typically
typically it's for somebody who is -- coulct be so
violent towards themselves that they are trying to harm
themselves or actively trying to harm themselves we can
place them in that cell and then monitor them and it
takes away any type of material that they could tear off
a wall and that they could use to harm themselves or the
correctional officers in the facility.
Q. So with the facilities available in this
booking area of the jail generally, one of the options
that is available to staff if they have for example more
than one person in the waiting area and there is some
kind of dispute or confrontation taking place one option
for staff is to put one or more people in the holding
cells to prevent contact?
A. Often times when something when there
is a confrontat.ion within the facility unless we were
able to preplan, in other words we knew that somebody
was being brought in combative or something like that,
there is not time to put people in the cells from the
~-------------··--··---------~
31
00036
-----------·-·---·-----·
1 \•1aiting room where you have to react to the incident
2 itself.
3 Q. But tl1ere is this other part of the
4 booking area available for isolating inmates, holding
5 thern secure; correct?
6 A. Yes.
7 Q. If problems were anticipated it can be
8
9
10
11
12
13
14
used
dealt
that
that way?
A.
Q.
with it
way?
A.
Q.
Correct.
Or after a problem has occurred and been
might be that people were resegregated
Yes.
Let's go back I think for a moment or two
15 to talk about the attorney visit rooms with the glass.
Okay. 16
17
A.
Q. What I call noncontact rooms. After the
18 change in policies or change in implementation of policy
19 earlier this year did you become aware as a jail
20 commander that there were concerns about the
21 confidentiality of meetings in the two rooms with the
22 glass 1Vhich I will call Room 1 and Room 11?
Yes.
And what lvas the concern generally?
23
24
25
26
A.
Q.
A. 'fhere were lots of concerns brought to my
attention. One of the concerns was the that while in
27 the -- there was concern that while in the attorney side
2 8 of the room which is the access to the public access
32
00037
--------------------··---··-----,
1 visitation area that the general public could hear
2 tl1rough the walls, the conversations going on in that
3 room, the conversation of the attorney.
4
5
6
7
8
Q.
with that?
A.
Q.
A.
You took some steps to attempt to deal
I did.
What was that?
The sheriff's office purchased it's foam
9 that they use in a sound studio to line the walls and
10 the door of that room so that now it's similar to what
11 you would see in a radio station sound studio type
12 environn1ent.
13
14
15
16
17
18
roon1s?
Q.
A.
Q.
A.
Q.
That was done on the attorney side of the
It was.
But not on the inmate side?
It was not.
Is there some kind of telephone access
19 provided in those attorney visit Rooms 1 and 11?
There is.
What is that ·1
20
21
22
A.
Q.
A. vlhat I have been told and what I recall
23 from my military days it's a sound powered phone that
24 they often use in the military. Battery powered and it
25 arnplifies your voice. Not connected to any exterior
26 phone Lines like a typical home phone would be, your
21 office phone. It's basically a wire connecting the two
28 boxes together.
---------····
33
00038
--------~-----------~------- ------------------------~- ----------------------------
Q. And is that system in Rooms 1 and 11
n1onitored in any \1ay?
l
2
3 J\. No. Not possible to 1noni tor those t\'10.
4 Q. Are the visit phones in the public visit
5 booths which would be 2 through 10 I think, are they
6 monitored in any way?
7 A. They are.
8 Q, How's that?
9 A. They are monitored via a third party
10 contractor, I believe it's called Telmate that rnoni tors
11 -- they don't monitor it. Those phones are recorded and
12 ther1 those recordings are maintained on a server.
Q. Is there some means that inmates and 13
14
15
16
17
18
19
visitors are notified that they are being monitored?
A. There is. ~·here is a pre-recorded message
that Telmate plays advising them that the phone is
subject to monitoring and recording.
Q. And then is there also some kind of a
posting that advises people of the monitoring?
20 A. I don't recall whether there is a
21 posting. I want to say yes, but I don't recall for
22 sure.
23 Q. In the attorney visit rooms of Number 1
2<1 and Number 11 there is a written posting that says, "All
25 cal.ls are monitored except attorney-client confidential
2 6 corrnnunica tions" that's in Spanish and English . Do _you
27 recall that?
28 A. I recall a red placard that may say
·······----------
34
00039
1 that. I don't recall if it's in English and
2 Spanish, though.
3 Q. What's the reason for posting that in the
4 attorney visit room if they are not monitored?
5 A. I don't know. They were posted before I
6 worked at the jail.
7 MR. MUNKELT: Your Honor, I think I want to
B have marked as next exhibit in order would be D.
9 THE CLERK: C.
10 MR. MUNKELT: The Program Calendar from the
11 documents produced this morning.
12 THE CLERK: Did I miss C entirely?
13 THE COURT: You did.
THE CLERK: I missed 14
15 '!'HE COURT: Mr. Munkelt, if you would put B
16 on it and put C as well. C is the booking area,
17
18
19 booking area.
20
21
22
23
'!'HE CI£RK: I'm sorry. I have got A.
THE! COURT: B. C is the diagram of the
THE CLERK: Bis over there.
MR. MUNKEL'l': Here's A.
THE COURT: Bis on the counter.
MR. MUNKEI!l': With the assistance of the
24 clerk, Your Honor, I have placed the tags A, B, C. \"le
25 need ~~ this is D~
26 '!'HE COURT: C is a diagram of the booking
27
28
area.
MR. MUNKELT: B. This is C.
00040
THE CLERK: That's C? 1
2 MR. MUNKELT: C. It 1 s an interpreting the
3 letter problem. It's a beautiful C.
4 THE CLERK: Okay. Now we are on D; right?
5 MR. MUNKELT: Yes.
6 THE COURT: Do you have the packet?
7 THE CLERK: Yes.
8 THE COURT: Do you want to mark the whole
9 packet or just the one?
10 MR. MUNKELT: Just the one document.
11 THE CLERK: I'll let you pick out the
12 document that you want.
13 THE COURT: Share it with Counsel, please,
14 after marking it. Share that with counsel.
15 MR. MUNKELT: Of course.
(Defense Exhibit D was marked for
identification.}
16
17
18 Q. BY MR. MUNKELT: Nm;, with the assistance
19 of the clerk we have the proper tagging done on Exhibits
20 B and C for identification. Let me give you D for
21 identification and ask you if you recognize \'/hat that
22 is.
A.
Q.
I do.
What is it?
A. It's a breakdown of the programs that are
23
24
25
26
27
28
offered to the inmates at the facility.
Q.
A.
It's a pretty busy facility?
It 1 s busier than the schedt1le would show
36
00041
l because it does not show all movement and everything
2 that occurs at the facility. These are just the programs
3 offered to the inmates.
4 Q. All right.
5 THE COURT: It doesn't include the lunches
6 and medical?
7 THE WITNESS: No.
8
9
10
11
THE COURT: Sundry other okay.
Q. BY MR. MUNKELT: I want to run through this
schedule in Exhibit D without spending an excessive
amount of t.irne, but l \•Iant to get an idea of where these
12 different activities take place. So, for example, we
13 have Adult Education listed daily from eight to
14 five. This is adult education for inmates; correct?
15
16
A.
Q.
Yes, it is.
And generally where do those activities
17 take place?
18
19
20
21
22
23
24
25
A.
Q.
In the pods' Multi-Purpose Room.
Okay. If we went back to Exhibit B and the
diagram of A/B Hallway where we had the door under
Central Control that access to the pod, if we for
example walk through the B Pod door, the Multi-Purpose
Room would be on our left?
A. Correct.
Q. And that's sort of a small class room size
2 6 roorn?
27
28
A.
Q.
Yes.
And when the education is taking place in
37
00042
1 there there are a number of inmates in that room?
2
3
4
A.
Q.
A.
Yes.
Who conducts classes generally?
Various rnendJers of the corrununi ty as well
5 as teachers a11d religious leaders.
6 Q. All right. So when a class session, for
7 example, is going on in the Multi·· Purpose Room of B Pod
8 is there a door that is closed so that the room is
9 separated from the rest of the facility?
10
11
12
13
14
15
16
17
18
19
. 20
21
22
23
24
25
A.
Q.
There is.
Is that door under the direct observation
from any staff member from the outside?
A, It could be observed via camera from
Central and depending on it's not monitored 24/7
because the pod officer typically would be able to
observe it. However, they will do other tasks including
walk-thru's of the individual sections.
Q. So are the inmates who are in the
Multi-Purpose Room for a class generally physically
restrained in any 'day?
A. No. Not all of the time, no.
Q. Are the people who are conducting classes
generally sworn peace officers?
A. No.
Q. Is there any barrier betcJeen the teacher
26 and the students dnring those class sessions?
27
28
A.
Q.
No.
So basically it's just a small group of
38
00043
1 }Jeople in a roo1n including a teacher and sorne inmates?
2
3
A.
Q.
Correct.
Is that the same location or part of the
4 facility where things like AA and NA meetings take
5 place?
6
7
A.
Q.
I believe so.
Religious meetings, church
8 services, things of that nature'
9 A. I believe so.
10 Q. Hence the Multi-Purpose Room'/
11 A. Yes.
12 Q. Are there ever barriers placed between the
13
14
15
16
17
18
19
20
21
22
23
24
25
pastor or the drug counselor or the alcohol counselor
and the inmates when they are in the Multi~Purpose Room?
A. By barriers do you mean like walls?
Q.
A.
Q.
A.
Yes.
No.
Or windows?
No.
Q. \'lhen a person, let 1 s say a teacher 1 comes
into the facility to do a class would they ordinarily
present thernsel vcs at the front 1·1indow and do some
signing~in pro(:;ess?
A.
Q.
Yes.
And then they would be cleared through the
26 doors into the A/B Hallway and then into the pod with
27 Central controlling the doorways?
28 A. If they are authorized to continue back
'-------------------···········--······· -------····~-···--····
39
00044
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
----------······--··-------~
then they would if the program is authorized.
Q. If they were doing a progi:am in the
Multi-Purpose Room at either A or B Pod they would pass
to the same A/B Hallway where we earlier discussed the
professional visit room is located?
A. Yes.
Q. Is there some reason that attorneys
accessing the A/B Hallway for a professional visit is
more of a security risk than having teachers access that
hallway to go back to a class in the Multi-Purpose Room?
A. They are all viewed about the same
depending on what is going on within the facility
whether they can pass through that hallway.
Q. Between E'ebruary of this year and when you
moved on to Operations was it your understanding that
under the policy as interpreted at that time there were
very few contact visits being granted between attorneys
and clients?
A. My understanding \·las there were fevier. I
don 1 t have an exact number so I guess I don 1 t know v1hat
few would be. But there were fewer than had been prior
to February.
Q. During that period of time from E'ebruary
on to which month did you leave?
A. I believe it was June.
Q. So from E'ebruary to June were you
27 consulted or \Vere requests actually made directly to you
28 on a number of occas.ions?
40
00045
l A. There had been a couple of
2 occasions, yes.
3 Q. 'ro your knowledge ~..rere there a nttm})et: of
4 requests for attorney contact visits that were denied by
5 yourself or others in the jail administration?
6 A. There were some that were denied by myself
7 and the correctional officers or the sergeants, the
8 officers in charge, and there v1ere sorne that '<'lere
9 granted through both sides as well.
10 Q. Had you created any written policies about
11 when such visits should be granted or denied on attorney
request? 12
13 A. I didn't draw up any policy. I gave verbal
14 guidelines to the sergeants and officers in charge of
15 when they would try to do everything that they could to
16 accommodate a professional contact visit.
17
18
Q.
A.
What were the guidelines?
A lot of it was based on what the
19 attorneys had to go over with their client, whether it
20 be audio or video type evidence, discovory, a large
21 amount of discovery where it wouldn't be conducive to
22 pass through the slot in the attorney-client visit
23 rooms, l and 11, as well as what was going on within the
24 Eacility, what our staffing levels were, what the inmate
25 population was, <Vhat the movements were like through the
26 facility. There was a lot of stuff that the sergeants
27 would take into effect, not just one item or another.
28 Q. Between February and June roughly was the
41
00046
1 policy being implemented to your knowledge in a way that
2 unless there was some -~·--i al consideration required for '
3 a contact visit that visits were being denied by staff?
A. Onless there was some of the circumstances
5 that I just outlined were they denied? The visits were
6 never denied. They were just denied where they took
7 place,
8 Q. Contact visits. Face-to-face visits is
9 what we're talking about.
10 A. Yes.
11 Q, I understand that if a face-to-face visit
12 was denied your staff was always to offer the glass
13 window visits in Rooms 1 and 11.
14 A. Right.
15 Q. But getting back to between February and
16 June was it your understanding under your policy that if
17 an attorney just presented themselves and said I would
18 like to make a contact visit that they would not be
19 granted that visit unless they gave some explanation
20 which sat.i sfied staff they met the policy?
21 A, That they met the guidel.ines that I gave
22 out? Yes.
23 Q, All right. During this period of time June
24 to -- excuse me February to June are you a..,Jare of any
25 change in the policies about contact visits for
26 attorneys of the federal inmates housed at the jail"?
27 A, It was the same as everybody, They weren't
28 treated any differently.
42
00047
1
2
3
Q. so if it's been said that the attorneys
for the federal inmates •>ere stil 1 being granted
unrestricted or very open visits, contact visits with
4 their clients, that t<1asnrt your understanding of the
5 policy?
6 A. Absolutely not.
7
8
9
10
11
12
13
14
15
16
Q. How about during the period again February
to June with other professionals, let 1 s say a
psychologist or psychiatrist who came to the jail to do
an evaluation 1 court-ordered evaluation of an inmate?
Did they have to make the same kind of showing as the
attorneys in order to get a contact visit?
A. I belie11e so. Yes.
Q. How about probation officers? Are they
treated the same as psychological professionals and
attorneys for the purpose of contact with inmates or
17 differently?
18 A. I think they were treated more like a law
enforcement official coming in.
Q. How i,.1ere law enforcernent officials
treated?
19
20
21
22 A. Typically they would come in through the
23 back and they had access to the booking area whenever
24 they were in the facility. I don't recall probation
25 going, how often they came. It was f:ar more -- we had
26 far more attornoys coming in than I would say probation
27 or somebody else of that nature unless it was an
28 arresting agency.
43
00048
-----------------·----------~ ....
1 Q. I didn't do a di a gram of N Section, but
2 let's talk a little bit about the geography there.
3 Which of the inmates are generally housed
4 in the N Section?
5 A. There is a combination of inmates. Thet~e
6 is not we have son1e federal inmates there. We have
7 some maximum :security. We have some I don't kno\....r it they
8 are maximum or rnediunt to be honest \..,•i th you. 'I'hen we
9 have 1 on anotl1er side we have 1nini1nurn security that
10 would provide work outside of the facility or within the
11 facility.
12
13
14
15
16
Q. Is the inmate visiting for the N Section
accessed through a different doorway in the facility
than the main lobby?
A. Yes.
Q. Is that separate doorway under some form
17 of Central Control for unlocking the door?
18 A. It is.
19 Q. How does Central know when they are
20 supposed to unlock that door?
21 A. There is an intercom outside the door and
2 2 they v1ould ring it up.
23 Q. If a person enters through that first door
24 are they in a small area which also can only be exited
25 under other doors that are under Central Control?
26
27
28
A.
Q.
A.
Yes.
So it's a little secure space there?
What we describe as another air lock.
44
00049
l
2
3
4
-----------------····
Q. All right. Are there a couple of visiting
rooms accessed from that air lock?
A. Yes.
Q. And then also a door that enters into the
5 section itself next to the desk?
6
7
A.
Q.
Yes.
The two visiting areas accessed off the
8 air lock in N Section are small rooms without barriers
9 or telephones; is that correct?
10
11
12
13
14
15
16
17
18
19
20
21
A. No. 'fhey are -- it's kind of like a
bench, a long desk and bench with I believe the
phones. I mean, it's glass and they have the same phones
that would be used in the other side.
Q. Are there occasions '.'lhen tl1e visitor 1 s
side of those rooms is used for contact visits?
A. I don't recall them ever being used for
cont:act visits. There is a room off to the right, but I
think it's being used as storage. We had a desk put in
there but I think it was being used for storage. I don't
know that it ever got used.
Q. So you are not aware of attorney visits
22 ever taking place as contact visits in those -- the
23 visiting side of those rooms?
A. No. Not to my knowledge. 24
25 MR. MUNKELT: That's all of the questions
26 that I have of this witness at this time. f'll indicate
27 that we haven't processed some of the information or
28 documents that we have gotten in court this morning so
45
00050
1 there may be some other subject, but that is it.
2 THE COURT: We're going to take a short
3 break. We have been at this for an hour and change, so
4 let's take a short break. Let's be back at 20 to.
5 (A recess was taken.)
6 THE COURT: Back on the record after our
7 recess. Mr. Munkelt, do you have any additional
8 quest:ions?
9 MR. MUNKELT: A few if I may, Your Honor,
10 before we let Mr. Kropf get at it here.
11 REDIRECT EXAMINATION
12 BY MR. MUNKELT:
13 Q. Yes. Captain Pettitt, I think that you
14 briefly mentioned sonle cameras observing the areas that
15 Central has access to or other stations might have
16 access to. My understanding would be that the
1 7 surveillance cameras in the jail are primarily directed
18 at the hallway areas; is that correct?
19
20
21
22
23
24
25
26
27
28
A. No. They are aimed at various locations
throughout the facility.
Q. Okay. Is there a camera position which
looks into the Multi-Purpose Rooms in the A and B Pod
areas?
A. I believe you can look in through one of
the windO\-lS. The canLera is not actt1ally in the
Multi-Purpose Room. It's outside in the hallway.
Q. You believe that it shows some portion of
the interior of the :rooms'?
46
00051
1
2
3
4
5
6
7
a
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
2B
A.
Q.
Yes.
A couple of other types of people that may
want to visit inmates at tl1e jail that I jt1st want to
check on the policy. So if you had people from Community
Hecovery Resources or Common Goals v1ho wanted to do an
intervie\'/ for possible intake or that sort of
thing, people with drug and alcohol problems, is the
ability of those persons t.o get. a cont.act with an inmate
treated the same way as the attorneys under the present
policy?
A. To my knowledge it is. As I recollect, I
believe so. They have it in the same rooms as the
attorneys.
Q. How about people from Nevada County
Behavioral Health that might be contacting a person
about eligibility .for programs or special courts, things
of that nature?
A. Again, it would be -- it would depend on
1·1hat is going on in the facility and if they requested
to come back and the OIC's (sic) would look at it at
that point.
THE: REPORTER: I'm sorry.
THI': WITNESS: The officer in charge. I'm
sorry.
Q. BY MR. MUNKJ':I.T: In your understanding is
that the policy, that would b<e the same policy applied
to attorneys under the current plan or no?
A. I don't recall specifically with in
47
00052
l
2
3
4
5
regard to Behavloral Health, but I know there were times
where they met in the attorney visitation rooms, but I
wasn't there every time they came into the facility so I
can'c really answer where they met all of the time.
Q, How about t.he Drug Court's
6 evaluators, Steve Mason and Cyna? Do they have any
7 different access to contact visits with inmates than
8 attorneys?
9 A, Not to my belief. In fact, I don't recall
10 ever see:i.ng Steve Mason. I knol.'1 they would come in but I
11 don't know when they would come in. I never saw them
12 inside the facility.
13 MR. MlJNKELT: I don't have any further
14 questions at this point, Your Honor.
15 THE COORT: Mr. Kropf, questions of this
16 \-Jitness?
17 CROss~EXAMINATION
18 BY MR. KROPF:
19 Q. BY MR. KROPF: For the purposes of my
20 questions this n\orning \Vhen \•1e talk about contact visits
21 we' 11 be talking about barrier free visits. Do you
22 understand that?
23
24
A.
Q.
I do.
With respect to the policy of the
25 sheriff's office concerning attorney-client visitation
26 does the sheriff's office outright ban all contact
27
28
visits?
A. We do not.
48
00053
1 Q. And does the sheriff's office, in fact,
2 allow contact visits in court holding cells?
3
4
A.
Q.
We do.
Earlier you testified that there were some
5 guidelines that you had given to I believe the sergeant
6 who might be on duty when an attorney shows up. Do those
7 guidelines apply to contact visits in courthouse holding
8
9
cells?
A. The courthouse holding cells were always
10 contact visits regardless.
11 Q. So assuming staff is available and an
12 attorney wants to meet, have a contact visit with their
13 client they are free to request that their client be
14 transported to a courthouse holding cell; is that
15
l 6
17
correct?
A.
Q.
Yes,
As I believe you previously testified in
18 other circumstances at the \·Jayne Brown Correctional
19 Facility attorneys are permitted contacted visits; isn't
20 that correct?
21
22
23
24
25
26
27
28
A. I'm sorry. Say that again.
Q. I believe your testimony earlier was, in
fact, attorneys are entitled to have contact visits at
the Wayne Brown Correctional facility if they follow
under certain guidelines that you orally transmitted or
communicated to your sergeant; is that correct?
A.
Q.
Yes.
Nol'J, referring to your me1no that I believe
49
00054
1 111as marked as Exhibit A, \•rhy did you prepare that Inerno?
2 A. 'I'here \.;ere co11cerns brought to my
3 attention within the facility of not being able to
4 control the inmates, their rnove1nent outslde of those
5 particular rooms where the visi ta ti on v1as going on and
6 they were coming out while at times other inmates would
7 be walking by. Concerns regarding cross-classification.
Why did that concern you? 8
9
Q.
A. ~·1ell, any time -- each inmate that comes
10 into the facility, they are initially classified by
11 booking, very initial booking classification, and then
12 further by officers that are trained in classifying
13 which inmates can be housed together. When those rooms
14 -- when the people are traversing through those rooms,
15 particularly in the A/B Hallway or in booking, the
16 inmates can come out of them and if it's an ene1ny attack
17 them or do -- bring other harm to them or the
18 correctional officers when they are walking by
19 unexpectedly.
20 Q. Drawing your attention to the I believe it
21 was marked as the Defendant's far one on the right --
22 MS. SCHUTZ: B.
23 MR. KROPF: B.
24 Q. BY MR. KROPF: Drawing your attention to
25 that as you can see up at the left-hand top there is a
26
27
28
room 1.narked professional visits. Is that a secure roo1n?
A. It's secured I believe from the outside
but not from the inside. In other words, it takes a key
~---------------------.... --------------------~
50
00055
to get into it but no key to get out of it.
2 Q. In that case it's possible for -- if there
3 is a prisoner in that room they can ex:it that roorn
4 without any control from Central Control; is that
:J correct?
6
7
A.
Q.
'1'hat 's correct.
Normally do you have correctional officers
8 positioned or stationed in that A/B Hallway?
9
10
11
12
A. We do not.
Q. Does that create a problem if, in fact 1 a
prisoner exits that room \1itl1out permission?
A. It does. It could result in, like I say,
13 cross-classification. That hallway is used for a lot of
14 traffic because at the end of it just past the medical
15 what is labeled as a medical door there is a
16 transportation hallway and all inmates going through to
17 court or medical appointments are traversing that
18 hallway.
19 Q. Now, if -- that particular room is not
20 monitored by a camera; is that correct?
21
22
A.
Q.
No. Not the interior of that room. No,
If an attorney is -- hypothetically
23 speaking if an attorney is attacked by a prisoner in
24 that room would there be any way for any one in the jail
25
26
to know that?
A. If it's alarmed if they can to that
27 alarm they could, but if they are cornered, no.
28 Q, In fact, in your experience do you kno\·l of
51
00056
1 any one any attorneys who have ever been attacked in
2 that roorn?
3 A. I've been told there was an attorney
4 attacked in that room.
vlhen \vas that? 5
6
Q.
A. 1 don 1 t recall when it was. I l•Jas recently
7 made aware of that, though.
8 Q. Had that attorney -- strike
9 that. Referring to the other exhibit that has been
10 marked as I believe Defendant's B, at the top there is a
11 roon1 marked Intervi.ei.·1 Room. Do you see that?
A. Are you talking about on Exhibit C?
Q. c. I' rn sorry. Yes.
A. Yes. I see that.
12
13
14
15 Q. Does that room have a camera monitoring
16 it?
17
10
A.
Q.
No.
Can that room be seen -- well, let me back
19 up. Normally generally speaking how many staff do you
20 have stationed in that particular area depicted in
21 Defendant's C?
22
23
24
A.
Q.
A.
Lately it's been just one.
Where would that one staEf normally be?
In various places within that room. They
25 could be at the booking desk. They could be around the
26 corner over here. Off the map is where they would bring
27 in people being brought in to be booked. 'l'hey could be
28 off over there. They could be in the sergeant's
52
00057
-------.. ---···------.. -----
1 office. 'rhey can lJe in the front. There are various
2 locations they would be accessing day to day.
3 Q. Are there times I take it prisoners in
4 that waiting room or booking area?
5
6
A.
Q.
Are there prisoners in there? Yes.
Yes. Generally speaking have those
7 prisoners been classified by the time they get into that
8
9
area?
No.
10
A.
Q. When we talk about classification what is
11 that?
12 A. Classification is basically where the
13 we have classification officers. We have booking
14 officers that ask a series of questions of the inmate
15 and based on their response to those questions we'll
16 look at where we would house them. Some of the questions
17 are do you have any enemies? Do you know of any enernies
18 in here? Do you think that you will have a problem in
19 here? The charges. All of those are considerations
20 within classification.
Why do we classify pr.i soners?
For their safety.
21
22
23
Q.
A.
Q. Is that -- when we classify prisoners, do
24 \•te use that to segregate prisoners in different areas to
25 prevent conflict between those prisoners at times?
A. We do. 26
27
28
Q. Now, with respect to the room at the very
top depicted as a possible interview room is that a
53
00058
1
2
3
4
secure room?
A. It's secured again from the outside noL
from the inside.
Q. So in that particular case if there is a
5 prisoner in that room can they exit that room without
6 permission or without control?
7
l:l
A.
Q.
Yes.
Do you have a concern about prisoners
9 possibly exiting that room wl.thout permission?
10 A. I do.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7.7
28
Q.
A.
\•That concerns do you have?
t.fy concerns are that they -- there is a
small window in that -- in the door. One, if the inmate
is planning some sort of attack on the correctional
officers as a correctional officer is walking by itts an
easy way for them to catch the correctional officer
unaware or maybe from behind. The same goes with other
inmates maybe of another classification. If they have
some wanting to cause harm to another inmate, if they
see that inmate walk by they can pop right out of that
door and we don't have any control of it.
Q. Is that another -- are your concerns that
you just described is that another reason that you have
considered in atte1npting to limit visitation bet\.,1een
attorneys and their clients to the designated attorney
visitation rooms?
A.
Q.
It is.
I believe previously you said that room
54
00059
was not monitored by cameras; is that correct?
That 1 s correct. 2
3
A.
Q. And in that particular case hypothetically
4 speaking if an attorney w·as in that room ~'fith a client
5 and \.;as attacked w-ou1d there })e any way for correctional
6 staff to see that happen?
7 A. If they happen to be wa.l king by and they
8 saw it, then yes. The other option would be if the
9 attorney could get to the alarm that is mounted by the
10 door they could hit that. But if they are cornered, no,
11 we wouldn't know.
12 Q. And if an attorney is attacked by a client
13 in that particular room and there is only one staff
14 member, correctional member in the general booking area
15 would that, as far as you are concerned would that
16 create sonle issues or concern?
Absolutely.
What kind of concerns would that be?
17
18
19
A.
Q.
A. You know, the concerns for me would be who
20 else what do we have going on in the booking
21 area, One of the most volatile areas of the entire
22 facility based on the fact that people are corning in,
23 initial intake, they are corning in. They could be under
24 some type of substance that is altering their
25 behavior. They could be agitated, angry. So you have
26 got a mix of coming in there.
27 If you are bringing somebody in and they
28 are being brought in by an agency, they are corning in or
-----~~ .... ·~--------------------
55
00060
1 even the sheriff 1 s office, if they are con1ing in that
2 booking officer may not even be there. That booking
3 officer may be around the hall, down the -- I can't
4 think of the name of that hallway. The pre-booking area
5 hallway where the inmate is coming in and being patted
6 down. They may be dealing with other things. And
7 staffing often lately had been to the point where that
8 officer and we call another rover to assist them down
9 that hallway and we wouldn't have anybody that could
10 respond right away to any other emergency that would be
11 going on in there.
12
13
14
15
16
17
18
19
20
Q. Earlier there was some questioning about a
safety cell. Do you place more than one prisoner in that
safety cell?
A. We do not.
Q. The prisoners that are coming in through
booking, when we talk about classification have they
also been medically screened?
A. There is a pre-medical screen. When they
first enter the facility it's one of the first things
21 that is done.
22 Q. Nov1r prisoners that have -- new prisoners
23 coming into the facility, are they always predictable in
24 their behavior?
25
26
27
28
No. A.
Q. So is it possible for their behaviors to
change from calm to violent or violent to calm?
A. Yes.
56
00061
------~·-----~····.
1 Q. Now, witl1 respect to the interview room
2 that is depicted on th<0 left side of that diagram do you
3 sE~e that?
4
5
6 camera'?
7
a
A.
Q.
A.
Q.
I do.
Is that interview room monitored by a
It is not.
Depending on the location of this
9 particular staff member or corr<0ctional member in the
10 booking area, is that room always observable at all
11 times?
12 A. No.
Q. Is that room a secure room?
A. No.
13
14
15
16
17
18
19
20
21
Q. Is it possible for a prisoner .in that room
to exit without permission?
A. It is.
Q. Does the use of that room cause you the
same concerns as the room above?
A. It does.
MR. KROPF: I am going to have the diagram
22 marked as county's 1, I believe.
23
24
25
26
27
28
(County's Exhibit 1 was marked for
id<0ntification.)
MR. KROPF: I will show it to counsel.
Q BY MR. KROPF: I am going to show you a
diagram that has been marked -- may I approach?
THE: COURT: You may.
57
00062
1
2
3
4
5
6
7
8
9
10
11
Q. BY MR. KROPF: Showing you a diagram that
has been marked as County's 1, do you recognize that?
A. I do.
Q.
A.
VJ hat is that?
It's a diagram of the Wayne Brown
Correctional Facility.
Q. Can you see the particular areas that have
been designated as attorney visitation rooms in that
particular diagram?
A. I can.
Q. If you could -- if I could approach and
12 have you circle those areas with a pen.
13 THE COURT: Sure. There are colored markers
14 up there if you want to use one.
15
16
17
18
19
20
21
22
THE WITNESS: This will work. (The witness
complies. )
Q. BY MR. KROPF: Now, the area that you have
circled are those the areas that are currently
designated as attorney-client visitation rooms?
A. No. I thought that you wanted me to go to
the rooms that we were talking about. The
attorney-client rooms I can circle them in the ones ·with
23 the glass, the barrier rooms. I can circle those if you
24
25
26
27
28
would like.
Q. Why don't we get --
THE COURT: Here's a red pen.
Q. BY MR. KROPF: If you could circle those
with a red pen, please.
58
00063
1
2
A.
Q.
(The witness complies).
Now, the attorney-client -- the current
3 rooms that are designated as attorney visitation
4 roonts, can you describe those roorns ger1erally?
5
6
7
8
9
10
11
12
13
14
15
16
17
A. There 1 s two rooms. They are accessed
the attorneys access from the public side. In other
words, they have to go through the security of the
facility. They don't have to enter the secure portion of
the facility. They go through a metal detector and the
rooms are -- they have a door that they enter in. The
rooms that -- on the attorney side the rooms have like I
described earlier a foam studio foam around the whole
room. Acoustic tiles on the roof. There is a bench that
they can sit on or a stool they can sit on as well as a
steel table.
It's got a glass, a thick glass partition
with what we call a pass through slot. They have that
18 that can be opened or closed. Then the inmate on the
19 other side would have again a separate door that is
20 controlled through Central through the secure porcion of
21 the j ai 1. On that side there is no -- excuse me. There
22 is no foam on that side and there is -- the roof is a
23
24
25
26
solid roof not an acoustic roof.
Q. The walls on those rooms, how would you
describe those walls?
A. They are cinder blocks. I believe they are
27 filled with concrete and rebar.
28 Q. On the attorney side, the door, could you
--------~·········-----------------------~
59
00064
1 describe what kind of door that is?
2 A. It's a steel door. Heavy steel door.
3 Q. On the prisoner side can you describe that
4 door?
5 A. It's another heavy steel door.
6 Q. Now, the door on the prisoner side 1 is
7 that a secure door?
A.
9 Can the prisoner get out of that room on Q.
10 his owr1?
11 A. They cannot.
12 Q. Can the prisoner get in the roorn on his or
13 her O\·ln?
14 A. They can not.
15 Q. So is that door controlled?
16 A. It is.
Q. 17 How "JOuld a prisoner get access to that
18 particular visitation room?
19 A. They would be let in by Central Control.
20 Q. So can Central Control observe the door to
21 that particular room?
22 A. They can. I'm sorry. They can visually a
23 direct line of sight on the rooms accessed via the A/B
24 Hallway and then via the pod control officer on the B
25 hallway would allow access to the other side.
26 Q. On this particular diagram that has been
27 marked as Connty's 1 do you recognize the hallway that
28 was previously described as the A/B Hal.lway?
60
00065
1
2
A.
Q.
3 located.
I do.
If you could write A/B where that is
4 A. (The witness complies)
5 Q. Now, with respect to the A/B Hallway are
6 there there are personnel generally stationed in that
7 hallway'?
8 A. No.
9 Q. Correctional personnel'?
10 A. No.
11 Q. Going back to the attorney visitation
12 roonts, you described that there is a glass barrier; is
13 that correct'?
14
15
A.
Q.
There is.
And are attorneys able to -- well, in your
16 based on your observations of those rooms can you see
17 through the glass barrier to the person on the other
18
19
20
21
22
23
24
25
26
27
28
side?
You can. A.
Q. Can persons using those roon1s based on
your experience, can they cormnunicate with each other?
A. They can.
Q. How do they do that?
A. There is a phone that I described earlier,
the sound powered phone or with the flap (sic), the
pass-thru slot open you can just talk.
Q. Do you believe that those rooms allow
confidential corrununic::ation?
61
00066
I do.
Why do you believe that?
1
2
3
A.
Q.
A. I have had -- when we first installed the
4 phone when we were installing it we didn't cover the
5 entire room at first. We would go through and as we
6 installed some we would test it by having another deputy
7 in this case on the other side and me inside the room. I
8 would just talk and see if we could carry on a
9 conversation. Then we would continue to lay foam, lay
10 foam until the whole room was covered, at which point
11 then I would -- in a normal conversation the other
12 officer couldr1 1 t hear zne.
13 Q. So in your experience can you hear voices
14 on the other side?
15 A. You can hear voices. You can hear what I
16 would equate to a mumbling. You know there are people
17 out there. But you can't. hear -- what -- the course of
18 their conversation.
19 Q. With respect to the -- well, let. me back
20 up. Earlier you testified that. in A/B Hallway personnel
21 are normally not stationed in that halh1ay; is that
22 correct?
23
24
25
26
27
28
That's correct. A.
Q. Are prisoners normally loitering or just
wandering about in that hallway?
A. They are not. wandering about. They are
usually ir1 route some·where.
Q. There would be no reason for a prisoner to
62
00067
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
be standing next to one of the attorney visitation
rooms; is that correct?
A. No. We constantly want them moving through
the hallway. We don't let them sit there and hold a
conversation.
Q. Now with respect to the professional visit
room that is depicted on Exhibit B1 is that room sound
proof?
A. It is not.
Q. With respect to the interview room at the
top of the Defendant's C, ls that room sound proof?
A. It is not.
Q. How about the other room depicted on that
diagram on the left side?
A. It ls not.
Q. Prior to becoming the Operations Commander
for the Sheriff's Office -- strike that. Are you
familiar with the staffing levels in the \Vayne Brown
Correctional Facility?
A. I am.
Q. Over the last three years have those
staffing levels increased, decreased or remained the
same?
A. They have decreased.
Q. Do you recall -- prior to coming here
today did you, in fact, determine what those staffing
levels were for the last three years?
A. I did.
63
00068
1.
2
3
4
5
6
7
8
Q.
A.
How did you do that?
I looked at our masting (sic) -- our
Master Staffing Document through our financial unit.
Q. F'or the fiscal year 2010 through '11 how
1nany correctional officers \·Jere assigned to the Wayne
Brown Correctional "'acili ty?
A.
Q.
I believe there 1vere 5 7.
For the fiscal year of 2011-' 12 how many
9 correctional officers?
10
11
A.
Q.
I believe it was 51.
Currently for the '12-'13 fiscal year how
12 many correctional officers?
13
14
15
16
17
18
A.
Q.
I believe it was 48.
With to those staffing levels, are
those -- those are budgeted staffing levels?
A. They are. Then there are other staffing
shortages due to furlough.
Q. For example, would there be other reasons
19 that you might have levels less than those that you just
20 described?
21
22
23
24
25
26
27
28
A. Yes. Like I said, there are furlough times
and the correctional officers were under a
furlough. I believe it was 40 hours and then this year
it's even more. And then we also have had a number of
employees that \·:ere out due to illness or sonte other
reason that they weren't at work.
Q. When you -- in January when you presented
the memo that was described as Defendant's Exhibit A did
64
00069
1 you consider staffing levels in deciding that you 1·1anted
2 to further limit attorney-client visitation to the
3 designated attorney-client rooms?
4
5
6
7
8
9
10
11
1.2
13
14
15
16
17
18
19
20
21
22
23
we are
A.
Q.
A.
l did.
t"ihy is that-z
Our staffing levels got to the point where
it took every staff member there just to get
the inmates moved to where they needed to go. At. tiines
t-Je couldn't even offer -- v1e l1ad to suspend programs. It
got to a po.int where should sornett1ing arise 1 our
staffing level was dropping that if something happened
in or1e of the attorney visitation rooins it was going to
be an extended or it could possibly be an e><t<3nded time
to respond to it.
Q. With respect to the programs that you have
mentioned that I believe were depicted in Defendant's
Exhibit D, are those programs, do they occur all of the
tinte without question?
A. No.
Q. What kind of factors would prevent the
irnplementation or the regular occurrence of one of those
programs?
A. One is staffing. Staffing can certainly
24 we could cancel and I think they have had to put some
25 programs on hold because of staffing. Other things could
26 be going on in the facility. If there lS a fight in one
27 of the pods we will suspend any programs that are going
28 on ttnti.l \'18 can regain control or regain calm in the
65
00070
1 facility.
2 Q. So would it be fair to say that you
3 consi(ier safety and security reasons in determining
4 whether to suspend one of those programs if needed?
5
6
A.
Q.
Oh 1 absolutely.
With respect to as an Operations Commander
7 and former Jail Commander over the last several years
8 have you seen an increase in overall jail population?
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A.
Q.
A.
Q.
We have.
At the Wayne Brown Correctional l"acility?
We have.
Have you, in fact, determined Hhether or
not there has been, in fact been an increase in jail
population over the last three years?
A. There has been.
Q. How do you know that?
A. 'I1hrough -- our class if ica ti on off ice rs
keep an Excel spreadsheet listing average daily
populations as well as your average monthly populations
and then it summarizes it in for the year.
Q. Have you looked at summaries for the 2011
calendar year Hith respect to average daily populations?
A. I did.
Q. In 2011 what was the average daily
population?
2 6 A. I believe it was a hundred and
27 seventy-nine.
28 Have you looked at those average daily
66
00071
1 populations for the 2012 calendar year•
I have. 2
3
4
5
6
7
B
9
A.
Q. What was the average daily population for
that year?
A.
Q.
I believe it was 207.
For 2013 have you been able to make a
determination as of yesterday what the average daily
population is so far?
A. I have.
What is that?
221.
10
11
12
Q.
A.
Q. Did you consider -- in preparing your memo
13 that has been marked as Defendant's A did you consider
14 the increase in daily population -- average daily
15 population over the last three years in seeking to limit
16 attorney-client visits to designated attorney visitation
rooms?
I did.
Why did you do that?
17
18
19
20
A.
Q.
A. ~lell, the more people that are thetce the
21 more movement throughout the facility. Less staff we
22 have to -- I guess the ratio of correctional officer to
23 inmate bas increased which obviously could potentially
24 effect safety and security of the facility. So those are
25 all reasons that you look at to limit it.
26 Q. Wi. th respect to the -- there was some
2'/ discussion earlier about the Multi-Purpose Room and
28 programs, Multi-Purpose Rooms. Do you recal.l that?
67
00072
1
2
3
4
A.
Q.
any way?
A.
I do.
Is that Multi-Purpose Room monitored in
You have the carnera that vie-vis in from
5 outsicle as well as a speaker in the room that can be
6 keyed up where you can listen in.
7
8
9
10
11
12
13
14
15
Q. Is that Multi-Purpose Room in a specific
pod?
A. It's in A Pod, B Pod and then there is one
in N Section and then a secondary classroo1n in N
Section.
Q. Is that particular the Multi-Purpose
Room that we -- is it isolated from the rest of the
facility?
A. It's not isolated from the it 1 s v1ithin
16 the facility. It's in the hallway. As soon as you enter
17 B Pod and A Pod as you walk into, let's say, B Pod it's
18 on the left-hand side. If you walk into A Pod it's on
19 the right-hand side. It's all windows.
20 Q. When the correctional facility is
21 permitting programs to be presented in that
22 Multi-Purpose Room have the prisoners that are using
23 those programs, have they been screened in any way?
24 A. They have. We have a sergeant who does
25 the security check on them, does a background check.
26
27
28
Q. When you say background check is that on
the prisoners or the person giving the program?
A. On the person giving the program.
68
00073
---------------·----~
1 Q. With respect to the prisoners themselves
2 have they been classified prior to entering that
3 Multi~Purpose Room?
They ai:e. 4
5
A.
Q. So i-1ith respect to their participation in
6 that Multi-Purpose room, is it fair to say they are not
7 -- that there 1 s not prisoners that would necessarily
a have interests adverse to each other in that room since
9
10
11
12
13
14
15
they have been classified?
A. Correct. Typically they are from the
housing unit so they are already living together.
Q. Is it a general practice not to mix
classifications in the same housinq un.i t?
A.
Q.
Correct.
Why is that?
sanle
16
17
A. Once again, the classification you could
be rnixing rival gangs together, enemies. There is a
18 reason -- or you can be mixing people who have just by
19 the nature of crimes that they committed or accused of
20 committed could have a target placed on them.
21 Q. Does preventing mixed classifications
22 assist in the safety and secur.i ty of the facility?
23 A. It's one of the main ways that we keep a
24 safety and security of the facility.
25 Q. Is there a grievance procedure at the
26 t'layne Brown Correctional E'acil i ty that perrnits prisoners
27 who are dissatisfied with a particular term or condition
28 of their confinement to make a grievance?
69
00074
1
2
3
4
5
6
7
8
9
10
11
12
13
14
A.
Q.
A.
There is.
Are you aware of hoi.'1' that procedure 1.-1orks?
The inmate would request a grievance. They
would be given it. They fill it out. They would turn it
into the officer and the o:Cficer would sign for it and
it's then routed up where it needs to go depending on
the nature of the grievance.
Q. As far as you know has any prisoner since
January of this year submitted a grievance complaint
that they were not able to effectively or ineffectively
communicate with their attorney in the attorney
visitation rooms?
A.
Q.
Not to my knowledge.
Did you make any efforts to check whether,
15 in fact, there had been any grievance to that effect?
16
17
18
A.
Q.
I personally did not, no.
I~ear vii th me one minute here,
In the attorney visi tatio11 room as you
19 talked about there is a glass barrier; correct?
20
21
22
23
A.
Q.
A,
Q.
Correct.
What is the purpose of the glass barrier?
Safety.
In your opinion does it assist in the
24 prevention of prisoners attacking their attorneys?
25
26
27
28
A. It does.
MR. KROPF: I have no further questions.
THE COURT: All right. Anything on direct?
MR. MUNKELT: Thank you. A few.
70
00075
------------~·~·---
1 REDIRECT EXA'1INATION
2 BY MR. MUNKEJ:f;
3 Q. Captain Pettitt, i11 your tenure as Jail
4 Commander are you aware of any incident v-1here there v1as
5 an assault or battery on an attorney during a contact
6 visit with a client?
7
a
A.
Q.
Not to my recollection.
During your tenure as Jail Corrunander are
9 you av1are of any incident where an inmate assaulted
10 either a staff member or another inmate on the way to or
11 from an attorney contact visit?
12
13
A.
Q.
Not to my recollection.
I think that you mentioned in connection
14 with the people who do classes, training, drug programs
15
16
17
18
and stuff at the jail that you do some kind of
background check before you allow those people to have
contact with inmates for that purpose?
A. Car rect. ~'\Te have a sergeant that oversees
19 the programs.
20 Q. Is there also some training that they go
21 through to orient them to the security requirements of
22 the facility?
23
24
25
26
27
28
A. I believe so.
Q. As far as you are aware has there ever
been a similar training done for attorneys to make them
aware of the security needs of the jail'/
A.
Q.
Not that I am a\>l.Ore of.
Let's talk about court holding for a
71
00076
1
2
3
second.
A.
Q.
Sure.
Prior to the construction of the Wayne
4 Bro,.,.n Correctional Facility the county jail was housed
S within the courthouse building?
6
7
8
9
10
11
12
13
A. Correct.
Q. Since the construction of ~·layne Brown at
least a portion of that original facility is used for
housing inmates who have court appearances or who have
just been in court and holding them until they can be
transported back to Wayne Brown?
A. Yes.
Q. Within that facility in the courthouse
14 there is an area that was originally the inmate visiting
15 room when that was functioning as a jail; is that
16 correct?
u
18
19
20
21
22
23
A.
Q.
I believe so.
And the inmate side of that visiting
facility in the courthouse holding section is currently
being used for attorney-client visits, possibly among
other things but for attorney-client visits; correct?
A. I believe so.
Q. Now, that part of the sheriff's operations
24 is open or operational only during court hours; is that
25
26
27
28
correct?
A.
Q.
A.
Yes.
Roughly eight to four?
I'm not sure of the hours for it. I will
···--~-------~
00077
----------•••••••••••••·--··--···--------www-----
1 take your word for it if that's what the courthouse is
2 now.
3 Q. That courthouse holding facility is not
4 available for visits with the inmates in the evening or
5 on t>1ee kends?
6
7
A.
Q.
Correct.
There is only one area that would normally
B be used for an attorneywwwclient visit in the holding
9 fac11 i.ty; correct?
10
11
A.
Q.
I believe so.
So that only one attorney can meet with a
12 cl lent at a time?
13
14
A.
Q.
Correct.
With respect to the noncontact attorney
15 visit rooms Numbers l and 11 where you have described
16 how the foam was placed on in your personal checkwwwin to
17 see if normal conversation can be heard?
18
19
20
21
22
23
24
25
26
27
A. Correct.
Q. You didn't check to see whether the inmate
side of the facility was sound proof enough to prevent
people from outsi.de that room hearing the
conversation, did you?
A.
Q.
A.
Q.
A.
We did.
Sorry?
We did.
What did you do to check that?
I sat in one holding cell or one holding
28 visiting room and I.11.eutenant Smethers ivas in the other
73
00078
l one and I believe Lieutenant Smith (sic) was standing
2 outside and I was talking and I couldn't hear
3 anything. I come to £ind out he couldn't hear
4 anything. As a matter of fact., I didn't think he was
5 talking. So we had to we buzzed back out and asked
6 Lieutenant Smith (sic) and Lieutenant Smethers whether
7 they were talking or not.. We couldn't hear anything.
8 Q. Was there any effort to measure what the
9 sound volumes were of your conversation, anything of
10 that nature or just normal conversational level?
11
12
A.
Q.
A normal conversational level.
With respect to Rooms 1 and 11 and the
13 pass-thru slot that has been referred to, to describe
14 that -- could you describe a little further what the
15 pass-thru slot is?
16 A. It looks similar to a mail slot like you
17 would see in a door I guess. It's about a -- I am not
18 sure how long. Maybe a foot in length by three-quarters
19 to an inch in height. It's just a straight hole if you
20 will. A little bit of air inside of it. You can pass
21 papers or whatever needs to go back and forth between
22 attorney and the inmate.
23 Q. So that the open space through which you
24 can pass items is maybe three-quarters of an inch high?
25
26
A.
Q.
I believe so.
And wide enough so that you can fit normal
27 eight -·and-a-ha if-by-eleven paper through it in some
28 fashion?
--···------------------ ------~----------- ---------~
74
00079
1 A. Yes. Sur.e.
2 Q. Is it the procedure or policy to normally
3 have the inmate side of that pass through slot blocked
4 off in some fashion?
5 A. Yes. There is a door on the inmate's side
6 that would optimally always be closed. Then at the
7 request of the attorney we would open it. So there would
8 be that way to bar certain things from being passed into
9 the facility.
10 Q. There was some discussion about the
11
12
13
14
15
16
17
18
19
20
21
22
23
staffing levels of the jail going down.
As of your responsibilities in being
the commander of the jail. over this period of a time did
you also become familiar with the overall budget of the
sheriff's department?
A. I did.
Q. It's my recoll.ection that as a part of the
teal.ignment of sentencing of inmates and so forth under
the State of California's plan that the sheriff's
department in 2012 received about a $600,000 supplement
to help deal with the consequences of realignment. Does
that. sound about right?
A. I don't recall the exact number, but the
24 sl1eriff's office did receive funding.
25 Q, Was it about the same amount for 2013?
26 A. I don't recall what 2013 was.
2 7 Q. To your knm·1ledge was any o E the reduction
28 in staffing that you described or staff availability
75
00080
·····--··----
1 that you described because of a lack of funds to hire
2 correctional officers?
3 A. Our funding had been cut and the money
4 that came in kept it from being cut even further I
5 believe.
6 Q. So you think the money for staffing was
7 cut by more than 600,000?
8 A. I don't know what -- I don't know what the
9 number was for staffing. But I know that some of that
LO a lot of that funding went to staffing, to fund
11 positions.
12 Q. ls it: your opinion that at any time during
13 your tenure as commander of the jail that the staffing
14 was below minimum levels?
15 MR. KROPF: Objection. Lacks
16 foundation. Vague and ambiguous as to minimum levels or
17 what that is.
18 THE COUR~': Sustained. Lay the foundation.
19 Q. BY MR. MUNKEI,T: Is there a minimum level
20 of staffing that's essentially legally permissible at
21 the jail?
22 A. I don't think there is an outlying number
23 of ratio of inmates to correctional officers. To my
24 knowledge I don't know of any ratio set by CSA or other
25 organizations.
26 Q. Okay. I think that you indicated with
respect to educational classes and other people that '" t• eoco'' Cm ;om.Co' in the jail that if there is an
76
00081
··---··------~-··------------------------··---··---··
1 emergency situation of any kind you might suspend that
2 activity; correct?
3
4
A.
Q.
That may be one of the reasons, yes.
1f attorneys were routinely being allowed
5 contact visits \<Jith their clients \·Jhen an en1ergency
6 occurred you would be able to temporarily suspend that
·1 privilege, wouldn't you?
8
9
A. It wouldn't be -- well, certainly we
could. VJe could just -- do you mean as far as contact
10 visits in the rooms, the interview rooms here on Exhibit
11 C?
12
13
Q.
A.
Correct.
Yes. We could stop them from occurring but
14 if they are already taking place it obviously creates
15 logistical issues of getting them put back to where they
16 need to go and responding to the scene.
17 Q, So you mean if a major altercation broke
18 out in B Pod you might -- it would be an additional
19 problem to remove the attorney from the visit room when
20 everybody \<Jent to respond to an emergency?
A.
Q.
It would take some more time, yes.
And what would be required is basically
letting the attorney know hey, you have to head out?
A. And then getting that inmate secured into
21
22
23
24
25 one of the other cells. And it keeps that it keeps
26 that correctional officer tied up instead of just being
27 able to respond to the scene. In the other attorney
28 visit Rooms 1 and 11 the inmate is already secured. We
00082
don 1 t l1ave that concern. 1
2
3
4
5
6
Q. To your knowledge has there ever bee!< an
during your tenure as captain of the jail has theoe
ever been an emergency of that nature where you had to
remove the attorney and the inrnate immediately?
A. I can't think of a specific time. I'm sure
7 it has happened, but I can't think of a specific
8
9
time.
MR. MONKELT: Since we had some
10 discussions of population figures, Your Honor, I will
11 ask to have most of the rest of the doctmtents that "'ere
12 produced this morning marked as the exhibit next in
13 order. I will let the clerk tell me for sure which one
14 it is.
15 THE CLERK: E.
16 MR. MONKEL'l': Thank you. E
1 7 THE COOR'l': Show those to Counsel. For the
18 record you are marking as Exhibit E the balance of the
19 documents provided pursuant to the Subpoena Duces Tecum
20 this morning?
21 MR. MONKELT: Correct. Yes.
22 (Defense Exhibit E was marked for
23 identification.)
24 Q. BY MR. MINKELT: Capta.i n, let me shoVI you
25 VJhat. has been marked as Exhibit E for identification and
26 ask you if you are familiar with those documents
27
28
generally.
A. CSA monthly jail profile I wouldn't
78
00083
------······--··-----····
l normally see. That would be submitted by the
2 staff. However, the August -- Eor example, August 2012
3 Daily Population, that would be the spreadsheet '"here I
4 would look at what our average daily population is.
5 Q. So as you look through these documents are
6 they in various formats, the report prepared about the
7 population of the Nevada County Jail from July of last
8 year to June of this year?
9 A. They appear to be calendar year
10 2012. Nothing for 2013.
11
12
13
14
15
16
17
18
19
20
21
22
Q. During the 2012-2013 year do you know what
the rate of absolute capacity is for Wayne Bro\vn?
A. I used to remember. 180 something. A
hundred a hundred and eighty something. I don't
recall what the actual num})er v1as.
Q. When your average daily is over 200 it
might be higher than that?
A. I'm sorry. You're right. 280. Two eighty
something. Sorry.
Q.
A.
Q.
That is called refreshing recollection.
Thank you.
From just a fairly quick look at the
23 documents in Exhibit E it would appear to me that over
24 the last year that there has been an average number of
25 federal inmates housed at Wayne Brown some\•1here between
26 50 and 59 or so. Does that sound about right?
27 A. I have to find where they are listed on
28 here.
79
00084
1
2
Q.
A.
One p.l.ace would be on page 1, I think.
I found it. It appears it ranges from the
3 low fifties to the low sixties.
4 Q. Okay. Now, as a component of jail
5 population as I understand it there is a statutory
6 authority for the sheriff to accept inmates from federal
7 corrections basically at the sheriff's discLetion; is
8 that correct?
9 MR. KROPF: Calls for speculation -- calls
10 for a legal opinion. Lacks foundation.
11 MR. MUNKELT: It's his area of expertise.
12 MR. KROPF: I don't think that we have
13 established that. Federal law --
14 'PHE COURT: Well, overruled. He will answer
15 it if he can.
16 THE WITNESS: Can you repeat it?
17 MR. MUNKELT: Sure.
18 Q. BY MR. MUNKELT; The sheriff is authorized
19 by state law to accept federal inmates at his
20 discretion?
21
22
23
24
25
26
27
28
A. I believe so.
Q. \'lhen our sheriff accepts federal inmates I
intagine there is some kind of contract to receive
compensation for those beds? Is that fair?
A. Yes.
Q. So over the last year one of tbe
components of jail population is this voluntary number
of federal inmates; correct?
80
00085
1
2
3
4
5
6
7
8
9
10
11
----····-----····-··---····----------.. -- ---
A.
Q.
A.
Is the nurnber of federal inmates?
Yes.
Yes.
Q. And that if we have a total population of
about 280 capacity rated at 280 and an average daily
population running in the low two hundreds then that:
number of federal inmates is actually a fairly
significant percentage of the total population without
my pulling my calculator out.
A.
Q.
Are you asking me a question or ~
The question is isn't that a fairly
12 significant percentage of the total number of inmates?
13
14 ambiguous.
MR. KROPF: Objection as vague and
15 THE COURT: Overruled.
16 THE: WITNESS: I don't know what the
17 percentage would be, but it. would be a percentage of --
18 Q. BY MR. MUNKE:LT: Yes. If we had 50 out of
19 200 it would be --
20
21
22
23
24
25
26
27
28
A.
Q.
BY MR. KROPF:
•rwenty-five percent.
Yes.
MR. MUNKE:LT: No further questions.
THE COURT: Any follow up?
MR. KROPF: Just a couple of questions.
FURTflER CROSS-EXAMINATION
Q. Since January of this year I believe that
you previously testified there have been instances when
81
00086
l attorneys have been accommodated -- let me back
2 up. Since January of this year I believe it was your
3 testimony earlier that there have been instances when
q attorneys have -- the jail has permitted attorneys to
5 have contact visits at the 'Nayr1e Brown Correctional
6 ~acility; is that correct?
7
8
A.
Q.
Yes.
Can those contact visits take place at any
9 time or are there considerations -- well, let me back
10 up. Can those attorney-client contact visits take place
11 at any titne wher1 the attorney requests?
12
13
14
15
16
17
18
19
20
21
22
23
A. With the exception of when they are
sleeping or they are having dinner or something li.ke
that. It's when they corne in and request it that it 1 s
reviewed.
Q. It's re1.riewed at that tin1e?
A. Yes.
Q. When the -- do the attorneys have to
actually make an appointment for a specific time and day
when those attorney contact visits can take place?
A. That. would be the optimal way to do it,
but it doesn't always work out that way.
Q, Are there tintes if an attorney comes in
24 and 1>1ants a contact visit and you are inclined to grant
25 one that they can't have a contact 'Tisit right then
26 because of staffing levels or other security reasons?
27
28
A.
Q.
Yes.
So does the i·layne Brown Correctiona1
82
00087
l Facility take that into consideration when they
2 accommodate a particular request for a contact visit?
3
4
5
A.
Q.
Absolutely.
Are there particular days that the
facility would be or the sheciff's office would be
6 more inclined to grant contact visits?
7 A. As I recall nm1 I am going off
8 recollection and speaking to one of my sergeants, I
9 asked them that question. I believe it was Mondays seem
10 to be a good day because visitation wasn't going
11 on. rrhere was another day, I can 1 t remember \.,ihich day in
12 particular it was, but there was another day of the week
13 where typically not always the case but typically they
14 had a little bit more time where they could accommodate
15 the visitation.
1 Ei Q. With respect to the pass-thru slot in the
17 attorney visitation rooms, has there ever been an
18 instance well, if an attorney needs to provide
19 material to their client can they request that that
20 material be provided to their client through a
21 correction officer, for exarnple, if it doesn't fit
22 through the pass-thru slot?
23
24
A.
Q.
Sure.
Has the sheriff's office said sorry,
25 no. We're not going to allow you to do that?
A. Not to my knowledge,
Q. Now, with respect to the attorney
2Ei
27
28 visitation rooms, designatecl visitation rooms, and the
83
00088
1 hallway on the prisoner side generally speaking should
2 there be anybody standing outside that hallway 1·1hen the
3 visitation is taking place?
4
5
A. No. The only time they should be standing
in that hallway is if they are waiting for a door to be
6 opened up.
7 MR. KROPI": I have no further questions.
8 MR. MUNKEU!': Nothing further.
9 THE COURT: May this witness be excused?
10 MR. MUN KE LT: No objection.
11 MR. KROPF: Yes.
12 THE COURT: Thank you for your time and
13 testimony.
14 THE WITNESS: Do you want all of these
15 back?
16 THE COURT; Yes. 1'hank you. Next witness.
1 7 MR. MUNKELT: Call Lieutenant Schmidt. Your
18 Honor, ~<Jhile hers coming forward, there has been a
19 Declaration of Captain Pettitt and a Declaration of
20 Lieutenant Schmidt offered by the County in various of
21 these proceedings. I think there was a request on their
22 for judicial notice of at Ieast one of those.
23 THE COURT: Yes.
24 MR. MUNKELT: We 1wuld agree that the Court
25 should notice both of those Declarations as part of the
26 record in this hearing.
THE COURT: They are part of the record
28 and the Court will acknowledge that and take judicial
...... - .... -~------- --------------·--------------·-·--------------------.... ·~---------
84
00089
1 notice of both of those Declarations which are attached
2 to pleadings in each of these cases. Lieutenant
3 Schmidt.
4 Paul Schmidt,
5 Called by the Defense, placed under oath,
6 testifies as follows.
7 THE CLERK: Please state your name for the
8 record and spell your last name.
9 THE WITNESS: Paul. Schmidt, S-C-H-M-I"·D-T.
10 THE COURT: Your witness.
11 DIRECT EXAMINATION
12 BY MR. MUNKEI.T:
vihat do you do for work?
I work for the sheriff's office.
13
14
15
Q.
A.
Q. How long have you been working for the
16 sheriff?
17
18
19
20
21
22
A.
Q.
A.
Q.
A.
Q.
Twenty-five years.
What is your current position 'I
Lieutenant.
And assignment?
l ant the jail commander.
Immediate successor to Captain Pettitt \'1ho
23 just testified?
24
25
A.
Q.
Correct ..
You had the opportunity to be present in
26 court to hear his testimony?
27
28
A.
Q.
Yes, I have been.
\'l.ith that testimony in mind there is just
85
00090
---------~-~----------·~--- -------~---- -------.-- ----------
l one specific thing that I wanted to cover with you at
2 the 1notnen t, That is the re [erence in your Declaration to
3 personal knowledge of an incident in 2005.
4
5
6
7
8
9
10
11
12
13
l 4
15
16
17
18
19
20
21
A. Yes.
Q. First, can you tell me 1.>Jhat your knot..iledge
is of that situation?
A. That an attorney got into a --
Q. I didn't mean about what happened but how
were you personally present? What does personal
knowledge mean in this context?
A. I was assigned to court holding at the
time when the inmate who had attacked the attorney was
brought over for a different matter.
Q. So you \Veren' t personally present when the
incident with the attorney happened at the jail?
A. No, I was not.
Q. Were you informed that a very short period
of time after the event by other members of the
correctional staff as to what they believe happened?
A. Yes, I was.
Q. Did that involve an inrnate named Brian
22 Tomnay, T--O-M-N-A-Y?
23
24
25
26
A.
Q.
A.
Q.
Yes, it was.
And attorney Michael Phillips?
Yes, it \.;as.
liJas "it your understanding that inmate
27 Tornr1ay 1.Nas sl1ffering from a pretty severe mental
28 illness, mental condition at the time of those events?
86
00091
1
2
J
---····-----···---
A. Yes.
Q. Not using this necessarily in a completely
professional way, but did the jail staff know that he
4 was psychotic, out of touch with realty at the time of
5 these events?
6
·1
8
9
10
11
A. I don't know if that is what they say, but
that is probably an accurate description of how he was.
Q. Were you given any information about how
that contact visit with Attorney Phillips took place?
A.
Q.
I don't understand your question.
Well, were you informed that it took place
12 in the attorney visit room off A/B Hallway, for example?
A. Yes. That is what I was told. 13
14
15
16
17
18
19
Q. Were you in£onned tl1at inmate To1nnay was
placed into that room by correctional staff before the
attorney arrived?
A. The details of how he got into the room I
don't know.
Q, Were you told that inmate Tomnay had ankle
20 chains and handcuffs on when he was present for that
21
22
visit?
A. That I didn't know.
23 MR. KROP~: I am going to object as
24 nonresponsive. That wasn't an answer to the
25 question. Whether you didn't know or did know.
26 THE COURT: Let's clarify. You didn't know
27 whether or not --
2 8 THE WITNESS: I didn't know how he was
87
00092
1
2
3
4
placed into the room, whether it what he was wearing.
MR. MUNKELT: All right.
Q. BY MR. MUNKELT: You have not been jail
commander very long?
5 A. No, I have not.
6 Q. Have you served other periods of service
7 at the jail?
8 A. I have been in correctior1s several times
9 in my career.
10
11
12
13
14
15
16
17
18
19
20
21
22
Q. Is this incident referenced in 2005 with
Attorney Michael Phillips the only time that you are
aware of in your service in corrections of an attorney
being attacked by a client during a contact visit?
A. Here in Nevada County. Yes.
BY MR. KROPF:
MR. MUNKELT: No further questions.
THE: COURT: Questions, Mr. Kropf?
CROSS-EXl\MINATION
Q. Just a follow up. Do you know of attorneys
being attacked by clients in other counties or other
locals
A. I came from Southern California. Yes,
23 there had been instances.
24 MR. KROPF: I have nothing further.
25 THE COURT: l\ll right. May this witness be
26 excused?
27 MR. MUNKELT: Pardon me.
28 THE COURT: May this 1;itness be excused?
88
00093
1 MR. MUNKELT: Please.
2 THE COURT: Thank you for your time and
3 testimony.
4 MS. SCHUTZ: We have Lee Osborne scheduled
5 to testify next. Would you like to start before the
6 lunch break?
7 THE COURT; \Ve can get a few minutes in.
8 Our break is going to be from when we finish this
9 morning until two because I have some hearings that
10 occur at 1 and 1:30 that I expect will take the better
11 part of that hour. So yes, you need to call your next
12 witness and get started.
MS. SCHUTZ: Lee Osborne, please.
Davis Lee Osborne,
13
14
15
16
Called by the Defense, placed under oath,
testifies as follows.
17 THE CLERK: Please state your name for the
18 record and spell your last name.
19 THE: WITNESS: My name is Davis, D-A-V-I-S,
20 as in Sam, Lee Osborne, 0-S-B-O-R-N-E.
21 DIRECT EXAMINATION
22 BY MS. SCHUTZ;
23 Q. Good morning, t1r. Osborne.
24 A. Morning.
25 Q. Ho<v are you currently employed?
26 A. I am retired.
27 Q. ~lhere are you retired from?
2 8 A. I am retired from the Nevada County
89
00094
1 Sheriff 1 s Department.
2 Q. HOI; long were you employed with the
3 sheriff 1 s department?
4
5
6
A. Thirty years, four, five months, several
days if you 1 re keeping score.
Q. When did you actually retire from
7 service.
8 A. I retired fron1 service the end of August,
9 I believe the 31st of 2007.
10 Q. During your years on the force can you
11 just give an overview of your duties and assignments?
12 A. I started at the Truckee substation in
13 February 1977 and worked there until May of 1997 which I
14 served as a patrol deputy, two different assignments as
15 an investigator, three different assignments as a patrol
16 sergeant and two different assignments as a DEA Drug
17 Task Force Agent assigned to the North Lake Tahoe Drug
18 Task Force. Then transferred to Nevada City Office
19 where I \.-Jas the Admin Personnel and Training Sergeant,
20 promoted to lieutenant and was the Administrative
21 Services Lieutenant at the Wayne Brown Correctional
22 Facility for three years.
23 In the three-year tour as the patrol
24 lieutenant, promoted to captain, did a brief stint of
25 just two or three months I think as the Administrative
26 Services Captain before I was transferred as a
27 Corrections Di vision Commander to the Wayne BrovJn
28 Correctional Facility.
90
00095
l Q. So total years served actually within the
2 correctional field at Wayne Brown?
3 A. Five.
4
5
6
7
8
9
Q. And you were acting corrunander at the time
that you retired; is that correct?
A. Yes, I was.
Q. In that capacity do you have an opinion
about the statement that the sheriff has the sole and
exclusive authority over the jail?
A. Yes. 10
11 MR. KROPF: I object as lacks foundation.
12 Calls for legal opinion. It's vague and ambiguous.
13 THE COURT: As phrased sustained.
14 MS. SCHUTZ: I can rephrase it.
15 THE COURT: Go ahead.
16 Q. BY MS. SCHUTZ: Are there specific areas
17 that the sheriff in running the jail is subject to
18 outside authorities or controls?
Yes, there are. 19
20
A.
Q. Can you elaborate and, say, describe those
21 areas?
A. Those areas have to do with the 22
23 constitutional rights afforded all arrestees, detainees
24 and inmates as they're all citizens.
25 Q. Are there specific outside standards
26 either at the state or federal level on staffing of
27
28
jails?
A. Not that I am aware of. No.
91
00096
1 Q. How about capacity of the jail in terms of
2 how many inmates can be housed at the jail?
3 II. Title 24 of the California Administrative
4 Code speaks to how capacities of jails are configured
5 and lt has to do with the square footage in the jails,
6 the amount allowed for inmate housing, the amount
7 allowed for or the amount of the jail, I am sorry, for
8
9
10
11
12
13
14
15
16
17
18
19
inmate housing. The amount subject to day room and
outside recreation room.
Q. Are there specific areas during your
tenure as commander that you were subject to the Court's
jurisdiction in regard to inmates housed at the
jail, the specific Nevada County Courts?
MR. KROPF: I object as vague and ambiguous
as to the Court's jurisdiction. Lacks foundation.
THE COURT: Overruled for the purposes of
the way the question was phrased. Let's see if he can
ansv1er that.
Q. BY MS. SCHUTZ: Do you understand the
20 question?
21
22
23
A. I think so. I think you are trying to ask
if the Court ever ordered me to do something.
Q. Yes. In regard to the inmates that you
24 were in charge of.
2$ 'fHE COURT: Much better question. I suggest
26 that you adopt his question.
27 MS. SCHUTZ: I will defei: to him and let
28 him anst"fer his O\-Jn question.
92
00097
1 MR. KROPF: I object as relevance.
2 '!'HE COURT: It may have some
3 relevance. I'll allow the answer.
4
5
6
7
Q.
A.
MS. SCHUTZ: We can
Tm: COURT: I am going to allow the answer.
BY MS. SCHUTZ: You can answer.
We would from time to time court
8 orders regarding visitation usually having to do with
9 family reconciliation and various things 1 ike that
10 regarding Adult Protective Services and Child Protective
11 Services. We would also get orders for inmates that
12 needed psychological evaluation as part of their defense
13 and we would also get orders for contact visits from
14 time to time with the private investigators working for
15 various members of the defense part.
16 Q. Prior to testifying here today did you
17 have an opportunity to review the Affidavits of Pettitt
18 and Schmidt?
19
20
A.
Q.
I did.
Were you present this morning when they
21 were testifying?
22
23
A.
Q.
I was.
Now, ))ased on your training and experience
24 what does the term contact visit 1nean to you? Hovi was
25 that defined?
26
27
28
A. Contact visit to me is basically an
unfettered visit \'lith no barrier between the person
doing the visiting and the visitor.
--------···--····
93
00098
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Q. That is how it was referred to during your
time at Wayne Brown Correctional Facility?
A. It was.
Q. You, I assume, have heard the testimony
about there being an established policy regarding
contact visits i.vith attorneys?
A.
Q.
Yes.
What can you describe in your own words
\<That your experience was as to how
contacts were handled and authorized during your time?
A. Attorneys were basically authorized to
visit most any time except for the times when the
inmates were actually asleep or during the meal
periods. There were -- they weren't restricted to normal
what we refer to as normal visiting hours. Typically if
the attorney requested a contact visit it was granted
17 unless there was some security reason, the inmate was
18 particularly violent or had some psychological issues
19 that would maybe indicate that they were not going to
20 play well with others. We would make the attorneys aware
21 of those situations.
22 Q. So on a day~t.o··day basis an attorney could
23 come to the jail any time of their choosing and request
24 a contact visit with an inn1ate"?
25 A. Yes.
26 Q. Are you aware of any policy saying they
27 could not do that?
28 A. I'm not aware of the policy. That was
94
00099
1 our practice.
2 Q. You have heard the testimony ubout the
3 various contuct rooms this ntorning?
Yes. 4
5
A.
Q. So just to make sure we are on the sa1ne
6 page in Exhibit B we have tbe one visit -··· visiting room
7 in the A/B Hallway?
Yes. 8
9
10
11
12
13
14
15
A.
Q.
A.
Q.
Tben the two interview rooms in booking?
Yes.
We also we don't have a diagram but
there has been reference to a third visiting or actually
a fourth visiting room in N Section?
A. Yes.
Q. li'Jhich, if any, of these rooms 1,-o1as the
16 primary room for attorney-client to meet with -- for
17 attorneys to be with their clients?
18 A. Typically in the A/B corridor, but other
19 times in the booking room. That would depend on how many
20 attorneys showed up at the same time to visit with their
21 cUents also.
22 Q. Neither Pettitt or Schmidt was quite
23 familiar 1vith the N Section room. Can you talk a little
24 bit about what that room was used for for contact
25 visits?
Is that the N Section visiting rootn? 26
27
A.
Q. Yes. The N Section room right outside the
28 public visiting area.
95
00100
l A. Right out.side the public visiting room?
2 During my tenure at the jail that room was typically
3 used as contact visits between social workers or Adult
4 Protective Services workers, other fainily rnembers at
5 times when they were going through ····· there would be a
6 family reconciliation situation or something like
7 that. One or the other parents might be in
B custody. Could be either mom or dad and maybe young
9 children, sometimes infants, and so they would be used
10 for those types of contact and bonding visits.
11
12
13
14
15
16
17
18
19
Q.
A.
Vlere those visits court-ordered visits?
Typically they were, yes.
Q. Starting with the A/B Hallway can you --
well, tell us a little bit about that room and --I'm
sorry. Let me back up.
Were there changes made to the A/B Hallway
contact room at some point during your tenure at the
jail?
A. There 1•ere. During the time that I was
20 fir·s t assigned as a 1 ieutenant there were -- that
21 room, door did not have a piece of window glass.
22 Q. All right.
23 A. There were rumors and some allegations
24 that perhaps some improprieties
25 MR. KROPF: I object as
26 nonresponsive. Relevance.
27 THE COURT: It's beyond the question. Wait
28 for the next question.
96
00101
1
2
3
Q. BY MS. SCHUTZ: If there was a change made
to that roont can you describe what it was?
A. The door was replaced with a door with
4 glass in it.
5 Q. Why was that done? What '"ere the security
6 issues involved in making that change as well?
7
8
9
10
11
12
13
A. Couldn't see in the door.
Q. Now, you heard the testimony and the
concerns raised about inn1ates being able to leave that
room unmonitored. Do you have any opinion about that
issue in the A/B contact room? Any thought about what
could be done to address that concern?
MR. KROPE': I object as vague and
14 ambiguous, calls for speculation. Lacks foundation.
15 MS. SCHUTZ: Yes. I can rephrase, Your
16 Honor.
THE COURT: Rephrase. Sustained. 17
18 Q. BY MS. SCHUTZ: Yes. The testimony in the
19 declaration this morning is that that door is unlocked
20 from the inside?
Yes. 21
22
A.
Q. So that inmates can leave that area into
23 the A/B Hallway?
24 Yes.
2.5
A.
Q. Based on your experience workir1g ~·1i thin
26 the jail and being charged viith making security
27 decisions do you have any thoughts about v1hat could be
28 done to further secure that room?
97
00102
1 A. Put a lock on it.
2 MR. KROPF: Objection. Calls relevance.
3 THE COURT: His answer ...... overruled. His
4 answer stands. Put a lock on it was his answer.
5 Q. BY MS. SCHUTZ: In your opinion what
6 security issues are raised by that room in its present
7 formation in terms of ·what has been discussed in terms
B of going into the A/B Hallway?
9 A. Well, I think it's pretty much been pretty
10 thoroughly discussed. There is the issue of
11 cross-classification. There is the issue of inmate
12 movement and things like that. So those are all things
13 that the correctional staff and central controller would
14 be ai·1are of when inmates are canting in and out of the
15 various pods moving up and down the hallway and things
16 like that. So
17 Q. The specific concerns, I think one of the
18 examples that has been given is that you could have a
19 gang member in that visiting room and a rival gang
20 member going down that hallway. How would that be
21 addressed when you were commander?
22 A. Well, simply by awareness of who is moving
23 in and out and around the facility. The pod officer
24 would certainly know that the inmate that was out of the
25 pod at the visiting room was out of the pod in the
26 visiting room before another _inmate vJas moved from one
27 portion of the facility to the other even if it was just
28 across the hall. Central Control would contact the pod
98
00103
l
2
3
4
s 6
7
8
9
···-··----···----
officer and ask the receiving pod and ask it they were
clear to receive this inn1ate. That is tyr>ically done via
the radio so everybody can hear what is going on. And
i E there was av1areness that this person was a gang
member and the person visiting was a gang member that
would quite likely be raised be aware, Joe Dokes
(phonetic) is here and John Dokes (phonetic) is corning
down and they are enemies.
Q. In fact, now there is more control over
10 access to the hallway based on the testimony this
11 morning than when you worked there?
12
13
A.
Q.
Yes.
Specifically the A Pod visiting
14 rooms, \>1ere those secured and controlled by Central
15 Command when you were employed?
rooms?
A.
Q.
They were not.
How did inmates access those visiting
16
17
18
19 A. r'or the A Pod visiting when the pod was
20 notified that the particular inmate had a vis.it the pod
21 officer would be told which particular visit
22 room, visiting room their visitor would be in. rrhe
23 inmate would be handed a key and then buzzed out of
24 the.ir pod and watched as they went from the pod directly
25 into the visiting room and keyed themselves in.
26 Q. During that time period an inn1ate in one
27 of' those public visiting areas could likewise have fled
28 at any time into the A/8 Hallway?
---- --------····----·-···--------·
99
00104
-----------··---····
A. Yes. 1
?
3
4
Q. You have talked a little bit about or you
have mentioned that the pod contt·ol as well as Central
Cornmand is ai·1are of people entering and exiting the
5 secure part of the jail?
Yes. 6
7
A •
Q. Can I ask you to talk about that a little
8 more. I.f an attorney comes and says I would like to meet
9 with this inmate and they are clear to go through to the
10 A/B Hall11ay, who is contacted and 11hat is the chain that
11 is gone through of clearing that visit in terms of the
12 classification concerns?
13 MR. KROPF: I object as calls for
14 speculation. Vague and ambiguous. Lacks foundation. Are
15 we talking about back when he was there? Now?
16 MS. SCHUTZ: Your Honor, he's testified as
17 to his experience as a jail conunander in this specific
18 facility and I am asking him to explain to the Court to
19 respond basically to the issues raised or the security
20 issues raised by the sheriff about alternatives that
21 could be made. I think that it's highly relevant within
22 the analysis the Court must undertake as to whether they
23 have looked at other reasonable accommodations
24 whether --
25 THE COURT: He can testify to his own
26 personal knowledge as it relates to his time as
27 MS. SCHU'l'Z: I 11ould argue also to his
28 expertise in running the jail.
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00105
1 THE COUR'f: It goes to his expertise as
2 long as the conditions are the same. Objection
3 overruled. He can answer.
4 MS. SCHUTZ: But you don't remember the
5 question?
6 THE COURT: Let me interrupt. How much
7 longer do you think that your direct is going to be7
8 MS. SCHUTZ: Probably about 20 minutes.
9 THE COURT: We're going to break for
10 lunch. Keeping the staff on over time as it is. We'll
11 resume back here at two o'clock t.o resume testimony. You
12 are excused until then.
13 THE WITNESS: Thank you.
14 (A lunch recess was taken,)
15 THI-; COURT: Welcome back. Back on the
16 record in all of the above previously cited cases. In
17 all of them counsel are all present. Ms, Schutz, you
18 were questioning Mr. Osborne,
19 MS. SCHUTZ: I was. Thank you.
20 THE COURT: Do you have any questions
left? 21
22 MS. SCHUTZ: I sure do. Sorry. Try to keep
23 it relatively brief.
24 REDIRECT EXAl-HNATION
25 BY MS. SCHUTZ:
26 Q. ~·Jhen v;e took our lunch break we v1ere
27 discussing the A/B Hallv1ay and the attorney~client room
28 as H"'ll as the A/B or the A Pod visit rooms in that
-------····-·-.... -~---- ----
101
00106
1 hallway.
A . Yes.
Q. So as to that location in your opinion
\<Jould there be any significant irnprovernent in jail
security if attorneys are denied using that room?
A , I don't think so.
2
3
4
5
6
7
8
MR. KROPF: I object. Lacks foundation.
THE COURT: Could you rephrase that? I'm
9 sorry. I missed part of the question.
10 MS. SCHUTZ: Yes. Maybe I should ask a few
11 lead-in questions.
12 Q. BY MS. SCHUTZ: Ive were discussing some of
13 the security issues and the A/B Pod hallway.
14 A. Yes.
15 Q. And the issue of the current existence of
16 the visiting room having an unlocked door.
17
18
A.
Q.
Yes.
So the sheriff has argued that it
19 threatens the safety and security of the jail to allow
20 attorneys to use that room.
21
22
A.
Q.
Yes.
So my question to you is who else --
23 backing up who else uses that hallway to enter the
24 pod? What other members of the public?
25 A. You have --
26 MR. KROPF: I object. Lacks foundation. Are
27 we talking about 2007 when he was there? There is no
28 foundation for him to testify as to what is currently
102
00107
1 going on in that jail now.
2 THE COURT: ~)ell, obviously his testimony
3 is related to his experience, but I haven't heard that
4 it's changed <irainatica.lly since then 1 so I'll at least
5 allow this as standard. If there is a difference we'll
6 draw that out.
7 Q. BY MS. SCH!JTZ: You were present this
8 morning during the testimony of Captain Pettitt and
9 Lieutenant Schmidt; correct?
A. I was. 10
11
12
13
14
Q. You heard them testify that members of NA
and AA use that hallway?
Yes. A.
Q. You heard their testimony that teachers
15 use that hallway?
16 A. Yes.
17
18
19
Q.
A.
Q.
Ministers use that hallway?
Yes.
v1as that the case when you were Jai 1
20 Commander as well?
A. Yes.
Q. Do you take the same steps when those
21
22
23
24
25
26
visitors enter that hallway as you do when an attorney
enters that hallway?
Yes. A.
Q. In light of all of the visitors that have
27 been identified through the testimony today and I assume
28 v1as it the same when you v1ere jail commander?
103
00108
Yes. 1
2
A.
Q. Would there do you believe there would
3 would be a significant improvement in jail safety to
4 eliminate or to deny attorneys access to that one rooin
5 in that haLlway?
Do you mean just attorneys or w-
Yes.
No.
6
7
8
9
A.
Q.
A.
Q. Mo11ing on to the booking rooms you have
10 heard the testimony there are two rooms used for
11 attorney-client visits?
Yes. 12
13
A.
Q. Those roorns are also used we have heard
14 testimony by probation?
Yes.
As well as la1.v enforcement officers?
Yes.
15
16
17
18
A.
Q.
A.
Q. I would like you to expand a little bit
19 more on the issues of security within the booking
20 area. Prior to an inmate entering the actual booking
21 part of the facility do they enter another secure area
22 prior to the booking?
Yes, they do.
What is that area called?
A.
Q.
A. They first enter the sally port through a
26 roll-up door. The t:ransporting agency or the arresting
27 agency comes up. There's a camera that can viei;1 them and
28 an intercom which they can identify themselves and who
104
00109
.-------------~----
l they are bringing in to Central Control. Central
2 Control keys up the roll-up door. They drive i.n, park by
3 the booking roo1n door, roll-up door co1nes clown and they
4 are now in that secure area of the jail.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Q.
sally port?
A.
Q.
A.
Q.
A.
Q.
So Central Control first releases the
Yes.
Then they are in another contained area?
Yes.
Then they are outside the booking door?
Yes.
And then they once again have to get
Central Control to release the booking door before they
are admitted into the area?
A. Yes.
Q. What happens upon their entry through that
door?
A. 1'hey are in the booking pre-booking
19 area of the jail, the pre-booking hallway. There is a
20 hallway that links that sally port area with the booking
21 room itself. It's at that point that the arresting
22 officer has the -- either fills out if they haven't
23 previously or hand over their pre-booking slip. Contains
24 the various things that identify the arrestee, including
25 the charge and the elate and time of arrest and whether
26 it •s a fresh arrest, il v1arrant 1 v1hat have you. Various
27 other things can occur there.
28 Typically before they are even allowed to
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B
9
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la
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22
23
enter that hallway a correctional officer meets them out
in the sally port area and a person is pretty thoroughly
pat dotvn searched, handcuffs n1ay be re1noved if
necessary. They get into the booking hallway. If they
are charged with a DUI that is where blood alcohol
testing, usually a breathalyzer is conducted, blood
draws and things like that.
The person is also evaluated as to if they
have any illnesses or injuries or anything that require
immediate medical treatn1ent. So there is a pre-medical
screening. If it's an injury or an illness or something
that requires medical treatment or if the person is so
intoxicated that they may require medical clearance
before beinq admitted to the jail then they are denied
admittance to the jail. The arresting agency must take
them to the hospital or physician or what have you to be
medically cleared.
Q. So again this is all occurring before they
are even officially admitted into the booking area? You
are talking about a hallway before the actual booking
room?
A.
Q.
Right,
Then if there are issues identified at
24 that point such as somebody that may be suffering from a
25 mental illness, combative, intoxicated, you have heard
26 the testimony that there are I believe seven holding
27 cells?
28 A. Yes.
106
00111
In the booking area?
Yes.
1
2
3
Q.
A.
Q. Are those cells available to contain such
4 an inmate if there were concerns about their further
5 advancement into the booking area?
A. No.
No?
6
7
8
Q.
A. Those holding cells that were previously
9 testifi_ed to are in the booking area itself. Those are
10 available for people 1Vho have been accepted into the
11 custody of the sheriff for booking and there is a
12 holding cell in the pre-booking hallway along with the
13 -- along with that room in IVhich alcohol, under the
14 influence of alcohol testing can be. In that pre-
15 booking room, and it's called pre-booking, the sheriff
16 has not accepted responsibility or authority to take
17 custody over that inmate. They still remain in the
18 custody -- kind of a joint custody thing, but they are
19 still in the custody of the arresting agency until they
20 are cleared for booking.
21
22
23
24
25
26
27
28
Q. So once they are cleared for booking then
jail staff takes of that inmate?
A. Yes.
Q.
A.
Officially?
Officially. Yes.
Q. And at that point do they have the option
if necessary or appropriate or if there is an emergency
to use those holding cells to temporarily house a new
107
00112
1 admittee, a new person being booked in?
2
3
4 that.
A.
Q.
Yes.
In your training and experience -- strike
5 1'alking about Exhibit C, this diagram is
6 that the same layout that it was in when you were jail
7 commander?
8
9
10
11
12
13
14
15
A.
Q.
Yes.
So it's our testimony \Yhen you v1ere jail
commander that those two interview roon1s that l1ave been
identified tvere frequently used by attorneys for contact
visits with their clients?
A. Yes.
Q. If you recall, vie have heard testimony
that if an inmate is on the phone in the waiting room
16 area that they can see there is an interview room. Can
17 you confirm that statement, if you recall?
18
19
A.
Q.
Yes.
Can they see who is in th.is interview
20 room? And I'm referring to the interview room that is
21 identified at the top of the page on Exhibit C.
22
23
A.
Q.
I don't know. I don't know.
You don't recall.?
24 Now, you have heard testimony that
25 currently those rooms are still being used in the
26 booking room by probation officers as «loll as law
27
28
enforcement.
A. Yes.
·-----·· -----------------
108
00113
1
2
3
4
5
6
7
8
9
10
11
12
13
Q. But. subject to the sheriff's diseretion
they are no longer being used for attorney-client
visits?
A. Yes.
Q. Same question that I asked in regard to
the A/B Room. Do you feel that it's a significant
improvement to jail security to cleny use of those rooms
to attorneys as opposed to those other visi.tors?
A. Generally, no.
Q. Can you elaborate on that or are there
different dynamics involved with having an attorney
visit a client versus a parole or probation officer?
A. r think not. r think that the dynamic
14 depends upon the time of day, day of the week as to what
15 is going on, as to what is going on in the booking
16 room. If it's a Friday night, Saturday night a lot of
17 folks coming in for DUI's, family fights or what have
18 you. Friday nights when I was there was the time when
19 the weekenders would come in to be booked to do their
20 weekends. I don't know what is happening there now. So
21 it would depend upon the dynamic in the booking room
22 itself. Is it really busy? Are there a lot of folks that
23 might be under the i.nfluence or fighting or not? That
24 would effect the safety and security of any one in the
25 rooro.
26
27
28
Q. Within the booking area are inmates
ng about in the hallway on the phone unsupervised?
A. No.
109
00114
--------------·------- ----------
1 Q. You heard testimony this morning about
2 there's 11een an increase in population or reduction irt
3 staffing at the jail. Do you have an opinion about other
4 alternatives for resolving that issue?
5 MR. KROPF: Objection. Lacks
6 foundation. Relevance, Inadmissible opinion.
7 MS, SCHUTZ: I am unclear about the
8 continued lack of foundation argument.
9 THE COURT: It's relevant to the issue at
10 hand but because of the nature of the issue at hand
11 we'll all.ow a little expansion. You can answer the
12 question if you can. Objection overruled.
13 THE WITNESS: lvell, my opinion would be
14 first to attempt to increase jail staff. If that is not
15 going to be happening well, then, reduce your number of
16 inmates by whatever means that you can.
17 Q. BY MS. SCHUTZ: l"or exarnple, we have
18 heard testimony that approximately a quarter of the jail
19 is occupied by federal inmates. Would that be one option
20 for resolving that problem?
21 MR. KROPF: Objection. Lacks
22 foundation. Inadmissible opinion. There is no basis for
23 him to render an opinion on that other than pure
24
25
26
27
speculation.
you can.
THE COURT: Overruled. You can ans1r1er if
THE WITNESS: That is - that would be one
28 avenue to explore.
110
00115
1 Q. BY MS. SCHUTZ: What extra staffing is
2 required to handle attorney visits in either -- in the
3 A/B corridor?
4
5
6
7
!l
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
A. I don't know.
Q. So is any additional staffing required?
MR. KROPF: Objection. Asked and
answered. He just said he doesn't know.
THE COURT: Well, also to the form of the
question. Is any staffing required? What is required
Q. BY MS. SCHUTZ: My question is what is
required to acco1nmodate an attorney viho comes to visit a
client.?
A. The folks at the front desk let Central or
the pod know that the attorney is there to visit the
client. They ask if the hallway is clear, if the pod can
accommodate first and send the client down. Then they
check Central and make sure the hallway is clear before
they allow -- before they allow that inmate out into the
hall and watch him go into the room with the attorney.
Q. BY MR. SCHU'fZ: So it's all done basically
through the radio, through the chain of conunand?
A. Right. Yes.
Q. The existing command'/
A. Yes.
25 Tl!E COURT: Is there any need to escort
26 either of the parties, either the attorney or the
27 inmate?
28 THE: WITNESS: ·rypically, no, but there may
-------- ······---·~
111
00116
1
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be ---~ if there is a situation in which the inrnate is
particularly violent (>r h.as so1ne -- has sorne mental
health issues we make that very clear to the attorney
and if they want to go ahead then the inmate would be
they would be escorted, but I can't --
THE COURT: Setting aside those cases where
you have an exceptional circumstance with an inmate who
is extremely, knovm to be exCremely violent or psychotic
but generally speaking those who are in well, let me
back up. Those inmates that are in A or B, are they
sentenced inrnates or are they pretrial inmates?
THE WITNESS: Actually both.
THE COURT: Both? In N Section there is no
pretrial; right?
THE WITNESS: Generally no.
THE COURT: So typical pretrial inmate that
is housed in either A or B they do not -- do they or do
they not need to be escorted to the door that goes into
the door that has been identified as the A/B Hallway?
TliE WITNESS: No.
THE COURT: Is the attorney escorted at any
phase of this from the front desk down to the A/B
Hallway?
THE WITNESS: No.
'.rHE COURT: Any other questions?
MS. SCHU1'Z: Can I have just a moment, Your
Honor?
THE COURT: Your microphone is on. If you
112
00117
1 press it it will turn off and you can have a private
2 cliscussi on.
3 (Discussion between counsel.)
4 Q. BY MS. SCHUTZ: During your time at the
5 Wayne Brown Correctional Facility are you personally
6 aware of any incidents of attorneys being attacked by an
7 inmate?
No. 8
9
A.
Q. How about an individual, an inmate fleeing
10 from a visit with an attorney attacking another inmate?
11 A. I am not aware of any. No.
12 MS. SCHUTZ: I have no further questions.
13 THE COURT: To be fair are there instances
14 of attorneys attacking inmates?
15 THE WITNESS: Not that I am aware of.
16 MS. SCHUTZ: That's justifiable.
1 7 THE COURT: Mr. Kropf.
18 CROSS-EXAMINATION
19 BY MR. KROPF:
20 Q. Mr. Osborne.
21
22
23
A. Yes.
Q. A couple of minutes ago Judge Anderson
asked you about pretrial detainee versus post trial
24 detainees. I believe your testimony is that pretrial
25 detainees are in one section as opposed to the other.
26
27
28
A.
Q.
A.
No.
\\'hat was your testimony in that respect?
The pretrial detainees arc in both
113
00118
1 sections.
2 Q. Do you know that to be a fact today or was
3 that in 2007 when you were
A.
Q.
I don't know that to be a fact today.
Arguably it could be different
today; isn't that correct?
A. Yes.
4
5
6
7
8
9
Q. Was 2010 when was the very last time
that you were employed by Nevada County in the jail?
A. August 31st of 2007. 10
11
12
13
Q. It would he fair to say that was somewhere
in the neighborhood of approximately five years ago?
A. Well, five years and ten months and a
14 number of days if you are keeping score at home, but
15 yes, sir that would be fair.
16 Q. Since that time have yon taken any tours
17 of the jail?
18 A. I have not, no.
19 Q. Since that time have you looked at the
20 been involved in working on the jail budget or the
21 budget for the sheriff's office?
No. 22
23
24
25
26
A.
Q. Since that time have you done any studies
on how many inmates are currently housed in the il?
No. A.
Q. Back in 2007 do you know how many inmates
27 were housed in the jail during that year?
28 A. I would like to say that our average daily
114
00119
1 pop was running around between a hundred and seventy and
2 a hundred and eighty imnates. I would like to say that,
3 but I hesitate.
4 Q. So it would be fair to stay you don• t knm1
5 for sure; is that correct?
6 A. That v1ould be a good statement.
7 Q. If I told you it was a hundred and
8 fifty-seven in 2007, the average daily population for
9 that year, would you have any reason to disagree with
10 that number?
11 A. No, not at all.
12 Q. How about the number of full time
13 correctional staff or correctional officers for the jail
14 in 2007? Do you recall what that was?
15
16
A.
Q.
I don't recall.
And you don't know 11hat it is other than
17 what you have heard today in possible testimony? Do you
18 know what it is today?
19 A. Just what I heard testified to. I didn't
20 testify to it.
Q. If I told you that correctional staff is 21
22 54 in 2007 would you have any reason to with
23 that?
24 A.
25 right to me.
26
27
28
Q.
A.
That sounds -- yeah. That sounds about
Do you know what A.B. 109 is?
I believe that 1 s a realignment, i)rison
115
00120
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4
5
6
7
8
9
10
11
12
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14
15
16
17
18
--------~------
Q.
A.
Q.
A.
Q.
Was that in effect in 2007?
Oh, no, sir.
So that happened after 2007?
Yes.
So it would be fa i.r to say that the law's
changed since 2007?
A. That would be a very fair statement.
Q. Earlier you were asked with respect to the
Defendant's Exhibit Bon the A/B Hallway whether that
one room that is indicated as for professional visits
whether that would I believe I believe the question
was whether -- disallm1ing attorney visitation in that
room whether that 111ould provide significant improvement
in jail security and you said no. Prohibiting or
designating visitation in assigned visitation areas
would it pro\ride some enhance1nent to security?
A.
Q.
Some.
Similarly, I think that you were posed the
19 same question with respect to the two interview roonts
20 that are depicted in Exhibit C. Same question. Would it
21 would prohibiting or preventing attorney visitation
22 in those rooms and relegating it to the designated rooms
23 provide some enhancetnent in security?
24
25
26
27
28
A. Yes, it would.
Q. Earlier you talked about attorney
visitation with potentially violent inmates. I believe
your testimony was something to the effect that you
advised attorneys of a potential violent inmate and let
------------------·~·-~-----
116
00121
1 them decide; is that correct?
2 A. Yes.
3 Q. If attorneys were to meet tvi th
4 their clients between a glass barrier would that enhance
5 the safety of those attorneys with potentially violent
6 inmates?
7 A. Yes.
8 Q. I believe you testified that some of the
9 would it be fair to say some of the safety and
10 security concerns for example in the booking area and
11 the waiting room I believe it was your testimony that
12 you said something to the effect that it depends on the
13 the dynamics; is that correct?
14 A. That's correct.
15 Q. So that would depend on how many prisoners
16 are there and how many staff are there and the nature of
17 the prisoners? Would that be --·
18 A. Yes.
19 Q. So would it be fair to say that the safety
20 and security in that particular area and throughout the
21 jail is not al\·1ays static, not aliqays the same and
22 predictable all of the time; is that correct?
23 A. '11hat ts correct.
24 Q. Earlier you testified that a potential
25 resolution or pott"ntial way to possibly allow
26 attorney-client visits in that one room located in A/B
27 Hallway, Exhibit B, was to put a lock on that door?
28 A. Yes.
117
00122
1 Q. Isn 1 t it true that under California law vie
2 wouldn't be allowed to lock people into a particular
3 room without allowing them to exit unless it was a
4 controlled mechanism like through a control center?
I don't know.
So you don't know?
No.
5
6
7
8
A.
Q.
A.
Q. Have you worked -- since 2007 I take it
9 that you haven't been ernp1oyed by any other correctional
10 facility; is that correct?
11 A. No, I have not
12 Q. Not having been in the jail recently would
13
14
15
16
17
it be fair to say that you are not familiar with the
nature or character of the types of inmates that are
currently in the VJayne Brown Correctional E'aci li ty?
A. Yes.
Q. In your experience can the types of
18 prisoners and their propensity for v.iolence or causing
19 problems or issues can that vary from prisoner to
20 prisoner?
21
22
23
24
25
A.
Q.
Yes.
Would it be safe to say there .is no
typical type of prisoner?
A. Yes.
Q. Over the course of years in youL
26 experience has the nature or type of prisoners changed
27 in their propensity for violence at all?
2 8 MR. MlJNKELT: With respect to Wayne Brown?
118
00123
1 Q. BY MR. KROPF: In your -- okay. With
2 respect to Wayne Brown.
3 A. Not necessarily with respect to my
4 experience v1ith Wayne Brov1n.
5 Q. But it's possible it could have changed
6 since you left; is that correct?
7 A. That's very possible. Yes.
8 MR. KROPF: I have nothing further.
9 THE COURT: Anything, counsel?
10 MS. SCHUTZ: Just one follow up.
11 REDIRECT EXAMINATION
12 BY MS. SCHUTZ:
13 Q. You did hear the testimony this morning
14 about the 11 locks that were installed on the A and B
15 Pod visiting rooms?
16
17
A.
Q.
Yes.
Is that the type of lock, one of the lock
18 ons that could have been installed across the hall,
19 the A/B Hall?
20
21
22
23
24
25
26
27
A.
28 testimony.
I believe so, yes.
MS. SCHUTZ: Nothing further.
THE COURT: Any further cross?
MR. KROPF: No.
THE COURT: May this witness be
MS. SCHUTZ: Yes.
MR. KROPF: Yes.
THE COURT: Thank you for your
119
excused?
tin1e and
00124
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26
Roeder:
THE WITNESS: Thank you. Free at last.
MR. MUNKELT: We Hill call Dr. Eugene
8ugene P. Roeder 1
Called by the Defense, placed under oath,
testifies as follows.
THE COURT: Have a seat. Get
co111fortable. State your name and spell your last name
for the court reporter, please.
THE VHTNESS: Eugene P. Roeder,
THE COURT: There is some water here.
THE WITNESS: Thank you.
THE COURT: Help yourself.
DIRECT EXAMINATION
BY MR. MUNKELT:
Q. Afternoon.
A.
Q.
A.
Afternoon.
What do you do for work?
I'm a licensed psychologist.
Q. Do you practice at least partly in the
field of forensic psychology?
A.
Q.
A.
Q.
Exclusively.
Where is your office located?
lt 1 s in Auburn.
Have you over a period of tirne had
27 occasion to be used as an expert in connection with
28 cases arising out of Nevada County criminal cases?
~-------------- ---- ----------~···--------
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00125
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5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
A.
Q.
Yes.
Have you had occasion fro1n time to time to
visit in1nates a11d do evaluations of inmates while they
were housed in the Nevada County jail facility?
A. Yes.
Q. I don't think I asked you this, but does
your experience with the county's jail facility go all
the way back to when visits were in the courthouse
building?
A.
Q.
A.
Q.
Yes.
So pre Wayne Brown?
Yes.
Did I contact you a while ago about the
issue we're here today on which is the availability of
attorney-client contact visits in the \•1ayne Bro\'ln
Correctional. Facility?
A. You did.
Q. Did I ask you to consider a couple of
areas or topics for possible testimony?
A.
Q.
You did.
Was one of those the potential impact that
22 it would have on attorney-client relationships to be
23 meeting through a barrier or glass?
24 A. Well, the specific quest.ion that you asked
25 me was how the formulation of a relationship could be
26 affected if it had to take place between -- b<lhind a
27 glass barrier. The second issue was mor<l specific to my
28 work about how that v10uld be impacted as a iJSychologist
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3
4
5
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7
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attempting to conduct evaluations.
Q. With respect to that first issue of how a
relationship would be affected or impacted is that a
subject matter that your field of expertise has some
knowledge about?
A. Yes.
Q. Is that because the formation of
8 relationships is one of the sub-studies of the field of
9 psychology in general?
10 A. Yes.
11
12 some
Q. So in your professional opinion what are
of the ways that a relationship would be affected
13 if you're meeting through glass as opposed to in a
14 contact or face-to-face situation?
15 A. I really have a two-part answer to
16 that. The first has to do with how relationships are
17 formed which involves basically three elements. The
18 first is communication and then the comprehension of
19 that communication. And then at the second level is
20 confidentiality and trust. And then the third is the
21 development of intimacy. So in terms of -·- vie would just
22 generally say that any kind of barrier that would
23 interfere with those elements would then interfere with
24 the development of a relationship.
25 More specifically, then, with respect to a
26 s bar.rier 1 just in terms of the communicatior1 and
27 comprehension obviously that can sometimes he
28 problematic with a barrier as opposed to just being in a
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1 room with a person. That is something that I am
2 appreciating more and more with every passing year when
3 I try to talk tu people through the glass, but again
4 that is that ability tu understand each other and
5 communicate if it's through a slot or through a
6 telephone. When that is interfered with that interferes
7 with the cormnunication, interferes with the
8 understanding and that interferes with development of a
9 relationship.
10 The second piece, then, has to do with the
11 confidential.ity and trust. At the first level when the
12 conununication is taking place over a phone or through a
13 slot or it 1 s -- t.t1ere is less of a feeling or less
14 assurances that tl1at conm1unication is actually
15 confidential because you don 1 t know who else is
16 listening or if you have to raise your voice whether
17 to get through so there is that issue.
18 But there is also the issue of trust and
19 •ihen the person is actually allowed to actually come
20 into the jail and is actually where there is a contact
21 visit, the person feels like that's a very different
22 relationship than one that takes place with most other
23 people they are communicating with where it's restricted
24 to go through the glass.
25 So it's the concept that this person I am
26 dealing with now is someone 1·1ho has a different level of
27 access, actually even a different level of power in this
28 setting which facilitates that relationship.
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1 That really moves into the last area which
2 is the intimacy which is -- here I don't rnean physical
3 intintacy / but the intirnacy that is necessary in a
4 relationship where the person who is being asked to open
5 up and disclose sometimes very personal things,
6 sometimes very enlbarrassing and shazneful things. But
7 again, when that is taking place through a barrier that
8 is more difficult to achieve and that's difficult to
9 achieve in any circumstance. These things are all issues
10 which are even more significant as the individual has
11 any kind of a phychiatric or mental defect because these
12 are all even harder to achieve. But. I think that the --
13 these are generally true globally.
14 Q. I tl1ink going to the second question, are
15 these same areas of difficulty in forming a
16 relationship, things that play a role in your
17 professional contact with inmates as well?
18 A. Yes / they are. For rne the
19 situation, though, just tends to be much more practical
20 in terms of I am often administering psychological
21 testing so if there is a barrier between myself and the
22 inmate that becomes very difficult in ter1ns of answering
23 a question about an item or -- then they have to hold it
24 up to the glass and I have to see vJhich one they are
25 talking about. It becomes very difficult, but I think
26 that it also goes to those other issues.
27 I am not developing the kind of
28 relationship with someone that an attorney is, Oftc:n
12~
00129
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l v1hen I rm appointed L1y the Court or even V.'hen I'm asked
2 to see someone by an attorney I am not going to develop
3 the level of intimacy with the person that is necessar~l
4 in an advocacy type of relationship, but I'm still in
5 that same situation l'Jhere I am trying to have that level
6 of communication with the person that I am trying to get
7 them to disclose at times very personal information and
8 it really does become an intimate relationship as well.
9 Q. Let's shift gears a little bit to what
10 your personal experience has been \•Jith visitation
11 conditions or visiting conditions for your professional
12 contacts at the Wayne Brown Jail.
13 Since your experience spans the entire
14 life time of the facility what has been your overall
15 experience \'Tith having contact versus noncontact visits?
16
17
18
19
A.
Q.
A.
Q.
I have al\vays had contact visits.
Has that been true up to a point recently?
Yes.
What do you recall your most recent
20 evaluation or contact here?
21
22
23
24
25
A.
Q.
A.
Q.
A.
Several weeks ago.
And were you provided
Yes.
What location \>laS that
Back in the old days I
a contact visit?
in?
used to go dov1n
26 either into A Pod or B Pod and would usually use one of
27 the multi-purpose rooms to conduct the evaluations. In
28 the last few years, however, they have all been taking
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00130
l place in the booking area, so one of the interview roon.1s
2 in booking.
3
4
5
6
ago.
Q.
A .
Q.
That v1as true
That is where I was a couple of weeks
Did you have to make any special requests
7 to get that accommodation or was that just the space
8 that you were provided?
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A. That was the space that I was provided.
MR. MUNKELT: No further questions.
THE COURT: Cross-examination, Mr. Kropf?
!4R. KROPF': Yes.
CROSS-EXAMINATION
BY MR. KROPF:
Q. Dr. Roeder, just recently you were at
Wayne Brown jail facility accommodated your request for
a contact visit?
A.
Q.
Yes.
Through your testimony you kept on
discussing the fact that the barrier makes it difficult
to form a relationship; is that correct?
A. Yes.
Q. But it doesn't prevent a relationship
completely from being formed?
A. I would agree.
Q. Similarly, you had discussed that it
creates -- it makes it difficult to form a relationship
or communicate with respective attorneys; is that
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00131
1
2
3
correct?
A.
Q.
That 1 s correct.
However, it doesn 1 t absolutely prevent a
4 relationship from forming, isn't that so?
5 A. I wo11ld agree,
6 Q. Doesn't prevent conununication with that
7 attorney; isn't that correct?
8 A. That's corrHct.
9 Q. In fact, would it be fair to say that
10 people develop pretty intimate close relationships over
11 the internet where there is no physical presence
12 \-Ihatsoever?
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A. I think that is actually a very good
example. My personal example was my daughter was in
Germany for a year. We were able to Skype which was just
wonderful compared to previously when all we had was
telephone. We actually being able to see her was so much
more than before where we would just be able to talk
over the phone. But I do have to tell you that the
difference there between seeing her and actually being
with her and that level of intimacy is dramatic.
Q. Are you aware of any studies that discuss
the effect of a glass barrier between an attorney and
the client in their relationship in the facility?
A. No. I'm not aware of any such studies.
Q.
A.
You haven't conducted any such studies?
No.
MR. KROPF: Thank you. I have nothing
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3
further.
THE COURT: Any follow up?
MR. MUNKELT: A little bit.
4 REDIRECT EXAMINATION
5 BY MR. MUNKELT:
6 Q. Dr. Roeder, having acknoi.·1ledged that a
7 glass barrier doesn't completely prevent the formation
8 of relationships, are there some things that a person
9 might do if they are trying to overcome the disadvantage
10 of the barrier in forming a better relationship between
11 attorney and client, for example?
I don't understand. 12
13
A.
Q. Could you spend twice as much tin1e and
14 possibly gain some of the trust and intimacy that you
15 would have found more easy to acco1nplish in a contact
16 situation?
17 A. Well, that's an example. It could take
18 longer to do that. But I think it really goes to the
19 quality of the relationship. I think that I would agree
20 with counsel that there can be a relationship. But what
21 I am talking about is it goes to the level and quality
22 of the relationship, especially in terms of the areas of
23 trust and intimacy.
24 MR. MUNKELT: Thank you. Nothing further.
25 MR. KROPF: Nothing further.
26 THE COURT: Based upon your experience in
27 meeting with inmates do you have an opinion, have you
28 developed an opinion over your years of experience of
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hoi.1 itnportant the relationship is between the attorney
and the client?
THE WITNESS: I do. I would say it's
ex trernel y irnportan t.
THE COURT: Is there a difference in the
degree of importance if the inmate is in custody or out
of custody?
THE WITNESS: You mean --
THE COURT: Not t:he inmate. If the
Defendant or the client.
THE WITNESS: Right. I actually think it's
even more important when the person is in custody
because of the fact that this relationship it almost
becomes their lifeline you hate to say to realty but to
the rest of the world. So that way it's even more
important than someone who is not in custody.
THE COURT: With that would it mean that
the -- now we 1 re t.al king abot1t inmates , Would it f,;e rnore
motivated to establish a positive relationship from the
outset with an attorney or more suspect?
THE WITNESS: Yes. I think that both of
those things happened in my experience. You know, for
some just the setting and the environment actually kind
of draws them to an attorney because the lack of we
usually say intelligent contact, but for others just the
setting causes them to withdrav; even n1ore and an
attorney or myself <Vill have to work even harder to get
them to open up, disclose because thay shut a lot of
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00134
1 systems down as a way of coping with their situatior1.
2 Tf!E COURT: Any follow up questions?
3 FURTHER CROSS-EXAMINATION
4 BY MR. KROPF:
5 Q. The only follow-up is doesn't a lot depend
6 on the individual who is incarcerated?
7
8
9
A. I would say it depends an awful lot on the
individual.
Q.
A.
It could vary from person to person?
I would agree.
MR. KROPF: Thank you. Nothing further.
THE COURT: Mr. Munkelt?
MR. MUNKELT: Nothing further.
10
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17
18
THE COURT: May this witness be excused -
MR. KROPF: Yes.
MR. MUNKELT: Yes.
THE COURT: Thank you for your time today.
MR. MUNKELT: While I think the somebody is
19 going to check on the next witness, let me take care of
20 some housekeeping. Moving A, B, C, D and E into
21 evidence.
22 THE COURT: Are you going to have any
23 objection to any of those?
24 MR. KROPF: No. Well, with respect to I
25 believe D which is the -- well, no. I don't have an
26 objection as to that. I would request that we move I
27 believe it's County 1 s 1.
28 MR. MUNKELT: Yes. No objection.
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00135
······--····----~
1 THE COURT: Then Exhibit A which is the
2 notice posted by the sheriff's department to the legal
3 community in January of 2013 is admitted. Exhibit B
4 which is a diagram which shows the A/B Hallway amongst
5 other items is admitted. Exhibit C which is a diagram
6 that has been referred to generally as the diagram of
7 the booking area, that will be admitted. And Exhibit D
8 is the documents received, a breakdown of the inn1ate
9 programs. That would be admitted.
10 (Defense Exhibits A, B, C and D were
11 entered into evidence.)
12 THE COURT: 1•:xhibi t 1, diagram of the
13 Wayne Brown Correctional Facility, will be admitted.
14 (County's Exhibit 1 is entered into
15 evidence.)
16 THE COURT: Exhibit E is the documents
17 comprising a number of pages comprised mostly of the
18 monthly jail profile and average daiI y population
19 reports. That will all be admitted. Those items are
20 received into evidence.
21 MR. MUNKELT: Thank you.
22 (Defense Exhibit E is entered into
23 evidence. )
24 THE COURT: Next viitness.
25 MS. SCHUTZ: Call Mr. Tom Leupp to come
26 forward and take the stand.
27 THE COURT: Come forward and raise your
28 right hand.
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00136
1 THOMAS LEU PP,
2 Called by the Defense, placed under
3 oath, testifies as follows.
4 DIRECT EXAMINATION
5 BY MS. SCHU'l'Z:
6 Q. Would you please state your full name and
7 spell your last name for the record?
8
9
10
11
12
13
14
A.
Q.
A.
Q.
Thomas Leupp, L··E-U t,10 P's.
Afternoon.
After11oon.
How are you employed?
A~ I am a criminal defense attorney licensed
in the State of California.
Q. How long have you been employed in that
15 capacity?
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19
20
21
22
23
24
25
26
2·1
28
A.
Q.
Thirty-five years.
Do you have any sort of specialized
recognitions or awards in practicing criminal law for
the defendants?
A. Yes. I have been a certified specialist in
criminal law certified by the State Bar of California
for the last 20 years. I am also an A-rated lawyer,
AV-rated lawyer by Martindale-Hubbell Legal Direct.ory. I
have been nan1ed as -- Best Latvyers in America puts out a
book every year and there are I think last time I looked
six or eight lav1yers in crirninal defense outside of the
San Francisco bay area that are.listed there. I am one
of those. I \<Jas recently given an honor from them as
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lawyer of the year.
I formerly was on the Board of Governors
of California Attorneys for Criminal Justice and a
n1ember of that organization for many, rnany years,
probably 30 or so, as well as the California Public
Defender's Association.
I \>las forrnerly a public defender rnany
years ago in Placer County and re1nain a n1ember of that
organization for -- ever since that time.
Q. Thank you for being modest in sharing
those recognitions. Approximately how 1nany criminal
cases would you estimate that you have handled in your
35-year career?
A. I really don't know. Many thousands. I
mean, it's the only kind of work I have ever done is
criminal defense work. Everything from death penalty
murder cases down to DUI and petty theft and everything
in between. Certainly a couple of hundred a year would
probably be a fair average. Certainly my earlier career
more than that. Now maybe not as many because of the
complexity of some of -- I may not have quite that many
but I would certainly think probably a hundred and
quarter a year. Maybe a hundred and fifty a year. Maybe
in that ball park.
Q. How long have you been practicing criminal
defense work in Nevada County'!
A. I think the first criminal defense case I
took in Nevada County would have been -- I know it would
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l have been after I left the public defender's office
2 which was in Placer County which was in 1981 and started
3 taking cases in Nevada County shortly thereafter. I
4 remember in particular having a death penalt:y case in
5 Nevada County in the early 80's with a Defendai1t who was
6 held in Nevada County jail. I have always ever since for
7 the Iast 30 years had nwnerous cases ir1 Nevada
8 County, all range of cases, felonies and nlisdemeanors
9 and felony charges over the years here in
10 Nevada County that we have handled.
11 Generally I am here it seems most weeks or
12 certainly two-thirds of the weeks of the year it seems
13 like. Some years it's more. Some years it's less.
Q. Throughout that time period have you
have some of those clients been incarcerated?
A.
Q.
building?
Yes.
At the jail that was formerly in this
A. Both at this -- yes. Jail that was
formerly here and also at Wayne Brown.
14
15
16
17
18
19
20
21 Q. E'ocusing specifically on the visiting that
22 has occurred at Wayne Brown, were those visits contact
23 visits or noncontact visits?
24 A. Both. I have seen clients in the A/B Room
2'j in the room that is there at the end of the hall in the
2 6 A/B l?od. That would be the primary place \vhere I have
27 seen them. I also have seen clients in the two -- in the
28 rooms that are down by the booking area. I have seen
················---.... ~-... -------
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00139
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l them there when the other rooms are unavailable. I have
2
3
4
5
also on a courJle on a few occasions not nearly as
niany used the rooms with the glass i.-1here you would have
the phone.
Q. Did you .,_ do you have a preference for a
6 contact visit versus a noncontact visit?
7 A. Very much so. Any time that I have a
8 choice between usi11g a roo1n \<Ji th a phone and using any
9 other room I will take any other room. Even if I had to
10 hold my file in my lap I would still prefer any other
11 room to a room with a phone and a glass separating me
12 and my client.
13 Q. On the occasions where you have seen a
14
15
16
17
18
19
20
client noncontact at Wayne Brown what prompted you
seeing a noncontact as opposed to your preference for a
contact visit?
A. Just be a matter of --the norm had always
been -- I have not seen anybody in custody this year at
Wayne Brown, but the norm was al1.va_ys, has al\vays been
for me that I was allowed to come in and go back down to
21 A/B down to that end, take a key, go down, open it up.
22 Wait for my client to come out of the pod there at the
23 end of the hall and go into that room and have a visit
24 with t:he person. A couple of times when it was full up,
25 the room was occupied, I could have either waiteci some
26 extended time or I was in a hurry and couldn't stay much
27 longer, so I have had brief visits like an initial
28 visit. Normally it would in my mind have to be an
13$
00140
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9
initial visit with a client using the telephone roont I
guess we' 11 call it. I don't knot-1 \1Jhat you have been
referring to it today. I don 1 t know.
Q. Just for clarification we have been
referring to the noncontact rooxns as Roorn 1 and 11.
A. Okay.
Q. So the noncontact visits would those
substitute for a substantive contact visit with a client
in your mind?
10 A. No, they wouldn't in my mind. I think one
11 of the hallmarks of it is every time -· not every time,
12 but frequently whenever I have taken over a case for
13 somebody else and know the lawyer and review matters
14 with the client, have a contact visit with them and I'll
15 say when did you see your previous lawyer, when did you
16 talk to them and they'll say only on the phone. Only on
17 the phone. Clients don't view it as the same kind of a
18 visit. That is not something that I have observed at my
19 prompting. I have observed that at other jails at \:he
20 Placer County Jail in particular where they have both
21 types of rooms and uniformly defendants are not happy to
22 have to visit their lawyer
23 MR. KROPF: I object.
24 THE WITNESS: through glass.
25 MR. KROPF: Nonresponsive. He's talking
26 about the state of mind of other people. I.acks
27 foundation. Move to strike.
28 THE COURT: Overruled.
-------.. ---···-~----····-----
136
00141
1 Q. BY MS. SCHtJTZ: Can you talk generally
2 about establishing an attorney-client relationship, what
3
4
that consists of?
A. Well., it's obvious, axiontatic I guess that
5 it's about building some trust and some rapport. I think
6
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that task having been both a public defender and a
private attorney and also having been appointed from
t.irne to ti1ne in years past as an appoinLed counsel I
think that job is difficult. There are varying degrees
of difficulty depending on whether or not somebody is
appointed or otherwise. It's harder I think for a public
defender to build a rapport. Just by well, I won't go
into the reasons right now unless you ask further. I
think we all know that can be harder.
But I think that it just starts with
effective communication. And in my experience if you
are forced to do that over a phone between glass that is
an artificial construct. It 1 s an immediate statement to
the client that you don't have, that he doesn't have or
she doesn't have the same abi l i t:y to conmmnica te with
this lawyer that they are supposed to trust and who has
to some large aspect of their the Defendant's life is
in their hands as far as the Defendant is concerned.
When you talk to somebody through the
glass with a phone to your hand, it's not the way humans
communicate at all. Yot1 can't see people's facial
expressions as well. People can't react with their hands
as well. Many of us use our hands to speak and respond
137
00142
1 and to emote. Somebody is holding a phone to their hand
2 t.hey are restri.cted in that regard.
3 I find that for myself it's particularly
4 inconvenient and it causes me to haVe a lot shorter
5 conversations with defendants \'1ho are in ··· - 1f1hen you are
6 seeing them through the glass. This particular l and 11.,
7 these roonls here as I recall and as some others might
8 be, it's a particularly uncomfortable seat. It's about
9 12 inches around which is not very big as far as I am
10 concerned. It's very uncomfortable. 'l'he countertop is
11 about this width which is about 11 or 12 inches. Makes
12 it very difficult to get your file out, to spread things
13 out and leaf through it without things tumbling.
14 At the same time that you are doing that
15 you have a phone in your hand and you are supposed to
16 lean on the phone and review things with somebody. 'l'o do
17 that for more than about 10 minutes is just not
18 practical. It's not. In comparison to be able to sit in
19 a room across the table and at least a reasonably chair
20 which is just a molded plastic chair but it's a lot
21 different than a steel stool that doesn't move
22 either. 'l'o be able to show somebody documents and show
23 them police reports and point to lines in it or point to
24 a transcript and say, here, bud, this is i.-1hat we have to
25
26
27
28
b11d, this is v1hat we have to deal with, for
example. You can't do that effectively in a room with
the between you. It's just not conducive to
meaningful and effective communication in my view
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00143
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Q. 1'hank you. There has been testimony in
this case expressing concern about inrnates attacking
their attorneys and have in these rooms. In your five
years of practice have you ever been attacked by a
client in a visiting room?
A. Never been attacked, never been
threatened. Never been intimidated in any way. The only
one that I can ever remember, I reme1nber there v1as a
situation in Sacramento County about 25 years ago where
I also had practiced a fair amount where a lawyer was
attacked in the courtroom and there were a couple of
bailiffs there, of course, and attacked with a pencil as
I recall, I arn certain it was a pencil, right at the
counsel table. But I don't have recall hearing about one
in any jail that I recall. I mean, it's possible it
could happen and I didn't hear about it, but I think
that I would. I talk to a lot of different lawyers from
a lot of different counties. I appear in a lot of
different counties. Usually that kind of information
travels pretty fast.
Q. If you had a given estimate of how many of
of your visits v:ith incarcerated clients are contact
versus noncontact what percentage of your visits are
contact?
25 A. More than 90 percent. It's always my
26 preference. It's always been my preference at the Nevada
27 County jail. In my experience Nevada County jail has
28 always been -- in the past they have been particularly
139
00144
l accommodating. I would say really more than any other
2 jail that I have ever gone to, particularly
3 accommodating and was never an issue. In fact, I would
4 be given the key to the room. I don't recall that my
5 brief case v1as ever even examined before I v1ent into the
6 rooms. 'rhe client would come in. i•Je would have a visit
7 and it was particularly easy and accessible and had no
B difficulties whatsoever. Like you say, there were other
9 times I think I did go down in the booking room and had
10 visits there.
11 I didn't discern any problems or
12 differences there. Sometimes -·· I recall occasionally in
13 the booking rooms at certain times the door would be
14 we would be asked to leave the door open. It was far
15 m10ugh away from the booking desk or from the officers
16 that I still felt comfortable reviewing things. You
17 could barely hear even anybody outside, but I do recall
18 a couple of times leaving the door open or the door a
19 jar. Didn • t seem to be a problem for the coi:rectional
20 officer or for me or for the client.
21 In comparison, even whenever I have the
22 choice I almost always unless there is too long of a
23 wait, two-hour wait sometimes or an hour and a half at
24 the Placer County jail I have the option of talking on
25 the phone. I almost always decline to do it. I don't
26 find it effective. I find where there is a choice as
27 well and clients know there is a choice I think they
28 feel genuinely insulted that you couldn • t find the time
-----www••••••----•••• ---~
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00145
1 or make the time to see them in the other facility where
2 they could speak to you face to face.
3 I know if you try to have a system where
4 you say we can make special arrangements on a
5 case-by-case basis --
6 MR. KROPF: I object. We have gone into an
7 area -- v1e have gone t•1el 1 beyond the question. It 1 s just
8
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17
a free f loi;..,i testimony here.
question-?
Is there a specific
THE COURT: Follow up, counsel.
Q. BY MS. SCHUTZ: What would the impact be
of a discretior1ary system where some clients v1ere
granted contact and others were not?
A. Well, I think the p:roblem with the
discretionary system that lawyers schedules often don't
allow the opportunity to schedule things for a week in
advance or three days in advance. Sometimes there is an
lB offer that comes from the prosecutor that the day before
19 or the night berore there are some new developments or
20 something has to happen to speak to the person at a very
21 critical stage, maybe the day berore trial or the day
22 before critical plea negotiations. So the request then
23 at that time will probably be dirficult to have a
24 al request except on short notice in my
25 experience. Just usually not how things are done at
26 jails. There are staffing concerns and things that
27 happen. Whenever there is the option I have always felt
28 it 1 s critical to have a face-to-face comn1un.ication with
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00146
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3
4
5
son1ebody so that you can have ef f ect.i ve corrununica ti on
and not be restricted to the phone.
MS. SCHUTZ: No further questions.
THE; COURT: Mr. Kropf.
CROSS-EXAMINATION
6 BY MR. I<ROPI";
Q. Mr. Leupp, so based on your Lestimony 7
8
9
10
11
12
there has been at least 10 percent of the Lime that you
have had to resort to noncontact visits t'lith your
client; is that correct?
A.
Q.
Yes, I would say so. Give or take.
You still have been able to represent
13 those clients, isn't that fair to say?
'l'hat 's fair to say. 14
15
A.
Q. Although your testimony is that it makes
16 it difficult to communicate with them and build that
17 trust you still have been able to communicate 1•ith them
18 even though there has been a barrier in those noncontact
19 visits, isn't that so?
20 A. I have been able to communicate with them
21 just not to the same degree in my view.
22 MR. KROPF: I have no further questions.
23 THE: COURT: Follow up?
24 MS. SCHUTZ: Hang on a second.
25 1'HE COURT: I have a question. When you are
26 talking about having contact and noncontact visits have
27 you ever had a case where you only exclusively had
28 noncontact glass communication \·1ith your client?
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00147
1 THE WITNESS: Not that I recall. Not that
2 I recall. It would be very rare. When they have been
3 here in Nevada County jail I would come back and see
4 them 011 ar1other occasion. I can recall that. It just
5 would be unacceptable to me to conclude things that
6 way. An examp.le would be if you want to review a plea
7 form that is a very critical stage that you wanted to
B sit with somebody. Go over the form with them. I just
9 don't -- it's very difficult for me to recall ever
10 having a communication only exclusively been through
11 glass. It may have happened, but I don't recall.
12 THE COURT: Additional questions?
13 MS. SCHUTZ: Thank you, no.
14 THE COURT: Any additional questions?
15 MR. KROPF: No.
16 THE COURT: May this witness be excused?
l 7 MR. KROPF: Yes.
18 MS. SCHUTZ: Yes.
19 THE COURT: Thank you for your time and
20 test.imony.
21 MR. MUNKELT: tie considered having Betsy
22 Lombard testify about the extra relationship issues that
23 come llp as an in
24 'rHE COURT: In relation to the Declaration
25 that was filed here this morning?
2 6 MF\. MUNKELT: So that Declaration was
27 prepared as a potential substitute for her testimony.
28 We provided a copy to Mr. Kropf this morning. I was
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00148
1 checking with where he is in allowing the foundation for
2 that and it's relevance as we go.
3 THE COURT: Where are we?
4 MR. KROPF: With respect to the
5 Declaration, my objection to it is really on relevance
6 grounds. Basically, although the Court may disagree from
7 my reading of the Declaration it talks about
8 inconvenience and having noncontact opportunity to do
9 the translation. Doesn't say that she 1 s prevented from
10 communicating. So my position again really it's a
11 matter of convenience. It's a matter of 111hether they can
12 communicate. So I would object to it on that ground.
13 THE COURT: Response.
14 MR. MUNKELT: So we would offer it as an
15 exhibit, I suppose. We can do it as an exhibit, letter
16 or however you would like it identified for the record.
17 THE COURT: You can mark it if you want to
18 deal with its admissibility.
19 MR. MUNKELT: Okay. We would ask to have
20 that marked.
21 THE COURT: It's been identified as a
22 Declaration of Betsy Lon1bard. Here's a copy / madam
23 clerk.
24
25
26
27
MR. MUNKELT: Yes. I think that would be
F as in Frank.
THE CLERK: Yes.
THE COURT: I haven't had an opportunity to
28 read it. The objection is not to its foundation or
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00149
1 anything. It's just as to its relevance?
2 MR. KROPF: Yes, Your Honor.
3 THE COURT: I will have to read that and
4 make a decision. Do we have another \•Ji tness ready?
5 MR. MUNKELT: I think that is all the
6 witnesses we plan to present.
7 THE COURT: Let's take a 15-minute recess
8 and then we can start.
9 (Defense Exhibit F was marked for
10 identification.)
11 (A recess was taken.)
12 THE COURT: Back on the record. Next
13
14
witness.
MR. MUNKELT: No other evidence.
15 THE COURT: The Betsy Lombard Declaration,
16 it has some relevance to\oJ"ards effective attorney-client
17 conununication so for what value it has it would be
1 B received. That \'<'as exhibit / madam
19 THE CLERK: F.
20 THE COURT: F.
21 (Defense Exhibit F was entered
22 into evidence.)
2 3 THE COURT: Mr. Kropf, do you wish to call
24 any witnesses?
25 MR. KROPF: Yes. I would like to call
26 George Malim.
27 THE COURT: All right. You kno"J the drill.
28 THE WITNESS: Yes.
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00150
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8
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16
Georqe Malin1,
Called by County, placed under oath,
testifies as fellows.
THE COURT: State your name and spell your
last narne for the court reporter.
BY MR. KROPF:
THE WITNE:SS: George i'lalim, l'l-A-L-I-M.
THE COURT: Thank you. Your witness.
DIRECT EXAMINATION
Q. Good afternoon, Mr. Malim. Are you
currently employed?
A.
Q.
Yes.
Where \Vere you currently employed?
A. I used to be employed as a captain with
the Placer County Sheriff's Department.
Q. Currently you are retired from that
17 position?
18
19
A.
Q.
Yes.
How long ago were you employed by the
20 Placer County Sheriff's Department?
21
22
23
A. F'irst day of retirement was December 15,
2012.
Q. Your position there was Captain of
24 Corrections for Placer County?
Correct.
How long did you hold that position?
25
26
27
A.
Q.
A. As the jail conunander, six years. A little
28 over six years.
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00151
------··---··----
1 Q. What other types of positions did you hold
2 for Placer COlmty?
3 A. Deputy Sheriff to start out with in the
4 jail, the old jail behind the old courthouse there
5 downtown. I 1t1ent to the new jail when it first openecl in
6 '85. Patrol, investigations, all as a deputy. Eventually
7
8
9
10
11
12
13
14
sergeant in the jail, patrol, investigations. Lieutenant
jail, patrol, investigations and then as captain of the
corrections d.i vision.
Q. All told how many years were you employed
by Placer county?
A. All told with Placer was 27 years. Almost
28 years.
Q. Do you have an estimate of approximately
15 how many years you spent working in the jail for Placer
16 County?
17 A. Yes. My total career of a little over 31
18 years I spent about a third of it in corrections.
19
20
21
22
23
Q.
A.
How many jail facilities does Auburn have?
The main jail and then the minimum
security barracks across the street.
Q. As Corrections Captain what types of --
generally what types of responsibiliLies did you have?
24 A. For the entire division which included
25 corrections, the jail, court security, transportation. I
26 was responsible for a budget for that entire
27 division. Staffing for the entire
28 division. Policies, I)rocedures, pel::-sonnel
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00152
~------··············-----···----------------------
1 investigations, inrnate grievances, you name it. The
2 gamut.
Q. 3 Do you have any undergraduate degrees?
A. 4 Yes.
5 Q. What type of do you have?
6 A. I have a degree in Business Management, a
7 B.S.
Q. Do you have any graduate degrees?
9 A. Yes, I do.
10 Q. What type of degree is this?
11 A. M.A. in Leadership.
12 Q. Do you have any professional designations?
13 A. I am a member of the American Jail
14 Association. I am a member of the FBI National Academy
15 Associates. Graduate of the B'BI National
16 Academy. Graduate of a Executive Post Development
17 Course. Post management school. I am also a consultant.
18 Q. Are you a member of any professional
19 organizations related to corrections?
20 A. Yes. American Jail Association.
21 Q. r!ave you made any presentations on
22 correctional issues?
23 A. Yes.
24 Q. What types of presentations and things
25 have you done in that regard?
26 A. At work dealt vii th vihen I first got to the
27 jail saw some issues, kind of put together what I called
28 a back to basics course. Core values for the agency, how
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4
s
6
7
8
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14
15
16
17
18
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20
that ties in with each pecson personally, the
responsibility foe the job. I also taught an ethics
course and I was also an instructor at the University of
Phoenix in Criminal Justice and not only taught Police
Management, Criminology but also Inl.:roduction to
Corrections.
Q. Are you generally familiar with the Nevada
County jail otherwise known as the Wayne Brown
Correctional Facility?
jail?
A.
Q.
Yes. Generally.
How have you become familiar with that
A. Over the years coming up for meetings and
most recently lJeing requested to come down to discuss
issues regarding attorney visits with inmates.
Q.
A.
Q.
A.
Q.
Did you take a tour of the jail?
Parts of it. Yes.
Have you talked with jail staff?
Yes, I have.
Have you looked at the attorney visitation
21 rooms?
22
23
24
25
26
27
A. Yes.
Q. Pointing to Exhibit B, it's defense
Counsel Exhibit B, showing you this A/B Hallway do you
recognize that diagrain?
A.
Q.
Yes, I do.
Pointing to Defendant's Exhibit C which is
28 a general diagram of the waiting room, booking area, do
14 9
00154
l you recognize that diagram also?
2 A. Yes, I do.
3 Q. Previously have you toured those
4 locations?
5
6
A.
Q.
Yes, I have.
Did you do that within the last few
7 months?
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
A,
Q.
Yes.
With respect to -- first of all, let me
ask you, are you familiar with the Nevada County jail's
current policy or practice with respect to
attorney-client visitation?
A. Yes.
Q, What is that?
A. Generally that they can use the noncontact
or the visi. ting booths with the glass in
between, noncontact rooms with pass-thru or excuse n1e on
a case-by-case basis contact visit rooms which would be
the professional visits, the interviev-1 room on Exhibit B
and also the interview rooms designated in Exhib.i t C.
Q. As far as you know, does -- does the
Nevada County jail also permit or strike that. Does the
Nevada (;aunty Sheriff's Office permit contact visits in
the court holding cells?
A. Yes.
Q. Having seen the designated attorney
27 visitation rooms an opinion as to whether it's
28 appropriate to limit visits at the facility to those
------------- --------------
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00155
1
2
3
4
·----------------
rooms?
A. Based on the design of the faci.lity and
1:1hei:e they are located as ivell as security ffleasures that
are or aren't in place, yes, I do have an opinion.
5 Q. With respect to Defendant's Exhibit B, the
6 professional where it says professional visits, that
7 one room, did you get an opportunity to see that
8 particular roon1 on one of your visits to the Nevada
9 County jail facility?
Yes. 10
11
12
13
14
A.
Q. In your opinion is it a good idea to alloi.·J
15
16
17
attorney-client visits in that particular room?
A. All of the time? I think -- let's put it
this way. I think how they allow that room to be used on
a case-by-case bas:i.s is appropriate for visits in that
faci 1i ty.
Q. Outside of a case~by-case basis do you
18 have any co:tcerns as to safety or security in allowing
19 that room to be used for attorney-client visits?
20 A. I do.
What are those concerns? 21
22
Q.
A. First off is that it's located in the main
23 hallway where a lot of inmate traffic transitions to
24 visiting to court to booking room to the additional
25 booked or something else and the fact that you cannot
26 secure it from the inside. Any one on the inside can
27 open that door which opens out into a hallv1ay which can
28 contain other inmates. They have a panic button in that
·····--·~--····---
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00156
1 roo1n 1Jl1t if I am correct in that room it's located on
2 the back wall not towards the front. They have no call
3 button that they can push to say visit's ready. Come get
4 my client. Let me out. And there is no visual other
5 than some one walking down the hallway happening to peek
6 into the room. You cannot see it from what I would
7 consider to be the main observation point which •.;ould be
8 Central Control.
9
10
11
12
13
14
15
issues
Q.
A.
Q.
Are those issues safety concerns?
Absolutely.
Whose safety is jeopardized by those
A. The inmate, the visiting attorney or
whoever, staff, other visitors. The facility itself.
Q. With respect to the tv-:o visitation rooms
16 or the two int.erview rooms that are depicted in Exhibit
17 C do you have any -- in your opinion do you have any
18 safety concerns regarding the safety of using those for
19 attorney visitations?
20
21
22
23
24
25
26
27
28
A. Yes.
Q. What types of concerns do you have?
A. Some of the same concerns as the
professional visit room in the A/B
Hallway. Accessibility to it. Visibility to it. You
cannot see the --- the question was asked earlier of the
previous captain, Mr. Osborne, if he could see into that
interview room at the top. My experience is from
standing at that booking desk and looking in that
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l direction you cannot see directly into the interview
2 room at the top or the intervievl 1:oom on the left, 1'hat
3
4
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12
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14
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22
area in my experience in corrections booking roonts
are extremely busy and volatile areas, probably the most
so in any -- in all facilities. You have unknown
quantities, sometimes a lot, sometimes less 'Yralking in
that back door in different states of sobriety, in
different states of cooperativeness and everything else
and that can also lead to altercations in that room and
also 1vhat I believe to be probably inadequate staffing
in that booking room with the staffing issues that they
have. One person i.n there generally, They try to have
two but most of the time it's one.
Cf there is an intake at the back or a
fight breaks out somewhere in the booking room that
person is on their own. They are leaving the desk. There
is no one to t..<1atch or supervise that visit going on.
Q. Have you been present to hear some of the
other testimony in this case?
A, Some of it, yes.
Q. I believe there was some testimony that in
the past there hasn't been any with the one exception
23 of possibly once in 2005 there hasn't been any other
24 incidents where attorneys have been attacked. Did you
25 hear that testimony?
A. Yes. 26
27
28
Q. In your opinion does that make any real
difference in planning policies for the future?
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00158
~---- ----------······-.... -~---------·······-.... ·----------
l A. No. Not really. As a captain or zs a
2 manager particularly running a correctional facility one
3 of your main jobs is risk managenlent. Risk managenlent
4 mantra is if it's predictable it's preventable. If it 1 s
5 happened once before you always have to be concerned
6 that it's going to happen again and again.
7 Again, the way the hallways are set
B up, the rooms are set up and everything else it's not a
9 matter of -- it's like running a jail. It's not if an
10 inmate escapes or if an innlate dies, it's when an inmate
11 escapes and when an inmate dies. It's going to happen
12 regardless of how well your policies and procedures
13 are. Nonetheless, it does not prevent you from doing the
14 best that you can to limit those occurrences.
15 Q. So in your professional experience and
16 opinion would it be prudent for a jail to wait until
17 somebody is injured or hurt before instituting some
18 safety procedures?
19
20
21
22
23
24
25
A.
Q.
A.
Q.
A.
Q.
A.
No. It <-muld not be prudent.
Now, you work for Placer County; correct?
I did. Yes.
Does Placer County permit contact visits?
Yes, they do.
Where do they permit those?
Generally in the main hallway of the jail
26 just past Central Control and pretty much next to the
2 7 booking room. If you look at the design of the jail,
28 there are two rooms off to the left. I believe they are
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00159
~---------------------------------~~ .... -~···-------
1 77 and 78. Those are what we consider attorney or
2 professio11al visit contact rooms. Door 77 that
3 particular interview room there on vihat v1ould be the
4 east wall of that room is a window that looks across a
5 hallway and booking and Central Control can look
6 directly into it. 78 is not that way but both
7 T.·1indo\1s / both doors have windows~ Both rooms have panic
8 buttons. Both rooms have call buttons. Both room locks
9 are controlled by Central Control.
10
11
12
13
Q. So it would be fair to say that is not the
case here in Nevada County?
Not at all. A.
Q. Prior to testifying today have you had an
14 opportunity to compare Nevadd County's practices with
15 those of similar-sized counties and jurisdictions?
16
17
18
19
20
21
22
23
24
25
26
County.
A.
Q.
A.
Q.
Yes, I have.
Which other jurisdictions did you look at?
El Dorado County, Napa County, Mendocino
Generally what were your findings with
respect -- in cornparison to those counties?
A. All three counties allow contact visits
with attorneys on a case-by-case basis and all three of
those have to be approved by a corrections or a division
lieutenant.
Q. Do any of those counties just simply al.low
27 contact visits at court holding cells if requested?
28 A. That I didn 1 t ask, but each courthouse is
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00160
1 different. I know '1e allow them in Placer. There are
2 places for those to be conducted while they are in the
3 courthouse. Of all of the three counthrn that I
4 mentioned all of their contact visit rooms that they do
5 allo\v to have on a case-by-case basis are
6 visible, directly from a work station of an einployee
7 v1hether it be a print cou11ter 1 the visiting control room
8 or their Central Control.
9 Q. So those particular rooms fair to say are
10 they different from Nevada County's -- are they
11 different from the contact visit rooms that we have
12 allo;ied in the past?
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A. Yes. I want to correct myself. In
Mendocino County their contact visit is also the law
library. When the contact visit is approved there is a
camera in that library and it's monitored by their
Central Control. None of that exists in Nevada county
jail.
Q. Having seen the designated visitation
rooms with the glass barrier do you believe that it
allows attorr1eys to communicate with their clients?
A. Yes. In fact, those are pretty standard
noncontact visit rooms in correctional facilities .in
Placer County, even in the ne\"l jail that_ I \'las involved
in the design and building of.
THI': Rl':PORn~R: The new j ai 1?
THE WITNESS: Yes. South Placer
Facility.
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1
2
3
Q. BY MR. KROPF: \vith respect to in your
experience do you treat -- well, strike that. In your
experience do you have you found that pretrial
4 detainees as opposed to post trial detainees or
5 prisoners pose less or more safety or security concerns?
6 A. Every inmate can pose less or more safety
7 security issues whether they are sentenced or
8 unsentenced depending on their criminal history or their
9 mental stability or any other thing that happens to be
10 going on that day.
11 Q. Are you familiar with any _,._ do you know
12 of any counties that use some type of Telepress (sic) or
13 video communication system between attorneys and tf1eir
14 clients?
15
16
17
18
19
20
21
22
23
24
25
A. Yes. Washoe County. And my experience in
the business and going to conferences and doing
research, in fact, Placer County looked at it. Pretty
much every inmate phone provider does provide that.
service now where .YOU can do a 1,;1eb-based basically
conference call similar to, say, video arraignment but
it's a face-to-face. A lot of attorneys seem to like
that option, particularly depending on where they are
located versus the jail. It's easy face-to-face
conversation. In fact, many jails including Placer's use
what they call 'felepsych (sic) where the inmate comes
26 i11, sits do•.-1n in a roon1, has a video cor1ference with a
27
28
over their issues and it \dorks very
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7
8
9
10
MR. KROPF: I don't have any further
questions.
THE COURT: All right. Any questions, Mr.
Munkelt'/
MR. MUNKELT: I\ few I thank you.
CROSS-EXAMINATION
BY MR. MUNKELT:
Q. Good afternoon.
A.
Q.
Afternoon.
Did I catch that you have some things to
11 do with the planning and design of the new facility for
12 housing inmates in Roseville?
13
14
A.
Q.
15 project'/
16 A.
Yes.
What was your connection with that
As the jail commander in Placer generally
17 a captain's assignment is three years generally and then
18 after that you can rotate out. In conversations with
19 Sheriff Bonner when I got promoted we knew this project
20 would be moving forward and the sheriff told me I may
21 have to be there a little longer than four years. And
22 my basic comment to him is I'm not leaving in the middle
23 of a hundred million dollar project so I was the
24 department lead on the design, planning, construction of
25
26
that jail.
Q. That confirms what I have heard about
27 Sheri.ff Bonner's persuasive abilities, I guess.
28 So v1hen you v;ere involved in plannini:;1 a
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4
--- ------------------------·~------ -------···--···
new jail security, staff safety, visitor safety, all of
those were issues that you were looking at; right?
I\. Yes.
Q. In your opinion is it possible to design a
5 custody facility where there will never be an incident
6 of violence to a staff mernbe.c, inmate or visitor?
7
8
9
10
11
A. Absolutely not,
Q. That is because of human nature among
other things; correct?
A.
Q.
Correct.
So would it be fair to say that when you
12 are designing a facility with those security and safety
13 issues in mind that there are alt,;1ays some compromises
14 that you make in the design recognizing that this
15 particular area may have some level of safety issue but
16 it's tolerable under the circwnstances?
17 A. That is mitigated usually because a lot of
18 thought at least for my part and our belief in designing
19 jails is clear lines of sight whether it be a housing
20 unit down the hallway or any place else. Geometry
21 doesn't let you have clear lines of sight to everyv1here
22 in the building. In those areas where maybe it won't be
23 direct visual from, say, a control room or something
24 else into a room there is generally some type of video
25 surveillance either in the room or outside the room that
26 can look into the room that would allow you to at least
27 rnonitor it. trot ideal, but it 1 s a v1ay of monitoring.
28 Q, So, for exarnple 1 in our Wayne Brown
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00164
1 facility if we look at Exhibit B, the A/B Hallway and
2 the professional visit room up there on the left would
3 it in your opinion mitigate to sorne degree the concerns
4 about safety for visits, professional visits in that
5 area if there \</ere a video n1onitor placecl outside the
6 rootn t'lhich could give some view of the interior?
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
A. That and locks on the door that were
controlled some place else. Yes.
Q. Actually / to some extent would it be a
better idea to have both of those rather than just
adding a lock on the door?
A. I think it would be much better to have
both in this case. I don't know what you do with the
other two here just because of their location and the
fact that that being pretty much an open area with
people unknown to you. Yet as far as their
classification, criminal history and things I think it
would still be very difficult. Even with that, that
would be very probably the least desirable places that I
can think of that you would want professional visits
occurring with contact visits with attorneys and things
like that.
Q. Well, I am pretty sure when they were
24 designing this facility !:hey did not consult with you,
25
26
27
28
did they?
A. Probably -- I know they didn't.
Q. You have mentioned the degree of traffic
t:hat occurs in the A/B Hallway in our jail for a variety
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1 of reasons.
2 A. Correct.
3 Q. Some of that traffic is inmate traffic.
11 For example, in order to go to court people come out of
5 the .n. and B Pods. 'rhey go down to a doorway oft that
6 hallway in order to be transported?
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Correct. A.
Q. Inmate staff or some ti1nes civilian staff
may be moving carts of food up and dovm that
hallway, people from medical section may be bringing
medications down the hallway. All kinds of stuff happens
there; right?
A. Correct. Visitor -- inmates popping, being
popped out of their side of the visiting, the no contact
visiting areas.
Q. That hallway itself over all is secured by
locking doors that are controlled from the Control
Center at the end of the hall?
A. Correct.
Q. Under v.isual observation from Control the
whole way down'?
A. The hallway itself, yes.
Q. So, for example, if you had inmates coming
out of A E'od to come down to the hallway to be
transported to court the person in the Control would
know about that'?
A. They should know, yes. Whatever the
procedures are it's usually announced that traffic is
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00166
l coming through.
2 Q. If they got a call from the lobby saying I
3 l1ave an attorney who wants to come visit in t}1e
4 professional visit room, Control it would be possible
5 for the Control st.aff member to say we have traffic in
6 the hallway. It's going to take five minutes to clear.
7 Would you please ask your subject to wait?
Correct. 8
9
A.
Q. In fact, I would guess that things like
10 that sometimes occur at the Placer County jail in
11 Auburn, don't they?
12 A. All of the time.
13 Q. Okay. So staff training, staff observation
14 of the real time event is all a big part of the security
15 and safety of the facility?
16 A. Staff, yes. As well as whatever other --
J 7 things that you have at your disposal. Locks operated
18 some place else. Nobody can pop out in the hallway
19 unexpected when you are trying to control the traffic.
20 Cameras and things like that. Yes.
21 Q. If you have a facility where you can see
22 some potential security concerns but it was operated
23 year after year after year without any event that
24 actually was a danger or caused harm '1ouldn't that
2 5 indicate that; your staff is handling the limitations to
26 the facility quite well?
27 A. It can also indicate that you are just
28 very lucky.
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00167
1 Q. The facility at Nevada County -- strike
2 that. In your preparation for your testimony at this
3 hearing were you provided any of the declarations from
4 local attorneys concern.ing their experience of the
5 visitation, the change in visitation policy from contact
to noncontact visits?
A. Yes.
Q. You saw that the attorneys expressed
6
7
8
9
10
11
12
13
concern about the difficulty added to their
communication challenges with their clients by having
the noncontact visits?
Yes. A.
Q. And you saw that their experience was that
14 when they requested a contact visit that by and large
15 those requests 111ere deriied?
A.
briefs, yes.
1'hose were the allegations in the 16
17
18 Q. But with the recognition by the attorneys
19 submitting the declarations that there had been a couple
20 of special circumstances such as needing to do a video
21 revieH where they were granted the opportunity for a
22 contact visit?
23 A. Yes. But I'm also aware that since they
24 started keeping tabs June first of this year they have
25 six requests for contact visits and fou.r of them have
26 been approved.
27 MR. MUNKELT: Thank you. No further
28 questions.
163
00168
1 THE COURT: Any redirect?
2 MR. KROPF: Thank you.
3 REDIRECT EXAMINATION
4 BY MR. KROPF:
5 Q. Earlier in your testimony in response to
6 Mr. Munkelt you said there were "'ays to mitigate the
7 exposure in that one room by placing a video camera in
8 that location or probably a control lock; is that
9
10
11
correct?
A.
Q.
A bolt. Correct.
And when you have a particular area that
12 needs to be monitored you need to have staff to monitor
13 that location; is that correct?
14
15
A.
Q.
C.orrect,
And wit:h staff comes extra expensesi is
16 that correct?
17
18
19
20
21
22
23
24
25
26
27
28
Correct. A.
Q. And similarly if you put a special lock or
controlled lock on that door that costs money also;
isn't that correct?
A. Correct.
Q. In your experience with Placer County have
funds for governmental entities and correctional
facilities been increasing or decreasing over the last
few years?
MR. MUNKELT: Objection. Relevance.
THE COURT: Overruled,
THE WITNESS: When I started in '06 my
164
00169
1
2
3
4
5
6
7
8
9
10
budget v1as 35 million. The next three years it got down
to about 32 million. A.B. 109 funding helped some but it
was no where near enough to hire the positions that I
needed that were vacant. We didn't lay anybody off but I
ran many / many / 1nany positions vacant because we didn't
have the funding to replace the authorized persons that
we were authorized to have.
Q. Vii th respect to that A/B Hallway defense
counsel was referencing the fact that access to that
hallway could be controlled by a Control Center. Do you
11 remember that?
12 A. Access to the hallway. Yes.
13 Q. As that one room stands currently there is
14 no -- it 1 s not a secure room from the standpoint that
15 people can exit a room?
16 A. 'l'ha t' s correct.
17 Q. So would it be fair to say that whether
18 there was control from the Control Center there could be
19 an occasion where people are going through that hallway
20 and prisoners can leave without permission; isn't that
21
22
23
24
25
26
27
28
correct?
A.
Q.
A.
In the current state that it's in now?
Yes.
Absolutely.
MR. KROPF: I have nothing further.
MR. MONKELT: Nothing further.
THE COURT: May this witness be excused?
MR. KROPF: Yes.
165
00170
1
2
MR. MUNKE:LT: Yes.
THlc COURT: Thank you for your time and
3 testimony. Any further witnesses?
4 MR. KROPF: I have no further witnesses.
5 '!'HE COUR'l': All right. Any rebuttal
6 testimony?
7 MR. MUNKEL'l': No rebuttal testimony, Your
8 Honor. The question would be whether you want to do
9 argument where we are.
10 THE COUHT: That's the next question and
11 the procedure is I think for the record I don't know if
12 ;ie need any better description. I think the ex hi bi ts
13 are sufficient and as to both counsel or counsel for the
14 parties the Court's familiar with those -- with the
15 facility so I don't think that a judicial visit is
16 required. I am wondering if both Counsel are willing to
17 to accept the diagrams as representative and accept the
18 Court's familiarity with the location.
19 MR. KROPF: Yes, Your Honor.
20 MR. MUNKELT: Yes. l think they are
21 adequate f·or our purposes here. Yes.
22 THE COURT: So the next -- let me
23 see. Question is does counsel wish to orally argue or do
24 you want to submit briefs?
25 MR. KROPF: From my standpoint, I mean, we
26 have briefed it significantly. We can submit a closing
27 brief or something along those lines.
28 THE COUR'r: If you wish. I am giving you
166
00171
1 the option of closing bicie f or oral,
2 MR. KROPF: At this point I always like to
3 have a brief, but without having a record --
4 THE COURT: It would be part of the
5 record, then. Are you willing to go with closing briefs,
6 counsel?
7 MR. MUNKELT: I would prefer oral argument
8 but if we request closing briefs then we can ha·ve one
9 together by the end of next week probably.
10 MR. KROPF: Actually, that will be
11 problematic for me. I'm fine with an oral argument.
12 THE COURT: Al 1. right. Are you ready to
13 proceed now to oral argument., closing argument.?
14 MR. KROPF: Yes.
15 THE COURT: You have as long as you want as
16 long as long as -- yes, Mr. Walker, before I impose a
time limit. 17
18 MR. IVALKER: On behalf of Defendant Foote
19 it's my interest to make sure that the Court is aware
20 and has considered the Declaration attached to the
21 motion filed on his behalf.
22 TflE COURT: Which declaration?
23 MIL WALKER: All right.
24 THE COURT: Which declaration?
25 MR. WALKER: When I filed my ex parte
26 motion requesting contact visits I also filed with it a
27 Declaration in Support thereof.
28 THE COURT: A declaration is by --
167
00172
f.~R. ~"1Al,KER: Say aga _in.
2 THE COURT: It• s your personal declaration?
3 MR. WALKER: Yes, sir.
4 THE COURT: I' 11 make sure that is in the
5 file. Any declarations that were filed by counsel with
6 the briefs, of course, are part of tl1e record and the
7 Court has reviewed them, but let me make sure that it's
8 in there. So that -~ yes, I do have that.
9 MR. WALKER: Thank you.
10 THE COURT: It's part of the file and part
11 of the record.
12 MR. WALKER: Thank you.
THE COURT: Any other counsel have any 13
14 other any other defense COllnsel have any other issues
15 prior to that? As long as neither of you exceed 10
16 minutes.
17 (Discussion off the record.)
18 THE COURT: Mr. Munkel t.
19 MR. MUNKELT: Thank you. We are here before
20 the Court on what 1 would describe as an ancillary
21 proceeding in connection with five discrete criminal
22 prosecutions. People versus whoever. And we have
23 consolidated this, the issues brought here for the
24 convenience of the parties, hopefully the convenience of
25 the Court and seeking what ultimately should be a
26 workable; resolution of what at least the criminal
27 defense attorneys present thought was a significant
28 negative policy change by the sheriff's department
168
00173
---·--·~---------~-------- ----······--·~·--··
1 concerning attorney-client contact visitation.
2 As I indicated in my opening statf~Inent l•Je
3 believe that it's te clear that the Court has the
4 authority to manage the conditions of custody with
5 attorney-client visits and for that matter with
6 psychological evaluations and private investigator
7 visits associated with the defense of criminal
8 proceedings before the Court. So I won't go into that
9 any further unless there was a specific question about
10 it.
11 The exercise of that power depends on
12 first deter1nining ·whether there is an infringement of an
13 inmate right or an impact on the Court 1 s ability to
14 handle the criminal calendar and the criminal
15 cases. That is impacted adversely by the policy change
16 diminishing the accessibility or availability of
17 attorney contact visits with their clients.
18 I would refer the Court back to the
19 declarations I think of Mr. Walker and certainly Ms.
20 Schutz and maybe some others in there that document in
21 some detail the drastic change that took place even
22 though it's described by the witnesses from the
23 sheriff's department as just enforcing the always
24 existing policy.
2 5 In various summary terms vie went from a
26 situation where attorneys could appear at the jail,
27 request a contact visit with a client and generally
28 receive that visit in a very prompt and convenient
169
00174
l fashion in one of the contact rooms identified in the
2 testitnony with rare exception to a situation where if an
3 attorney presents at the jail and requests a contact
4 visit they may have a conversation with the officer in
5 charqe and unless they provide whatever the certain
6 combination of things that that jail administration
7 authority believes justifies a contact visit then they
8 have to visit through the glass.
9 I think the record before the Court
10 establishes pretty clearly that that change is a
11 significant impact and puts a significant burden on the
12 attorney-client relationship for the attorneys handling
13 criminal cases before this Court with clients who are in
14 custody in the Wayne Brown facility.
15 If that is true then the question of how
16 to deal with it or whether the Court should take any
17 step to deal with it. in part at least depends on looking
18 at the legitimate penological interests involved and
19 balancing them against the inmate interests and the
20 impact on the court proceedings as well.
21 I think that both sides are in agreement
22 that the recognized framework for evaluating that
23 balancing test or that balancing process lias developed
24 in the U.S. Supreme Court case in Turner versus Safley
25 and has been repeated, explained and applied in many
26 cases including several of the California cases cited in
27 our joint brief.
2B Step one of that analysis I would sort of
--~---------------------~··~··------
170
00175
1 briefly characterize as involving is there a legitimate
2 penological interest that supports the policy. Skipping
3 over 2 and 3 step 4 is even if there is a legitimate
4 penol.ogic interest is the particular method chosen for
5 enforcing it an exaggerated response to the legitimate
6 concerns that therefore would be seen as an undue
7 impairment of the inmate's rights. Here I think the
8 attorney•s rights as well, but that's ~~ we arise from
9 our relationship to the client.
10 I would submit to the Court that the
11 record before the Court at this point actually raises
12 some doubt whether there is a factual showing to
13 establish a true l.egitimate penological interest that is
14 rationally based on a factual situation. In other words,
15 I think there is some problem with the county's position
16 that they meet step 1. I think it's a much more glaring
17 discrepancy as to step 4 of that analysis. I think that
18 clearly the steps taken here are an exaggerated
response. 19
20 In the evidence that is shown most clearly
21 by two aspects of the testimony and the material before
22 the Court. One of them is with a single exception that
23 we'll get to in a second there has been no incident of
24 assault or injury or any other security problem in the
25 entire .life of the jail as far as t1e know except one
26 possible contact of an attorney and an inmate in 2005.
27 So to essentially ban almost all attorney
28 contact visits because of a security ccncern seems to be
171
00176
~---~···--------------- -----·-----------------
1 an exaggerated response to a problem that has not yet
taken place. 2
3 Secondly, even i.·Jhile this l1e·1:J policy 1t1i th
4 attorney visits is being implemented we have an on-going
5 series of meetings, classes, religious sessions and
6 other activities occurring in the jail with multiple
7 inmates in the room with non correctional personr1el, non
8 peace officer personnel, not professional personnel for
9 the most part who arc in the Multi-Purpose Rooms with
10 multiple inmates at any given time without security
11 personnel and thatts considered safe enough, but it's
12 not considered safe enough to have an attorney v1alking
13 down a locked hallway to a single room and visiting with
14 their own darn client,
15 So I think both the lack of any prior
16 incidents and the alternative kinds of events that are
17 going on in the jail that are less secure or more
18 threatening and frankly raise much greater concerns
19 about safety and security pretty much show that the
20 particular policy in question here is an exaggerated
21 response.
22 1'he one incident from 2005 I will touch on
23 briefly. I think it's pretty clear at this point that
24 there was a mentally ill inmate who was put into the A/B
25 visit room with an attorney visit. That is clearly a
26 situation where if it's predictable it's
27 preventable. That's the kind of situation where it
28 appear from the second-hand description of the event
172
00177
1 that we had today that jail staff should have recognized
2 that as a dangerous situation. They should have been
3 talking to the attorney, working with the att.orney
4 managing the situation rather than allowinq it to unfold
5 in an unsupervised \Vay which sounds like 1.vhat happened.
6 I don't think that that particular
7 incident actually points more toward a lapse of staff
8 attention and following their training and responding to
9 that situation appropriately rather than the visiting
10 situation is not safe.
11 If the Court comes to the con cl us ion that
12 either the Court has the authority without considering
13 the sheriff's particular concerns to manage the
14 attorney-client visits of the cases and the attorneys
15 and defendants before the Court or if the Court first
16 finds that either the policy change here at issue is not
17 rationally based and a legitimate penological concern or
18 although it has some legitimacy and at least a
19 rationalization for it that it's an exaggerated response
20 under the circumstances of this facility and history
21 before the Court, then I think what the Court should do
22 is grant the requests of these five defendants for
23 contact visits.
24 Now the County has mentioned in the
25 briefing that there is nobody no cases ever held
26 there is an absolute right to a eontact attorney-client
27 visit. We agree. That would also -- that would always be
28 subject, even if it was under a specific court order for
173
00178
1 a defendant, always be subject to the specific
2 administrative concerns of the facility either because
3 of objective danger presented by the inn1ate and their
4 irrunediate behavior and circumstances, for exan1ple,
5 somebody \Vho is psychotic and uncontrollable or somebody
6 who just attacked a guard the day before, those kinds of
7 events. Obviously the sheriff would have a valid
8 specific position to overrule an order and say we are
9 not allowing this visit at this time. Maybe you should
10 go back to the Court and talk to the Judge some more.
11 Or if there is a specific event in the facility that
12 would require administrative delay or rescheduling of an
13 attorney visit.
14 For exainple, I have gone for contact
15 visits where I was denied because I am sorry, your
16 client is in a section that is locked down right
17 now. We 1 re not letting anybody in or out.
18 Okay. Legitimate. Not a problem. I'll come back another
19 day or whatever the arrangement is.
20 We are not claiming and never have that
21 there is an absolute right. What we 1 re saying is the
22 Court has the power to make the order. The jail should
23 follow the order unless there is some specific objective
24 reason at a given time or because of a specific inmate 1 s
25 specific history or current status that it should be
26 denied on a particular occasion.
27 THE COURT: Mr. Kropf?
2 8 MR. KROPF: With respect to the Court's
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00179
-------------------------~··----
1 jurisdiction, certainly, and I don't think that we
2 dispute the fact that the Court has jurisdiction to
3 insure that prisoners 1 or inmates' constitutional right.s
4 are not being violated, in this particular case the 6th
5 Al:nendment right to effective assistance of counsel or
6 the right to consult with counsel. Before we get to any
7 balancing issues or looking at a rational basis or
8 whatever, the Court's jurisdiction doesn't arise until
9 it has determined that, in fact, a prisoner 1 s or
10 inmate 1 s constitutional right has been violated.
11 In this particular case there is no
12 evidence that has happened. The 6th Amendment to the
13 United States Constitution requires that prisoners or
14 pretrial detainees be allowed to conununicate in private
15 with their attorneys. That is exactly what we do here in
16 Nevada County and the Nevada County Sheriff's
17 Office. They have designated rooms. There is no evidence
18 that they cannot communicate wi.th them. There is no
19 evidence that they cannot communicate with them i.n
20 private. And regardless of whether somebody thinks that
21 they hear somebody in the next room or whatever, we
22 allow contact visits here at the court holding cell any
23 way.
24 So with respect to the underlying
25 constitutional issue or question there is no evidence,
26 nothing to demonstrate that there is a violation of the
27 constitution. We don't even get to the issue of whether
28 it's convenient or not convenient or it's an impedi1nent
175
00180
1 or makes it difficult to communicate. '!'hose are all
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
issues that really have no bearing or no relevance to
the underlying constitutional question. I mean,
basically what we have been talking about here is
everybody's -- \-.'ell, it makes it hard. It makes it
difficult. It makes it more difficult to build a rapport
or a relationship. That may be so, but being in jail is
inherently difficult for people to make relationships
outside or with their attorneys or with their families.
That's part of being in jail. Unfortunately, that is
something we all have to live with.
In that regard the Court doesn't even get
to the issue of whether there is a rational basis or
some other basis to the safety or security concerns of
the jail because there is no constitutional violation to
start with. So the Court's jurisdiction doesn't even
con1e into play.
That's one of the reasons that the law
mandates that the sheriff is the sole exclusive
authority with respect to the day-to-day operations of
the jail. It's the sheriff's responsibility to insure
that people are safe. It's the sheriff's responsibility
to insure that the prisoners, that the employees, that
the attorneys are safe in that particular jail. It's not
the Court's responsibility to do that and it would be an
undue burdensome and i1nplicate separation of power
issues if the Court were to inject itself and subject or
substitute its judgement for that of the sheriff in the
176
00181
~-----------················--~···--···------~·
1 day-to-day operations of the jail. It makes no sense.
2 This whole -- I want to say that this
3 hearing in and of itself, that this eviden hearing
4 exemplifies or illustrates that point. Every time that
5 there is a dispute over well, I didn't get my tooth
6 paste or, you kno1;1 1 I didn 1 t get a comb are we going to
7 have a full day of evidentiary hearing bringing in
B experts to discuss that? That is within the sole
9 exclusive authority of the sheriff. That is why he's
10 tasked with that responsibility. He has a budget. He has
11 a staff. He has to make those day-to-day decisions.
12 The Court makes day-to-day decisions with
13 respect to the law in adjudicating these
14 cases. Certainly it's within the power of the Court to
15 order a prisoner to attend a hearing or to insure that
16 that prisoner -- his constitutional rights haven't been
17 violated, that he gets to communicate with his
18 Counsel. That is not the case here.
19 In this particular case the sheriff's
20 office permits visits with clients with -- between
21 attorneys and their clients. They can communicate. The
22 only difference is they have a bari:-ier. Nobody has said
23 that barrier prevents them from corrununicating with their
24 client. None of the experts have said that. It just
25 makes it inconvenient.
26 The only time a rational basis or the
27 balancing of a penologica.L interest as opposed to
28 arises is once the Court has determined whether, in
IT!
00182
1 fact, there is an infringement of a constitutional
2 right. At that point based on legitimate penological
3 interests those rights can be limited, violated in a
4 limited way. That is what the Supreme Court talks about
5 in its cases. If there is a constitutional violation
6 they can be offset if, in fact, there is a safety and
7
8
9
10
11
12
13
14
15
16
security concern and that is -- that 1 s rationally
related lo a legitimate penological interest. We have
that here.
I will illustrate it in a couple of
points. In Block versus Rutherford, U.S. Supreme Court
there is a quote. They say, "There is no dispute that
internal security of a detention facility is a
legitin1ate governmental interest." Defer -- "And the
Court is required to defer to that interest or to the
judgement of the sheriff in that respect."
17 I mean, the Court even says that there is
18 11 A valid, rational connection between a ban on contact
19
20
21
22
23
24
25
26
2"1
visits and internal security of a detention facility is
too obvious to ltJarrant extended discussions. 1• Arguably
under this case we could completely ban any type of
contact visit. We haven't gone that far. Although this
court -- so we don't even get to that point.
Even under a rational basis test generally
speaking under Civil Rights Law and constitutional law a
rational basis is any reason whatsoever. Doesn't have
to be the best reason. Doesn't have to be the worst
28 reason. Doesn't have to make sense. If the sheriff has a
178
00183
1 reason or the facility has a reason for implementing a
2 security concern then that's good enough for a rational
3 basis test. We don't have to get into this prolonged
4 debate every time whether it's the best or the worst or
5 if there are other things or whether it's an exaggerated
response. 6
7 Exaggerated response language comes back
8 to other cases previously prior to 1994 when the state
9 legislature under the Penal Code mandated that prisoners
10 had rights to contact visits. That was repealed. That
11 was taken out of I believe it's Section 2600 of the
12 Penal Code which indicates the legislative intent here
13 in California to not require or mandate contact visits
14 here in California.
15 This idea that we have to wait until
16 somebody gets killed, somebody gets stabbed, somebody
17 gets injured to implement a very simple, very simple
18 mitigating remedy, a glass barrier is -- well, on its
19 face just makes no sense. I mean, 1.,re don't have to v.1a it
20 for things to happen to implement safety or security
21 concerns. We have an obligation under the law to provide
22 a safe environrrtent for our employees. We have an
23 obligation under the law to provide a safe environment
24 basically for attorneys, many of which are county
25 employees. 'l'he labor code. l'le have to provide a safe
26 environment for them. By not implementing a simple
27 barrier to prevent them from getting assaulted or
28 attacked by which everybody seems to agree that most
179
00184
1 prisoners can be unpredictable, they can be calm one
2 minute. They can be violent the next. There is no way to
3 predict whether they are going to attack or not attack
4 or assault their prisoners (sic). We have been lucky
5 over the last few years and as illustrated by everybody
6 seeffts to concede there has been at leasl: one attack in
7 2005.
B This idea that we have to wait or that
9 somehow indicates that our response by putting in a
10 simple barrier to prevent those attacks should require
11 the Court to basically allow contact visits wholesale,
12 in our opinion it just doesn't make any sense.
13 Again, we don't believe that the Court
14 even gets to the question because the defense apparently
15 concedes there are no court cases that really held that
16 contact visits are as a matter of right. It's not a
17 constitutional right so we don't even get there. Really
18 shouldn't be something that the Court needs to even
19 address. On that basis any motion for contact visits in
20 that respect should be denied. 1/le have allowed contact
21 visits on a case-by-,case basis t.vhen there are situations
22 where it would dramatically interfere with the ability
23 of counsel to represent their clients, for example, .in
24 video and discovery where they want to sit down and talk
25 about it or they have large volumes and facilitate. We
26 have done that. Nobody has testified here that we have
27 not allowed that to happen. Everybody seems to complain
28 about the fact t.hat they j\lst can't talk with their
180
00185
1 client face-to-face but they can right here in the Court
2 holding cell.
3 So with that I would just request that the
4 Court deny any motions for contact visits.
5 MS. ZUROMSKIS: Can we rebut briefly?
6 THE COURT: Yes.
7 MS. ZUROMSKIS: I will make it quick. I
8 want to start most importantly by citing Block versus
9 Rutherford which Mr. Kropf has cited. He did quote
10 directly from that opinion except what he didn't mention
11 is that that case deals with denial of contact visits
12 between inmates and non attorneys. In other
13 words, social visits. No where are i,..1e arguing that a
14 person should be able to have a contact visit with their
15 mom or their sister or husband or wife or boyfriend or
16 girlfriend. We are talking about contact visit with
17
18
attorneys.
Citing that as authority that we don't
19 have -- that clients (sic) don't have a constitutional
20 right to contact visits with their client seems a little
21 misleading. There is a fundamental right to not only
22 have contact with your attorney, by contact I mean
23 discourse, but it has to be competent and
24 effective. It's not a bare right. That has been cited
25 many times under the various briefs that have been
26 submitted here. If it's ineffective then it's not
27 competent and it fails the 6th Amendment.
28 Now, you have heard expert testimony from
181
00186
1 Mr. Leupp and also from Dr. Roeder about how ineffective
2 it can be to meet through glass. Just a moment ago Mr.
3 Kropf said that is a part of being in jail. Having
4 ineffective assistance of counsel is not a part of being
5 in jail. He mentioned, v1ell, you kno\-J people are going
6 to bri.ng suit i.f they are denied tooth paste and that
7 sort of thing. Ne are not bringing a suit for denial of
B tooth paste. We are not bringing this to court so that
9 someone can have a contact visit with their mother. We
10 are placing expert wit11esses on tl1e stand to shov1 Your
11 Honor hm·/ important it is to meet face to face with a
12 client through an unpartitioned room to establish
13 trust, to establish communication and to have full
1'1 disclosure from your clients 'i'.1here it's important to
15 assist them in representation of a case.
16 If there .is bad communication, if the
17 Defendant withholds information from us because he
lB doesn't want to shout through a slot or through a
19 difficult to use phone, that is ineffective assistance
20 of counsel. That violates the 6th Amendment. I agree as
21 Mr. Munkelt said we are not saying every single inmate
22 in every single penal institution everyv1here in
23 California has a right to contact visit every single
24 time. In fact, we have cited authority to point out
25 si tuatior1s where very dangerous inmates who have \\'eapons
26 and so forth are caught time and time again with prison
27 weapons are deniecl contact visits. 'Ile are not arguing
28 that is illegal.
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00187
1 l•lhat we dre drguing is a blank note policy
2 only givinq contact visits upon request based upon
3 standards that appear to be uni,vritten and have11 1 t been
4 presented here in court at the whim of the jail is
5 unconstitutional. If the jail wants to deny a contact
6 visit because of some particular bad conduct from the
7 inmate that is a different story. What the jail is
8 applying is the reverse of that. It's opting. 'tie have to
9 request. We get a no. We don't necessarily get an
10 answer why. We don't really have any remedy.
11 As far as visiting in court holding, we
12 are not always permitted to go visit them in court
13 holding for a variety of reasons. That is not
14 satisfactory. Court holding is not open during all of
15 the same hours. We are not ah1ays permitted to visit our
16 client in court holding. The sheriff does have control
17 of the day-to-day operations of the jail. That is true.
18 But the Court also has authority to make orders which
19 relate to the proceedings before the Court.
20 I find that in an Attorney General opinion
21 that County Counsel cited. 11 Ops.Cal.Atty.Gen 146. It
22 says, "We believe the Court's authority to make orders
23 relating to prisoner phone calls is limited to phone
24 calls which relate to some proceeding before the
25 Court." All of these proceedings are before the Court.
26 Again, we are not coming in to ask for
27 tooth paste or for better meals in the dining ball or to
28 interfere with the day-to-day minutia of the jail. Of
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1 course, that is under the umbrella of the sheriff's
2 authority. What is in the Court's authority is making
3 sure t.hat all of these people that we represent get a
4 fair trial and get a fair day in court. Just like Your
5 Honor routinely orders a person or orders the jail to
6 dress the inmate for trial so that he's not prejudiced
7 by wearing prison garb in front of a jury, the Court has
8 the same authority to order the jail to permit us to
9 have n1eaningfL1l, effective conversations with our
10 client. That generally means with a couple of rare
11 exceptions as Mr. Leupp suggested face-to-face contact
12 in an unpartitioned room. Thank you.
13 ~'HE COORT: All right. The Court's going to
14 take the matter under submission as you all expected. I
15 will try to prepare a written decision. Otherwise, all
16 of the other defending cases all have other court dates
17 in addition to this ancillary one, I presume. Is that
18 also Santiago? Do you have another court date?
19 MS. GRANGER: Yes.
20 THE COURT: It's unclear because I didn't
21 look in the file.
22 MS. GRANGER: The 29th.
2 3 THE COUR1': So I' 11 get it to you as soon
24 as reasonably possible. It won't be tomorrow, I will
25 guarantee you that, but the matter is under submission
26 and I t.Jill issue my order as soon as I can. 'I'hank you.
27 MR. KROPF: Thank you.
28 MR. MUNKELT: Thank you.
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MS. SCllU'l'Z: '!'hank you.
MS. ZUROMSKIS: '!'hank you.
(The proceedings concluded at 3: 41 p.m.)
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l CE:RTH'ICATE OF CERTIFIE:D SHORTHAND RE:PORTER
2
3 I, Nancy E. Carrillo, hereby certify that I am a
4 Certified Shorthand Reporter, and that I recorded
5 verbatim in shorthand writing the following proceedings
6 completely and correctly according to the best of my
7 ability:
8 COURT: DEPARTMENT 4
9 HONORABLE THOMAS M. ANDERSON
10 ACTION: HEARING -- CONTACT VISITS
11 DATE: JOLY 23, 2013
12
13 I further certify that my said shorthand writing
14 has been transcribed into typewriting, and that the
15 preceding pages 1 through 185 constitute an accurate and
16 complete transcript of my shorthand writing for the date
17 specified.
18 I further certify that I have complied with CCP
19 237 (A) (2) in that all personal juror identifying
20 information has been redacted if applicable.
21
22 DATED: August 16, 2013
23
24
25 .NANCY E. CARRII,LO -------
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C8RTI E'IED COURT REPORTE:R CSR NO. 5868
00191
