November 8, 2001
PROSECUTOR’S
OFFICE CONCLUDES MERCER COUNTY CORRECTIONAL CENTER INVESTIGATION
Trenton,
NJ – Mercer County Prosecutor Daniel G. Giaquinto released today his report on
the escape of Terrence Brewer from the Mercer County Correctional Center (MCCC).
Consistent with an earlier announcement, Prosecutor Giaquinto reaffirmed
that criminal charges against anyone other than Terrence Brewer are not
warranted. In addition, the investigation determined that:
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Physical or
facility defects contributed to the escape;
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Lack of
uniform and effective operating procedures contributed to the escape;
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The primary
cause giving rise to the escape was human error.
Deputy
First Assistant William A. Zarling, who oversaw the investigation, recommended
to the Prosecutor that criminal charges were not warranted.
Prosecutor
Giaquinto stated:
-
Our
investigation focused on whether anyone other than Terrence Brewer had violated
criminal laws in regard to the escape. Therefore,
the scope was limited to the events of the day and the circumstances giving rise
to the escape.
-
Although we
previously announced that criminal charges were not warranted, we are releasing
this report due to the important issues of public safety and the significant,
local public interest in this matter.
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The fugitive
investigation to return Terrence Brewer to justice and this related
investigation were our highest priorities.
Therefore, I entrusted this matter to an experienced, career prosecutor,
Deputy First Assistant William A. Zarling.
-
This
investigation was thorough, professional and objective, based solely on whether
criminal charges should be brought, within the context of the public safety
issues presented.
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I am
satisfied that our findings are supported by the evidence and that our
conclusions are consistent with the findings.
Accordingly, I have accepted the recommendations of Deputy First
Assistant Zarling, and our file in this matter is now closed.
-
Our
conclusions regarding no criminal charges do not exonerate any correction
officers or officials of potential administrative violations. Thus, our file has been turned over to the County
administration for whatever action it deems appropriate.
This office is grateful to County Executive Robert
Prunetti and his administration, MCCC Warden Dennis G. Cunningham and his staff,
particularly Corrections Sergeant Henry Loftin of the MCCC Internal Affairs
Unit, the Hopewell Township Police Department, Stuart J. Alterman, Esquire, and
Kendall J. Collins, Esquire, representing the correction officers union, and the
New Jersey Air National Guard for their cooperation and assistance in conducting
this complex investigation.
FACTUAL OVERVIEW
On August 30, 2001, Terrence Brewer was an inmate at the Mercer County
Correction Center, housed in A-pod, the institution’s maximum-security unit,
awaiting sentencing for a July 21, 1998, Trenton murder for which he was
convicted in June 2001. At the time
of his June conviction, Brewer was serving the remainder of a 1985 Mercer County
20-year armed robbery sentence at Eastern State Prison at Rahway following a
parole revocation after his arrest for the 1998 murder.
He had been transferred from Eastern State Prison to MCCC prior to the
commencement of the murder trial in May 2001.
Following the trial, the Honorable Paul T. Koenig, Jr., J.S.C., the trial
judge, ordered on the record that Brewer be returned to Eastern State Prison.
However, that order was never transmitted to the MCCC, and, therefore,
Brewer remained housed there pending sentencing.
At approximately 9:05 a.m., on August 30, 2001, inmate Brewer escaped
from the confines of the maximum-security unit during a supposedly supervised
move to the outdoor recreation yard. After
being permitted to go outdoors, he managed, unobserved, to scale a brick wall
providing access to the roof of the institution.
Once on the roof, he removed and abandoned his institutional orange
jumpsuit, having provided himself in preparation for the escape with a gray
sweatshirt and sweatpants and a pair of Timberland hiking boots.
Now, dressed as a civilian, Brewer, again unobserved, crossed the roof of
the institution to its lowest point, one story off the ground, over the visitor
center. There, still unobserved, he jumped over the single
strand of razor wire securing the roof and fell to the concrete sidewalk area
below.
Brewer, having injured himself during the fall, was discovered on the
ground at approximately 9:10 a.m. by a corrections officer.
Several officials gathered and, believing that Brewer was a civilian who
had come to the institution to provide money for an inmate and had fallen, an
ambulance was called. The ambulance
arrived at approximately 9:30 a.m., and, in due course, Brewer was transported
to Capital Health System – Mercer Campus, where he arrived at approximately
10:15 a.m. A nurse noted his
presence in the hospital at approximately 10:30 a.m.
Approximately 15 minutes later when she returned to check on him, Brewer
had disappeared, apparently walking out of the hospital.
A nurse at the hospital became concerned that the missing patient,
transported from the MCCC, might have been an inmate.
She contacted the Trenton Police Department and, eventually, after a
series of telephone calls, that issue was raised with a MCCC corrections
lieutenant at approximately noon on August 30 by a Mercer County Detention
Center corrections lieutenant, who was assured that the patient was a visitor.
Back at the MCCC, no one in authority had noticed inmate Brewer was
missing. Despite the fact that three formal inmate counts were made by
custodial staff over the intervening 12 hours, Brewer was not discovered missing
until approximately 10:10 p.m. on August 30.
Once Brewer could not be located on A-pod or elsewhere in the
institution, the Hopewell Township Police Department, the Mercer County
Sheriff’s Office and the New Jersey Department of Corrections were notified of
the apparent escape at approximately midnight.
The Hopewell Township Police Department responded to the scene and
commenced a search of Rte. 29 and areas surrounding the MCCC.
A statewide teletype announcing Brewer’s escape was issued by the
Mercer County Sheriff’s Office at approximately 1:07 a.m., August 31.
Warden Cunningham was notified of Brewer’s escape at approximately 1:30
a.m. He immediately requested that
the Hopewell Township Police Department institute the established Community
Alerting Network protocols. The
escape siren was activated, and telephone notifications to area residents were
made.
The Mercer County Prosecutor’s Office was not notified of Brewer’s
escape until approximately 2:30 a.m. on August 31.
Thereafter, this office spearheaded an intense fugitive investigation for
inmate Brewer with the cooperation of the United States Marshals Service, the
New Jersey State Police, the Special Investigations Division of the New Jersey
Department of Corrections, the Mercer County Sheriff’s Office, the Trenton
Police Department and the Hamilton Township Police Department.
Based upon the pressure applied through this investigation, inmate Brewer
surrendered himself on September 5, 2001, at approximately 7:15 p.m., to a bail
bondsman. He was taken at his request to the offices of The Times
newspaper where he was arrested by members of the Trenton Police Department.
The investigation involved formal interviews with a deputy warden, a
corrections lieutenant, two corrections sergeants, seven corrections officers and
an Internal Affairs investigator. Some of those interviews resulted in formal typed statements; others in
interview reports. After the
substance of those statements and reports was reviewed, four officers were
re-interviewed.
Because criminal charges were being investigated, the corrections
officers were entitled to the assistance of counsel.
Although Stuart J. Alterman, Esquire, and Kendall J. Collins, Esquire,
attorneys for the corrections officers’ union, and their clients were
generally cooperative, it was necessary to schedule interviews around work
shifts, days off and attorney’s work elsewhere.
In addition, approximately 75 inmates housed on A-pod, the
MCCC maximum-security unit, were interviewed.
Some formal statements were taken. In
other cases, interview reports were prepared.
The inmate interview process had to be interrupted for several days when
inmate agitation led to a lockdown of A-pod, preventing inmates from being
available for interviews.
Informal interviews were conducted of Warden
Cunningham and former warden Harris A. Kline, now Acting Chief, Division of
Employee Relations. Copies of
relevant institutional policies and procedures were obtained and reviewed.
The Hopewell Township Police Department assisted the investigation by
interviewing relevant ambulance and hospital personnel.
Photographs of relevant places and items inside and outside of the MCCC
were taken, including aerial photographs of the institution.
Diagrams of the A-pod area of the MCCC were also obtained.
FINDINGS
OF FACT
Prosecutor Giaquinto stated that the investigation revealed the
following:
A.
HOW THE ESCAPE OCCURRED
Inmate Brewer was housed in the maximum-security unit of the Mercer
County Correction Center, known as A-pod, awaiting sentencing in the Superior
Court of New Jersey, Mercer County, following a murder conviction.
On the morning of August 30, the inmates of A-pod
were scheduled for outdoor recreation. That
recreation was to be conducted in the A-pod yard, a fenced-in area located
approximately 210 feet from the door to A-pod.
In order to get from A-pod to the recreation yard, inmates exit A-pod
through a metal security door, known as the “A” door, normally locked,
except when corrections officers need to permit someone to enter or leave the
unit by that route. An inmate leaving A-pod by way of the “A” door would find
himself in an L-shaped hallway. The
inmate would pass by a stairway leading up to a locked door, and then he would
proceed down a few stairs to a locked metal security door, known as the “B”
door, leading to the exterior of the institution.
Because of the L-shaped hallway, a person at or in the immediate vicinity
of the “A” door cannot see anything at or in the vicinity of the “B”
door.
If the “B” door were opened, an inmate going outside would find
himself in a short corridor between two parts of the institution.
There are high brick walls leading to the roof on both sides of the
corridor. The distance between the
walls, that is the corridor, is approximately four (4) feet wide.
At the end of that corridor, an inmate would have to make a right turn to
proceed to the recreation yard. An
inmate cannot proceed straight ahead from the corridor, because there is a chain
link security fence there topped with razor wire blocking his path.
That security fence continues unbroken all the way to the recreation
yard, providing a secure path with the fence on the left and the walls of the
institution on the right.
As an inmate turns right from the previously described corridor onto the
path to the recreation yard, he would almost immediately encounter a chain link
fence with a gate across his path. That
gate is normally locked, except when corrections officers or inmates need to
proceed to or from the A-pod recreation yard.
Once through that gate, the recreation-bound inmate would walk straight
ahead to the exterior corner of A-pod, then turn right.
At the end of the path is a chain link fence containing a gate, normally
locked, leading into the A-pod recreation yard.
The recreation yard is entirely surrounded by a chain link security fence
topped with razor wire. The A-pod
recreation yard is supervised by a corrections officer from a tower located just
outside of the yard, separated from the inmates by the security fence topped
with razor wire. The tower is 15
feet tall with observation windows. The
chain link security fence is 13 feet tall, including a double strand of razor
wire at the top. The view
from the tower is partially obstructed by the security fencing, particularly
when looking back towards the exterior corner of A-pod.
It is a total of 116 feet from the “A” door to the point along the
path where the tower officer can observe A-pod inmates heading toward the
recreation yard.
On August 30, inmate Brewer was prepared to escape.
He wore long john underwear and a gray sweatshirt and sweatpants
underneath his institutional orange clothing.
He also wore a pair of Timberland hiking boots.
Information provided by some interviewed inmates indicated that Brewer
had been planning his escape actively for at least a week.
Information also revealed that the planning began while Brewer was being
transported back and forth from the MCCC to the Mercer County Court House during
his trial in May and June.
At approximately 9:05 a.m., the recreation officer called the A-pod
housing officer to see if the unit was prepared for recreation.
He received a positive response. Before
recreation actually began, the A-pod housing officer went on break, replaced by
another officer. That officer took
it upon himself to actually begin the recreation process, although that was not
his assigned responsibility. He
left A-pod unattended and walked to the A-pod recreation yard to inspect it
prior to releasing any inmates. When
he returned to A-pod, he left open the recreation yard gate, the security gate
in the path and the “B” door in order to facilitate smooth movement of the
inmates to the recreation yard.
Upon his return to A-pod, the officer began to permit inmates to exit
from A-pod to go to the recreation yard. As
he did so, another officer arrived to conduct the recreation yard movement. He took over from the initial officer. For a time, both officers were together at the “A” door.
The first officer went back into A-pod, where he turned the unit keys
over to the housing officer who had returned from his break.
The second officer completed releasing inmates from A-pod for recreation,
then locked the “A” door and proceeded to the recreation yard, locking
“B” door and the path security gate as he went.
He then locked the recreation yard gate and returned to A-pod, locking
the path security gate and the doors behind him.
When inmate Brewer passed through the unlocked
“B” door into the previously described exterior corridor, he was effectively
beyond the active supervision of any corrections personnel. The two officers who became involved in handling the
recreation movement were at the “A” door and could not see the “B” door
or anything occurring in the exterior corridor.
Because of the construction of the institution itself, the tower officer
supervising the A-pod recreation yard cannot see back to the corridor or even to
its immediate environs. Finally,
there is a surveillance camera located on the exterior of the building just
above the “B” door. Warden
Cunningham advised the investigators that the camera did not work properly,
producing images so dark that inmate Brewer’s escape could not be observed.
Upon reaching the corridor, inmate Brewer spread his arms and legs,
touching both brick side walls simultaneously, and “chimney-climbed” his way
to the roof of the building. No
razor wire or other security fencing or devices were in place in the corridor
above the “B” door to inhibit such a climb.
Since inmate Brewer’s escape, the County administration has corrected
that security problem by installing razor wire in that location.
Because of the L-shaped hallway, neither of the two
officers was aware that inmate Brewer had scaled the walls in the corridor
outside “B” door and gained access to the roof of the institution.
It is impossible to determine accurately how many inmates left A-pod for
recreation on the morning of August 30. Although
an institutional policy calls for written records of inmates leaving a housing
unit for any reason, no such record was made on that day nor, generally, was
such a record made in the normal course of A-pod recreation movements.
One inmate, Calvin Andrews, apparently attempting to join inmate
Brewer’s escape, injured himself and returned to A-pod, assisted by another
inmate. Another inmate elected to
return to A-pod rather than proceed to the recreation yard.
Inmate Brewer had disappeared, although that fact was unknown to anyone
other than inmates at that point. The
officer who took over letting the inmates out of A-pod for recreation reported
26 inmates moved and, eventually, reported 26 inmates returned.
Obviously, that was incorrect. However,
the actual number of inmates leaving the unit can never be known for certain.
It must be noted that the corrections sergeant assigned to supervise
A-pod on August 30 was not present at the time of the recreation movement.
The tower officer generally contacts the A-pod housing officer to
determine whether the unit is ready for recreation.
If so, the recreation is scheduled, and the tower officer alerts the
assigned sergeant via radio when he is ready for inmates to be released from
A-pod to go to the yard. On August
30, because the officer covering for the housing officer went outside himself to
start the recreation process, he had a direct conversation with the tower
officer, no radio call was made, and the sergeant had no idea that A-pod
recreation was in progress.
Upon reaching the roof, inmate Brewer removed his institutional orange
jumpsuit and abandoned it. Clothed
now in the gray sweat suit and boots, he made his way across the roof of the
institution. As part of the
investigation, the roof was viewed from the A-pod recreation yard tower.
It is clear that if a person on the roof were to stay low, the tower
officer, even if looking up there, could not possibly observe that person.
Although the roof of the institution crossed by inmate Brewer is not
uniform in height, varying somewhat from one part of the roof to another, it is
basically flat, unobstructed and generally unsupervised, presenting no
insurmountable barriers to a person seeking to traverse it from one side to
another.
Inmate Brewer, unobserved, did just that, making his way across the
institutional roof to the lowest part, a one-story section over the visitor
center, approximately 15 feet above the ground.
That section of roof was secured only by a two-foot high single strand of
razor wire on top of the roof at its front edge.
Inspection of that portion of the roof revealed that a person could
either jump over the razor wire or step through the razor wire onto a sturdy
metal support and push off. However
it was accomplished, inmate Brewer landed on the concrete sidewalk area in front
of the visitor center. Apparently,
no one saw him get off the roof or fall to the concrete sidewalk.
Since inmate Brewer’s escape, the County administration has installed
two additional strands of razor wire across the edge of the low roof, making it
three strands high, approximately six feet tall, effectively correcting that
security problem.
Inmate Brewer was injured by the fall, in pain and with his mobility
adversely affected. He remained on
the sidewalk, where he was eventually observed by a corrections officer.
Others were alerted, and eventually present were a deputy warden, a
corrections lieutenant, three corrections officers, an Internal Affairs
investigator and a MCCC nurse.
When questioned, Brewer gave the false name,
Charles Watson, and indicated that he had come to the institution to drop off
money for an inmate, Calvin Andrews, the injured inmate who apparently attempted
to join the escape. Although the
main MCCC gate officer, responsible for admitting all persons to the
institution, denies leaving his post, another officer told investigators that
the gate officer came over to the group and stated that he had seen no visitors
yet that day. However, at that
point, no staff member knew that any inmate was missing, and none of the staff
present outside the visitor center recognized “Charles Watson” as an inmate. Moreover, on of the officers repeatedly told the others
that Mr. Watson was a visitor. It
turned out, of course, that such assertion, apparently sincerely made, was an
egregious and critical error. During
the investigation, this officer could not explain how such an error could have
been made. However, the assertion
from this officer that Watson was a visitor was accepted without question by the
other officers because they considered that officer to be highly respected.
Thus, no further investigation of Mr. Watson’s identity or bona fides
was undertaken, especially when inmate Brewer feigned extreme pain.
Instead, an ambulance was called, inmate Brewer was loaded in it and he
was transported out of the institution.
Mr. Watson’s clothing did not raise any suspicions.
The plain gray sweat suit was a brand sold at the MCCC inmate commissary. However, there is no evidence that inmate Brewer purchased
his. The investigation revealed
that Brewer had obtained it from an unnamed inmate.
In any event, if it had an institutional genesis, there was no easy way
for anyone to know, because the sweats sold by the institution bear no exterior
markings so noting. The
investigation also revealed that the Timberland hiking boots were obtained by
Brewer from an A-pod closet in which clothing taken from administrative
segregation inmates was stored. That
closet has a lock, but the lock had been broken for some period of time. Again, however the boots were obtained, there was nothing
overtly suspicious about them.
Inmate Brewer was transported by the ambulance to a Trenton hospital at
his request, arriving at approximately 10:15 a.m.
Neither the ambulance crew nor anyone at Capital Health System – Mercer
Campus had any reason to pay any special attention to their patient.
No one knew he was an inmate, and he was not under guard.
The final issue regarding the escape itself that
requires noting is the failure of the A-pod correction officers to realize that
inmate Brewer had escaped for over 12 hours.
During that period, two corrections officers made three incorrect counts,
in addition to the obviously inaccurate count made at the time of the A-pod
recreation movement itself. The
failure to recognize Brewer’s absence might have gone on even longer except
for the fact that an inmate finally called the problem with the count to the
attention of a corrections officer. Simply
put, there is no reasonable explanation for the miscounts, particularly when the
A-pod cells have windows in the doors measuring approximately one foot by three
feet, providing a clear view of the cell interiors.
Clearly, the officers did not do their jobs properly.
Their count failures did not cause the escape, but
certainly affected adversely the likelihood of its speedy end.
B.
Applicable Statutes
Terrence
Brewer
Terrence Brewer has been charged with Escape, in violation of N.J.S.
2C:29-5a. An escape occurs when a person “without lawful authority
removes himself from official detention.”
Calvin
Andrews
As to inmate Calvin Andrews, the crime of Attempt to Commit an Escape, in
violation of N.J.S. 2C:5-1a and N.J.S. 2C:29-5a, had to be considered.
An attempt to commit a crime occurs when a person, “…acting with the
kind of culpability otherwise required for the commission of the crime, he:”
…(3) Purposely does or omits to do anything which, under
the circumstances as a reasonable person would believe them to
be, is an act or omission constituting a substantial step in a course
of conduct planned to culminate in his commission of the crime.
County Employees
As to corrections officers and other MCCC employees, three potentially
applicable statutes were considered. First,
if any such person were to be an accomplice of inmate Brewer, the crime of
Escape, defined above, could be charged. N.J.S.
2C:2-6c states that a person is an accomplice if:
(1) With the purpose of promoting or facilitating the
commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person
in planning or committing it; or
(c) Having a legal duty to prevent the commission of the
offense, fails to make proper effort to do so.
Second,
the elements of Official Misconduct, in violation of N.J.S. 2C:30-2, were
reviewed. That statute provides:
A public servant is guilty of official misconduct when, with
purpose to obtain a benefit for himself or another or to injure or
to deprive another of a benefit:
a. He commits an act relating to his office but constituting
an unauthorized exercise of his official functions, knowing that
such act is unauthorized or he is committing such act in an
unauthorized manner; or
b. He knowingly refrains from performing a duty which is
imposed upon him by law or is clearly inherent in the nature of
his office.
Finally,
the offense of Permitting or Facilitating Escape, N.J.S. 2C:29-5c, was also
considered. “A public servant
concerned in detention commits an offense if he knowingly or recklessly permits
an escape. Any person who knowingly
causes or facilitates an escape commits an offense.”
In determining whether criminal liability exists pursuant to these
statutes, the conduct of the actor must have been accompanied by the appropriate
culpability requirement, “purposely,” “knowingly” or “recklessly,”
as the particular statute requires. “A
person acts purposely with respect to the nature of his conduct or a result
thereof if it is his conscious object to engage in conduct of that nature or to
cause such a result.” N.J.S.
2C:2-2b(1). “A person acts
knowingly with respect to the nature of his conduct… if he is aware that his
conduct is of that nature… A person acts knowingly with respect to a result of
his conduct if he is aware that it is practically certain that his conduct will
cause such a result.” N.J.S.
2C:2-2b(2). “A person acts
recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists
or will result from his conduct.” N.J.S.
2C:2-2b(3).
A.
WHY NO CRIMINAL CHARGES ARE BEING
FILED AGAINST ANYONE EXCEPT INMATE TERRENCE BREWER
1. Inmate
Calvin Andrews
As noted previously, inmate Calvin Andrews was
injured at or about the same time inmate Brewer climbed the institutional walls
to the roof. A couple of inmates
told investigators that he was injured attempting to duplicate the feat.
Andrews claimed to have injured himself falling down the stairs.
However, no correction officers viewed the incident, and the surveillance
camera above the “B” door produced no usable images.
Thus, a prosecution of inmate Andrews for Criminal Attempt to Commit an
Escape would rely entirely on the testimony of other inmates.
Experience suggests that prosecutions based upon uncorroborated inmate
testimony are unlikely to be successful, and an unsuccessful prosecution of
Andrews provides no deterrent effect and, perhaps, sends the opposite message.
For those reasons, no prosecution of Andrews will be initiated.
2. Corrections Officers
and Officials
As to the potential criminal liability of corrections officers, it must
be clearly stated that the investigation produced absolutely no evidence
indicating that any corrections officers or officials were accomplices of
Brewer’s escape. To be more
specific, there is absolutely no evidence that anything was done or not done on
August 30 by any corrections officers or officials with either the purpose to
assist Brewer escape or with the knowledge that anything they did or failed to
do was contributing to such escape. Therefore,
no charges of Escape, N.J.S. 2C:29-5a, or Misconduct in Office, N.J.S.
2C:30-2, could be sustained.
As to N.J.S. 2C:29-5c, Permitting or Facilitating Escape, again,
there is no evidence that any correction officer had knowledge that his conduct,
whether in regard to permitting the A-pod inmates to “flow” to the
recreation yard, in making incorrect counts or in failing to investigate
adequately the bona fides of “Charles Watson,” would cause or facilitate an
escape. Thus, there was no
“knowing” conduct upon which to base a prosecution.
The investigation focused heavily on the issue of possible reckless
conduct by corrections officers and officials.
After careful consideration of the various factors involved in the escape
of Terrence Brewer, this office is satisfied that there was no
“recklessness,” provable in the context of a criminal prosecution, on
anyone’s part and, thus, no criminal liability.
In making the “recklessness” determination, it must be understood that a myriad of factors contributed to the successful escape of inmate Brewer. One set of factors, already mentioned above, involved building security issues. The lack of razor wire in the corridor outside the “B” door, now corrected, the insufficient razor wire on the roof of the visitor center, now corrected, the insufficient height of the A-pod recreation yard tower, the malfunctioning security camera above the “B” door, in the process of being corrected, the blind spots caused by the L-shaped hallway outside of A-pod and the position of the A-pod recreation yard tower, the broken lock on the A-pod closet door that allowed Brewer to obtain the boots, now corrected, and the sale of sweatshirts and sweatpants not readily identifiable as inmate garb all fall into this category.
One major factor in the escape was the decision of the corrections
officer covering A-pod during the housing officer’s break to also run the
recreation movement, not his assigned responsibility.
This error was compounded by his choice to leave the “B” door, the
path security gate and the A-pod recreation gate open “so the inmates flow out
into the yard.” While such
“flow” might make sense from a pure efficiency point of view, the obvious
purpose of the locked checkpoints was to provide for security, not efficiency.
There is little doubt that if an officer had been present at the “B”
door when the A-pod inmates went to recreation on August 30, the Brewer escape
would not have occurred.
Another major factor in the escape was the fact that neither officer who
participated in the A-pod recreation movement assured that an accurate count of
inmates leaving for and returning from that movement existed. If
it had, Brewer’s escape would have been detected either prior to his transport
to or arrival at the hospital.
Another major factor in the escape was the failure of the officers in
front of the visitor center to investigate and determine the true identity of
inmate Brewer.
Those things having been said, the failure to exercise good common sense
or the negligent failure to perform one’s job are not sufficient bases for
criminal liability. The investigation revealed that the MCCC had no written
policy or standard operating procedure defining the sequential method of opening
doors and gates in moving A-pod inmates to and from the recreation yard.
Considering the blind spots and malfunctioning camera, the need for such
a policy should have been evident. Not
only was there no written policy, but there apparently was no standard practice
in that regard either. The
corrections officer who opened the two gates and “B” door on August 30 told
investigators, “They are always left open so the inmates flow out into the
yard.” The tower officer
confirmed that different officers utilized different methods of moving the
inmates. The investigation revealed
that Brewer took advantage of the fact that certain officers permitted inmates
to go to the recreation yard effectively unsupervised.
He was able to “practice” his escape by climbing the walls on at
least two occasions prior to August 30.
Closely associated with the lack of standard policies and procedures for
moving A-pod inmates to and from recreation are issues of training, manpower and
supervision. As to training, both
the corrections officer who began the recreation movement and the officer who
took it over told investigators that they had never received any formal
institutional training on how the doors and gates should be handled during such
a movement. When asked about such
training, the officer who opened the gates and door on August 30 said, “No, I
just heard by word of mouth.” If
so, he learned the “flow” method from other officers who practiced it
themselves. However, the officer
who took over the recreation movement, while denying receipt of formal training
regarding such movement, nonetheless related to investigators that he knew that
the sequential method for opening the doors and gates was the appropriate
method.
Considering the blind spots on the way from the “A” door to the
recreation yard, it is of significant concern that a single officer is assigned
to move large numbers of A-pod inmates. For
example, if the common sense security procedures of locking and unlocking the
doors and gates in sequence were followed, a single officer would find himself
locked between the “A-door” and the “B” door, or between the “B”
door and the path security gate, unarmed, with 20, 30 or 40 inmates.
This office did not purport to carry out a security
survey of the MCCC, and we fully recognize our lack of qualifications to do so.
Nonetheless, our investigation disclosed a simple, no cost, partial
solution to the single officer and tower blind spot problems. If
the tower officer walked to a position opposite the “B” door when recreation
was to commence and accompanied the inmates back to that location upon their
return, he would be able to support the officer assigned to move the A-pod
inmates, particularly since he is armed and separated from the inmates by the
security fence. In addition, there
would no longer be a blind spot. If
the tower officer had been so assigned on August 30, the Brewer escape would not
have occurred.
Finally, in regard to manpower and training, Warden
Cunningham advised that he had tried to institute a policy that officers
assigned to A-pod should be specially trained by the Corrections Officers
Training Academy. The correction
officers union successfully filed a grievance regarding that policy.
A related issue involves supervision.
The corrections sergeant assigned to supervise A-pod on August 30 was not
present at the time of the recreation movement.
That was so because the method generally employed for handling the
commencement of the recreation movement was not followed that day.
Typically, the tower officer contacts the A-pod housing officer to
determine if that unit is ready for recreation. If so, the recreation is scheduled, and the tower officer
advises the assigned sergeant via radio when inmates are ready to be released to
the yard. That radio message alerts
the sergeant that a recreation movement is about to occur.
On August 30, because the officer covering for the housing officer went
outside himself to start the recreation process, he had a direct conversation
with the tower officer, no radio call was made, and the sergeant had no idea
that A-pod recreation was in progress.
During the investigation, the sergeant said that except for the mix up of
August 30, he always was present for A-pod recreation movements.
He noted that the “flow” method of moving inmates was unacceptable,
he had never known of it being done that way, and he would have corrected it if
he had known it. He did
acknowledge, however, that when he supervised the recreation movement, he did so
from inside. He would stay by the
“A” door, counting the inmates while the officer assigned to the movement
would station himself by the “B” door.
However, according to MCCC standard operating procedures, the sergeant is
responsible for running the recreation movement, including going outside and
checking the outer perimeter and fencing.
The officer who took over the recreation movement on August 30 told
investigators that he had handled recreation on a few prior occasions and had
never even seen a sergeant present. In
addition, the officer who initiated the recreation movement by opening all the
gates and door said that he had observed other officers doing it that way. The tower officer confirmed that not everyone opened the
doors and gates in sequence. It
would appear that a general lack of uniformity and/or failure of supervision
contributed directly to the circumstances underlying the Brewer escape.
When all of these factors are considered together, it would be difficult,
if not impossible, to convince 12 jurors, unanimously and beyond a reasonable
doubt, that any single correction officer was “reckless” to the degree
required for a criminal conviction. Thus,
no charges of Promoting or Facilitating an Escape would be appropriate.
These conclusions do not exonerate any correction officers or officials
of potential administrative violations, where the standard of proof is much
lower than in a criminal case. Accordingly,
our file has been turned over to the County administration for whatever action
it deems appropriate.
-
Criminal
charges are not warranted against anyone other than Terrence Brewer.
-
Contributing
factors to Brewer’s escape:
1) Building
Security Issues
- Lack of razor wire in the corridor outside of “B” door, now
corrected.
- Insufficient razor wire on the roof of the visitor center, now
corrected.
- Insufficient height of the A-pod recreation yard tower.
- Malfunctioning security
camera above the “B” door, in the process of
being corrected.
- Blind spots caused by the
L-shaped hallway between the “A” and “B” doors.
- Blind spots in the tower
officer’s view of inmates coming to and returning from the A-pod recreation
yard caused by the location of the tower and the construction of the MCCC.
- Broken lock on the A-pod
closet door enabling Brewer to obtain the Timberland hiking boots, now
corrected.
2) Policy,
Procedure, Manpower, Training and Supervision Issues
- Lack of specific written
policy or standard operating procedure or uniform practice regarding the
sequential opening and closing of doors and gates during A-pod recreation
movements.
- Apparent failures of
supervision regarding procedures used by officers to move A-pod inmates to and
from the recreation yard.
- Lack of specific requirement and procedure for formal count of all A-pod inmates immediately following return from a recreation movement, thereby delaying the ability to deal with a possible escape at an early stage.
3)
Human Error
- Decision
of the officer replacing the housing officer who went on break to initiate the
recreation process himself, outside of his assigned responsibilities, resulting
in no notice to the corrections sergeant that A-pod recreation was ready to
commence.
- Decision
of the officer initiating the recreation movement to open the “B” door, path
gate and recreation yard gate to permit the A-pod inmates to “flow” to the
recreation yard without appropriate supervision.
- Failure of
both the officer initiating the recreation movement and the officer who took it
over to make an accurate count of A-pod inmates going to and returning from the
recreation yard, delaying discovery of Brewer’s escape.
- Failure of
two A-pod housing officers to properly determine the number of A-pod inmates
present during three formal counts between 2:00 p.m. and 10:00 p.m., unduly
delaying discovery of Brewer’s escape.
-
Failure of
the officers outside of the visitor center to properly investigate and determine
the true identity of inmate Brewer and the specific error of the officer who
repeatedly stated that “Charles Watson” was a visitor, effectively halting
any investigation into his identity.
Prosecutor Giaquinto stated:
This office did not purport to carry out a
comprehensive security survey of the MCCC, and fully recognizes its lack of
qualifications to do
so Thus, the focus of our
investigation was on the Brewer escape and its particular causes.
There were many contributing factors that gave rise to this escape,but the primary or proximate cause was the virtual calamity of human errors that occurred on that day. Hopefully, with the institution of controlled, uniform and well-supervised methods of conducting yard movements, repetition of this situation may be easily avoided in the future.