UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF ARIZONA

Shari Ferreira, et al., ) 

 ) 

 Plaintiff, ) 

 ) CV15-01845-PHX-JAT

 ) Phoenix, Arizona 

 vs. ) May 15, 2018 

 ) 8:58 a.m. 

Paul Penzone, et al., ) 

 ) 

 Defendants. ) 

______________________________) 

 

BEFORE: THE HONORABLE JAMES A. TEILBORG, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS 

JURY TRIAL - DAY #3

APPEARANCES: 

For the Plaintiff: 

 ROBBINS & CURTIN PLLC 

 By: Joel B. Robbins, Esq.

 Jesse M. Showalter, Esq. 

 301 E. Bethany Home Road, Suite B100 

 Phoenix, AZ 85012-3312 

 RAFI & SCHMIDT LAW PLLC 

 By: Eric W. Schmidt, Esq.

 520 W. Union Hills Drive, Suite 101 

 Phoenix, AZ 85027 

For the Defendants:

 STRUCK LOVE BOJANOWSKI & ACEDO PLC 

 By: Daniel P. Struck, Esq.

 Ashlee B. Hesman, Esq. 

 3100 W. Ray Road, Suite 300 

 Chandler, AZ 85226 

Official Court Reporter: 

Elizabeth A. Lemke, RDR, CRR, CPE 

Sandra Day O'Connor U.S. Courthouse, Suite 312 

401 West Washington Street, SPC. 34 

Phoenix, Arizona 85003-2150 

(602) 322-7247 

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

Case 2:15-cv-01845-JAT Document 377 Filed 06/13/18 Page 1 of 236
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INDEX

SUMMARY OF COURT PROCEEDINGS PAGE: 

Court addresses Juror No. 5 Page 6 

INDEX OF WITNESSES 

ROBERT HEWITT:

Direct examination by Mr. Robbins Page 8 

Cross examination by Ms. Hesman Page 81

Cross examination (cont'd) by Ms. Hesman Page 133 

Redirect examination by Mr. Robbins Page 135 

RICHARD GAUSE:

(appearing via video teleconferencing) 

Direct examination by Mr. Robbins Page 106 

Cross examination by Mr. Struck Page 122 

Redirect examination by Mr. Robbins Page 132 

WILLIAM HOVANEC:

Direct examination by Mr. Showalter Page 139 

Cross examination by Mr. Shuck Page 181 

Redirect examination by Mr. Showalter Page 205 

STEVEN HANSEN:

Direct examination by Mr. Robbins Page 215 

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INDEX OF EXHIBITS

EXHIBIT NO.: DESCRIPTION: RECEIVED: 

Exhibit No. 25 Page 67 

Exhibit No. 76 Page 66 

Exhibit No. 135 Page 185 

Exhibit No. 282 Page 200 

Exhibit No. 283 Page 200 

Exhibit No. 284 Page 200 

Exhibit No. 285 Page 157 

Exhibit No. 324 Page 91 

Exhibit No. 326 Page 98 

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P R O C E E D I N G S

(Called to the order of court at 8:58 a.m. )

(Open court, no jury present.)

THE COURT: Thank you. Please be seated. 

The record will reflect the presence of the parties

and counsel outside the presence of the jury.

This is really just a followup from last night. I

rethought my decision to charge the plaintiffs with the unused

time last night because there are extenuating circumstances

probably on both sides. Maybe I should have charged both

sides and split it. 

But the main point is, what I said last night, I have

vacated it. But here's the point and I don't think it needs

me to repeat it.

It's going to -- it is going to require the

plaintiffs, while we're in the plaintiff's case, and the

defendants on the defendant's case, to make sure they have

witnesses lined up for those eventualities where we run short

of time.

And I realize in this case, presumably because of the

cooperation of the defendants, that they were making their

witnesses available. But it's going to require the defendants

to also, if that is the case, make sure that -- we don't want

to run into what we ran into last night where suddenly the

witness on short notice can't be available.

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Because if we're dealing with your witnesses, then

they need to be ready to come on short notice so that the

plaintiffs can have one or two witnesses ready to go.

Enough said.

How do we stand with our jury, Ms. Williams?

THE CLERK: We're missing one.

THE COURT: We're missing one. So we should just

wait.

Anything else to come up from either counsel?

MR. STRUCK: No, Your Honor.

MR. ROBBINS: No, Your Honor.

MR. SHOWALTER: No, Your Honor.

THE COURT: All right. Well, then since I don't know

whether we're talking about one minute or five, I'll wait to

be called.

MR. STRUCK: I will say that we're -- I was just

talking to Mr. Robbins and we feel pretty confident that we'll

get this case to the jury by Thursday, perhaps even Wednesday.

THE COURT: Of?

MR. STRUCK: Of next week.

THE COURT: Of next week. Yes.

I would have been surprised if your confidence level

had risen to the point where you're talking about this week.

MR. STRUCK: I guess I should have been more

specific.

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THE COURT: I appreciate that.

MR. STRUCK: All right.

(Recess taken at 9:01 a.m.)

(Open court, Juror No. 5 present and no other jurors 

Present 9:13 a.m.)

THE COURT: Please be seated. The record will

reflect the presence of the parties and counsel and Juror No.

5 outside the presence of the other jurors and we still have a

juror missing.

Juror No. 5, I have your note -- you can stay seated. 

I have your note and counsel also has it.

I was trying to be sympathetic. You were

overestimating your availability when I said 4:00 and I moved

it to 3:30. But I understand your note suggests that, if I'm

reading it correctly, that 3:30 is still not going to give you

enough time.

What kind of time were you thinking of? 

JUROR NO. 5: I'm thinking around three's o'clock.

Somewhere, I think three o'clock at the latest, would be fair,

if I could request that.

THE COURT: We'll plan on that then. We'll plan on

3:00 o'clock.

JUROR NO. 5: Thank you very much.

THE COURT: We understand the significance of that

day and understand what you're trying to do. And I appreciate

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UNITED STATES DISTRICT COURT

your trying to serve the people as well.

So we'll plan on three o'clock then. 

JUROR NO. 5: I appreciate the Court's understanding.

THE COURT: We'll be in recess until we have our

missing -- we may have -- and we have another juror that may

be suffering some kind of condition that may require her to

raise her hand and need a quick recess. And if that happens,

we'll do that.

MR. ROBBINS: All right. Very good, Your Honor.

(Recess taken at 9:15 a.m.; resumed at 9:17 a.m.)

THE COURT: Thank you. Please be seated.

The record will reflect the presence of the parties

and counsel and ladies and gentlemen of the jury.

And good morning to all of you.

One of the points I usually make during or shortly

after voir dire is that we'll take the mid-morning and

mid-afternoon and noon hour break. But I always try to think

to mention that I have learned over the years that even though

I'm a federal judge, Mother Nature doesn't necessarily always

follow my rules.

And so the possibility does exist that my schedule of

breaks won't necessarily coincide when, shall we say, Mother

Nature calls.

So if that should happen, just raise your hand and

we'll take a break when it happens without any further inquiry

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

on my part, if you get my drift.

You may call your next witness plaintiffs.

MR. ROBBINS: Thank you, Your Honor. We'll call

Robert Hewitt, Detention Officer Robert Hewitt to the stand.

(Witness duly sworn)

THE CLERK: Please state your name for the record,

spelling your first and last name.

THE WITNESS: Robert Hewitt. R-O-B-E-R-T.

H-E-W-I-T-T.

ROBERT HEWITT, WITNESS, SWORN

DIRECT EXAMINATION

BY MR. ROBBINS: 

Q Could you please introduce yourself to jury by telling

them your name.

A I'm Robert Hewitt.

Q And, Officer Hewitt, you have a little bit of an accent.

A Yes, I do.

Q Where does that come from?

A I'm Australian.

Q And on the day that Ryan Bates was assigned to be --

assigned to a cell with Zach Daughtry, you were a detention

officer in the Maricopa County Sheriff's Office, correct?

A Yes.

THE COURT: Let's get the microphones also in front

of the questioner and the questioned.

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

If you'll pull that microphone -- that microphone

will move and just move that closer.

Thank you, sir.

THE WITNESS: All right.

MR. ROBBINS: I've got no excuse. You're new to

this, but I think you'll hear it better when you're closer to

the mic and the same for me. So if you have any trouble

hearing me, just ask and I'll speak up. Okay.

BY MR. ROBBINS: 

Q How long -- when did you start as a detention officer with

the Maricopa County Sheriff's Office?

A It was in 2010.

Q And the jury kind of understands, but a detention officer

is a jail guard, correct?

A I'm sorry? Say that again.

Q A detention officer is a guard within the jail?

A Yeah -- yes.

Q You're in charge of security?

A Exactly, yes.

Q And when you become a detention officer and when you

became a detention officer, did you attend an academy?

A I did.

Q And did they teach you for about nine weeks about the

various things about how to do your job?

A They did.

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

Q And you attempted to be the best detention officer that

you could be; is that fair?

A Yes, I do.

Q You take pride in it?

A Yes, I do. I take a lot of pride in it.

Q And you follow the rules?

A I follow the rules.

Q And one of the most important things that you have to work

with would be information, correct?

A Yes. Correct.

Q And if there's information that you can do your -- help

you to do your job better, you want that information, fair?

A Yes.

Q And a detention officer is taught from the very beginning

that you're in charge of the care, custody and control of the

inmates, correct?

A Correct.

Q And "care" is the duty that you have to care for the

inmates, fair?

A Yes. We do.

Q And it's also fair to say that "care" includes mental

healthcare?

A It does.

Q If an inmate needs mental healthcare, then you're supposed

to contact someone from Mental Health, correct?

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 DIRECT EXAMINATION - ROBERT HEWITT 

A We do, yes.

Q And that's because you may not be an expert at diagnosing

mental illness, but when you see it, you call in the people

that should recognize it, correct?

A Correct.

Q And you rely on them to do their job so you can do your

job?

A Right.

Q And "custody," let's talk about that for a second.

The "custody" part of the job is keeping people in

custody, correct?

A Yes.

Q And if someone wants to move from one cell to another, it

has to be you guys that tell them to do that. They don't get

to just say I'd like to be this guy for my roommate, fair?

A Yes. We're the only ones who can do it.

Q And then "control" is the duty to keep control over the

inmates, fair?

A Yes.

Q And when an inmate kills another inmate, that is a lack of

control, fair?

MS. HESMAN: Objection, Your Honor. Argumentative.

THE COURT: Overruled.

BY MR. ROBBINS: 

Q If you would like me to repeat it, I can.

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 DIRECT EXAMINATION - ROBERT HEWITT 

A Yeah. Would you repeat that again?

Q Yeah. When an inmate kills another inmate, there is a

lack of control, fair?

MS. HESMAN: Objection, Your Honor. Vague.

THE COURT: Overruled.

THE WITNESS: No.

BY MR. ROBBINS: 

Q Okay. But in the academy they taught you the duty of

control includes the duty to keep inmates in the jails safe

from violence at the hands of other inmates, fair?

A Yes. We do everything we can.

Q But that includes a duty to keep inmates free from

violence at the hands of other inmates and you were taught

that from the very beginning, right?

MS. HESMAN: Objection, Your Honor. Argumentative

and vague.

THE COURT: Overruled.

THE WITNESS: Would you repeat the question one more

time?

MR. ROBBINS: Of course, I can, and feel free.

BY MR. ROBBINS: 

Q Have you ever testified in front of a jury?

A No. This is my first time.

Q Okay. Well, I have been in front of juries a lot and I'm

still nervous, so I understand, and just ask me to repeat any

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

time.

But from the very beginning of your training through

the academy, they taught you that one of the jobs that you had

to do was to try to keep inmates safe from violence at the

hands of other inmates, correct?

A That's one of the things we have to do, yes.

Q And inside the jail it is fair to say that inmates can be

dangerous, correct?

A Some inmates can be dangerous, yes.

Q And you're trained to be aware of the potential for

violence as part of the training that you received as a

detention officer, correct?

A Correct.

Q And you have seen violence in the jails, correct?

A Correct.

Q Fights?

A I'm sorry?

Q Fights. You've seen fights?

A Oh, yes.

Q It's not infrequent, correct?

A Not infrequently, no.

Q In areas -- how often would you say that you see fights?

A I could probably see fights maybe once a week at least.

Q And that's just -- and when you're assigned, you don't

walk through the entire jail to see if there's been a fight.

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 DIRECT EXAMINATION - ROBERT HEWITT 

You're usually stationed to a unit, correct?

A Correct.

Q And how big is a unit?

A It will house -- can house up to 72 inmates.

Q And how many units are there in the Fourth Avenue Jail?

A There is around 2,000 I would imagine.

Q And do you know how many --

There are four floors in the Fourth Avenue Jail?

A Four floors, yes.

Q And the first floor is for intake, correct?

A Correct.

Q Are there cells there?

A There are holding cells, yes.

Q Okay. But those aren't the people that are actually being

kept in jail that have already gone through their first

hearing and assigned to be housed there, correct?

A Yes. They're just being brought in.

Q And how many people would you estimate are in that area of

the Fourth Avenue Jail?

A It can vary. It can vary.

Q What range?

A Maybe twenty to a hundred.

Q And then the second floor is the floor that we're dealing

with in this case. You have that understanding?

A Yes.

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 DIRECT EXAMINATION - ROBERT HEWITT 

Q And how many different units are there on floor No. 2?

A Are you talking about pods?

Q Yes.

A There are six.

Q And when you used the number "72," that was 72 per pod?

A Yes.

Q And then the third floor, are there also six pods?

A Yes.

Q And the fourth floor, are there also six pods?

A Fourth floor is a little different, but basically, yes.

There is six pods.

Q And fourth floor is a little different because that's

Closed Custody?

A Right, SMU.

Q But earlier when you said about one fight per week, that

was in one of the 18 or so pods that are in the Fourth Avenue

Jail?

MS. HESMAN: Objection, Your Honor. Misstates

testimony.

THE COURT: Overruled.

THE WITNESS: I'm sorry. Say that again.

BY MR. ROBBINS: 

Q I thought you said "right," but what I said was when you

talked about the one fight per week, that was in one of those

18 pods, the six on the fourth, six on the third?

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 DIRECT EXAMINATION - ROBERT HEWITT 

A Yes, the one that I was in.

Q And you don't see all the fights, correct?

A Correct.

Q And sometimes you'll see people with black eyes and they

say, oh, I slipped in the shower and things like that?

A That can happen, yes.

Q Now, Classification is supposed to help you to do your

job, correct?

A Correct.

Q And they classify people as minimum, medium and maximum,

fair?

A Yes.

Q And of those classifications, do you know what minimum

custody level, what kind of people are held in minimum

custody?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Let me rephrase the question.

Do you have an understanding of what "minimum

custody" is?

A Yes.

Q And is it fair to say that that is the level which

indicates the lowest level of security required to manage the

inmate?

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 DIRECT EXAMINATION - ROBERT HEWITT 

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Overruled.

THE WITNESS: Yes, it is.

BY MR. ROBBINS: 

Q And that's because for the most part they're nonviolent,

fair?

MS. HESMAN: Objection, Your Honor. Argumentative.

THE COURT: Overruled.

MR. ROBBINS: Do you need me to repeat?

THE WITNESS: No. "Minimum" is for your everyday

inmate that -- it's a DUI, it's trespassing, it's loitering,

whatever it is. There's no violence attached to those.

BY MR. ROBBINS: 

Q Trespassers is one of the types?

A Just A very minimal charge.

Q And then medium is for people who are a little more

violent, correct? Maybe have more disobedience, more harder

to manage?

A It depends on the charge. I mean, mediums don't have to

be violent at all. It's just whatever they've done to get

them there.

Q Would you go ahead, if you would, and look at Exhibit 114.

It should be --

Oh. Ms. Williams will provide that to you.

BY MR. ROBBINS: 

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

Q Do you recognize Exhibit 114?

A Yes.

Q And what is Exhibit No. 114?

MS. HESMAN: Objection, Your Honor. Foundation.

This is a Classification policy.

THE COURT: Overruled.

BY MR. ROBBINS: 

Q What is Exhibit 114?

A It's a policy on inmate classification.

Q And that's something that they taught you about in the

academy and since then about the different levels of

classification within the jail, correct?

A Correct.

MR. ROBBINS: Your Honor, I move for admission of

Exhibit No. 114.

MS. HESMAN: It's admitted.

THE COURT: According to our record it's in evidence.

MR. ROBBINS: I'm going to present it to the jury.

THE COURT: You may.

BY MR. ROBBINS: 

Q And go ahead and look at the bottom of it. And I'll just

call it out so we can all read it.

Minimum -- or medium classification are inmates that

score in the medium range of security and are presumed to be a

moderate risk to the safety of staff, other inmates and the

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

orderly operation of the facility.

Did I read that correctly?

A Yes.

Q And then maximum inmates are the ones -- inmates who score

the highest in the level of security to ensure the safety of

staff, other inmates and the orderly operation of the

facility. This classification of inmates presents a higher

risk of violence, escape or require greater observations for

various reasons as supported by the current charge, criminal

history or documented institutional misconduct.

Did I read that correctly?

A Yes. You did.

Q That's the highest level minimum, medium and maximums is 

the highest level of those, correct?

A Yes.

Q Closed Custody are people -- and I'm probably -- but

Closed Custody would be someone -- if Hannibal Lecter were a

real person, he would be held in Closed Custody, correct?

A Yes.

Q They can't actually interact with the officers without

handcuffs on. You cuff them before they come out of their

cell, correct?

A Yes.

Q But of the minimum, medium and maximum, if you're dealing

with maximum inmates, they can be very dangerous, correct?

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

A They could be.

Q When you became an officer after you graduated from the

academy, you took an oath, correct?

A Yes.

Q And it was to up hold the Constitution of the United

States, correct?

A Yes.

Q And that oath meant that you were going to treat the

inmates in a way that met constitutional standards and norms,

fair?

A Yes.

Q And one of the things that would enable you to do that is

getting the information you need to do your job safely, fair?

A Yes.

Q You have no idea of who Ryan Bates was before you were

asked -- or before he walked into a sally port that you were

in, fair?

A No. He was just another inmate amongst other inmates at

that time.

Q And when you say that, it's because you weren't assigned

to be in pod 2E every day for months and months and months and

years, correct?

A You can't possibly get to know every single inmate because

inmates come and go. You know, they just blend in with each

other.

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - ROBERT HEWITT 

Q Okay. And that's because one of the things, you're not

stationed out in the middle of the pod where you're

interacting with them and you can -- you can hear them if they

yell out, correct?

A No. I'm not stationed in the pod, no.

Q There's not a desk in the middle of the pod where you're

seated and you can hear what's going on and people come up and

ask you questions.

That's not the way the Maricopa County Jail is set

up.

A Fourth Avenue Jail is not set up that way.

Q The Fourth Avenue Jail, though, is set up that way that

there are no desks in the middle of the pod where you sit and

kind of can hear and interact with the inmates at all times?

A Correct.

Q In fact, let me show you -- with your permission I'm going

to put up that demonstrative. Let me see if I can.

With defense counsel's permission we agreed that we

would use this as a representation of the pod. It's not

exact. It doesn't look exact to you, does it?

A No. It's not exact.

Q But it does show us some things that we can talk about.

The day that Ryan Bates came into the sally port, you

were working in 2E, correct?

A Correct.

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Q And I don't know if you touch the screen whether or not it

shows up, but if you put -- if you could put a circle around

where the floor office -- where your office was. 

A (Witness drawing)

Q And where is the window in the floor office?

A There is no window in the floor office.

Q Okay. So you can't really even see the inmates when

you're in the floor office, correct?

A No. The floor officer -- is tower officer can.

Q Okay. And that's the way the jail was designed. You're

doing the best you can given that fact, correct?

A Yes.

Q Okay. And when you're in 2E, you're responsible for both

the 100 and the 200 side, correct?

A Yes.

Q And would -- and really the 100 plus the 200 equals the

76 -- I think you said 76?

A 72.

Q 72. That's where the 72 inmates are?

A No. Maximum 72 inmates per pod.

So 100 has 72 maximum. 200 has 72 maximum.

Q So 72, 144 inmates that you're supposed to watch, correct?

A Correct.

Q And you're one of a team.

And the day that Ryan Bates walked into the sally

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port, you were one of two floor officers, correct?

A Correct.

Q And you and he are the people that walk the floor every

half hour to make sure that everyone is checked on?

A It's 25 minutes, but, yes.

Q So every 25 minutes, you're interacting potentially with a

144 inmates?

A Potentially, yes.

Q And when you get to the end of one walk, do you just start

it again? Or do you have other things that you're also

supposed to do?

A No. There's other things that we do during those walks.

We're always stopped to talk to the inmates.

An inmate will get our attention. He needs something

or he wants something. We give out mail. We give out forms,

soap, toothpaste, toothbrushes. Nearly every walk we're doing

something.

Q When you hear "Five-O," what does that mean?

A Five-O?

Q Five-O.

A Oh. It's usually when we come in the house.

Q Five-O for like Hawaii Five-O?

A Police, yeah.

Q So they'll call it out so that they know you guys are

around?

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A Right.

Q Fair to say that there's not a time when you guys put out

a desk on the floor and you bring up everyone and say: 

Hey, how are you doing?

A No. We walk the lower tier and the upper tier. We are

available for anybody that wants to talk to us.

Q Well, the reason they call it Five-O is that most people

really don't want to talk to you, fair?

MS. HESMAN: Objection, Your Honor. Speculation.

THE COURT: Overruled.

THE WITNESS: No. Most people will talk to us if

they want to at some point whether they -- even if they slip

us a note.

BY MR. ROBBINS: 

Q And so in the 25 minutes you have, you walk around the

bottom tier of 100. Then you walk up the stairs. You walk

the second story of that flight. Then you go over to the

sally ports. 

And let's take a minute to talk about the sally

ports. The sally port has two doors in it, right? If I'm

walking towards the sally port, the door will slide open and I

will walk in.

A Correct.

Q And then when I walk in, the door closes behind me?

A Correct.

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Q And then on the other side the door will open and I can

walk through into a hallway, correct?

A Into a sally port across to the 200 side.

Q Yeah.

A Yeah.

Q And then the door closes behind me and the same thing

happens when I go over to the 200 side. I have to wait for

all the doors?

A Right.

Q And then as part of my every-25-minute duty, I then have

to walk the bottom flight, go up to the second floor, walk the

second one and the whole thing repeats itself and repeats

itself?

A Every 25 minutes.

Q Every 25 minutes.

So I'm interacting with 144 people in 25 minutes,

which means I've got about, what, 20 seconds per inmate?

A Not every inmate wants to talk to us. They're watching

TV. They're playing cards. If maybe two or three want to

talk to us, they will at that time.

Q You don't remember Ryan Bates ever talking to you,

correct?

A I don't remember.

Q Before he -- you started interacting with him because he

walked into the sally port?

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A No. I don't recall.

Q Okay. And the floor officers, we talked about what they

do. But there's also a tower officer that can see what's

going on within the tower?

A Yes.

Q And you've worked as a tower officer, correct?

A Yes.

Q It's not -- is it round like it is in this picture? Is it

a round tower?

A It is basically round. I mean, it's not --

Q It's not a perfect circle but it's round?

A There is windows completely around it.

Q And the person in the tower -- first of all, there are no

cameras in any of the cells, correct?

A Actually, in the cell, no.

Q Okay. And the tower officer, he's got 74 cells to look

at, correct?

A Correct.

Q And the cells have a window in them in the door, right?

A In the doors and in the wall.

Q There's another one that's up on the wall, correct?

A Correct.

Q And you've worked as a tower office and you can't see in

all the cells, right?

A Correct.

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Q You can see parts. And if they're in the right spot, you

can see some of them; the inmates, that is?

A Correct. Yes.

Q And what are the other duties the tower officer --

When you guys are making your walk, it's the tower

officer's duty to watch you guys make your walk, correct?

A Correct. Yes.

Q That's because they want to make sure you're safe in

maximum security -- maximum security units?

A Correct. Yes.

Q They can't take their eye -- they can't go and take a

phone call -- they're not supposed to, at least. They're

supposed to watch you to make sure you're safe?

A Yes.

Q So you've got a tower officer that's watching you and then

you've also got a fellow officer that's walking with you to

make sure you're safe in this secured unit?

A Correct. Yes.

Q What are the other things -- when the tower officer is not

watching you make your walk, I take it that if you're making a

walk and you stop at some point, then the tower officer is

supposed to watch you?

A Yes.

Q Okay. Because if you stop the whole time and you're

talking about everyone and then you do a loop around and it

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takes you all 25 minutes, the tower officer really doesn't get

to do anything other than watch you?

A He can also watch you on camera.

Q The walks take about -- to do the whole thing take about

ten minutes, right?

A Yes, about ten minutes.

Q So it's really not 25 minutes of interaction with the

inmates really. It's usually about ten, fair?

A Correct. Yes.

Q And that's the reason you walk every 25 minutes is you

want to be able to at least check in the cells, correct?

A Correct.

Q And you want to see living, breathing people?

A Also, I think it's fair to tell you that we don't have 72

inmates out in one pod at one time.

Q Definitely.

A There's only half. There's only 36 out maximum at a time.

They each have eight hours out. The other group will have

another eight hours out.

Q Very fair. Very fair.

And so let's explain that. So do you release the top

floor for eight hours and then you release the bottom floor

for eight hours?

A Basically, yes. There is a schedule so that the same

people are not out at the same time every day.

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Q Now, that's not the same in 2B, correct?

A No.

Q In 2B that's a disciplinary pod, correct?

A Correct.

Q And, in fact, in 2B the inmates are locked in a cell for

23 hours with another inmate?

A Correct.

MR. ROBBINS: Your Honor, may I step away from the

podium?

THE COURT: You may.

BY MR. ROBBINS: 

Q Can you still see there?

A Yes.

Q Okay.

MS. HESMAN: Your Honor, may I step over there so I

can see?

THE COURT: You may.

MS. HESMAN: Thank you.

BY MR. ROBBINS: 

Q Now, does that look like -- are all the cells in 2B and 2E

set up the same way about?

A Yes.

Q Okay. And there is a bunk that's in there that has a top

bunk and a lower bunk?

A There is.

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Q Let's wait for counsel.

Okay. And there is a desk of sorts?

A Yes.

Q And there's a bench next to the desk that's cemented in?

It's not one that you move around?

A Correct.

Q And there's a toilet?

A Correct.

Q And there's a sink up on top of the toilet?

A Yes.

Q So if an inmate needs to drink, he can go there and get

water?

A Right. Correct.

MR. ROBBINS: And, Your Honor, with your permission,

I would like to be able to look at the diagram.

THE COURT: You may.

BY MR. ROBBINS: 

Q And this says that this whole thing is about 160 inches,

which is about 14 feet. Is that about right?

A That's about right, yes.

Q And it's about 72 inches across which is about six feet?

A That's pretty close, yes, I would say.

Q And you have got enough room that you've got about 40

inches on the side of the bed so you can walk in there.

But if you're walking -- if you're both walking -- if

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you have two people walking in there, sometimes you have to

move a little bit? It's not very wide?

A It's not very wide but it's wide enough you can get two

people past.

Q Yeah. You might have to kind of turn sideways or

something but it's big enough that two people can walk past

each other?

A Yes.

Q And I'll just take this down.

And in that 14 -- about 14 foot by 6 foot cell -- in

that 14 by 6 foot cell, two inmates, when they're in that

secured or Disciplinary Segregation, they're locked in there

23 hours together?

A Correct.

Q And if one of them stinks because they don't take showers,

they don't take care of themselves, they just aren't taking

care of themselves, it can be a pretty bad smell?

MS. HESMAN: Objection, Your Honor. Speculation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q When you do your walks, you can sometimes smell the cells,

fair?

A I would have to say no on that.

Q Okay. So when you open the traps, you have never had a

smell come out of a room where they had feces wiped all over

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the walls? You can't smell that?

A Yes. If that happens, of course.

Q And can you -- have you ever -- you have not had the

experience where someone has not taken care of themselves

because of whatever reason for so long that they begin to

actually stink? You've not experienced that in the jail?

MS. HESMAN: Objection, Your Honor. Vague.

Speculation.

THE COURT: Overruled.

THE WITNESS: I have.

BY MR. ROBBINS: 

Q Okay. You wouldn't want to be in a cell with someone who

smelled like that, right?

A No.

Q Now, because you were moved around quite a bit, you really

didn't have the opportunity -- within the Fourth Avenue Jail

you really didn't have a chance to get to know all of the

inmates or even a few of them, fair?

A No. There was quite a few inmates that I had a rapport

with.

Q Okay. So out of the 144, you would have a rapport with a

few of them, right?

A Yes.

Q Have you done cell assignments?

A Yes.

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Q And is it fair to say that you do not -- or strike that.

When you were doing cell assignments, there is no

written policy for cell assignments, correct?

A I believe there is cell assignments. I believe so.

Q If there is, would you be surprised if it's not been

produced within this case?

MS. HESMAN: Objection, Your Honor. Argumentative.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Do you have any citation or what is this alleged policy of

cell assignments? What policy number is it?

A I don't believe I know that.

Q There ought to be one, right? You would agree with that? 

And if there's not, then -- if you don't know that

there's not, you're assuming there is because there ought to

be, fair?

THE COURT: I'm sorry, but I think there were about

ultimately three questions folded into that question.

MR. ROBBINS: Might have been four.

THE COURT: Okay.

MR. ROBBINS: I take the Court's observation with

great credibility.

BY MR. ROBBINS: 

Q There is -- there should be a written policy for cell

assignments. You agree with that, correct?

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A I'm not sure whether it should be a policy but a rule or a

guideline.

Q There should be a written rule or guideline, right?

A I'd say yes.

Q Because that's a pretty darn important thing, fair?

A Yes.

Q When you're locking someone into a cell for 23 hours a day

with another human being, you would agree that the number one

danger for that person in that cell for either of the people

in the cell is the other person, right?

A It's possible.

Q And to the extent that you can make a better cell

assignment by having better information, you want to have that

information, correct?

A Well, we have that information.

Q You want to have as much as you can get if it helps you to

do your job, fair?

A Of course, yes.

Q And there is no written guideline requiring a

Classification officer -- strike that.

You don't know about Classification, obviously.

There's no written guideline that says: 

For cell assignments that you should, if a person is

SMI, contact Mental Health. 

Correct?

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A If somebody is SMI, they would have already been

segregated before they hit me.

Q So let me reask the question.

There is no written requirement or even suggestion or

rule or guideline that says that you need to call Mental

Health because they've been released, correct?

A Yes.

Q So there is no policy even if someone is SMI, paranoid

schizophrenic, there's no policy that says you should call

Mental Health before you make a cell assignment with that

person, correct?

A That's already been established before they are in General

Population.

Q Maybe I asked the question in an inartful way and I

apologize.

There are no written guidelines. There are

nothing -- you don't call up Mental health and say: 

Hey, this guy, I see on his records that he's

paranoid schizophrenic and he's acting really weird. Should I

stick him in a cell with another human being? 

That's not something you do, correct?

A I have done that, yes.

Q And it's not in any of the policies, correct?

A Correct.

Q And you weren't taught to do it that way at the academy,

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correct?

A During the academy we're told if we have any kind of

doubts, if there's red flags, if the inmate's acting

strangely, to call Mental Health and ask them their opinion.

Q And let's talk about that for a little bit because the red

flags are acting so bizarrely that you think that they might

belong in Mental Health, correct?

A Yes.

Q But you are never taught and you were never taught that

when you're classifying a -- or you're putting -- making a

cell assignment and you see "SMI" and you see that they have

something like paranoid schizophrenia that you should consult

with Mental Health and call them, correct? 

That's true, correct?

A Yeah -- yes.

Q Okay. But you don't always follow -- you don't -- even

though there's no policy that tells you that you have to do

it, you know it's important enough -- you know that it's

important enough that you have actually done it before,

correct? 

You've called Mental Health and said: 

I think -- I don't want to assign this guy because he

appears to be mentally ill and he might be having some

problems.

Is that fair?

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A I will still put him into a cell but by himself.

Q Okay.

A Until, you know, I have called SMI -- or Mental Health.

Q But that's the thing about not having a policy about it is

that you're aware that not everybody does what you do,

correct?

A No. I think everybody that I know of would do that, that

would finally put somebody into a cell.

Q So as I understand it, if someone is mentally ill, has

paranoid schizophrenia, then all of the standard requires --

the standard requires that all of the people call up Mental

Health to ask them about the cell assignment. At least --

MS. HESMAN: Objection, Your Honor.

BY MR. ROBBINS: 

Q At least all the people you know?

MS. HESMAN: Objection, Your Honor. It's vague and

confusing.

THE COURT: Overruled.

THE WITNESS: See, I don't believe that any SMI

inmate has reached General Population that if they're having

difficulty with mental issues, that would have been reassigned

to somebody like the Psych wards over at LBJ.

BY MR. ROBBINS: 

Q Do you know a Detention Officer Huber?

A I know him, yes.

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Q Have you ever talked to him about what he considers to be

the revolving door of the Mental Health Unit?

A I have not.

Q Do you know what's referred to when they talk about the

revolving -- if the term "revolving door" of Mental health --

if that term is used, do you understand what that means?

A Yeah, I know.

Q Tell the jury, if you would.

A "Revolving door" means that somebody keeps coming back for

whatever reason. If it's mental, they'll be in the Psych

wards for a period of time.

The doctors will deem them okay to go back to General

Population. They go back. They can't handle it there and

then they come back again to Psych wards. It's just a

revolving door.

Q Now, if a -- if a person that you're assigning to a

particular cell is hearing voices and is paranoid, as the

tower officer -- or strike that.

Who does -- do the tower officers do the cell

assignments?

A He can but floor officers can help with that too.

Q Okay. And if -- whoever is making that decision about

where to put an inmate, if there was information out there

that the person was hearing voices and was paranoid, that

would be something you would want to know, correct?

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A Yes.

Q Because you would either want to put him in a cell by

himself or send him to the Mental Health Unit, fair?

A Correct.

Q And if an inmate was bipolar and was given anti-psychotics

in the past but wasn't being given any medications now, that

would be some information that would be helpful to you in cell

assignment, fair?

A Not necessarily. If they were taking medications before

but they're not now means that they don't need them.

Q That's what your hope is.

But if they need the medication now and they're not

being given medication, that would be something that you would

want to know, fair?

A Yes.

Q Have you been given any training about what types of

behaviors would help you identify someone that might be

paranoid schizophrenic?

A Yes.

Q And were you taught that paranoid schizophrenics can be

dangerous if they're floridly psychotic.

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Let me rephrase that.

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Did you have an understanding based upon your

training that paranoid schizophrenics who are actively

psychotic or floridly psychotic could be dangerous?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q You do receive some training on the identification of

people who are paranoid schizophrenic, correct?

A Correct.

Q And did they teach you that people who were actively

paranoid schizophrenic could be dangerous from the viewpoint

of the detention staff?

A Like I said before, if they were dangerous, that would

already have been established if they were violent. Not

everybody is violent.

Q Were you taught the significance of what a person being

paranoid schizophrenic and actively psychotic, what that would

mean --

MS. HESMAN: Objection, Your Honor. Foundation.

BY MR. ROBBINS: 

Q -- in terms of your job as a detention officer?

MS. HESMAN: Same objection.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q At the time that you -- that Ryan Bates walked into the

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sally port where you were, you did not know whether he was

paranoid schizophrenic, correct?

A I didn't suspect he was.

Q You didn't know whether he had ever been diagnosed before

with that, correct?

A No.

Q You didn't know that he was unmedicated, correct?

A No.

Q You didn't know that earlier in the day he had been

identified by a court as acting bizarrely and that that

bizarre behavior caused them to hold him pending Mental Health

coming and checking on him, correct?

A I didn't know that, no.

Q And you don't know that -- you weren't told and no one

told you that at least he said that he was on drugs, correct?

A Correct.

Q If someone is acting out, whether through mental illness,

do you run into many people who are under the influence of

drugs that can cause violent behavior?

A You mean within the jail setting?

Q Yes.

A No. Hopefully, they've -- they don't have any drugs in

their system when they get to me.

Q And so if earlier in the day Ryan Bates had indicated that

he had somehow managed to get ahold of some drugs, that would

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be information that would you want to know, fair?

A You mean if he was given drugs legally or illegally?

Q No. No. No. No.

That somehow he had managed through whatever means to

get ahold of drugs that were illegal; not administered by a

doctor, not anyone from Mental Health, but that he had somehow

managed to get illegal drugs?

A I would like to have known that, yes.

Q How would that have affected your interaction with him?

It would have made you more cautious, fair?

A Yes.

Q Now, you wrote a memo on -- I think you completed a memo

on your interaction with Ryan Bates and I think that you

completed it on July 10th; is that about right?

A Approximately, yeah.

Q It's Exhibit 5 in front of you if you would look at that.

Do you recognize Exhibit No. 5?

A Yes.

Q And is that your supplement?

A Yes, it is.

Q And is that a supplement -- are those types of supplements

completed in the regular course of your business?

A Yes.

Q That's something that you're taught how to write? It's a

report that reflects what you saw that you felt was important

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on the day you wrote it, fair?

A It's what I saw at the time, yes.

Q Okay. And in Exhibit No. 5 do you mention the sally port

incident with Ryan Bates?

A At this -- on this one, no.

Q Okay.

A That would have been separate incidences.

Q And, in fact, it wasn't until August 1st until someone

called you up and asked you what you had seen in the sally

port, correct?

A I don't recall the date.

Q Okay. Because when you wrote on July 10th -- in the

report you completed on July 10th, you don't mention the sally

port, you don't mention taking a mattress to -- to Mr. Bates,

you don't mention any of that, correct?

A On this IR supplement, no.

Q Go ahead and take a look at Exhibit No. 24.

Do you recognize what Exhibit No. 24 is?

A It's a report.

Q And --

A An investigation report.

Q It's a report from the Criminal Division of the Maricopa

County Sheriff's Office?

A Uh-huh. Yes.

Q Okay. And on the second page at the top, what date does

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it say was the first time that they actually talked to you

about what you had seen before you walked into the cell and

see a murder scene?

MS. HESMAN: Objection, Your Honor. Relevance.

THE COURT: Overruled.

THE WITNESS: I just seen an occurrence date 7/9.

BY MR. ROBBINS: 

Q I'm sorry. I've got you looking at the wrong page. 

If you look at page No. 2, it's at the very top.

A Sorry.

Q No. It's my fault. August 1st, 2014, at approximately

9:18 in the morning, correct?

A Correct.

Q And you understood that this was a part of the criminal

investigation involving this case, correct? 

This wasn't some quality assurance program where the

County was trying to investigate what might have gone wrong?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q The officer who took the statement told you this was part

of the criminal case, correct?

A Correct.

Q And no one has ever come to you prior to having a lawsuit

or a Notice of Claim or something like that, no one ever came

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to you to try to figure out what had gone on for the purpose

of quality assurance where they told you: 

Here's what we're doing.

MS. HESMAN: Objection, Your Honor. 402. 403.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q To your knowledge, before Shari Ferreira filed the

lawsuit, was there any kind of investigation where you were

questioned and told that the purpose of it was to try and make

the jails better --

MS. HESMAN: Objection, Your Honor. 402. 403.

THE COURT: All right. Give him a chance to finish.

BY MR. ROBBINS: 

Q -- better, safer or within constitutional requirements?

MS. HESMAN: 402. 403.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q On August 1st when you were questioned, you acknowledged

that there was a person with you when you -- when Ryan Bates

walked into the sally port, correct?

A Correct.

Q And that person's name was Detention Officer Johnson,

correct?

A Correct.

Q And have you ever read Detention Officer Johnson's report?

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A I don't believe I have.

Q Okay. You don't remember -- you don't remember there

being an orange, that Bates had an orange with him, right?

A I don't recall that, no.

Q Okay. But you do remember that Bates kept saying

something time and time again.

Do you remember what he said?

A He was saying something to the nature of Junior was there

or Junior was doing something. I don't recall the actual

words.

Q Junior. Where is Junior? Something like that?

A Something like that.

Q And he wasn't really saying much other than Where's

Junior? Where's Junior? Right?

A Correct.

Q So the sally port that we talked about, the one between

those two sets of doors, about how much space is in there?

Bigger or smaller than that cell we have been talking about?

A In the sally port itself?

Q Yes.

A The sally port is about six foot wide, maybe eight foot

wide by probably 20 foot long.

Q Okay. So it's a bigger area than --

A A bigger area, yes.

Q But he walks into there, right?

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A Yes.

Q And this is the first time you remember anyone doing that,

right?

A Blatantly like that, yes.

Q And he's asking: Where's Junior? Where's Junior?

A Correct.

Q There's not a guy named Junior that's missing that you

know of, correct?

A Correct.

Q There's not a guy named Junior that later you discovered,

hey, he was actually -- there's a guy that just disappeared

out of the cell. He's reporting an escape.

There's no one like that, correct?

A Correct.

Q And you didn't know that he was schizophrenic and might be

having hallucinations, correct?

A His demeanor to me did not show that he was having any

kind of mental episode or showing any red flags.

Q He's the first --

A He was just --

Q Sorry.

A -- blatantly refusing my commands to go back to their pod.

Q Well, there's three things that he's doing.

First of all, he's the first guy that's blatantly

walked into that sally port because it is -- you cross -- you

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cross a yellow line and you are not supposed to be there,

correct?

A Correct.

Q There's actually about how far from the door of the sally

fort is that yellow line that you're not supposed to cross?

A It's probably ten feet.

Q So you're not supposed to get within ten feet of that

sally port. There's a yellow line and everyone knows you

don't cross that yellow line, right?

A Correct.

Q But there he is passed that yellow line and in the sally

port with you, right?

A Yes.

Q That doesn't strike you as odd?

A No. It's not odd because inmates will -- inmates don't

follow the rules pretty much is what I'm saying.

Q Well, they manage to follow it in every case except this

one through your entire career. He's the first guy that

blatantly walks into the sally port, right? 

That does strike you as weird, right?

A He is the only one that has come that far into the sally

port. I have had inmates who will step or put their head

into -- kind of through the doors when they're open to let me

know that they need something, to bring a towel, bring soap,

bring something.

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Q And that's something that you understand. You seem like a

very compassionate fellow, fair?

A I try to be.

Q And thank you for that.

But people leaning in and saying, Hey, can you get me

some soap or something like that isn't what this guy does.

He comes right in there and isn't just kind of

skimming the rules. He's just breaking it. He's just walking

in there, right?

A Yes.

Q The only guy you remembered ever doing that, right?

A Yes.

Q You don't know that he had been reported as being

potentially mentally ill earlier in that day because you

weren't told that, right?

A Yes.

Q But that's not the only thing he does.

He walks into there. But then he keeps asking: 

Where's Junior? Where's Junior? 

And you have no idea what he's talking about,

correct?

A Correct.

Q That's number two.

But the third thing is you're a decent guy and you

say to him: 

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Go back to your cell.

Isn't that right?

A Yes.

Q That's because you were going to cut him that much of a

break but he does not leave, correct?

A Correct.

Q Now, at this point where he is not going to leave. He has

been asked to leave. He keeps asking about this Junior

character and he's walked into the sally port, at this point

is it -- whose decision is it: 

Okay, he's going to need to go to Disciplinary Seg?

A I made that decision.

Q Okay. And you didn't call a psychiatrist from Mental

Health to make that decision, correct?

A Correct, because I did not think he was having a mental

episode.

Q And --

A He wasn't showing any of the signs. He wasn't showing any

agitation. He wasn't -- his eyes were looking right at me.

They weren't looking at the walls. They weren't looking at

anything else.

He even had -- when he was talking to me, he even had

like a smirk on his face like he wasn't -- he was aware of

what he was doing. He just wasn't going to follow my

commands.

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Q Now, it's interesting you'd would say that because you're

not -- you're trained to identify some of -- some symptoms of

mental illness but you're not a mental health expert, right?

A No. I'm not.

Q And that's when someone is acting way out of character and

doing things that you have never seen done before. And

they're saying stuff that you just don't understand. But he's

looking at you with this intense gaze. The person who needs

to diagnose him is Mental Health, correct?

A Correct.

Q And you've never been taught that before you impose

discipline that you need -- on a person who's been identified

as having mental illness or being in SMI, that you're supposed

to contact Mental Health, correct?

A If I believe he is really having a mental episode, then,

yes.

Q Okay. Not quite my question. Because my question

distinguishes the fact that you, the person who's deciding to

put him into discipline, was not taught that if you're going

to put a person whose been identified as SMI into discipline,

that you have to contact Mental Health, correct? 

That's not the policy?

A If I fully believe that he is having a mental illness or

mental episode, then, yes, I will call the right people.

Bates was not showing those signs.

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Q Okay. SMI plus discipline equals call to Mental Health.

You've not been taught that? It is not the way

things are done at the MCSO, correct?

A Yes. We will call them.

Q Okay. So automatically what you're telling this jury is

that if you know someone is -- did you know that Bates was an

SMI?

A I did not at that time, no.

Q Okay. So you didn't even ask the question: 

Hey, I'm thinking of disciplining this guy. I should

call Mental Health before I impose discipline because that was

not the policy, correct? You followed the policy.

A I followed the policy, yes.

Q Okay. And you didn't know -- and you didn't go to find

out whether or not he was an SMI, correct?

A Correct.

Q If Ryan Bates had been someone who thought that demons

were talking to him, that would be something you would want to

know, correct?

MS. HESMAN: Objection, Your Honor. Improper

hypothetical and assumes facts.

THE COURT: Overruled.

MR. ROBBINS: Do you remember the question?

THE WITNESS: Yes.

If I had known that, yes.

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BY MR. ROBBINS: 

Q And if Mental Health had that information, you would have

wanted that -- to know it, correct?

MS. HESMAN: Objection, Your Honor. Foundation.

Calls for speculation.

THE COURT: Overruled.

THE WITNESS: If I had known that Bates was hearing

voices, I would have called Mental Health and have him

assessed.

BY MR. ROBBINS: 

Q Instead of sending him straight to discipline, correct? 

You would have kept him in the holding cell where he

was before he was taken over to the Disciplinary cell and you

would have had someone check him, correct?

A He still could have gone to Segregation and still been

seen by mental health. They would have pulled him out.

Q But it would have been as a "house-alone" and not in a

cell with someone else, fair?

A It could have been.

Q Did you know anything -- strike that.

Did you know that Zach Daughtry was originally in the

county jail for a 30-day trespassing charge?

A No. I did not know that.

Q Let's talk about the jails for a second about pretrial

detainees.

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What is a "pretrial detainee"?

A Someone who is being held there before trial.

Q And that means that under the constitution they are

presumed to be --

A Innocent till proven guilty.

Q And they're not supposed to be punished, correct?

A In what way?

Q Well, you're going to have to have some disciplining but

punishing a person -- strike that.

Do you have an understanding that punishing a person

that doesn't understand what is going on in terms of being

mentally ill and not having a grip on reality, that punishing

that person is a cruelty?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Overruled.

THE WITNESS: Repeat that question for me again,

please.

BY MR. ROBBINS: 

Q Do you have an understanding that taking a mentally ill

person that doesn't understand reality and punishing them for

their behaviors is a cruelty because they just don't

understand. They won't learn a lesson.

A Correct.

MS. HESMAN: Objection, Your Honor. Counsel is

testifying.

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THE COURT: Overruled.

THE WITNESS: Yes. That is cruel.

BY MR. ROBBINS: 

Q Did you know that the person whose cell Ryan Bates was put

into -- or strike that.

Within the jail they expect at least certain

behaviors. The inmates themselves, correct?

A Correct.

Q They expect people to take -- to shower every once in a

while so they don't stink to high heaven, fair?

A Yes.

Q And, in fact, have you ever heard where even in a General

Population dorm where -- do they -- do they form up according

to racial lines within the jail at least within the maximum

security unit where there's a General Population?

A You mean where they segregate themselves?

Q Yeah.

A Yes, of course.

Q Where there will be a head of each of the different races?

MS. HESMAN: Objection, Your Honor. Relevance.

THE COURT: Relevance?

MR. ROBBINS: I'll get there, Your Honor. Just give

me two questions and I'll promise you I'll get you to where we

need to be.

THE COURT: So you're withdrawing this one?

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MR. ROBBINS: No. I'm going to ask this one and then

two more and I'll tell you where I'm headed. It's just that

the race divisions will punish a person who doesn't shower

with chin checks or other forms of violence.

So that's where I'm headed; that it's known to the

Detention staff.

THE COURT: Well, I still don't see the relevance, so

its sustained.

BY MR. ROBBINS: 

Q You know that people who don't shower and don't maintain

hygiene, that oftentimes they get beaten, correct?

A In my experience that has never happened.

Q You have never seen it?

A No.

Q You've never heard about it?

A Inmates will ask me, you know, to get this guy showered.

And I have ordered people to have a shower.

Q Okay.

A I have never come across someone who has been beaten

because he won't shower.

Q Never heard of a chin check?

A A chin check?

MS. HESMAN: Objection, Your Honor. Relevance.

THE COURT: Sustained.

BY MR. ROBBINS: 

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Q Have you ever heard of a torpedo?

A Torpedo?

Q Torpedo.

A No.

MS. HESMAN: Objection, Your Honor. Relevance.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q A person who urinates on another person's --

Well, let's say they just urinate while they're just

sitting down and they just urinate in the cell. Is that

something that will jeopardize a person's safety?

MS. HESMAN: Objection, Your Honor. Speculation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Based upon your experiences as a detention officer,

mentally ill inmates are considered vulnerable because their

odd behavior can cause them to be attacked by other inmates,

fair?

MS. HESMAN: Objection, Your Honor. Speculation and

foundation.

THE COURT: Sustained on both counts.

BY MR. ROBBINS: 

Q Do you know whether in -- strike that.

In the academy when you went there they taught you

that mentally ill people were potentially vulnerable within

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the population because sometimes they are taken advantage of

and sometimes they are physically assaulted, correct?

MS. HESMAN: Objection, Your Honor. Foundation.

Calls for speculation.

THE COURT: Overruled.

THE WITNESS: We are told that they are vulnerable

for one reason or another.

BY MR. ROBBINS: 

Q The mentally ill inmates are vulnerable. They do things

that are unacceptable at times and that exposes them to

danger, fair?

A It's possible.

Q Like urinating on a roommate's mattress. You would expect

there to be a fight after that happens, right?

A Yes.

Q But if a guy can't control himself to keep from doing

silly things like that, it would be a cruelty to punish them

for that, fair?

MS. HESMAN: Objection, Your Honor. Foundation.

Calls for an improper hypothetical.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Masturbating in the middle of a pod can cause someone to

be targeted for violence, fair?

MS. HESMAN: Objection, Your Honor. Calls for

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speculation. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q How about touching another inmate in a way that actually

gets noticed by detention officers? Is that something that

they do a lot where you report someone for touching another

inmate?

MS. HESMAN: Objection, Your Honor. Compound.

MR. ROBBINS: Let me withdraw the question.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q It was compound.

Let me just ask you this.

How many times have you reported that an inmate was

touching another inmate? Have you ever done that?

MS. HESMAN: Objection, Your Honor. Vague.

THE COURT: Overruled.

THE WITNESS: Can you explain "touching"?

BY MR. ROBBINS: 

Q Well, if the jury sees something that says: 

Unknown officer indicates patient was moved to a

different pod after touching another inmate.

Have you ever had an instance where someone touching

another inmate caused them to be moved to a different pod?

A No. I have never come across that.

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Q That would be extremely odd behavior in your experience,

correct?

MS. HESMAN: Objection, Your Honor. Speculation.

THE COURT: Overruled.

THE WITNESS: I'm not understanding what was the

touching. Was it sexual touching? Was it violent touching?

Was it -- what kind of touching was it?

BY MR. ROBBINS: 

Q Well, what type would, in your mind as a detention

officer, justify moving someone to a different pod? It would

have to be kind of nonconsensual or --

You tell me. You've worked in the maximum security.

You've worked in the Fourth Avenue Jail for a long time. Are

you still working in Psych by the way?

A No.

MS. HESMAN: Compound, Your Honor.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Where are you working now?

A I work at the clinic score at the County Hospital.

Q So the County Hospital they have a section where they can

treat people?

A We have holding cells that we take inmates who have

medical appointments for whatever reason. We take custody of

them and take them to their appointment and then take them

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back to their facility.

Q Okay. But going back to the question about touching, what

kind of touching would prompt you as a detention officer to

move a person? 

Would it be aggressive? Casual or sexual? I mean,

would those be the types of things that would cause you to

request that a person be moved?

MS. HESMAN: Objection, Your Honor.

THE WITNESS: It could. 

MS. HESMAN: Objection. The question is compound and

I don't see the relevance. Foundation.

THE COURT: Compound. Sustained.

BY MR. ROBBINS: 

Q Touching another inmate, if it causes another detention

officer to be concerned about it, is something that you are

concerned about as a detention officer, fair?

MS. HESMAN: Objection, Your Honor. Speculation. I

also don't see the relevance.

THE COURT: Sustained.

Let's take a slightly later than mid-morning but

nonetheless mid-morning recess for 15 minutes.

Remember the admonition.

(Recess taken at 10:36 a.m.; resumed at 10:54 a.m.)

THE COURT: Thank you. Please be seated.

The record will reflect the presence of the parties

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and counsel and ladies and gentlemen of the jury.

You may continue.

MR. ROBBINS: Thank you, Your Honor.

BY MR. ROBBINS: 

Q Have you ever seen any of the videos of you and Ryan

Bates?

A Yes.

Q You saw the video of you walking in with a mattress at

some point to the cell where Ryan Bates had been put into with

Zach Daughtry?

A I have.

Q And you've seen the video of you going into the cell

later, correct?

A Going into the cell?

Q Or dealing with Bates after --

A Oh, yes. Yes.

Q It occurs within 15 minutes of the mattress, correct?

A Correct.

Q And I want to take you back because we know what you did

once you got into 2B. But that's not where you had the

initial interaction with Bates, correct?

A Correct.

Q Have you seen any video from 2E where he first walked into

the sally port?

A I have not, no.

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Q Have you seen what he was doing during the time out when

he was -- would have been walking around before he got to you?

A No. I haven't seen that.

Q And we were talking -- I'm going to show you a page from

Exhibit No. 34 and it's at page 49.

Do you recognize what Exhibit 34 --

Officer Hewitt, it's right there. I'll even show you

at the very bottom there's an exhibit and a page number.

So if you would rather read it, then you can get to

the page that way.

A Okay.

Q What is Exhibit 34, page 49?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Do you know what Exhibit No. 34, page 49 is?

A Yes. It's a referral for Psych Services.

Q And that is a document that you are taught to fill out,

correct?

A Yes.

Q And I'm going to blow up part of it. And it says: 

Reason for Referral. Inmate Daughtry's behavior is

of concern for his safety as when you try to talk to him he

stares at the wall or floor, giggles and acts as if you are

not there. He sits on the floor in a meditation-style pose

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for long periods of time. His odd behavior may endanger

himself as other inmates will perceive it as odd.

Did I read that correctly?

A Yes.

Q And it talks about mood-related behavior -- depressive or

manic behaviors and it checks "Unusual Physical and/or Verbal

Isolation."

Do you see that?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Overruled.

BY MR. ROBBINS: 

Q Do you see that?

A Yes, I do.

Q And do you see under "Odd or Unusual Behavior" it says

"Unusual and Repetitive Mannerisms."

A Yes.

Q You didn't know about this document when you made the

decision to put Ryan Bates -- or strike that.

You didn't make the decision to put Ryan Bates in the

cell with Zach Daughtry?

A No. I didn't make that decision.

Q But you agree that those types of odd behaviors are the

types that can be perceived by other inmates as being odd and

as being the fuel for an assault, fair?

MS. HESMAN: Objection Your Honor. Speculation.

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THE COURT: Overruled.

THE WITNESS: It's possible, yes.

BY MR. ROBBINS: 

Q And do you have Exhibit No. 78 in front of you?

A Exhibit 78? No.

Q That's because I wasn't good enough to give Ms. Williams

the exhibit, so I apologize. Once again, it's my fault.

Is that 78? Did I say 76 or 78?

A 78.

Q Do you have 76?

MR. ROBBINS: Sorry, Ms. Williams. If you have a

Fitbit on, you'll do great because of my questioning.

THE WITNESS: Thank you.

BY MR. ROBBINS: 

Q Do you recognize who is pictured on the cover of page 76?

A Yes. That's Ryan Bates.

MR. ROBBINS: Move for admission of Exhibit No. 76,

Jail File of Ryan Bates.

MS. HESMAN: Objection, Your Honor. 402. 403 and

foundation.

THE COURT: Your response?

MR. ROBBINS: It's the jail file. They're all

documents from the jail. They were produced by the

defendants.

They're documents which we have used in this case and

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they all are relevant. They are not prejudicial. And the

foundation we have been told we're not supposed to need to

call a custodian of records to establish any foundation.

THE COURT: And what's the foundation problem?

MS. HESMAN: Your Honor, we will withdraw the

foundation objection.

THE COURT: And the 403 problem?

MS. HESMAN: We will withdraw all the objections.

THE COURT: 76 is received.

(Exhibit No. 76 admitted in evidence.)

MR. ROBBINS: Thank you, Your Honor.

BY MR. ROBBINS: 

Q Let me publish the picture.

That's Ryan Bates, correct?

A Yes.

Q Go ahead. And if you would, look at the interview of

Johnson -- let me see.

Look at 25. Do you see Exhibit No. 25?

A Page 25?

Q No, just Exhibit 25. Sorry.

A Oh. Okay.

Q Is Exhibit No. 25 basically the same as the interview that

you gave in the criminal investigation but it is for Detention

Officer Johnson?

A Yes. Looks like it.

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MR. ROBBINS: Move for admission of Exhibit No. 25.

MS. HESMAN: No objection, Your Honor.

THE COURT: 25 is received.

(Exhibit No. 25 admitted in evidence.)

BY MR. ROBBINS: 

Q And would you look at page No. 2? 

Are you there?

A Yes.

Q Let me blow it up so the jury can see it as well. I'm

going to call out the second paragraph so we can all read it.

And it says:

I explained to Johnson -- and Johnson, again, is the

officer that's with you when you're in the sally port?

A Correct.

Q Why I contacted him and he asked -- or I contacted him and

asked if he remembered the incident. Johnson said he

remembered. I asked him to tell me what his involvement was.

Johnson said he believed he was working in 2E pod which was

right next to 2B pod where the incident occurred. He said

during the security walk, Bates walked into the sally port

which was a restricted area. Johnson said he and his partner

Officer Hewitt, number B1861, told Bates he could not be in

there and he needed to return to his cell. He said Bates was

eating an orange and saying something about "Junior, Where is

Junior," and appeared to be in a daze.

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Did I read that correctly?

A You did.

Q And you don't disagree with his observation that Bates was

eating an orange?

A I don't recall an orange.

Q Okay. So you would tend to rely on his because it has

more detail than yours?

A I will rely on his statement about the orange because he

was not actually interacting with Bates and I was interacting

with him directly. So he had time to look around.

Q Fair enough. I mean, you've got to be a little concerned

for your safety because this guy is walking into your space?

A Exactly.

Q And so his observation that Bates looked dazed, you

wouldn't disagree with that, correct?

A To me he wasn't dazed.

Q But to the person who was observing this without the fear

and adrenaline and all that, you would rely on his

observation, fair?

A No. I would not.

Q Okay. At some point when you put the mattress in this

cell there's a video of it, right?

A Yes. There is.

Q And you went -- you saw this cell after the attack, right?

A Yes.

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Q And there were no cards laying on the floor, correct?

A I don't recall.

MR. ROBBINS: Your Honor -- well, let me first see if

I can lay some foundation.

BY MR. ROBBINS: 

Q Let me show you Exhibit No. 32 and I'll just show these to

the -- they will not be published until they are admitted.

Okay. Do you recognize what Exhibit No. 32, page 

No. 1 is?

A Yes.

Q And what is that?

A It's a photo of the outside of Cell 3 in 2 Bravo.

Q And page No. 2 is a closer picture of that, correct?

A Correct.

Q And page No. 3 is the actual photograph and -- I'm sorry.

Do you recognize page No. 3 that is the interior of

the cell?

A Yes.

Q And that looks accurate and fairly depicts the scene?

A From what I recall, yes.

Q And there's no bodies in it but there is blood, fair?

A Yes.

Q And do you remember seeing the writing on the wall?

A Yes, I do.

Q Is that a fair depiction of the writing that you saw?

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A Yes.

MR. ROBBINS: Move for admission of Exhibit No. 32.

MS. HESMAN: Objection, Your Honor. 402 and 403 and

Defendant's Motion in Limine No. 1.

THE COURT: This is 32 consisting of what did I

count? Four pictures?

MR. ROBBINS: Yes.

MS. HESMAN: And we have no objection to the first

and second, Your Honor.

THE COURT: Well, what's the relevance?

MR. ROBBINS: It shows the actual cell. I had asked

the question of whether or not there were cards.

I believe the defendant stated in opening statement

that they were playing cards or something like that. And I

wanted to show the interior of the cell to refresh the

witness' recollection. Because I had asked him whether he saw

cards and he did not recall. And I believe it's an admissible

picture to show to the jury.

Let me get you to the -- oops.

THE COURT: So you're telling me that somehow this

contradicts something that was said in opening statement about

cards?

MR. ROBBINS: Correct. And it also shows the actual

cell so that we can see the exterior, the pod and the cells --

or the cell.

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THE COURT: I would certainly agree with you it shows

that, but I'm trying to understand the relevance to the issues

in this case.

MR. ROBBINS: Well, we've talked about the issue of

damages in the argumentation. We've talked about our desire

not to offend or to shock the jury.

But we've also -- we also believe it is necessary for

us to be able to show them what occurred in order to allow

them to assess damages, to assess testimony, to be able to see

the interior of the cell itself.

There are some issues that deal with -- with the

opening statement as well as I have already --

THE COURT: Opening statements don't define issues.

Pretrial order defines issues.

So I'm still struggling to find the relevance of

these to the issues in the case.

MR. ROBBINS: Well, it shows -- I mean we've already

introduced, I think, the actual layout of the jail cell. But

I would like the jury to be able to see it, to be able to see

the cell in a way that I don't believe is shocking but --

THE COURT: Well, shocking or not, I'm still

struggling with the relevance.

I'll sustain the objection with -- I'll sustain the

objection because I haven't heard what the relevance is. If I

later see the relevance and am impressed with the relevance,

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then I'll reconsider it.

And by the way, on the 403 objection -- on the 403

objection, that's overruled. I don't see a 403 problem with

these pictures and I will make that clear.

MR. ROBBINS: Let me then publish -- oh.

And as to the fourth photograph which shows what it

shows, I don't intend to articulate on that without publishing

it. But that does show what Ryan Bates did in the cell which

is one of the big issues in this case because the defendants

have said that they are -- do not believe that he was

psychotic or mentally ill.

And I think that's evidence that the jury can assess

and will help them.

THE COURT: Well, I don't know whether it shows that

or not. And, again, without -- without prejudice to laying

the foundation and showing potential relevance in the future,

I'm sustaining the relevance objection at this point.

MR. ROBBINS: Okay.

BY MR. ROBBINS: 

Q Let's go back to the question that I originally asked.

Did looking at these photographs refresh your

recollection as to whether or not there were any cards

anywhere in the cell to be seen?

A In those photographs I don't see any cards.

Q And you don't recall seeing any when you looked into the

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cell afterwards, correct?

A Say that again?

Q You don't recall seeing any at the time. Your memory

isn't -- the picture is the most accurate memory you have

because it actually shows what you remember, fair?

A Yes.

Q Okay. And there was writing in blood on the wall. Do you

remember that?

A I remember writing on the wall, yes.

Q And it was written in blood?

A Yes.

Q And there was blood on the floor?

A Yes.

Q There was blood in the toilet?

A Maybe. I don't know about that.

Q Okay. But there was blood all over the floor?

A Yes.

Q And did you see Zach Daughtry?

A Yes, I did.

Q Describe for us, if you would, what you saw.

MS. HESMAN: Your Honor, objection. 402. 403.

THE COURT: Again, the relevance of seeing -- of his

seeing the blood is what?

MR. ROBBINS: Well, we're talking now about Zach

Daughtry's physical condition as he observed it after the

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beating, so it goes to damages, Your Honor.

THE COURT: Goes to damages?

MR. ROBBINS: Yes.

THE COURT: Seeing blood goes to damages?

MR. ROBBINS: No. The blood we've already talked

about. It came in without objection. Now what we're talking

about is the description of Zachary Daughtry after the beating

which would show the physical injuries that he sustained.

THE COURT: Blood would?

MR. ROBBINS: Blood -- well, I haven't asked him to

describe the blood. We've already described it as being --

we're -- I'm asking him what Zachary Daughtry looked like,

what his physical condition looked like when he was able to

see him.

THE COURT: Go ahead and ask your question again. I

think I have lost track of what the question is.

MR. ROBBINS: Thank you, Your Honor.

BY MR. ROBBINS: 

Q When you were able to see Zach Daughtry, would you please

describe for us what he looked like.

MS. HESMAN: Objection, Your Honor. 402. 403.

THE COURT: Let me see counsel at sidebar.

(At sidebar on the record.)

THE COURT: I think we had a brief conversation about

this maybe at the pretrial conference. And I understand

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that -- this is a death case, so it's the -- in a death case

it's the fact of death, not what they looked like, et cetera,

et cetera, that's relevant.

Now, I understand we've got a pre-death pain and

suffering claim, but blood and what he looks like to a layman

can't be relevant to what he suffered because we don't know

whether -- we don't know -- I mean he's a layman. He can't

testify about what --

MR. ROBBINS: He can describe injuries but they need

to know what the injuries were.

THE COURT: But how can he tell us -- he's not a

medical doctor.

MR. ROBBINS: He can say what his face looked like.

THE COURT: Well, we don't know if this is the face

of a dead person, comatose person.

MR. ROBBINS: He wasn't dead yet.

THE COURT: Well, if he's comatose, then he's

suffering.

MR. ROBBINS: And the fact that he sustained -- he

didn't sustain those injuries by self-inflicted wounds.

THE COURT: That's true.

MR. ROBBINS: And we certainly think that the

evidence of the injuries themselves is evidence of what he

went through.

THE COURT: Well, if some doctor is going to tell us

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that, that might be interesting. But my points is -- my point

is if the first blow caused these horrible looking injuries --

and I have seen the pictures -- rendered him immediately

unconscious and from that point till they pull off the life

support and he's unconscious, in that period of time I assume

he's not had any pain and suffering.

MR. ROBBINS: Well, and I think that that's -- I

don't think that the case law supports that.

We quoted the Blocker case in our briefs where we're

talking about an unexpected explosion. We don't know whether

the people lived. How long they were conscious.

It's evidence that a jury can use to determine

pain -- pre-death pain and suffering.

The KAL case, Korean Airlines and the World Trade

Center cases both dealt with situations like this. You can't

say exactly what happened but you can say how they died and a

jury can use that to determine damages --

THE COURT: (Inaudible)

MR. SHOWALTER: Your Honor, as he said --(Inaudible)

MR. ROBBINS: KAL was the one I was thinking of.

MS. HESMAN: Your Honor, there is no --

MR. ROBBINS: I mean you even said it. You said

presumably the jury could assume from this. And they're

allowed to look at the evidence. They're allowed to have at

least some evidence that they can draw some inferences from

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that an expert can't do.

I mean, you can't have an expert say, well, he got

punched and was it a single cold cock? There's no way to do

that.

THE COURT: But you can't let the jury just draw

inferences from pictures without medical, expert-type

testimony. Now maybe you'll lay the foundation with somebody,

but just to say here, folks, here's some ugly looking pictures

and you guys figure out what the pain and suffering is.

MR. ROBBINS: I'm following your order. You said

don't take in the last two and I'm not even trying. But I was

asking him to describe it and just describe what he saw.

THE COURT: The reason in my opinion you can't just

talk about blood. You can have blood without any pain and

suffering, I guess. Let me give her a chance.

MS. HESMAN: Thank you, Your Honor. They deposed the

Medical Examiner and there is no testimony, expert testimony,

doctor testimony that he was suffering, that he was conscious,

that he was unconscious. 

And I believe you said when they -- at the final

pretrial when they went to submit these pictures, that the

testimony from a Medical Examiner is far more reliable as far

as pre-death pain and suffering from the photographs.

THE COURT: I said that?

MS. HESMAN: You did, yes. So they have that

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testimony.

THE COURT: Well, I don't see the relevance. But

moreover, on the 403 basis, whatever relevance there might be

there, which I don't see, is outweighed by the prejudice of

simply showing the blood.

Now, although I have said there's not a -- there's

not a -- if they're otherwise relevant and the 403 is the

argument, I would then conclude we don't have a 403 problem. 

But for the moment, without prejudice to taking a

different tact her, I'm going to sustain the objection.

MR. ROBBINS: Yes, Your Honor.

MS. HESMAN: Thank you.

MR. SHOWALTER: Your Honor, can I ask a clarifying

question for our future stuff? If we are able to get into

evidence that people heard screams and fighting and it would

show consciousness, then can we revisit this issue?

THE COURT: Well, you can -- I don't answer a

hypothetical question but if -- my ruling is that it will be

without prejudice to approach it however you're going to. And

I can imagine there may be some approaches that will get you

there. Maybe not. I don't know.

(End of discussion at sidebar.)

THE COURT: You may proceed.

MR. ROBBINS: Thank you, Your Honor.

BY MR. ROBBINS: 

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Q Just to make it very clear, there are no written policies

that you're aware of that require you as a detention officer

before imposing discipline to contact -- on a person who is

mentally ill or has been identified by the system as being

mentally ill -- that you contact Mental Healthcare, correct?

A There is -- there is a policy -- well, not a policy, but

rules, guidelines to inform before that we -- before we impose

discipline if there's reason to call Mental Health.

Q So as I understand it, what you're now -- what you're

testifying to the jury is that there is a policy on discipline

and it says before you impose discipline on a person who has

been identified by our system as having mental illness, that

you have to contact Mental Health.

That is what you're testifying?

MS. HESMAN: Objection, Your Honor. Misstates

testimony.

THE COURT: Overruled.

THE WITNESS: Like I said, I don't believe there's a

policy on it.

BY MR. ROBBINS: 

Q Okay. Did you ever -- you worked in Disciplinary

Segregation, correct?

A I have, yes.

Q Did you ever discipline someone for not leaving -- for not

rolling up and going off to court or not leaving Disciplinary

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Segregation?

A I don't believe I have ever disciplined anybody for not

leaving.

Q Okay. And I wanted to clarify too something that you had

talked about because you worked on one pod and would have seen

about one fight a week, but you didn't work 24 hours a day,

correct?

A Correct.

Q And there was also another floor officer who may have seen

things as well, correct?

A Correct.

MS. HESMAN: Objection, Your Honor. Speculation.

THE COURT: Wait. Wait a minute.

The objection speculation is sustained and the answer

stricken.

BY MR. ROBBINS: 

Q You're only one of two officers on duty in a pod at a

given time, correct?

A One of three.

Q Okay. And you don't know what the other officers might

have seen that you didn't, fair?

A Fair.

Q And would you have wanted to know that a person who had

been identified as mentally ill had a habit or had in the past

peed on their roommate's bed before placing him in a cell with

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another human being?

A Yes. That would have -- hopefully, that would have

already been taken care of before I came on.

MR. ROBBINS: That's what you would hope.

Thank you.

THE COURT: All right. Cross-examination.

CROSS EXAMINATION 

BY MS. HESMAN: 

Q Good morning, Officer Hewitt.

A Good morning.

Q I believe you testified on direct exam that you have been

with MCSO since 2010?

A Yes.

Q And that you went through a nine-week academy training?

A Yes.

Q Can you describe for the jury the type of subject matter

that you were trained under in the academy?

A I'm sorry. Say that again.

Q Can you explain for the jury the subject matter or types

of courses that you were trained on during in the academy?

A There were a lot. One of them was the games that inmates

play, segregation units, security walks, knowing the jail

system, computer systems, just a variety of things, tasers,

pepper ball, self-defense, cuffing. The list goes on.

Q And was identification of mental illnesses one of the

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subject matter that you were trained on?

A Yes.

Q And can you describe that training?

A The training was just to watch for inmates who were -- who

had mental illnesses, things like suicide watching.

If they had some bad news, they came back from court,

they were going to jail for the next 50 years, they might try

to kill themselves, that type of nature.

Q Were there signs and symptoms that you were trained on to

look out for?

A Yes. Aggravation. Somebody who was just acting

abnormally, throwing up red flags that you could perceive as

having a mental issue. The way they talk and the way they're

acting, just that type of thing.

Q And I believe Mr. Robbins asked you whether there was a

written policy on identifying mental illness.

Do you recall that?

A Yes.

Q And I believe you said there wasn't a written policy but

that you were trained and there was a practice; is that

accurate?

A Yes.

Q And what was that practice? Is that what you just

described? 

A Yes.

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Q Were you trained to make a referral to Mental Health if

you ever encountered someone who was exhibiting those signs

and symptoms that you were trained on?

A Yes.

Q And have you ever done that?

A Many times.

Q Approximately, how many times in your career do you think

you have made a referral to Mental Health?

A Over ten times at least.

Q And does Mental Health always come and see the inmate?

A Yes, always.

Q Have you ever had a situation or seen a situation where

there was a referral and Mental Health didn't come?

A No.

Q Is there an open line of communication between Detention

and Mental Health?

A Yes. There is always.

Q Is there an open line of communication between

Classification and Detention?

A Yes.

Q And Mr. Robbins asked you a little bit about a term "SMI."

Do you recall that?

A Yes.

Q And what is SMI?

A "SMI" stands for Seriously Mentally Ill.

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Q And in your experience, is every inmate who is designated

SMI dangerous?

A No.

Q Is every inmate who is designated SMI violent?

A No.

Q What has been your experience with respect to SMI

inmates -- well, strike that.

In your experience dealing with SMI inmates, are they

typically dangerous and/or violent?

A Not typically, no, they're not.

Q Mr. Robbins asked you about your interactions with the

inmates on a daily basis.

Do you remember that?

A Yes.

Q And you -- I believe you testified that one of the things

you did was develop a rapport with some of the inmates.

A Yes.

Q And is that one of the things you were trained on is

developing rapport with inmates?

A Yes. You don't have to be friends with them but have a

working relationship.

Q And you did that, correct?

A Yes.

Q And I'm going to take you back to July 9, 2014, and that's

the date of the incident, the reason why we're here, correct?

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A Correct.

Q And you were working that day?

A Yes.

Q And you were working at Fourth Avenue Jail?

A Yes.

Q And describe for the jury a typical day when you arrive at

Fourth Avenue Jail. What's the process before you start your

shift?

A First thing we would do, we go to the fourth floor where

our briefing room is. We would be briefed on aspects of the

previous shift plus anything that was happening on our shift.

Q If there were any issues with inmates or otherwise on the

previous shift, is that something that would have been talked

about at that briefing?

A Yes.

Q If someone was acting out or acting up on previous shift

or had some kind of mental issue, is that something that would

have been talking about at that briefing?

A It would have, yes.

Q And can you recall times when you learned of incidents

during briefing?

A Yes.

Q And the briefing serves as a communication between two

different shifts coming on and off as to what's happening?

A Exactly, yes.

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Q After you received the briefing, what happens next before

you begin your shift?

A We would sign in. There's a sheet that we sign into and

it tells us where we will be stationed that day. At the end

of the briefing, we would go to those duty posts.

Q And how many shifts are there in a day?

A Three.

Q Do you recall what shift you were working on July 9th?

A July 9th?

Q 2014. The day of this incident.

A Oh. I believe it was the second shift.

Q And how long does second shift run from?

A It runs from 2:30 till 10:30.

Q And do you recall what duty post you were assigned to that

day?

A Two-Edward.

Q And what specific role you were assigned to in 2E?

A Yeah. I was going to be one of the floor officers.

Q And describe for the jury what the duties and

responsibilities are of a floor officer.

A The floor officer provides security for the inmates. We

take care of basically their needs. We hand out forms. We do

security walks every 25 minutes. We feed them chow. We do

their mail. We hand them mail. We pick up mail. Any forms

that need to be filled out, they give them -- the filled-out

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forms they give back to us, whether it be a grievance or

anything that they need.

If they need soap, they need toothbrushes, they need

toothpaste. We take them to church. Take them for visits

with their families. Just a whole host of stuff that we do.

Hair cuts.

Q And you mentioned forms?

A Yeah.

Q Can you describe for the jury what type of forms you're

handing to the inmates?

A There's grievance forms. There's -- grievance forms.

There's the inmate -- I can't think of the word at the moment.

Q Inmate Request Forms?

A Inmate Request Forms, yes.

Whether they can request anything, whether they need

blankets or something like that. All these forms are in

Spanish and English, so nobody gets missed.

Q And are the -- one of the ways they can utilize the form

is to request a cell reassignment or to be moved. Can you

describe the various ways that they utilize that Inmate

Request Form?

A Yeah. Basically, the Inmate Request Form, they can

request anything. Whether they get it or not is something

else.

Like an inmate -- or, I mean, a cell movement,

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there's got to be a very good reason why we would move them

from another cell just because they want to move. It doesn't

fly.

Q And can you explain to the jury when you hand out the

forms where you put them, if you hand out multiple forms?

A I will walk the pod with a handful of forms. Anybody who

needs one, wants one, even more than one, they can come to me.

I'll hand them straight out to them.

I'll even put a bunch of forms on one of the day room

tables so they can just take one as they need it.

Q And in addition to all of the duties and responsibilities

you've just described, I believe you testified when

Mr. Robbins was asking you questions that you also do security

walks every 25 minutes?

A Yes.

Q And that's in addition to all those other things that you

just talked about?

A In addition, yes.

Q So on July 9th, 2014, you received a duty post in 2E as

the floor officer?

A Right.

Q And describe that day before this incident. Was there

anything that stood out to you?

A No. There was just another day, another regular day.

Q And who was assigned -- I understand based on your earlier

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testimony that there's two floor officers for each pod.

A Yes.

Q And then there's also a tower officer?

A And a tower officer.

Q In addition to those three officers, are there any other

officers who are assigned to a particular level at the Fourth

Avenue Jail?

A I'm sorry. Can you say that again?

Q Sure. The Fourth Avenue Jail has various levels?

A Yes.

Q And on each level within each unit there are two floor

officers and the tower officer. But also on that level are

there additional post duties, other officers that are

assigned?

A Yes. There's -- out in the hallway there's the level

officer. So we have a Level 2 officer, a Level 3 officers and

a Level 4 officer. And their job is to -- if there's inmates

that are coming in that need to be housed, he will determine

what house that they will go to. He has a lot of work to do

actually.

Q So there's one level control officer or can there

sometimes be more than one?

A No. Usually just one.

Q So tower officer, two floor officers and a level control

office?

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A Yes.

Q And each person has a different duty and responsibility

with respect to that level?

A Yes.

Q And you've worked with MCSO since 2010?

A Yes.

Q You've had occasion to go in several pods and units at

Fourth Avenue Jail during that time?

A Yes. Yes.

Q Describe a typical day. How loud is it inside those pods?

A Inside the pods are very loud. They're very loud. You

get 36 people all talking at once. The TV is going. Toilets

are flushing. They don't -- they're not very silent.

Q Even in the evening when the day room -- the TVs aren't

going, are there times when the pod can still be loud as you

described?

A Yes. They'll talk to each other from cell to cell in

which they've got to really yell do get their voices out

through the doors and then be able to be heard through the

next door.

Q What about when officers enter onto the unit?

A That doesn't change.

Q It's still loud?

A It's still loud.

Q Medical?

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A Yes. It doesn't matter who is in there.

MS. HESMAN: And, Kristen, if we could pull up 324?

Your Honor, may I publish this to the witness?

THE COURT: You may.

BY MS. HESMAN: 

Q Officer Hewitt, do you see a video that's on your screen?

A Yes.

Q And do you recognize that video?

A Yes. It looks like it's the hallway of Level 2.

Q And you recognize that based on the time you've spent in

the Fourth Avenue Jail and on that particular level?

A Yes. And the right-hand side of the screen has got 2C-3.

MS. HESMAN: Your Honor, defendants move for

admission of Exhibit No. 324.

MR. ROBBINS: No objection, Your Honor.

THE COURT: Thank you. 

Exhibit 324 is received.

(Exhibit No. 324 admitted in evidence.)

MS. HESMAN: Your Honor, can I publish this to the

jury? 

THE COURT: You may.

MS. HESMAN: Can you pause it please?

BY MS. HESMAN: 

Q Officer Hewitt, I'm going to have the video played. 

And if you could just sort of describe what's

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happening in the video to the jury as it's played. And then

once you come onto the screen, identify yourself.

A Okay. Right there is Officer Johnson putting our -- he's

taking off the handcuffs. Looks like to Bates if he's in

there. And I walked into the sergeant's office which is

directly across from the hallway.

Q So Mr. Bates is in a cell where the officers are in front

of and they're removing him?

A Yes. Right there.

Q And is that you on the right-hand side?

A Right-hand side, yes.

Q And I want to back up a moment. When did you first

encounter Ryan Bates?

A When he came off 2 Edward into the sally port.

Q And describe for the jury what happened when you saw him.

A I had told him to go back into -- into 2 Edward repeatedly

and which he refused.

And I ended up telling him to just turn around. I

put the cuffs on him and I took him to the holding cell.

Q And is that the holding cell that we just saw him being

taken out of?

A Yes.

Q You took him there?

A Yes.

And pending a write-up, I informed 2 Bravo that we

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had him there.

I let my Sergeant know. Also, I let him know that he

had -- he was talking strangely, talking about Junior, if

Junior was there or something like that. And he called

Medical for an interview with him and also -- and Sergeant, I

guess, he went out to talk to him as well.

Q Okay. So after you see him in the sally port and he

refuses your direct commands, you cuff him up. You take him

to the holding cell. And then that's where you call your

sergeant and I believe you said his name Sergeant Garcia?

A Sergeant Garcia.

Q And he calls Medical?

MR. ROBBINS: Objection, Your Honor. Hearsay.

THE COURT: Sustained.

BY MS. HESMAN: 

Q Describe what you saw after Sergeant Garcia came to the

holding cell.

A Sergeant Garcia came out and he -- I believe he talked to

him. He said: 

Would you ask Bates to turn around. 

And Bates did a complete 360 and ended up facing him

again.

Sergeant Garcia wanted him to turn around so he could

to -- so the cuffs could be removed. And then Sergeant Garcia

went back to his office and we took out Bates and took him to

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2 Bravo.

Q Were you the one that made the decision to issue

disciplinary to Bates?

A Yes.

Q And you called your Sergeant to confirm that, correct?

A Yes, I did. Yes.

Q So you weren't the one who actually issued the

disciplinary?

A No.

Q And that was Sergeant Garcia?

A That was Sergeant Garcia, yes.

Q Is that why you called him?

A Yes. I was informing my sergeant what's going on.

Q And if we could have 324 back up, please, Kristen.

Thank you. So Mr. Bates is in the cell on the

left-hand side. You've already placed him there and he's done

the spin-around with Garcia at this point?

A Right.

Q And now he's being taken out and escorted to 2B?

A Yes. The cuffs are being placed on.

Q And based on your review of this video and your

recollection, was there anything that stood out as a red flag

or an indicator that he had some kind of mental issue at this

time?

A No, nothing at all. I mean, he was very calm. He's

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pretty much doing obeying everything we asked him to do.

Q And where did you go from here?

A We went to enter 2 Bravo.

Q Did you retrieve Bates' property before you went into 

2 Bravo.

A No. It was afterwards.

Q And what were your duties and responsibilities after you

placed Bates in the holding cell but before he was actually

placed into the cell in 2B? What was your role?

A We went back to complete our security walk which had been

interrupted by Bates coming onto the Sally port.

Q And at some point you retrieved Bates' property from 2E to

bring to him in 2B?

A Yes.

Q And Mr. Robbins was asking you about some of the comments

that Bates was making when he was found in the 2E sally port.

Do you recall that?

A Yes.

Q And I believe you testified that he was talking about

someone named Junior?

A Yes.

Q How long did he talk about Junior?

A Maybe 30 seconds, 45 seconds.

Q Once you placed the handcuffs on him and he knew that he

was going to be disciplined did he continue to talk about

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Junior?

MR. ROBBINS: Objection, Your Honor. Foundation.

THE COURT: Overruled.

Oh, I'm sorry. I see your point.

Sustained.

BY MS. HESMAN: 

Q After you placed the handcuffs on him and while you were

still in 2E with him during your escort, did he continue to

talk about Junior?

A No, he didn't.

Q Did he talk about Junior at any other time once the

handcuffs were placed on him while you were with him?

A No.

Q And what did that indicate to you?

A That he was playing a game.

The whole time he was talking to me about Junior and

I was trying to get him to go back, he had like a smirk on his

face like he was just disobeying orders just for the heck of

it.

Q And did your observation of him doing the 360 when asked

to turn around also confirm what you just said?

MR. ROBBINS: Object, Your Honor. Foundation to

render expert opinions on mental health.

THE COURT: Sustained.

BY MS. HESMAN: 

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Q Based on your training as a detention officer -- and I

believe that you testified you were specifically trained on

games inmates play. 

Did his reaction to Officer Sergeant asking him to

turn around and he spun around 360 indicate that he was

playing games? 

THE WITNESS: Yes.

MR. ROBBINS: I object, Your Honor. Foundation.

THE COURT: Overruled. 

BY MS. HESMAN: 

Q We watched the video where Bates was taken out of the

holding cell and about to be taken into 2 Bravo?

A Yes.

MS. HESMAN: Kristen, if we can bring up Exhibit 236.

Your Honor, May I publish it to the witness?

THE COURT: 236 is in evidence?

MS. HESMAN: It is not.

THE COURT: You said to the witness. 

Yes, you may.

BY MS. HESMAN: 

Q And Officer Hewitt, do you recognize this video?

A Yes.

Q And what is it?

A It is one under part of 2 Bravo.

Q And do you recognize some of the officers that are in this

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video?

A I honestly don't recognize that one.

Q Are you standing behind the stairwell?

A I'm standing behind the railing and Johnson is behind me.

Q And is this an accurate depiction of 2 Bravo on the day of

the incident?

A Yes.

MS. HESMAN: Your Honor, defendants move to admit

Exhibit 326.

MR. ROBBINS: No objections, Your Honor. 

THE COURT: Thank you.

326 is received.

MS. HESMAN: Your Honor, may I publish to the jury?

THE COURT: You may.

MS. HESMAN: Thank you.

(Exhibit No. 326 admitted in evidence.)

BY MS. HESMAN: 

Q As we did with the other video, if you can kind of

describe for the jury what's happening here as it plays.

A At the time we're handing out commissary that the inmates

have ordered. I have just come into the -- end of the pod.

Q And you're standing behind the stairwell?

A Yes. I'm standing behind the stairwell.

Q At this point is Bates already placed in the cell?

A Yes.

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Q And how long had it been since he had been placed in the

cell?

A Probably 15, 20 minutes, maybe.

Q You weren't the one who originally placed him in the cell?

A No. No.

Q And you weren't the one who did the cell assignment?

A No.

Q You're just bringing him his assignment?

A Right.

Q So you leave the pod?

A I'm leaving and I'm going over -- it looks like I'm going

to go to 2 Edward property and bring it back in.

Q And it looks like you have a bag and the officer with you

has a mattress?

A Yes.

MS. HESMAN: Can you pause it, Kristen.

BY MS. HESMAN: 

Q Typically, when an inmate moves cells, can you describe

the process for the jury as to how his property gets to him in

the new cell and what's entailed with that.

A If it's a cordial cell move, we'll ask -- we'll give him a

bag and ask him to put all his property in it and then we'll

make the move.

If it's a situation like this, we'll make the move

first, get him out and then go collect his property and the

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mattress and then take it to wherever he is.

MS. HESMAN: Okay. Can you play it please, Kristen.

BY MS. HESMAN: 

Q So you have his property.

A Yes.

Q And you're placing it in the cell?

A Yes.

Q Is there any conversation that happens at this point?

A Not that I know of. The only conversation there would

have been would have been for him to empty his property out of

the plastic bag that we gave him.

Q And when a cell is first open, what do you observe?

A The two of them sitting on the bed, on the bottom bunk

playing cards.

Q And did either one of them say anything to you?

A No.

Q Did either one of them request to be moved or indicate

that there would be a problem?

A No. No.

Q Is there a button in each cell Knowledge?

A Yes. There is.

Q And explain to the jury what that is and what that does.

A It's an intercom button. It's connected to the tower

officer. They just pull that or push that and they can talk

to the tower officer.

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Q What are some of the ways that inmates utilize that call

button?

A It's only supposed to be used for an emergency, but

inmates will use it constantly for anything and everything.

You know, like: What's the date today? What time is

it? You know, what's the weather outside like? 

They'll use it for anything.

Q And those calls, I believe you just testified, go to the

tower officer?

A Go right to the tower officer, yes.

Q And he can address them directly in their cell.

A Yes.

Q So if there's a problem and someone needed to be removed

from a cell, they could utilize that button?

A Yes, they could.

Q When you found Bates in the 2E sally port was he able to

understand what you were saying?

MR. ROBBINS: I object to form and foundation.

THE COURT: Foundation sustained.

BY MS. HESMAN: 

Q What was your impression of him when you encountered him

in the 2E sally port?

A That he was just -- he was doing something just to get

moved or just to be stupid, basically.

Q Going back to when you placed his property in the cell,

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what happens if an inmate refuses to either go into a cell or

wants to be removed from a cell? What happens?

A If an inmate doesn't want to go into a cell, we don't

force them. We pretty much try and accommodate him, maybe put

him into another cell that he wants to go into, which again,

is not something we do very often.

If there's an available cell, maybe we'll throw him

in there. But somebody who wants to move to a different cell,

there's got to be a very good reason why.

Q Regardless, under any circumstances, you take them out of

the cell they don't want to be in; is that accurate?

A Like I said, there has to be a good reason why he wants to

be out of that cell. It's not like a hotel where they can

just change rooms.

Q Did that happen here? Did either one of them indicate

that they didn't want to be in the cell?

A No.

Q Did Bates ever appear to be violent?

A No.

Q Dangerous?

A No.

Q Agitated?

A No.

Q And you testified that you were working in 2E as the floor

officer on the day of the incident?

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A Yes.

Q And you also testified that you had developed a rapport

with some inmates?

A Yes.

Q Had you developed a rapport with any inmates in the 2E

housing unit that were there on that date?

A Yes. I would imagine I would have.

Q What about an inmate named Inmate Gonzales?

A No. I never -- I didn't know him.

Q Did you know Bates's former cellmate? 

A I do now after the incident. But Gonzales was not a --

not a person that I had known.

Q And after this incident happened, did you go back and

speak to Inmate Gonzales?

A Yes, I did.

Q And what did you learn?

MR. ROBBINS: Object to form, Your Honor.

Foundation. Hearsay.

THE COURT: Hearsay?

MS. HESMAN: Your Honor, I'm not offering it for the

truth of the matter.

THE COURT: You're not offering it for the truth of

the matter?

MS. HESMAN: No.

MR. ROBBINS: Then add relevance.

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THE COURT: And the relevance would be?

MS. HESMAN: The relevance would be that I know

they're going to elicit testimony from another witness that

without saying what that testimony is makes what Gonzales said

relevant.

THE COURT: On that avowal the objection is overruled

and you may answer.

MR. ROBBINS: It's still hearsay, Your Honor.

THE COURT: Well, she says she's not offering it for

the truth of the matter.

MR. ROBBINS: Thank you, Your Honor.

BY MS. HESMAN: 

Q And what did you learn?

A I asked Gonzales what Bates was like having been his

cellmate. And Gonzales just said that he was a little strange

but, you know, there was nothing that he found was violent or

anything like that.

Q Was he scared of him?

A No.

MR. ROBBINS: Your Honor, I move to strike that as it

was, in fact, offered exactly for what the avowal was made

that it would not be offered for.

THE COURT: Well, I think she's avowed that she will

connect it by a second witness. And so you can hold your

motion in your pocket. 

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And we'll take our -- unless you have one more

question or something, we'll take our noon break.

MS. HESMAN: The break is good, Your Honor.

THE COURT: All right.

We will be in recess till one o'clock. And please

remember the admonition.

Do we have a video -- video witness at one o'clock?

MR. ROBBINS: Yes. We do, Your Honor.

THE COURT: So we'll need to interrupt this witness

for that purpose? 

MR. ROBBINS: Yes, Your Honor.

THE COURT: All right. We'll be in recess till then.

Remember the admonition, please.

(Recess taken at 12:00 p.m.; resumed at 1:10 p.m.)

THE COURT: Thank you. Please be seated.

The record will reflect the presence of the parties

and counsel and ladies and gentlemen of the jury.

Forgive us for being a few minutes late starting, but

we have some relatively complicated audio-visual matters to

deal with. And so we're going to interrupt the witness who's

on the stand and the plaintiffs will call their next witness.

MR. ROBBINS: Thank you, Your Honor.

We'll call Richard Gause.

THE COURT: All right. As you can tell, ladies and

gentlemen, this is by video but live.

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And you'll swear him in, Ms. Williams? I knew you

would.

(Witness duly sworn.)

THE CLERK: Please state your name for the record,

spelling your first and last name.

THE WITNESS: Richard Legrand Gause. R-I-C-H-A-R-D.

G-A-U-S-E.

THE CLERK: Can you spell your middle name?

THE WITNESS: L-E-G-R-A-N-D.

MR. ROBBINS: Okay. You can put down your hand.

MR. STRUCK: Your Honor, may I position myself to

where I can see the witness?

THE COURT: Yes, you may.

And let me introduce myself. I'm Judge Teilborg and

defense counsel will introduce himself.

MR. STRUCK: Dan Struck.

THE WITNESS: Okay.

(The Witness Richard Gause appears via video

teleconferencing.)

RICHARD LEGRAND GRAUSE, WITNESS, SWORN

DIRECT EXAMINATION

BY MR. ROBBINS: 

Q Richard, where are you right now?

A I'm in Lewis Complex Prison.

Q Okay. And you were an inmate in Disciplinary Segregation

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on the day that Zach Daughtry was beaten, correct?

A Correct.

Q And I want to talk to the jury for a bit about

Disciplinary Segregation.

How long were you there?

A I don't recall exactly why I was there that time but the

couple times I was there, I believe it was 30 days at a time.

Q Okay. And when you went to Disciplinary Segregation, was

Zach Daughtry there when you were there at least during the

last --

A Yes.

Q Tell us what you observed of Zachary Daughtry.

A That he was just like -- that he was -- he had some mental

issues and just wasn't meant -- wasn't fit to be there in the

house with regular people.

Q When you say that, let's describe it in what you could see

or hear or smell.

What are the things that brought you to that idea?

A Well, he stank real bad and like instead of sleeping,

like, on top of the mattress, like, and using your sheets and

blankets to cover up with and sleep on, he slept inside of his

mattress. 

He ripped his covering open and slept inside of it,

inside of the hard plastic covering on the foam and stuff like

that and didn't even use his sheets or blankets.

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And just he would start with banging and yell like

obscenities and stuff like that.

Q So he would bang and you said yell obscenities?

A Yeah.

Q What do you remember?

A I don't recall -- I don't recall specifics. I just

remember that he wasn't all there.

Q When you say that you talked about the smell, what were

the things -- did you observe anything that stank other than

Zach himself?

A I can't quite recall. I don't recall too clearly.

Q Okay. And I wanted to make clear, you had something that

affected your ability to remember things?

A Correct. I was in a motorcycle accident that -- a severe

brain injury on April 25th, 2013, and my memories -- my

recollection of things aren't like perfect, like, I guess you

should say.

Q Okay.

A Some things I forget and some things -- I'll be talking

about something and I'll remember some more about it as I talk

about it, but yeah.

Q Mine is not perfect either, so when you say that Zach's

cell smelled, would he come out and hang out with you guys?

A I don't remember him ever coming out, no. He was just

always just laying in his bed.

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Q And how were you able to smell him?

A It just -- just walking by him room, the stench coming out

of his room.

Q And in terms of -- did he --

A And his mattress. Those are the two things.

Q Okay. And let's talk a little bit about Disciplinary

Segregation on 2B which is where you were.

What kind of -- so you're in a cell. Do you have a

recollection as to what cell number you were in?

A Somewhere in the middle like 6 or 7 or 8ish is where I

would say or somewhere around there. I don't quite recall.

Q Okay.

A But I know I was a few doors down from him towards the

middle.

Q Okay. So a few doors down from the cell that Zachary

Daughtry was in but more towards the middle?

A Correct.

Q Okay. And when you guys would --

MR. STRUCK: Your Honor, would it be possible for me

to get a microphone? I suspect I may be making an objection.

THE COURT: I'm sorry. What did you say, speaking of

microphones, but speak up. That's all right. 

MR. STRUCK: I just asked for a microphone.

THE COURT: Oh. Very well.

BY MR. ROBBINS: 

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Q So when you were in Disciplinary Segregation, what were

the time -- how much time would you spend inside the cell with

the cellmates?

A 23 hours a day. And you come out for one hour for

showers, I believe, every other day; but it might have been

every day. I'm not quite sure.

But you would come out for a shower like with three

or four other rooms for one hour for showers.

Q And while you were in the Disciplinary Segregation Unit,

how many fights would you see on a weekly basis?

A There was quite a few of them. It just depends on where

you're at. But -- I don't think you could put like an exact

number. It just depends on the area you're at. But the area

of Disciplinary Segregation there's a lot of fights right

there. That's what most people are there for.

Q When you say that most people are there for fighting, what

do you mean?

MR. STRUCK: Objection. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q How did you learn what other people were in the unit for?

A This is a real small unit. Everybody talks about what

they're there for. What's going on. I mean, you're pretty

knowledgeable about what most people are there for.

Q And the night that -- the night that Zach Daughtry was

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attacked, you actually talked with the officers?

A Yes. I believe I did, yes.

Q Why would you do that?

A Because I remember they -- the guy telling him get him out

of there and I was telling them that they were telling him to

fight.

MR. STRUCK: Excuse me. Objection, Your Honor.

Hearsay. Move to strike.

THE COURT: Sustained. It's ordered stricken.

BY MR. ROBBINS: 

Q Let me just add.

Why did you -- a lot of times inmates won't talk to

the police. Why did you step up and say "I want to talk"?

A Well, because I'm in Protective Custody here in prison.

And even though in County Jail I was in General Population

where it's against the rules of the Code, I guess you would

say, of prisoners not to talk to cops --

Like if I had done that in General Population, my

life would be in danger. But since I'm here in Protective

Custody already in prison, it doesn't put my life in jeopardy

because it's just here it's every man for themselves and it

doesn't really matter. I can be a regular human being here is

the best thing that you could say.

Q I would like to take you back to that night. Okay?

A Okay.

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Q What do you remember clearly from that night?

A I remember the cops -- that the guy who beat him --

telling him to get him out of there. He didn't want to live

there.

MR. STRUCK: Objection. Hearsay.

THE WITNESS: He didn't want to live there.

MR. STRUCK: Your Honor, hearsay. He's asked for a

narrative and he's responding with hearsay responses.

THE COURT: Your response?

MR. ROBBINS: My response is that the words that were

said are words that the officers would have heard as well so

it's not hearsay.

THE COURT: Well, what's it being offered for?

MR. ROBBINS: To show what the officers heard in

terms of a warning about what was going to possibly occur

should he go into the cell.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Did you see when the officers came into the unit?

A Yes. I don't quite recall it but -- yes, I do.

Q And how would you know that someone was coming into the

unit?

A You can hear the big slider door opening.

Q And when you look out your door towards the slider door,

what are you able to see?

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A You can see there were people coming in right there. You

can see the slider door that opens up into the outside little

slider where you have to come into the pod. There's only one

door that comes in.

Q Did you see Zachary Daughtry walking in with two detention

officers?

A Um, is he the one who got killed or the one who attacked

the guy?

Q That was really a bad question because I got it all

backwards.

Ryan Bates, did you see Ryan Bates coming in with two

detention officers?

A Yes.

Q And later on some detention officers brought him, I guess,

a mattress and some belongings.

Did you see that as well?

A Yes.

Q Do you remember whether or not the detention officers --

or what -- did Ryan Bates do anything before he went into the

cell?

A I remember him grabbing something like a sack lunch like

off something like off a cart and that's all that I can really

recall.

Q Was there any conversation that you overheard between Ryan

Bates and the detention officers?

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MR. STRUCK: Objection. Hearsay.

THE COURT: And your response?

MR. ROBBINS: My response is that it's a warning.

It's not for the truth of the matter asserted. It's to show

that they heard the words. That he heard the words that they

should have also been able to hear, so it was a warning.

THE COURT: So you're not offering it for the truth

of the matter asserted but merely for the fact of those words?

MR. ROBBINS: Correct.

THE COURT: On that basis the objection is overruled.

BY MR. ROBBINS: 

Q Please tell us what you remember of the words that were

spoken.

A Ryan Bates, I guess, the guy who attacked him, he didn't

want to house with the other guy because of house he stank and

probably the living conditions.

But he told the cops: 

Move him. 

And then the cops told him: 

You have to fight to get moved. Not right now, but

on my next walk, if you're fighting whenever I walk, I will

move you then. 

That's a normal thing that they would do there.

MR. STRUCK: Your Honor, move to strike. Hearsay.

THE COURT: And your response?

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MR. ROBBINS: What he said isn't hearsay. It wasn't

offered for the proof of the matter asserted. It was to talk

about the words that were said.

THE COURT: On that basis the objection is overruled.

BY MR. ROBBINS: 

Q Now, one of the things that we have -- or strike that.

Some years later you went and you also talked to an

investigator that was hired by the County, correct?

A Correct. Correct.

Q And you talked -- the words that you told the County

originally and the words of their investigator have all been

typed out.

A Okay.

Q Did you even know that?

A No. I didn't.

Q Okay.

THE COURT: Counsel, I just want to explain to the

jury.

At some point I will explain that certain items

will -- and I think I did explain it in the preliminary

instructions.

Certain items will come into evidence for a limited

purpose. And in these two, I think, well, maybe now three

instances, where there's been, for example, a hearsay

objection and I ask whether or not the words were being

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offered for the truth of those words or not and the

explanation has been they have been offered for the fact those

words were spoken.

That would be an example and those are examples where

evidence has been admitted for a limited purpose.

You may proceed.

MR. ROBBINS: Thank you, Your Honor.

BY MR. ROBBINS: 

Q So in terms of talking with the Detective for the County

and then later on the investigator for the County, did you

tell them the truth?

A Yes.

Q And let me talk a little bit about the pod itself.

We've talked about the people that were there. Were

there people that -- that you could observe that acted

peculiarly in a way that was -- or in a strange way?

A Um, I'm not understanding what you're asking.

Q Sure. Were there people that acted oddly? You know, that

they were strange, and you're, like, something is odd.

MR. STRUCK: Objection, Your Honor.

THE WITNESS: Well, we're in prison.

MR. STRUCK: Vague.

THE COURT: Overruled.

Mr. Gause, can you hear? From time to time you'll

hear Mr. Struck make an objection. He's got a microphone.

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Can you hear that when he does so?

THE WITNESS: Yes, I can.

THE COURT: Okay. When you hear that, then hold off

giving your answer till I get a chance to rule on the

objection. Okay?

THE WITNESS: Okay.

THE COURT: All right.

THE WITNESS: Yes.

BY MR. ROBBINS: 

Q Now, I was talking about whether or not you observed

behavior that made you think that something might be wrong

with someone.

A Correct. And, yeah, a lot of people in here have mental

issues. It's just prison life, I guess you would say.

Q And in the maximum security unit of the Maricopa County

Jail had you seen anyone else or any other instances where

County detention officers told someone to fight in order to

get out of a cell?

MR. STRUCK: Objection, Your Honor. Hearsay.

Foundation. Relevance and 403.

THE COURT: Overruled.

MR. ROBBINS: Do you remember the question?

THE WITNESS: Yes.

And, yes, I do. I had a cellie who was a problem

with the correctional officers there. And they did the same

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thing to him. They moved him in with another race inmate, a

black guy, knowing that as a white inmate, he can't house with

him.

And he told them I can't house with a black guy.

It's against the politics in prison.

The cops told him, well, when you go in, go in

swinging. Otherwise, we're not moving you. And so he had to

go in fighting the guy just to get moved. And that's what

they commonly do to people who are problematic, I guess you

could say. Yes, that happened to my cellie in there.

MR. STRUCK: Move to strike. Hearsay.

THE COURT: And your response?

MR. ROBBINS: No, Your Honor. He said he heard it.

He said he saw it. You know, he heard the words that were

said. They told him to fight. And he observed -- well, I'm

going to get in his observation of whether or not there was a

fight. 

THE COURT: So are you offering it for the fact of

those words rather than the truth of those words?

MR. ROBBINS: Yes, Your Honor.

THE COURT: For that limited purpose they will be

received and the objection is overruled.

MR. ROBBINS: They're also statements of employees of

the County, so I think it would also fit under that exception.

BY MR. ROBBINS: 

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Q Do you recall the name of the inmate who was your

roommate?

A I do not recall. I just remember he was European. He has

a European name. He was from another country. He was from

another country, another country's last name like Polish or

something. I'm not a hundred percent sure.

Q Okay. If I said the name, would it assist you?

A Possibly, yes.

Q Do you remember the name Dusko Krstic?

A Yes. That was him. Yes.

Q Do you know whether he, in fact, did, in fact, get into a

fight after --

A Yes, he did, as soon as they moved him in, yes.

Q And was that the evening of the same night that --

A I don't recall if it was the same day, if that's what

you're asking. I just remember that it happened.

Q Do you remember the name of the person who he was put into

a cell with?

A No. I just -- no. I just remember he was a black guy.

Q So I would like to talk for a second about at some point

did you become aware that there was a fight going on inside

cell number -- in the cell that this person had been placed

into?

A Yeah. You could hear the bumping.

Q And was it preceded by screams?

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MR. STRUCK: Objection, Your Honor. Leading.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q What did you hear before the bumping?

A Right before it, nothing. I just remember hearing it.

MR. ROBBINS: Let me -- I'm going to show the witness

page 3, Daughtry 8978, to refresh his memory based on a prior

statement.

May I approach?

THE COURT: You may.

BY MR. ROBBINS: 

Q Let me show you the document that was prepared after you

spoke to the County's investigator.

A Okay.

Q Can you see that?

A Yes.

Q And does that refresh your recollection as to whether or

not you may have heard screams?

A Yeah. I mean, kind of sort of, but it's been a long time

ago. I remember the thumping. I mean maybe. I'm not a

hundred percent sure on the screams and stuff.

Q Okay. Do you feel that -- do you feel that --

Well, this was the statement -- the statement was

done on December 29th of 2016, so it's only about four or five

months ago. Do you believe that you would have -- if you

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recalled it then, that it would be more accurate than today,

your testimony?

A Yeah. Yeah, probably, yeah.

Q All right. The final thing I wanted to talk to you is a

little bit more happy.

You're getting out?

A All right. I am getting out very soon.

Q And when are you going to be released?

A Right now I believe it's in September but there's a

possibility in July.

Q Now, you -- in all honesty and sincerity, you kind of did

belong in maximum security. Do you agree with that?

MR. STRUCK: 402. 403. Foundation.

THE WITNESS: Yes.

THE COURT: And the relevance is?

MR. ROBBINS: I'm just talking about the kind of

people that were in maximum security in that whole same unit.

THE COURT: And the relevance of that would be?

MR. ROBBINS: Because it's a dangerous place and I

wanted to demonstrate that.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Okay. If a roommate -- or if you had had a roommate -- if

Zach Daughtry was in your room and you couldn't move and if

you couldn't just ask to be moved, would you have fought him?

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MR. STRUCK: 402.

THE WITNESS: Absolutely.

MR. STRUCK: 403. Speculation. Foundation.

THE COURT: Sustained on all counts.

MR. ROBBINS: Thank you, Richard.

I appreciate your willingness to testify in a court.

Thank you.

THE WITNESS: Sure. Okay. Okay.

THE COURT: We're not done yet.

Mr. Struck is going to get a chance to ask you some

questions.

MR. STRUCK: May I approach?

THE WITNESS: Okay.

MR. STRUCK: And give the microphone back.

THE COURT: You may.

MR. STRUCK: Just a moment, sir.

THE WITNESS: That's all right.

CROSS EXAMINATION

BY MR. STRUCK: 

Q My name is Dan Struck and I represent the County

defendants in this case.

A Okay.

Q You and I have never met, have we?

A No.

Q And we've never had any discussions at all about this

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case, correct?

A No. Correct.

Q Have you ever spoken to Mr. Robbins or anybody from his

office before?

A Um, I believe so, yes. Yes.

Q When was that?

A I had a video conference or we had a telephone call with

him, I believe, after your guys' investigator came to see me

and then just recently last week, I believe.

Q And it was a phone call or did they come out to the

prison?

A Phone call. No. It was a phone call.

Q I'm sorry. How long did the phone call last?

A No more than 30 minutes. I don't know the exact time

frame but the calls can't be more than 30 minutes.

Q Okay.

A I remember it was close to the 30 minutes though.

Q And which facility are you housed in?

A Lewis Complex, Rax Max Unit.

Q Okay. And so you are in the maximum custody unit?

A I'm in the closed custody part of the Max. The unit is

called Rax Max.

Q Two you remember what day it was that you had the phone

call with Mr. Robbins?

A I believe it was a week ago today.

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Q All right. Do you remember what time of day it was that

you had the phone call?

A In the morning about ten o'clock.

Q And was it a -- it wasn't an attorney-client privileged

phone call, was it?

A I don't understand what you mean by that.

Q Well, you know, when you're in prison you can -- when you

make a phone call just to, say, a family member or a friend,

those calls are recorded. You understand that?

A Right. Yeah.

Q But when you make a phone call, say, to your attorney, you

can make a phone call that's not recorded because there's

attorney-client privilege involved. You understand that?

A Um, yes, I do understand that.

Q Okay.

A And I do not know if this was attorney-client privilege or

not. I don't know how they do that here.

Q Okay. Now, you said that you smelled something that

smelled like feces coming out of Mr. Daughtry's cell. Do you

remember that?

A Yes. Yes.

Q Did you actually see feces in his cell?

A I can't -- I don't -- something in his cell but I just

can't clearly recall, no. I don't know.

Q And I'm going to ask you to repeat your last answer

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because the image froze and we couldn't tell exactly what you

were saying. Would you mind repeating your answer?

A Yeah. I don't quite recall clearly. I mean, I seem to

recall that there was feces in his room but I just can't quite

recall. I don't know.

Q All right. So when you possibly saw feces in his room,

was it on the date when he and Mr. Bates got into a fight?

A I couldn't -- I couldn't recall that clearly. I don't

know. I can't say that one way or the other.

Q And can you tell us how many days that you were housed in

the Segregation Unit with Mr. Daughtry?

A I couldn't clearly tell you that either.

Q Okay. When you saw and you told us about a conversation

that you heard between Mr. Bates and the officers when

Mr. Bates was being placed into the cell; is that right?

A Correct. I believe so, yes.

Q And I think you said you actually could look out your

window and see the -- see them having this conversation?

A I couldn't see them having the conversation but I could

see him coming in. But you can hear pretty much everything in

there.

So everything echos, like, the sound quality in there

so you can hear everything in there. I couldn't see him

specifically in the room, but I could see him walking up close

to the door. I mean, you could get a pretty good view of

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stuff.

Q But you say you saw Mr. Bates before he went into the cell

run and grab a sack lunch?

A I believe that's what it was, yes. Yep.

Q And did you see the officers holding onto Mr. Bates's arms

when Mr. Bates -- before Mr. Bates went into the cell?

A I can't quite recall but that's something that they're

supposed to do.

Q I'm going to show you a transcript from the interview that

you had with the investigator that -- another page from what

Mr. Robbins has showed you to see if it refreshes your

recollection with respect to whether or not you saw the

officers holding Mr. Bates' arms before Mr. Bates went into

the cell. Okay?

A Okay.

Q Can you read that?

A Okay. I can.

Q Does that refresh your recollection with respect to you

actually seeing the officers holding Mr. Bates's arms?

A Um, specifically, no. I mean, I remember talking about

that but I can't clearly recall it like visually.

Q All right. How long did this conversation occur -- the

conversation before Mr. Bates went into the cell between the

officers and Mr. Bates.

How long did it take for that conversation for them

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to have that conversation?

A I couldn't tell you. I don't quite recall. This is a

long time ago, man. I mean, it's stuff I hadn't even thought

about until your investigator came. I mean, we see stuff like

this in here all the time.

Q But you heard Mr. Bates and the officer say things back

and forth to one another before Mr. Bates went into the cell,

correct?

A I believe so, yes. Yes.

Q And isn't it true that you told the investigator that

immediately upon Mr. Bates going into the cell, you started

hearing that banging; isn't that right?

A If I -- if it's in the transcripts, then that's what I

said. I can't quite recall though.

Q Well, let me show you the transcript.

A Okay. Okay.

Q Now, do you see that? You said: 

Okay.

And then you heard -- how long did you hear banging? 

Right away soon. Soon as they shut the door. They

were still in the pod whenever he started getting him right

away.

Isn't that what you told the investigator?

A Okay. I guess, yes.

Q So that means you thought that Mr. Bates and Mr. Daughtry

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started fighting immediately upon him being placed in the cell

even before the officers left the housing unit, correct?

A Okay. Okay.

Q Could you see the two officer who were putting Mr. Bates

into the cell?

A What do you mean? Like whenever they -- whenever they

came in with him or while they were at his cell front.

Q Let me ask a different question.

How many officers were there that were putting

Mr. Bates into the cell?

A Well, obviously two. You just said two.

Q And could you identify either one of them? Did you

recognize either one of them?

A I could not. You could tell me their names and show me

pictures of them the only way I could recollect it.

Q But was it one of those two officers that was talking to

Mr. Bates and using those words that you told Mr. Robbins?

A Yes. Yes.

Q All right. And did you see whether either one of those

officers was wearing a taser?

A I don't recall.

Q Did you hear Mr. Bates say repeatedly that he didn't want

to go into the cell?

A Like I can't even really recall. I remember him saying

something to that effect. I don't remember the exact details

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of it.

Q Well, let me show you again the transcript from your

interview with the investigator.

And isn't it true that you told him -- the

investigator asked you: 

Okay. And then when did you hear Bates tell the

officer he didn't want to go into the cell.

And your answer was: 

He was saying it repeatedly, right as soon as he

could see what was in -- what was going in there and the smell

coming from out. He was like, hell, nah, I ain't going in

that room.

So does that -- that's what you told the investigator

that you heard him say it repeatedly?

A That rings a bell. At least -- (Inaudible audio)

But as of right now, like sitting here, I can't

really recollect that scenario happening in my head. But I do

recall somewhat saying that to the investigator. I do recall

somewhat that's how it happened.

My brains, sometime it works good and sometimes it

doesn't. Like memory recollection, sometimes I'll get events

switched up and it is just time frames and things like that.

So, specifically, no, I can't really recall that but

it recalls to me as being correct, yes.

Q Now, you also testified about your cellmate being put into

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a cell with an African-American inmate and told to fight him;

is that right?

A Correct. Correct.

Q And it's your -- you're positive that your cellmate was

actually assigned into a cell. That's -- you're positive that

they were assigned into a cell together?

A One hundred percent because I remember him because the

reason I remember that so clearly is because in prison before

I came to protective custody, I had political status. 

I guess what you would call a shot caller in there

for a little bit. And he's like: Man, I got to go in there

swinging on this dude. I don't want to hurt this dude because

he's a big boy. Man, I don't want to hurt this dude. Well,

but, man, I ain't getting this jack on me when I go to prison.

You gotta do what you gotta do, man. That's just why

I recall that situation so clearly.

Q Were you a shot caller for the Aryan Brotherhood?

A Yeah. I mean, I wasn't an Aryan Brotherhood member but to

an extent, yeah.

Q What gang were you a shot caller for?

A No. I mean, yeah, the Aryan Brotherhood, yeah, but I

wasn't a full-fledged member or nothing to that effect.

Q Well, a "shot caller" is somebody who is one of the

leaders.

A Well, no. No. Most of the Aryan Brotherhood are slammed

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down so they have I guess like what you said. They have

probates and minions that run the yards for them because this

place is pretty good at getting them off the yards. And so

they have their probates who run the yards for them.

Q Okay. So when you say you're a shot -- you were a shot

caller for the Aryan Brotherhood, what you're saying is you

were a shot caller but you weren't a full-fledged member of

the Aryan Brotherhood?

A Right. I hadn't killed no one yet to get my patch.

Q So you hadn't killed anyone yet to get your -- to patch

into the gang?

A Correct. Correct.

Q And what you're saying is that if a white inmate is placed

in a cell with a black inmate, the Aryan Brotherhood would

require him to fight them?

A Yeah. Not just black. Any other race.

Q Okay.

A They're segregated and all races are. Population.

Q But it is -- as you sit here today -- and I know you say

your memory is fuzzy because of the brain injury that you

sustained -- but do you have a specific recollection of your

cellmate getting assigned into a cell with an African-American

inmate?

A Yeah. I remember him going and fighting the guy right

away as soon as it happened. Yes.

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MR. STRUCK: Just a moment, Your Honor. I may be

finishing up here.

THE COURT: Sure.

MR. STRUCK: I don't have anything further.

THE COURT: Redirect?

REDIRECT EXAMINATION 

BY MR. ROBBINS: 

Q Richard, why are you in -- why are you in Protective

Custody now?

A Um, it's kind of complicated, but because I was a probate

under a guy, it's the step up before you become a full patch

member, I was supposed to do some stuff when I got out on the

street to get my patch. And I was getting kind of short and a

different brother than the one I was under wanted me to stab

some cops and hold them hostage in here. 

And I wasn't going to spend the rest of my life in

here and I refused to do that and that's why I'm in Protective

Custody is for refusing a direct order.

Q And you were in the maximum security unit with the history

that you have on the day that Zach Daughtry -- or that Ryan

Bates was put into Zach Daughtry's cell?

A Correct.

MR. ROBBINS: Thank you.

THE COURT: All right. We thank you, sir.

THE WITNESS: Okay.

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THE COURT: And that concludes this witness's

testimony.

THE WITNESS: All right. Thank you.

THE COURT: And you may call your next witness.

MR. ROBBINS: I think that we are --

THE COURT: I'm sorry. You're correct.

We have a witness on the stand on cross-examination.

Thank you.

You may continue.

MS. HESMAN: Thank you, Your Honor.

ROBERT HEWITT, WITNESS, DULY SWORN

CROSS EXAMINATION (cont'd)

BY MS. HESMAN: 

Q Officer Hewitt, during Mr. Robbins' questioning he showed

you a picture of the cell. Do you recall that?

A Yes.

Q And do you recall whether there were any feces inside the

cell based on that picture?

A I don't recall, no.

Q Do you recall whether there were any feces when you went

into that cell on the night of the incident?

A No.

Q Would seeing that picture again refresh your recollection

as to whether or not there were feces in the cell?

A Maybe. Maybe.

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MS. HESMAN: Sure. Your Honor, may I step away from

the podium?

THE COURT: You may.

MS. HESMAN: And can I publish Exhibit 32 to the

witness?

THE COURT: You may.

BY MS. HESMAN: 

Q And Officer Hewitt, do you have that photo in front of

you.

A Yes.

Q And is this the condition of the cell after the fight

occurred between Bates and Daughtry?

A Yes.

Q And do you see any feces any where in that cell?

MR. ROBBINS: I object to form and foundation, Your

Honor. I think you have to establish that it's close enough

to be able to judge.

THE COURT: Overruled.

THE WITNESS: No.

MS. HESMAN: Okay, thank you.

BY MS. HESMAN: 

Q When you brought Bates's property and mattress to him in

2B, do you recall whether or not the cell was -- had any kind

of smell?

A No. There was no smell to it.

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Q It didn't smell bad?

A No.

Q Do you recall whether Daughtry smelled bad?

A No.

MS. HESMAN: I don't have anything further, Your

Honor.

THE COURT: Redirect?

MR. ROBBINS: Thank you, Your Honor.

REDIRECT EXAMINATION 

BY MR. ROBBINS: 

Q The good news is I don't have a lot of questions for you.

A Okay.

Q I would like to show the witness a picture.

This is the same one that you were looking at that

the defendant showed you, correct?

Oops -- no. You can't actually duly see it unless I

do something here. Let's see. Okay.

Is this picture actually adequate to be able to tell

whether there was feces anywhere in the cell or not?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Overruled.

THE WITNESS: Judging by this picture, yes. I could

tell if there was any feces on it.

BY MR. ROBBINS: 

Q Is there anything that covers the floor that might hide

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feces?

MS. HESMAN: Objection, Your Honor. 402. 403. We

discussed this at sidebar.

THE COURT: Overruled.

THE WITNESS: Looking at this picture, no. There's

nothing that could.

BY MR. ROBBINS: 

Q Are you telling the jury that you could see whether or not

there was feces in the blood that's on the floor?

MS. HESMAN: Objection, Your Honor. Asked and

answered.

THE COURT: Overruled.

THE WITNESS: Judging from this picture, it does not

look like there's any feces in it.

MR. ROBBINS: Your Honor, I move for admission of

Exhibit No. 32, page No. 3.

MS. HESMAN: Objection. 402. 403. We had a

discussion about this at sidebar.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Let's talk for a moment about what opportunity you had to

smell what was going on inside that cell. You did not put

Ryan Bates in that cell, correct?

A Correct.

Q That was a different officer that actually had the door

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open, correct?

A Correct.

Q Now, you walked up with the mattress and shoved it through

a little slider or a little -- you didn't even open the door.

You put it through a hole in the door.

MS. HESMAN: Objection, Your Honor. Misstates the

testimony.

MR. ROBBINS: Go ahead.

THE WITNESS: No. I -- 

MR. ROBBINS: No. 

THE WITNESS: The door has to be open to get a

mattress in --

THE COURT: Wait a minute. Wait a minute. 

I heard something that sounded like an objection.

MR. ROBBINS: We're moving on without the objection

being ruled on, so just wait for the Judge. 

MS. HESMAN: Objection. Misstates testimony.

THE COURT: Overruled.

BY MR. ROBBINS: 

Q You tossed the mattress in and then you stood back about

20 feet away from the door.

Do you remember that from the video? Yes or no.

A Yes.

Q Okay. Now, you testified about a fourth floor briefing.

And would you agree with me that there was no briefing about

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 REDIRECT EXAMINATION - ROBERT HEWITT 

the kind of crazy things that Zach Daughtry was doing on 2B,

correct?

A Correct.

Q That wasn't discussed, correct?

A Correct.

Q And you weren't briefed about Ryan Bates and about

information that the jail had on Ryan Bates, correct?

A Bates wasn't doing anything to him.

Q They didn't tell you anything, did they?

A No.

Q And in terms of these briefings, the testimony that you

gave me this morning was truthful, honest and you were trying

to help the jury to understand what goes on in the jail,

correct?

A Correct.

MR. ROBBINS: Thank you.

THE COURT: All right. Any objection if this witness

is excused?

MR. ROBBINS: No objections, Your Honor.

MS. HESMAN: We're going to object, Your Honor. We

want to subject him for recall.

THE COURT: Very well. Then he will remain under the

rule of exclusion and subject to recall.

Thank you, sir.

And you may call your next witness.

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

MR. SHOWALTER: Plaintiff calls William Hovanec.

(Witness duly sworn)

THE CLERK: Please state your name for the record,

spelling your first and last name.

THE WITNESS: William Hovanec. W-I-L-L-I-A-M.

H-O-V-A-N-E-C.

WILLIAM HOVANEC , WITNESS, SWORN

DIRECT EXAMINATION

BY MR. SHOWALTER: 

Q Good afternoon. My name is Jesse Showalter. 

Would you mind introducing yourself to the jury.

A My name is William Hovanec.

Q May I call you -- how would you like to be addressed?

William? Mr. Hovanec?

A William is fine.

THE COURT: Maybe we'll go even with --

How do you pronounce your last name again? 

THE WITNESS: Hovanec.

THE COURT: Well, why don't we go with Mr. Hovanec?

How is that?

THE WITNESS: That's fine.

MR. SHOWALTER: My apologies. We're in federal court

and that's how we address people.

BY MR. SHOWALTER: 

Q Mr. Hovanec, am I getting the pronunciation right?

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Hovanec.

A Yes.

Q Okay. Mr. Hovanec, are you currently working for Maricopa

County Sheriff's Office?

A No.

Q Did you work for Maricopa County Sheriff's Office on July

9th of 2014?

A Yes.

Q And at that point how long had you worked for the Maricopa

County Sheriff's Office?

A Approximately, two years.

Q So approximately since roughly 2012?

A Yes.

Q Would it have been summer of 2012?

A I'm not sure when I was hired. I would have to look at my

resume. I don't remember.

Q Did you -- but is 2012, sometime in 2012?

A Yes.

Q And when did you leave Maricopa County Sheriff's Office?

A June, 2015, I want to say, approximately.

Q Did you attend the academy for detention officers?

A Yes.

Q And did you receive training at that academy?

A Yes.

Q What training did you receive there about recognizing

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

people who may suffer from mental illness?

A I don't recall. It's been a long time.

Q Do you recall if you received any training about

disciplining inmates in the Maricopa County Jail?

A We don't discipline.

Q You don't give discipline?

A No. That's the hearing officer does what they do. We

write DARs.

Q Okay. And what training did you receive for writing DARs?

A You're going to have to be more specific. I don't

understand the question.

Q Were you trained on how to write a DAR?

A Yes.

Q And what was take training?

A I don't recall. I don't remember the training

specifically.

Q Were you trained in providing discipline to an inmate --

I'm sorry. Strike that.

Were you trained that when you're writing a DAR, you

need to check to see if the detainee involved has any kind of

mental health issues?

A If they had mental health issues and they have gone

untreated, they would be in -- they wouldn't be in General

Population.

Q So is it your testimony that there's nobody in General

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

Population, based on your experience -- strike that.

While you were a detention officer at the Maricopa

County Jail, did you encounter detainees who had what appeared

to you, based on your training, to be mental health issues?

A I don't have --

MR. STRUCK: Objection, Your Honor. Foundation.

THE COURT: Overruled.

THE WITNESS: I'm not a medical professional. I

can't determine whether somebody is mentally ill or not, so I

don't understand what you're asking me, I suppose.

BY MR. SHOWALTER: 

Q Have you ever see somebody who acted -- and not just in

the jail, but just in general life -- have you ever been

driving down the road and seen somebody who was acting in a

bizarre fashion that was outside the norms of human behavior?

A You have to determine. What do you mean by "outside the

norms"?

Q Well, have you ever driven down the street or been walking

down the street and seen somebody who's disheveled, walking,

shouting at themselves, making frenetic movements, things like

that?

A Yes. I have seen people walking down the street shouting

and making the movements, I suppose, you're talking about.

Q And they're just -- there doesn't appear to be any

rational reason for what they're doing.

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You've seen that?

A I don't know the rationale behind somebody else's actions.

Q Are you able to --

Well, are you able to recognize if somebody is doing

something bizarre or odd or out of the norm for human actions.

A Not in a mental illness state. I can possibly send them

to see somebody that's a medical professional but I can't

determine whether they have a mental illness or not.

Q Now, in your experience at the Maricopa County Jail, did

you ever witness an inmate engaged in self-destructive

behaviors?

A What do you mean by "self destructive"?

Q Like banging their head against the wall of their cell.

A I don't recall if that's ever specifically happened to me

but I'm sure it has happened.

Q You know it's happened. You just can't recall any

specific incidents?

A It's never happened to me that I can recall.

Q Oh, I see. So you're saying that you're sure it could

have happened but you have no personal knowledge of it?

A Correct.

Q Have you ever observed an inmate smearing feces on the

wall of a cell?

A Yes.

Q Now, we were talking earlier about bizarre and odd

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

behavior where did you observe that?

A In the jail.

Q In the Psych Unit or in General Population?

A I didn't work in the Psych Unit.

Q So you observed somebody in the General Population of the

jail smearing feces on the wall?

A I have seen that, yes.

Q And when you observed that, did you recognize that as odd

or bizarre behavior?

A That is -- yes. It's not normal behavior.

Q And you were able to recognize it was outside the norms of

human behavior?

A Yes.

Q Did you recognize that because of your training on how to

recognize mental health issues at the academy or was it just

based on your own personal experience as a human?

A I don't recall the training at the academy specifically,

but, I mean, if somebody is rubbing feces or touching feces, I

mean, it's -- it doesn't appear normal to anybody, so.

Q Okay. And that's -- and that's a situation you observed

in the Maricopa County Jail General Population, correct?

A No. I didn't say General Population.

Q Well, I'm sorry. I thought you said it was not in Psych?

A It was not in Psych.

Q Where was it?

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

A Level 4 in Closed Custody housing.

Q Okay. So we're now talking about the Fourth Avenue Jail

on the 4th floor?

A Yes.

Q Closed custody.

The reason I think I'm confused is you testified

earlier that if an inmate has mental health issues, they're in

Psych. Do you recall that?

A Yes.

Q But you observed an inmate with mental health issues who

was in custody at Closed Custody on Fourth Avenue, correct?

MR. STRUCK: Foundation. 402. 403.

THE COURT: Overruled.

THE WITNESS: I'm sorry. Can you repeat what you

asked?

BY MR. SHOWALTER: 

Q You testified earlier that if an inmate had mental health

issues, they're in Psych, correct?

A Yes. I said that, yes.

Q But you also testified that while you were at the Fourth

Avenue Jail, among non-Psych inmates, you recognized behaviors

that are associated with mental health problems?

A Okay.

Q Is that correct?

A Yes. And we would report them when they would spread

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

feces.

Q Is that a relatively common occurrence?

A I don't have -- I don't know how many times it's happened.

Q How many times did you see it happen?

A I couldn't give you a number. I don't know.

Q Well, for me, I have never seen anybody do that.

MR. STRUCK: I object, Your Honor. Move to strike.

Counsel is testifying.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q Is the reason you can't give a specific number because it

happened enough times that you can't distinguish between the

different times it happened in your memory?

MR. STRUCK: Foundation. 402. 403.

THE COURT: Overruled.

THE WITNESS: I just couldn't give you as many times

as I have seen it. It's not something that I would like to

think about.

BY MR. SHOWALTER: 

Q That's fair.

So you worked for Maricopa County Sheriff's Office

from 2012 until 2015, fair?

A Approximately.

Q And June of 2015 is when you left.

Where were you assigned during that time period?

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

A Define "assigned." A specific date or a jail or --

Q Which jails did I work at during that time period?

A Fourth Avenue Jail and the tent facility.

Q And you said the tent facility?

A Yes, sir.

Q How long were you -- excuse me.

During the roughly three years that you worked for

the Maricopa County Sheriff's Office, what proportion -- what

portion of that time were you working at Fourth Avenue?

A I couldn't give you the dates. Roughly two years.

Q So about -- and that's fine. So you spent about two years

working at Fourth Avenue?

A Approximately.

Q And when you worked at Fourth Avenue, where were you

assigned?

A Define "assigned," please.

Q Did you have a routine assignment where you were always in

the same place and you could get to know the inmates there?

A No.

Q So would you move around within the jail frequently with

respect to your duty posts?

A Yes. Wherever I was assigned during briefing that day.

Q And so it's been a while, I understand, but how often

would you work the same duty posts on two consecutive days on

average? Was that a common occurrence or rare occurrence?

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

A Without looking at where I was assigned for that time

frame, I really can't answer that.

Q Well, let's go back to July 9th of 2014.

Do you remember what your duty assignment was on that

day?

A Yes. I was working 2 Bravo.

Q You were working 2 Bravo. And what is 2 Bravo?

A Like it's a housing unit.

MR. SHOWALTER: Ms. Williams, may I have the Elmo? 

I'm going to show the demonstratives that we have

been using.

BY MR. SHOWALTER: 

Q Are you able to look at this? It's a demonstrative of the

layout. It's not a hundred percent accurate. It's something

that Maricopa County's attorneys -- I'm not sure who -- but

they created this document.

Have you seen this map before or this layout before?

A Yes. It is similar to a housing unit in Fourth Avenue

Jail.

Q Okay. But it's not a hundred percent accurate as far as

the distances. And also, I think an example I'll give you is

that if you look at 2B 100 or 2B 1, isn't there a staircase

that's not depicted?

A I don't see any staircases.

Q Well, I do. 

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 DIRECT EXAMINATION - WILLIAM HOVANEC 

Let me take you back to your memory of working at 2B.

Do you remember that there, in fact, was a staircase that led

from the lower level up to the upper level?

A Yes. One on each side.

Q And do you see that depicted in these -- in this diagram?

A No.

Q Okay. And also this only shows the first floor of the

pods, correct?

A Yes.

Q And it doesn't show that there is like a second floor like

where -- sometimes they're called a mezzanine? 

Does that make sense?

A The second tier is where I would call it, but, yes.

Q The second tier.

Now 2B and 2E, you were the tower officer for 2B; is

that correct?

A Yes.

Q Where were you at -- on the evening of July 9th, 2014, on

this diagram, if you could point, I think the screen should

pick up where you point to.

A I was in 2 Bravo tower.

Q And if you could actually touch the screen?

A (indicating).

Q Okay. So you're making a red line there?

A Oh.

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Q Are you able to see it?

A So approximately in this area.

Q So you're approximately in this area.

A On the second story.

Q And you're on the second story. So does that put you

level with the second tier or are you slightly above the

second tier?

A I'm not sure. It's been a long time since I been in one,

so.

Q Okay. So from your position in the tower, what are you

able to observe at 2B?

A I mean, you can see some things. You can not see other

things. I mean, I don't recall exactly what I could see or

what I couldn't see. I have cameras.

Q And let's make it real simple. Is the tower enclosed or

does it have windows?

A Windows.

Q And so through the windows, do you have a view of all of

2B including 100 and 200?

A I don't really recall. I haven't been in a tower in a

long time.

Q You worked for the Maricopa County Sheriff's Office for

more than for almost three years. And you just testified that

about two years of that was spent at the -- I'm sorry -- at

the Fourth Avenue Jail, correct?

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A Correct.

Q Was it unusual for you to be a tower officer?

A I don't have a ratio of when I was working the tower or

the floor but I'm not sure what you're asking.

Q I'm asking you, was July -- let me retract and strike.

To the best of your recollection is July 9th of 2014

the only time you ever worked as a tower officer?

A No.

Q Did you work in that duty post enough times that you can

remember the basics of what you did as a tower officer there?

A Define "basics."

Q Okay. Well, what does a tower officer do for the Maricopa

County Sheriff's Office, 2B, Disciplinary Segregation?

A It's been a long time. I mean, I'm sure there's a policy

on it that you can look at. I don't remember every single

thing that I did in that tower.

Q Is there some reason you're reluctant to testify?

A No.

Q Is there some reason that --

Do you have any kind of memory issues or anything

that could interfere with your ability to remember this stuff?

A I don't think so.

Q How many weeks did you spend in the Maricopa County

Sheriff's Academy?

A Eight weeks, I think it was.

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Q And did you take an oath at the end of that or at the

beginning of it?

A Uh-huh. There's an oath.

Q And what was the oath to do?

A I don't remember it verbatim.

Q But what was the --

Did it involve the constitution? Did it involve

duties you were undertaking?

A I don't remember. I don't remember what it was.

Q You don't remember anything about the oath you took?

MR. STRUCK: Objection, Your Honor. Asked and

answered and 402, 403.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q Do you remember assigning Ryan Bates to a cell with Zach

Daughtry?

A Yes.

Q Do you remember that?

A Yeah.

Q About what time did you make that decision on July 9th of

2014?

A Approximately, in between 9:00, 9:30 or so, approximately.

I don't know exactly what time I got the phone call.

Q So set the scene for me.

Where are you when you make that decision?

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A In the tower.

Q So you're in the tower. What are you looking at?

MR. STRUCK: Objection, Your Honor. Vague.

THE COURT: I'm sorry. Your objection was vague.

Overruled.

THE WITNESS: What was I looking at? I don't know

what I was looking at when I took the phone call.

BY MR. SHOWALTER: 

Q So you received a phone call?

A Yes.

Q Who was the phone call from?

A The level control officer.

Q And do you know who that was?

A I don't remember exactly who it was, no.

Q Where is the level control officer stationed in 2B?

A In the level control office.

Q Is it shown on this diagram?

A No.

Q Okay. And what were you directed to do in that phone

call?

A To house an inmate in 2 Bravo.

Q And what were you told about that inmate?

A I know he needed -- he was going to be put in 2 Bravo

pending some kind of DAR. I don't know exactly what was said

to me though.

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Q You don't recall?

A I don't recall.

Q So you receive it -- receive information that you need to

house an inmate in 2 Bravo which is maximum security

Disciplinary Segregation, correct?

A Yes.

Q What do you do next?

A Find an open cell.

Q So what did you look at to find an open cell?

A The housing roster. JMS.

Q Once you had the housing roster, what did you do?

A Found an open cell.

Q Do you remember if you just looked for the first open cell

going down the roster from top to bottom?

A That's a practice that I try to do. I don't remember. 

Yeah, I looked for the first available cell, so.

Q And once you found the first available cell, what did you

do next.

And, you know, I take that back. It's not the first

available cell, necessarily. It could be the first available

bed, right?

A Correct. The first available place to put an inmate;

housing, yes.

Q And so once you find the first available bed, what do you

do next?

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A Well, you got to look up some things in JMS.

You're going to look for "keep-aways," "lower tiers,

lower-bunk" and if they're "house alone," if I remember

correctly.

Q And so what is the screen you would look at on the JMS? 

Does it have a number or a name?

A An inmate's name?

Q Is there a command function like D0005? 

A I think that's correct.

Q So you would enter a command function D005 and then would

you enter -- what would you do next?

A I haven't used JMS in a long time, but I know that I would

check for if they were "house-alones," the classification, if

they had any "keep-aways" or if they were lower-tier-level

bunk. 

I'm just not exactly sure where that would be because

I haven't used the system.

MR. SHOWALTER: Ms. Williams, can I have you -- can

you provide the witness with -- I think it's Plaintiff's

Exhibit 285.

THE CLERK: You mean defendant's?

MR. SHOWALTER: I'm sorry. Defendant's Exhibit 285.

BY MR. SHOWALTER: 

Q Mr. Hovanec, do you recognize that document?

A That's what we call a "housing roster."

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Q It's a --

A A headcount roster. I'm sorry.

Q Okay. A headcount roster. Does it have a date?

A Yes. July 9, 2014.

Q And does it have -- does it state the floor, house and pod

number?

A Floor is 2. House is Bravo. And the pod 1. And then

there should be -- let's see. There's three -- there's four

sheets.

Q There's four sheets. And is that a document that you

recognize that you used when you were at the Maricopa County

Sheriff's Office?

A I have used a similar document, but this one, this

particular one was not my own.

Q This one is not your own. How do you know that?

A Because my number is not on it.

Q And where would your number be found?

A Well, so the floor officers do the headcounts and mark it

on here, who is present and who is not. I was not a floor

officer on this -- on July 9th, 2014, so I would have

possibly -- I probably had one of these up there.

I'm certain I had one up in the tower but this

official headcount roster was from the floor officers in 2

Bravo.

Q But you're able to identify this as an official headcount

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of the sort you used that would have been available at the

jail and would have been in use there, correct?

A Yes.

MR. SHOWALTER: Move Defendant's Exhibit 285 into

evidence.

MR. STRUCK: No objection, Your Honor.

THE COURT: 285 is received.

(Exhibit No. 285 admitted in evidence.)

MR. SHOWALTER: And may I have permission to publish

it to the jury?

THE COURT: You may.

BY MR. SHOWALTER: 

Q So when you were referring to the numbers being on or not

on it, where would that be found? At the very top?

A That's correct. The identification numbers to the

officers.

Q And is there a significance of them putting their

identification numbers in at various times?

A That's who completed the headcounts at that time.

Q And then would your list, to the best of your knowledge,

the headcount that you had, would have been essentially the

same as this except that any strike marks or additions would

have been in your own writing?

A Yes, but it would just -- if I had one of these up in the

tower, it would have just been for my own reference, not like

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an official headcount. It would be just almost like a

secondary so I can -- I have another resource to judge where

inmates are and what cells are open.

Q And so you would need to have one of these so that you

would know which cells are open so that you could assign

inmates to cells?

A I don't need to have one. It wasn't mandatory to have

one, if I remember correctly up in the tower, because JMS

would tell you that.

Q But you testified earlier that when you were informed that

you needed to find a house -- I'm sorry -- a bed for Ryan

Bates, you went to the headcount roster, correct?

A Not the headcount roster that was downstairs. They're

both headcount rosters; one is official and one is just for

reference.

Q The for-reference one that you had upstairs in the tower,

that's what you actually used, correct?

A Yes. I said that and JMS.

Q And JMS. So you start with the headcount like this and

you go down it. And what was the first empty cell that you

found or the first empty bed that you found?

A It should have been 302. But I'm not sure if I found that

off of the headcount roster or JMS. You can find it in both,

so --

Q I thought you testified earlier that you go to the

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headcount -- that you, in fact, went to the headcount roster.

Am I --

A Well, there's two ways of doing it. There's JMS. There's

the headcount roster. And then there's both.

It was practice for me to -- normal practice for me

to look at this, the headcount roster that I had up in the

tower, and then if there's an available cell, cross-reference

that with listing the cells on JMS.

Q Do you have -- you have no specific recollection of doing

this with regard to Ryan Bates, correct?

A No. It was a long time ago. I mean, the exact procedure

was that I put them in there. I couldn't tell you what I was

thinking, what I was eating, you know, specifics, things of

that nature and witness also what was happening. I do

remember that it happened.

Q Can I have you scroll down. And so you recognize the

names at C-O3, bunk one, as Zachary Daughtry.

You can read that there, correct?

A Correct.

Q And can you also see that 002 is Bates? It just says

"Bates" and then it has a booking number.

A Correct.

Q And then if you go to C-05 it's got "Gause, Richard." Do

you see that?

A Yes.

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Q And then below that crossed out it has "Dusko Krstic." Do

you see that?

A Yes.

Q Did you know any of those people?

A Well, I know the inmates on a personal level.

Q Would you have recognized any of them?

A No.

Q Would you have had any interaction with them on a regular

basis that you're aware of?

A Not that I'm aware of. I may have seen them before, but I

don't -- I don't know.

Q So what is the written policy on cell assignment in

Segregation at the Maricopa County Jail?

MR. STRUCK: Excuse me, Your Honor. Asked and

answered and cumulative.

MR. SHOWALTER: It hasn't been asked.

MR. STRUCK: Not of this witness but other witnesses.

THE COURT: Overruled.

THE WITNESS: You're going to have to refer to MCSO

policy. I don't recall.

BY MR. SHOWALTER: 

Q If I avow to you that I have looked through the MCSO

policies and we've asked other witnesses and we haven't been

able to find one, would you have any reason to disagree with

me?

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MR. STRUCK: Your Honor, counsel is testifying.

Objection.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q So you're personally not aware of any written policy on

cell assignment?

A Not that I can think of off the top of my head.

Q Do you recall who trained you to make cell assignments at

the tower in Disciplinary Segregation?

A No. It was a long time ago. I don't know who trained me

up there besides my FTO, I'm sure, and that was something that

we went over. But that was something that was passed along on

how to do it.

My common practice was just to put somebody in the

first available cell.

Q And, sir, it was just something that was passed along that

that's how you were trained. This is how we do it. And some

other detention officer trained you in that, correct?

A I don't recall exactly who trained me in that.

Q You just said it was passed along. I'm not staying who

exactly. I'm just saying you learned it by doing and were

taught by maybe a training officer or some other officer,

fair?

A Fair.

Q Now, the information you were taught to use in doing that

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was the headcount and then the JMS screen D005?

A If that's what D005 was, then, yeah, I would check both of

them.

Q What information were you trained to look for in making

cell assignments?

A The classification, if they had any medical, lower-tier,

lower-bunk, If they were a "keep-away" from somebody in that

cell or whatever it specifically was and -- I'm sorry. I'm

drawing a blank here.

Q Is it your understanding -- is it your understanding that

the tower officer makes the cell assignments because he's the

person who knows the most about the individual inmates?

A I'm not sure why -- okay. 

So when somebody needs to be housed in 2 Bravo, they

would call me to tell me that somebody was coming in.

I would find a place for them and either the floor

officers or the level control officers move him into that

cream. So I don't know if that answers your question.

Q Were you ever trained about the need to recognize the

dangers of individual inmates or the vulnerabilities of

individual inmates?

MR. STRUCK: Objection, Your Honor. Compound.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q Were you ever trained to recognize the dangers of

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individual inmates?

A I don't understand what you mean by "danger."

Q Well, were you ever trained to look into the criminal

background or history of individual inmates?

MR. STRUCK: Objection, Your Honor. Foundation.

Vague. 402.

THE COURT: Overruled.

THE WITNESS: That would be Classification classifies

inmates.

Q Classification has that information, correct?

A They should.

Q And you received training at the academy about what

Classification did, right?

A Correct, at some point, I suppose.

Q And did you have an understanding that Classification's

job within the jail is to gather information and classify

inmates?

A Yes.

Q And did Classification provide all the information that it

gathered about individual inmates? Did it provide that

information to you as a detention officer making cell

assignments?

MR. STRUCK: Objection, Your Honor. Vague.

THE COURT: Overruled.

THE WITNESS: We don't investigate inmates. We go

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off their classification, so --

BY MR. SHOWALTER: 

Q Are you -- are you concerned about -- well, let me strike

that.

So you would agree with me that you don't have more

information about individual inmates than Classification?

A What kind of -- what information are you talking about?

Q Well, if Classification has information about the

histories of individual inmates as you were trained they did,

then they would have more information about individual inmates

than you as the tower officer.

A I mean, I don't know Classification's job. Classification

makes an inmate either a minimum, a maximum or medium or a

Closed Custody inmate in different tiers through whatever

information that they have. So I don't make that judgment on

what classification they are.

Q I want to show you a document that's in evidence as

Exhibit No. 34 and I'm going to publish it to the jury as

well. Do you recognize this person?

A No. I can read who it is, but --

Q And who is it?

A That is Zachary Mikol Daughtry.

Q So that's Zachary Mikol Daughtry?

A Yes.

Q And you have never seen him before?

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A Not that I recall.

Q And you have no recollection -- and so you hadn't -- well,

strike that.

Now, I'm going to go down a page and this is a

document that was produced to us as Zachary Daughtry's

Classification file.

Did you have any of this information --

MR. STRUCK: Objection, Your Honor.

Again, counsel is testifying and that's not how it

was produced to them.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q Did you have any of the information contained in Exhibit

34 that I'm showing you about Zach Daughtry?

A No, I didn't write any of them.

Q And did you have access to a file on Zach Daughtry like a

physical file folder full of documents when you made his cell

assignment?

A No.

Q Did you have access to a physical file about Ryan Bates

when you made that cell assignment?

A I didn't -- with Daughtry I didn't assign Daughtry a cell.

Q You're right. I was incorrect.

You assigned Bates into the cell with Daughtry,

correct?

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THE COURT: Let's take a midafternoon break.

Let's make it ten minutes. And please remember the

admonition.

(Recess taken at 2:44 p.m.; resumed at 3:01 p.m.)

THE COURT: Thank you. Please be seated.

The record will show the presence of the parties,

counsel and the ladies and gentlemen of the jury. 

Counsel, you may continue.

MR. SHOWALTER: Thank you.

BY MR. SHOWALTER: 

Q Mr. Hovanec, when we left, we were talking about cell

assignment and was it your understanding from the entire time

that you worked at the Fourth Avenue Jail that it was the

tower officer's responsibility to make cell assignments.

A I usually took on that responsibility. I would monitor

who went where. It doesn't necessarily mean that it would

have to be the tower officer. I'm sure anybody could assign

somebody as long as they had access to JMS and the headcount

roster.

Q So anybody could make a cell assignment?

A Anybody in that house, if necessary.

Q And you don't remember there being any written policy that

actually said it had to be the tower officer?

A No. I don't recall.

Q Did you ever -- you never worked at the Lower Buckeye

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Jail, did you?

A No. I didn't.

Q During your time at the Fourth Avenue Jail, did you

ever -- did you work other positions other than the tower

officer?

A Yes. I worked the floor officer, level control. There

were a few positions, not too many, but a few positions inside

the jail.

Q And the tower officer, are they required to stay in the

tower for the duration of their shift?

A Yes. You can't get out of the tower unless somebody comes

in there to relieve you because there's only one -- well, yes.

Q And so you can't go down and meet inmates or get to know

any kind of inmates?

A Not from the tower. You do have -- there's a

communication system.

Q You have an intercom system?

A Yes.

Q How many fights would there be in 2B on an average week?

A I really couldn't give you that statistic.

Q Based on your experience, how many fights did you say on a

weekly basis? Would you see one fight? More?

A Unfortunately, I don't keep track of that kind of stuff

and it's been a long time ago. I haven't worked there in a

while, so I don't know. I mean, I couldn't give you an

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accurate answer at all.

Q Do you have in front of you Defendant's Exhibit 259 which

is not admitted into evidence?

A Yes.

Q Can I have you take a look at that?

A Yes.

Q And can I have you look at page 6.

A All right. I'm on page 6.

Q Are you on page 6?

A Yes, sir.

Q What kind of a document is this?

A This is the Operations Journal is what it appears to be,

yes.

Q And did you use -- did you refer to the Operations Journal

when you were working for the Maricopa County Jail?

A Everything that we did, within reason, was logged in OJ as

a time line of events.

Q And so would the person who made the entry put in their

name and their number?

A Yes. I believe it automatically did that when you put an

entry into the system.

Q And was it the tower officer's responsibility to keep the

OJ log?

A Yes.

Q Okay. Do you recognize this as the Operations Journal,

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the log for July 9th of 2014?

A Yes. It should be.

Q And there's -- the third entry down, do you see that entry

at 5:40 p.m. It's actually in 24-hour military time 1740?

A 1740. Yes. Correct.

Q Could you read that entry for me?

A Inmate Krstic and Straughter were observed in a fight

inside their cell during headcount by Officer Wade. Both

inmates were taken out of the pod. Reference. Krstic, Dusko

T081980. Straughter, Geortis Georta T039460. Reference:

Officer Sgt. J. Wade A7644 and then signed by me, Officer

Hovanec, B2469.

Q And so do you recognize this as a record kept in the

ordinary course of business?

A Correct.

Q Do you have a specific recollection of that fight

occurring?

A I do not.

Q Given that it's in there and that you made the entry into

the OJ log and it's one of the records kept by Maricopa

County, you believe it accurately reflects what happened on

July 9th at 5:40 p.m.?

A That's correct. But I don't understand who Officer

Sergeant Wade is, where that person comes into it as a

reference.

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Q That's fine. But you don't dispute that there was a fight

on pod 2B at 5:40 p.m. about four hours before the assault on

Zachary Daughtry?

A No. That's what appears to have happened, yes.

Q Is the fact of having two assaults on one pod in one

evening, is that particularly unusual or is that something

that could happen from time to time at the Maricopa County

Jail?

A I guess it could happen from time to time. I mean, it's

just -- those individuals, it's their decision to fight, so. 

Q If somebody told you that in the entire course of 2014 for

all of the Maricopa County jails, all six facilities at that

time, that there were only 59 fights, would you find that

credible?

A Depending on the source.

Is it a credible source?

Q But based on the fact that you were a documentary witness

to two fights in one night on one shift on one pod, you would

find it difficult to believe that there's really 59 fights is

the total number of fights in the whole Maricopa County Jail

system?

MR. STRUCK: Foundation. 402. 403.

THE COURT: Overruled.

THE WITNESS: I can't really attest to that. I don't

know if it's -- I don't understand what you're trying to ask,

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really, I guess.

BY MR. SHOWALTER: 

Q Okay. Would you agree with me that making a cell

assignment in Disciplinary Segregation for maximum security

inmates creates a risk to the inmates involved?

MR. STRUCK: Objection, Your Honor. Vague.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q In your experience are inmates dangerous?

A Every inmate is potentially dangerous, so it's a common

practice to treat every inmate like they're dangerous, so

safety for yourself as an officer. That's how I did it, so.

Q And if you're in minimum security units or medium security

units, it's often the practice that a floor officer come out

by themselves and their partner is a tower officer, right?

A I believe for minimum security units. I know we had some

mediums in Fourth Avenue at one point, but I don't really

recall. I know we always walked with two officers because it

was a max facility, so.

Q So you always walked with two officers because it was a

max facility?

A Correct.

Q And because you recognize that although every -- in fact,

every human has a potential for violence, fair?

A Yes.

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Q And when you're in jail, when you're in jail you're

dealing with people who have, you know, some history that's

landed them in jail and then they may have a greater potential

for violence than people outside, fair?

A I think just the environment itself, it's different than

anywhere else. So, you know, you have to be careful when

you're in the pod or you're dealing with any inmate.

We don't know what they're thinking, what they have

going on, so, you know, it's best to be, you know,

precautious.

Q And when you were at the tents, what security level was

that?

A Well, they were sentenced inmates, so I don't know if they

had -- I don't remember exactly if they had an actual

classification.

Q Based on your training at the academy, you knew that

maximum security inmates had already been determined to be

more danger than minimum and medium, correct?

MR. STRUCK: Your Honor, vague.

THE COURT: Was that an objection? I just didn't

hear it.

MR. STRUCK: Yes, Your Honor. Object to vague. The

question was vague. The terminology used.

THE COURT: Overruled if you can answer it.

THE WITNESS: I'm sorry. Can you repeat that, sir?

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BY MR. SHOWALTER: 

Q Based on your training at the academy, you knew that

inmates who were classified as maximum security had already

been determined to be more dangerous than inmates at lower

security levels, correct?

A Classification deemed them a max. I mean, that's

obviously a higher classification than medium or minimum but

it's not the highest.

Q You say that maximum is not the highest classification?

A No. Closed Custody is.

Q Aren't -- forgive me if I'm misunderstanding something,

but isn't "Closed Custody" a housing category rather than a

classification category?

A I apologize. It's been a long time since I have been

there, so I think you're correct there. But, yes, Closed

Custody would be a "house-alone" as well as a max, I believe.

You're correct. I'm sorry about that.

Q And so there can be in maximum security, not Closed

Custody, murderers, right?

A What do you -- I'm sorry. What do you mean? Housed

where?

MR. STRUCK: I object to foundation, Your Honor, to

this line of questioning. He's not a Classification expert.

THE COURT: Overruled.

BY MR. SHOWALTER: 

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Q An ordinary maximum security house with other inmates, in

cells with other inmates, that were murderers, correct?

A It's possible. I don't really -- you know, I don't know

offhand if that really is the case, but I suppose it's

possible if the classification where they -- where they would,

yes.

Q Okay. Would you agree with me that when you lock two

people in a cell, you're creating a potential risk to both

people based on the characteristics of the other person?

MR. STRUCK: Vague. 402. 403.

THE COURT: Overruled.

THE WITNESS: I don't know the characteristics of

every individual inmate. We wouldn't become attached to

inmates in that nature, so I mean, I --

If there's ever something that we know that is an

issue, we would push it to a supervisor or a medical personnel

to have it looked at. But other than that, I mean, I just

don't know the characteristics of every inmate, especially in,

you know, in 2 Bravo. People come in and out all the time

for, you know, DARs and such, so. 

Q Well, if you had two inmates that you have to put in cells

and you know that one of them is in there for failing to

appear on a traffic fine and the other had committed a murder,

is that something you would want to know before you assigned

them to the same cell?

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MR. STRUCK: It's speculation. It's vague. It's an

improper hypothetical.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q You don't want people to be hurt when you put them in

cells, do you?

A Not particularly, no. I mean, I'm not in the business of

hurting people.

Q You want to make the safest cell assignment you can

because you have an obligation to provide care, custody and

control, fair?

A Within policy.

Q Within policy?

A Of course.

Q And if Maricopa County were to change the policy --

Strike that.

Whatever policy you were taught, you followed when

you were at the Maricopa County Sheriff's Office, correct?

A To the best of my knowledge, yes.

Q And during the course of your time at the Maricopa County

Sheriff's Office, were there times when they taught you a new

policy?

A There were new policies that came out. They would be

distributed through our e-mails or online training of some

sort, I imagine, but new policies came out.

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Q And when a new policy came out, you would follow it, fair?

A Yes.

Q It's not your job to second-guess the policy?

A Correct.

Q Do you believe that you were the person who had the most

information in the jail about Zach Daughtry and Ryan Bates

when you made that cell assignment?

A That's a difficult question to answer.

I mean, Classification would have looked over a lot

more than I would have and did more in-depth investigation on

who these people are to classify them.

But I just classified to, you know, the main things

that we discussed before, you know, the classification,

medical and so on and so forth.

Q And so you just followed the policy, fair?

A Yeah, correct.

Q I'm going to show you a document that's been accepted into

evidence as Exhibit 34. And I would like to have you look at

page 449 of that document.

I can display it and publish it to you and the jury.

Do you recognize this document -- not this particular

one, but this type of document as a form you would use at

Maricopa County?

A It looks like a Psychiatric Referral, what we would refer

to it as, if I remember correctly.

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Q Now, it says the reason for referral is Inmate Daughtry's

behavior is of a concern for his safety, as when you try to

talk to him, he stares at the wall and the floor, giggles and

acts as if you were not there. He sits on the floor in a

mediation-style pose for long periods of time. His odd

behavior may endanger himself as other inmates will perceive

it as odd.

Do you see where it says that?

A I do see that. Yes.

Q Did you have that information when you assigned Ryan Bates

to the cell with Zach Daughtry?

A No. I mean, this would have been referred to the

Psychiatric Department for him -- for Daughtry to be

evaluated. So we don't receive those as general officers.

When he's reclassed, it's different, but. 

Q And so when you made that decision, you did not have

access to that information?

A I did not see this paperwork, no.

Q If you had had access to that information, would that have

changed your decision?

A That's kind of speculation. I'm not sure. Depends on a

lot of factors. I didn't -- I wasn't present for this. I

didn't have anything to do with this. I didn't see this

happen and I didn't see it before I assigned him a cell, so.

Q But if you knew that an inmate's odd behavior put them at

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risk, would you simply put another inmate -- another maximum

security inmate in with him?

MR. STRUCK: Objection, Your Honor. Calls for

speculation.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q I'm going to ask you to look at another document. This

has been admitted into evidence as Exhibit 58, Plaintiff's

Exhibit 58, and this is an e-mail from Rosie Carrillo to

Walter McGowan. Do you know either Walter McGowan or Rosie

Carrillo?

A No, I do not. I don't recall who those -- if I have met

them. I don't think I know them.

Q Now, you see that it says "Sergeant McGowan." Does that

indicate to you that that would have been a uniformed

detention officer who received this e-mail?

A He would have been a supervisor, yeah.

Q And in the e-mail it says -- it's from Rosie Carrillo who

is identified as a Classification Supervisor. And it says:

I spoke to my Supervisor John McMullan about Inmate

Zachary Daughtry. John also agrees that this inmate is

probably not suitable for maximum security. This inmate has

not had any violent DARs, does not have a current or past

violent arrest and does not have any felony arrests, only

misdemeanor arrests. It appears this inmate has more

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psychological issues as he has been placed into Psych housing

several times and is currently awaiting a Rule 11 his next

court.

Do you see that?

A I do.

Q Did you have access to this information indicating that

Zach Daughtry was not suitable for maximum security when you

assigned Ryan Bates to the cell with Zach Daughtry?

A No. I mean, we don't have direct -- that's an e-mail to a

Classification Supervisor. I wouldn't have access to it --

the e-mail.

Q It's an e-mail from a Classification Supervisor, right, to

a sergeant?

A Okay. I'm sorry. Yes. Okay. But it's a personal

e-mail. I wouldn't have access to their personal e-mail.

Q But it's not a personal e-mail. It looks like it's on

Sheriff e-mails, correct. It's an official document, official

e-mail?

MR. STRUCK: Objection, Your Honor. Counsel is

testifying. Foundation.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q Do you see at the bottom there's a signature line? And

then there's an e-mail address. And that's a government

e-mail address, isn't it?

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A Yes. It's a Maricopa County e-mail address.

Q And so when you say it's a personal e-mail, you simply

mean that it's between two individuals at Maricopa County?

A Correct. I apologize. I just don't have access to this

individual person's e-mail, whether government or otherwise.

Q And I'm going to have you look at another exhibit that's

been admitted into evidence as -- 

47 is in, correct? Plaintiff's 47?

It's not? All right.

If you had had information that three days before

July 9th, on July 6th, Zach Daughtry had been assaulted by his

cellmate because he had urinated on his cellmate's blanket --

Well, let me strike that question.

When you made the cell assignment, were you aware

that three days before Zach Daughtry was observed with bruises

on his face in a maximum security cell as a result of a mutual

fight with his cellmate?

A I don't recall. I mean, I don't know if I had moved him

at that point. I'm sure -- I don't recall having anything to

do with the inmate assault with Daughtry before that, so I

have no idea.

MR. SHOWALTER: Thank you.

THE COURT: Cross-examination.

MR. STRUCK: Yes, Your Honor.

CROSS EXAMINATION

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BY MR. STRUCK: 

Q Good afternoon, Mr. Hovanec.

A Hi. How are you doing?

Q Are you a little nervous?

A A little bit, yeah.

Q Have you ever testified in court like this before?

A No.

Q Well, it's almost over.

If you would please, I'd like to know a little bit

about your background.

Did you -- did you go to school -- did you go to

college?

A Yes.

Q Where did you go?

A I went online. I went to the University of Phoenix. I

just recently graduated, so.

Q Just recently graduated. And what's your degree in?

A Management.

Q Now, before you came to the Maricopa County Sheriff's

Office, where were you employed?

A Before MCSO, gosh. I actually was working for -- I think

a limo company. I was driving a limo and I had gone to school

for my CDL before that.

Q When you got out of high school, did you -- where were you

employed?

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A Well, I joined the military.

Q Okay. And what branch?

A Army.

Q And when were you enlisted?

A I was active duty from 2002 to 2008. I have been in the

Reserves since 2008, so 17 -- roughly 17 years.

Q Okay. And when you were in the Army, what was your duty?

A I was a Military Police soldier.

Q And were you a Military Police for the entire time that

you were in active duty?

A Yes.

Q And you say that was about six years?

A Yeah. March 2002 to -- I want to say June 2008 roughly.

Q Okay. So about six years?

A Yes.

Q And when you were in the Army and you were a military

policeman, did you get any training with respect to your

duties?

A Yes.

Q As a military policeman, what were your responsibilities?

A To keep the base, persons and property safe from, you

know, crime, terrorism, many, many aspects of, you know, the

cantonment area. So, be a police officer in the cantonment

area and our training areas.

Q What was your rank?

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A E5. I was a Sergeant.

Q And when -- did you get an honorable discharge?

A Yes.

Q Okay. And so you -- as you left the active military and

an E5 Sergeant level?

A Yes.

Q In the Military Police?

A Yes.

Q Okay. Any other law enforcement experience besides

working at the Sheriff's Office and being a Military Policeman

for six years?

A Yes. I worked as a Department of the Air Force --

Department of the Air Force police officer just for a short

amount of time, seven months roughly, at Luke Air Force Base.

Excuse me. And I have been -- since Luke Air Force

Base I was hired at the Phoenix VA as a police officer and

that's where I have been -- that's where I'm currently

employed now.

Q And what are duties there at the Phoenix VA as a police

officer?

A Oh, everything. Well, you know, we police, you know, all

the federal area. Every area that the VA occupies. You know,

obviously, we don't have, you know, concurrent jurisdiction

with outside agencies, but, you know, everything within our

area, any police matters, including investigations, car

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accidents, assault or things of those nature, so everything a

police officer does.

Q Okay. Now, counsel asked you earlier about your Maricopa

County training and asked you what you remembered about your

training.

How long ago was that that you went through the

in-service training -- I'm sorry -- the initial training at

the Sheriff's Office?

A I think it was 2002.

Q One of the things that you referred to earlier in your

testimony when -- I think it was when counsel was asking you

about who trained you or how were you trained with respect to

your duties as a tower officer. 

You used the term "FTO." What does that mean?

A An FTO is a field training officer.

So when you go to a jail or maybe a special

assignment or -- you usually have a field training officer

assigned. Usually, always one assigned to the shift in

general, but in the beginning of your assignment or as a new

officer, you would go and you would do a variation of time

frame training with the field training officer, the FTO and so

you can -- he or she can make sure you know what you're doing

before you go out there by yourself.

Q All right. I found what I was looking for.

Your Honor, may the clerk publish Exhibit -- it's not

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in evidence yet -- Exhibit 135 to the witness, please.

If you would take a look at that document, do you

recognize Exhibit 135?

A Yes.

Q And what is it? Can you identify it, please.

A This looks like the training schedule for my academy class

for Maricopa County Sheriff's Office.

MR. STRUCK: Your Honor, I would like to admit

Exhibit 135.

THE COURT: 135?

MR. SHOWALTER: No objection.

THE COURT: 135 is received. Thank you.

(Exhibit No. 135 admitted in evidence.)

MR. STRUCK: Your Honor, may we publish to the jury?

THE COURT: You may.

BY MR. STRUCK: 

Q Okay. So Exhibit 135, it looks like it consists of

several pages. What are -- what is listed here, Mr. Hovanec?

What -- can tell us what all the -- you don't have to read it

but just, generally, what all is listed on this document?

A The training necessary to become a detention officer and a

time line of events for the different weeks and days.

Q And it looks like it's a daily -- it has the classes that

you took on a daily basis for that period of time?

A Correct. Yes.

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Q Okay. And it goes from Week One. And if you look at MCSO

Bates stamp, page 4339, it goes all the way to Week Nine; is

that correct?

A Yes.

Q Okay. And is this the -- this is kind of the initial

academy training that you underwent before you started as a

detention officer?

A Yes.

Q Okay. And if -- once you became a detention officer, was

there any additional training that you went through besides

the academy?

A I forget what it's called. We did a lot of online

training.

Q All right. So -- was that something that was done on an

annual basis? You had to do some sort of in-service training?

A You know, it's been a long time, but, you know, we did --

I've gone back to the academy for training. I just don't

remember what those things were.

Q So even after you went through the academy and you started

to work as a detention officer, there were times when you went

back to the academy for additional training?

A Yeah, for like, I believe it was a re-certification for

CPR. I was back there -- I don't remember what all I went

back there for, honestly, but.

Q But from time to time you went back for additional

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training?

A Yes.

Q And you also said there was online training as well?

A There was. There is, I'm sure.

Q Do you remember how many hours a year that you had to do

of the in-service online training?

A Oh, no. There's a lot.

Q When you started as a detention officer, was there any

on-the-job training? OTJ.

A Yeah. We had -- I think it was a three-week FTO program,

if I remember correctly. Just approximately, though, I don't

remember exactly what it was. 

But, yeah, I spent time with a field training officer

working next to them and them training on how the Fourth

Avenue worked.

Q So tell us, I mean, how would that work? You would shadow

somebody or the FTO would follow you around and show you how

to do certain things?

A Well, it went in phases. First, the FTO -- and I don't

remember the curriculum exactly. I was never an FTO. But I

know I walked around with the FTO for a couple of days and he

showed me a lot of things.

Then he would monitor me doing those things that he

showed me. And then to the point where I pretty much could go

out on my own and do it and he was just watching and making

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sure that I did it well enough to be able to do it on my own

with no supervision.

Q And was one of those duties that you were trained on by

the FTO the tower officer duties?

A Yes. He took us up in the towers.

Q Okay. And you talked a little bit in your testimony about

the duties of a tower officer. And I know one of them was --

we all know one of them was cell assignments.

What other types of things as a tower officer would

you be responsible for during your shift?

A You would, depending on what house you were in, like in 

2 Bravo, when it's time for hour-outs when they come out of

their cell, you would have to make sure that everybody gets to

come out at a certain time and that it doesn't contradict with

any other issues as far as if there were "house-alones" or no

contact with other inmates. So there was a lot to that.

Q Okay.

A So, let's see, what else would there have been?

Q Was there -- what kind of responsibilities did the tower

officer have with respect to any, say, doors or those kinds of

things? Was there anything like that?

MR. SHOWALTER: Objection. Asked and answered in

direct.

THE COURT: Overruled.

BY MR. STRUCK: 

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Q As the tower officer, did you have any responsibility for

people coming and going?

A Yes. As the tower officer you control the doors, control

the doors into the housing unit itself, into the individual

pods that you control the door to where the -- they have legal

visits. You control the doors to the cells which can be used

with a key in the cells as well in most houses.

But, you know, mainly it's a tower officer's

responsibility to open and close doors.

Q Okay. And when, say, staff were in, say, the 2B pod, what

responsibilities did you have with respect to when there are

floor officers on the floor. What did you have to do?

A The number one priority was always to watch the officers,

make sure, you know, nothing is happening, especially when

they're handling inmates. 

You don't want to see other officers get hurt because

you're not paying attention, so that was the number one

priority for me.

Q And how would you accomplish that when you were up there

in the tower?

A Sometimes you can see, but it's a little difficult in some

places. You would have to stand up to see anyway. But we

have cameras. There was cameras in the -- that show a good

portion of the pod.

Q So you either -- there was -- you either visualized it

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without assistance or you were looking up at some sort of a

screen?

A Correct.

Q And then you spoke a little bit about the Operations

Journal or the OJ journal. What was supposed to be put into

the OJ journal?

A Everything. A lot of things. Anything that happens in

order to make sure it did happen and there was a record of it.

So if healthcare professionals were coming in, we

would mark that and their serial number.

If the sergeants were coming in to -- to pick up

grievances or, you know, the various things that happen, I

mean, pretty much it's a log of everything that happened from

beginning of shift to end of shift; movement of inmates, the

distribution of meals, you know, just everything that

happened. It's just a log of everything that happened.

Q When you were assigning cells, you talked about some of

the things you would look at. And, again, we've heard a lot

about it in this case. JMS. That's the Jail Management

System, correct?

A Yes.

Q And what would you look at in JMS when you got the call to

say: 

Inmate Bates is coming into your housing unit.

What would you do?

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MR. SHOWALTER: Objection. Hypothetical. Asked and

answered.

THE COURT: Overruled.

THE WITNESS: You would check the classification of

the inmate? You would check if they were --

BY MR. STRUCK: 

Q Let me stop you right there. 

You checked the classification of the inmate?

A Yes.

Q Were all of the inmates that were held in that pod,

particular pod, maximum security inmates?

A At the time, I believe, we had medium inmates in there on

overflow from another jail.

Q Okay. And so would you house medium and maximum inmates

together?

A You were able to, if I remember correctly, go one up or

one down. So medium with a max or medium with a minimum.

But you can never -- you never put a minimum with a

max, if I remember correctly.

Q Okay.

A But, I mean, for me I didn't -- if I didn't have to put a

medium with a max, then, you know, you try not to. That's not

always the case. Sometimes, you know, there's other variables

involved in time and things of that nature.

Q So, if I understand what you're saying, your practice was

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to try and match security levels. If you had mediums and

maximums in the same housing unit, you tried to put the

maximums together and the mediums together?

A Correct.

Q But you were allowed under policy to house a max with a

medium?

A Yes.

Q Or a medium with a minimum?

A Correct. Yes.

Q So the night when Mr. Bates came into the housing unit you

could have housed him with a medium security inmate per

policy?

A Per policy, I could have.

Q That just wasn't your practice?

A Correct.

Q All right. So you checked classification.

And what else did you check in JMS?

A You would check if they were "house-alone."

Q All right. And how would that -- since we don't have the

JMS system here to show the jury, can you describe what --

what would you see? 

How would you know what is a "house-alone." How

would that be indicated?

A It would be indicated on the notes on the bottom of the

screen in the booking screen.

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Q And it would specifically say "house-alone"?

A It would. It would say "house-alone." And it wouldn't

allow you to assign that inmate to a cell that was -- that had

another inmate in it.

Q So there was some sort of stop in the program itself that

would not allow you to place another inmate in with a

"house-alone"?

A If I remember correctly, yes. It wouldn't let you do it.

So -- and that's why I always would check JMS.

Q Okay.

A That was another reason.

Q What else would you look for besides "house-alones"?

A You know, medical, lower-tier, lower-bunk and then

"keep-aways."

Q All right. And explain "keep-aways"?

A "Keep-aways." So if somebody would -- somebody might be a

"keep-away" if they had been into a fight before. You would

put them in as "keep-aways." They're not allowed to be in the

same cell together, not allowed to come out at the same time

together for recreation or any of those things. I would just

keep them away.

It could be gang-related too. If the gang squad, you

know, decided that those two shouldn't be together, but

usually, we wouldn't put them in the same cell -- or same pod.

Usually, we move them to different jails.

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Q And so in the notes it would tell you which people -- I

mean, how would you know who to -- by looking at the notes,

you would know who not to put in cells together?

A Correct. And I believe -- I don't want to say for sure

because I don't remember. It's been a while. But I don't

think it would let you house each other with a "keep-aways."

I'm not positive on that, but, yes, I would always check

anyway because that was my job.

Q All right. What is the DBK1? Do you know what that is?

A I believe it was booking detail, yes.

Q And what was that something you might look at in JMS too?

A Yeah. It will give you a lot of information, you know, as

far as where the person has been, what the classification

indications are. 

If they've gone up classifications or been below

classifications, it will tell you where and what jails they

have been -- I think it tells you what jails they have been

moved to or -- yeah, movement. It's kind of just notes.

Q And is that something that you would look at every time

you would look at the -- at the booking detail every time you

were making a cell assignment? 

A Yes, because you didn't want to be -- you know, you don't

want to put somebody with -- you know, any of the "keep-away"

stuff.

Q Okay.

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A You know, so.

Q So you would check that booking detail?

A Sure.

Q Let me show you what's in evidence as Exhibit 34. And it

will pop up on your screen.

And specifically, page -- hang on a second. Let me

give you the Bates number. Bates No. 003488?

Take a look at that. What is that?

A That's the printout of the DBK1, the booking detail

inquiry.

Q And this is something that you would have access to?

A Yes. Yes. I would come up and that would just be in JMS

on the screen.

Q Okay. And it looks like there's some things blacked out,

but those look like some sort of I.D. numbers and dates of

birth.

Let's take a look at exhibit -- or excuse me -- page

No. 3489. Is this also part of the booking detail that you

would have access to?

A Yes. I just believe it's the -- it's sequential to the

page we just saw.

Q Okay. So, for example, if there was some -- if Psych had

said something about a "house-alone," it might show up here on

this particular booking detail?

A Yes. It might actually show up on both this one and the

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one we just looked at too. I'm not -- I don't remember

correctly, but I would look through both.

Q Okay. And it also shows that the escape -- do you see

that on there?

A I do.

Q And this is the booking detail for Mr. Daughtry; is that

right?

A Yes.

Q Okay.

A Uh-huh.

Q And I think you said you didn't assign Mr. Daughtry's

cell, so you probably -- did you refer to Mr.--

Let me ask you. When you put Mr. Bates in with

Mr. Daughtry, would you look at Mr. Daughtry's booking detail

as well as Mr. Bates?

A No. I mean, I would have looked to make sure he wasn't a

"house-alone."

Q Okay.

A And that's the only thing I would have looked at -- or a

"keep-away." But that would also be on Bates.

Q Counsel asked you about Exhibit 259. Let me show you

Exhibit 259; specifically, page No. MCSO 150.

And if you'd look at the second and third entry -- or

were those entries made by you -- I'm sorry. It should be up

on the screen. You can look up at the screen, Mr. Hovanec.

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A The first -- I'm sorry. Which ones?

Q The second and third entry. Were those made by you?

A Yes. It's got my -- yes.

Q Okay. It doesn't -- do either one of those entries say

anything about anyone being injured?

A No.

Q Is there anything in there about -- I'm sorry.

Could you put that back up. 

Anything in there about Medical being called to

assess anyone's injuries or anything like that?

A It does not, no. Both inmates were taken out of the pod,

so we probably placed -- I don't know what happened after

that.

Q Why don't you take a look. If you go down and you see

that entry right there, it says: 

Both inmates were brought to Medical holding tanks

and given the opportunity but they refused medical treatment.

Do I see that?

A That's correct and that's common practice. You take the

inmates out after they fight or unless they need medical

attention right there. 

But you would take them out of the pod, move them to

separate holding cells in the hallway and call Correctional

Health Services to come see them and clear them.

Q If they are involved in any altercation at all, whether

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you see injuries or not, would Medical be called?

A Yes.

Q Okay. Let me show you Exhibit 285, please. And that's in

evidence. And counsel asked you about this.

Now, this was the floor officer's headcount roster.

Was that your testimony?

A Correct.

Q Okay. And that -- is this -- and this is something that

you -- you said you kept something similar up in the tower

with you?

A Yes.

Q Was that something that was done by policy or was that

just your practice?

A I don't believe it was by policy. It was almost like a --

for me it was a failsafe. If, you know, computers -- anything

can happen to computers. So I always marked down and wrote in

pen and would write in the inmates that were coming and the

inmates that were going.

This way, if anything happens to the computer system,

I still have something that says where the inmates are. It's

an accountability is a big thing, so.

Q So in other words, if you looked at the computer, you

would see all of this information, but just in case something

happened, you kept a back-up?

A Correct. And, you know, when you needed to get

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information very quickly, this document has a lot of

information on it, so.

Q Okay. And so that's -- there's the -- looks like the

floor officer wrote in "Bates in Mr. Daughtry's cell." Is that

correct?

A Correct.

Q And it also looks like -- if you look below, you see

Mr. Gause in C5?

A Correct, in bunk one.

Q And there is an indication that he was housed at one point

with a Dusko Krstic?

A Correct.

Q And what does that say next to Dusko Krstic? Where was

Krstic moved to?

A Well, he was moved. It moved to 2 Bravo 1 -- 100 pod.

I'm not sure if that's a 17 or a 13 but it's one of those.

Q Let's look at the next page and maybe that will tell us.

Which cell was he moved into?

A He was in 13, bunk 2.

Q So he was actually moved from -- he was moved from

Mr. Gause's cell and placed into a cell with an inmate named

Jason Villalobos. Villalobos. Is that correct?

A Yes. Correct.

MR. STRUCK: Your Honor, defendants move to -- for

the admission of Exhibits 282, 283 and 284.

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MR. SHOWALTER: No objection, Your Honor.

THE COURT: 282, 283 and 284 are received.

(Exhibit Nos. 282, 283 and 284 admitted in evidence.)

BY MR. STRUCK: 

Q Let me show you and we'll put it up on the screen, Exhibit

282, page 2725. And this looks like another roster. What's

the date on this?

A July 6, 2014.

Q Okay. And you see that there's a handwritten note?

A Yeah -- on that top left page next to --

Q I'm sorry.

Well, who is in cell C -- cell 3?

A Oh, okay. That's in bunk one there would be Zachary

Daughtry.

Q And it looks like he was housed with somebody.

A Correct. Jason Lopez.

Q Okay. Now the fact that it's handwritten, would that

be -- indicate that that -- Mr. Daughtry, he had either been

moved from another cell or he had just come into the housing

unit that day?

A Yes. More than likely, around 1500 hours or so, because

that's when his first -- that's when the first headcount was

done and he was present.

Q So it looks like at least when Mr. Daughtry arrived in

that housing unit, he was housed with a cellmate; is that

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right?

A Yes.

Q And let's take a look at Exhibit 283, page MCSO 2720.

And if you'll look at cell 3, it looks like Mr. Lopez

is left at what point in time?

A Correct.

Q And what does it say? There's a R-U next to his name.

What does that stand for?

A That would be roll-up.

Q And what does that mean?

A It means they're going to be moved somewhere else,

possibly back to General Population.

A roll-up is really just when you -- slang for when

you're leaving the house.

So this inmate just rolled up. They rolled up his

stuff and they moved to another cell -- another house,

possibly another cell. But, you know, you would have to go

into JMS to actually check where that person went.

Q Now, if, say, you were moving somebody from one cell in

this same housing unit to another, would you put R-U right

next to their name?

A In the same house?

Q Right.

A Probably not. You would put: 

Moved to cell 5. 10. Whatever he was moved to.

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Q If someone's disciplinary time was up and they were

leaving, would you put R-U?

A Yes. I believe so.

Q Counsel in his questioning asked you about whether you

knew of certain information with respect to Mr. Daughtry

whether that was something that you had access to when you

were making the cell assignment.

Do you remember those questions and answers?

A Yes.

Q Okay. Based upon the questions that he asked you

regarding Mr. Daughtry -- and I think one of them -- let me

show you. One of them was Exhibit 34. Sorry. I'm looking

for the correct page number. MCSO 000499 of Exhibit 34.

And, if you would please -- and this is the -- if you

remember, this was the referral for psychiatric services that

he showed you. Do you remember that?

A Yes.

Q What he didn't show you was the date at the bottom.

What was that date?

A January 21st, 2014.

Q Okay. So that was about five months or so before the

incident, correct?

A Correct.

Q I believe more than five months.

But this was one of the things he showed you. I

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think he showed you something else with respect to

Mr. Daughtry.

Would having had that information change your

decision with respect to placing Mr. Bates in his cell?

MR. SHOWALTER: Objection. Asked and answered.

THE COURT: Overruled.

THE WITNESS: No. We housed classification.

If he didn't have any "keep-aways" and he wasn't a

"house-alone" and didn't have any medical reasons, that's what

we justify where we house inmates.

If he was -- if Psych would have wanted him to be

alone, our Psychiatric Evaluation Division or whatever you

want to call them, Psych, would want them to be able to be

alone, then they would have put him as a "house-alone."

I'm not sure if he was evaluated after that. I

imagine so, a psych eval.

Q Do you feel that the mental health professionals that work

at the Mental Health Unit are in a better position than you to

determine whether or not Mr. Daughtry is capable of being

housed in the General Population, max custody --

Excuse me -- in the max custody disciplinary unit?

MR. SHOWALTER: Objection. Lack of foundation.

Calls for expert medical opinion.

BY MR. STRUCK: 

Q -- than you?

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THE COURT: Overruled.

BY MR. STRUCK: 

Q Do you want me to ask that again?

A No. A medical professional is obviously way more equipped

than me to make any kind of medical decision, especially in

mental illness.

I don't have any, you know, medical training, medical

degrees or anything in mental illness. That's why we refer

them to those people so they --

Q You would defer to them to make decisions regarding

whether or not Mr. Daughtry was capable of living in a cell

with another inmate?

A Correct.

MR. STRUCK: All right. No more questions.

THE COURT: Let's take just a --

I'll call it a brief ten-minute break because I

didn't keep the last ten-minute break brief. So let's just

try that and we'll get you in for redirect.

(Recess taken at 4:07 p.m.; resumed at 4:18 p.m.)

THE COURT: Thank you. Please be seated. The record

will reflect the presence of the parties, counsel and the

ladies and gentlemen of the jury. 

And you may go forward with redirect.

MR. SHOWALTER: Thank you, Your Honor.

REDIRECT EXAMINATION

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BY MR. SHOWALTER: 

Q Mr. Struck had you look at Exhibits 282 and 283. Do you

recall that, the headcount roster for 2B? 

Do you have those in front of you? If not I can --

A No. No. I'm sure I have them right here. 282 and 283,

you said?

Q Yeah. And those were admitted into evidence. 

And I want to show you, this is 282.

A Okay.

Q And this is for July 6th of 2014, correct?

A Correct.

Q And this indicates --

Can you tell from this when approximately within one

hour Zach Daughtry was brought in to cell 3, bed 1 of 

2 Bravo 1?

A I can tell you that it was in between 1400 hours, which is

2:00 p.m. and 1500 hours, which is 3:00 p.m. because he's

accounted for at three o'clock but not at four o'clock.

Q And then counsel struggled a little bit on Mr. Lopez.

Do you see his cellmate at that point is Mr. Lopez?

And it says next to his name "DS" and then it has a date

range. Do you see that?

A Correct.

Q What does that indicate?

A That should be the time that the -- the time that they're

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in 2 Bravo for --

Q For?

A For Disciplinary Segregation, yes.

Q And so that indicates that Mr. Lopez was leaving on that

date, correct?

A It appears that way.

Q And so then that was 282.

If we go to 283, it appears to show -- can you tell

from that when Inmate Lopez left?

A No, but I can tell it was in between -- from this document

it was in between midnight and 0003, so three o'clock in the

morning.

Q And wasn't it the custom and practice to have Disciplinary

Segregation begin and end at midnight?

A Honestly, I don't remember when exactly it began, if it

was midnight or noon. I don't remember.

Q And so this indicates that at -- that as of midnight, it

appears Mr. Lopez was no longer sharing a cell with Zach

Daughtry, correct?

A Well, it's hard to tell, honestly. I know at three

o'clock in the morning he was not there for headcount, so it's

hard to tell before that when he left.

Q And so at some point he rolled up, somebody scratched out

his name, somebody added another inmate's name, Brandon

Sprague, right?

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A Yes. It does look like that, yes.

Q And at 6:00 a.m. and 7:00 a.m., does it appear that

Brandon Sprague is there in the cell?

A Yes. He was accounted for by the officer doing the

headcount roster at that time.

Q And then at 10:00 a.m., it's hard to make out what is

going on, fair, with respect to the checks?

A Sure. It looks like -- I couldn't speculate on what that

person did there. I have no idea, but.

Q What the person wrote? Why they wrote that there, you

mean? Why --

A Um --

Q You can't speculate about why there's a bunch of

cross-marks in that box?

A Yeah. I didn't do it, so I have no idea.

Q And so Brandon Sprague's name is written down. He's

marked as being present. And then he's crossed out, correct?

A Yes.

Q And then he's marked as not being present for the rest of

that day?

A Yeah. It looks like the cell was open for the rest of the

day.

Q Do you know if Brandon Sprague left that cell because he

couldn't stand to house with Mr. Daughtry or if he got into a

fight with Mr. Daughtry on July 7th?

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A I don't recall offhand. If there is some notes in OJ

about it, maybe, but I don't remember.

Q And from that point forward, are you aware of anybody else

housing with Mr. Daughtry before Ryan Bates was placed into

his cell?

A No. I mean, there is the -- I don't even know if I was

working in the house in 2 Bravo on these dates. You know, I

mean, obviously I was there on the 9th, but I don't know if I

was even there on the 6th or 7th, so.

Q Going back to the OJ log we looked at which was Exhibit

259, counsel asked you some questions about that entry about

the fight that occurred between Krstic -- Inmates Krstic and

Straughter. Do you recall that?

A When they asked me here?

Q When Mr. Struck was asking you questions about that and he

noted that there was a different person listed as being

assigned to house with Krstic on the headcount roster.

Do you recall that?

A Yes.

Q And you said that the headcount roster is like these --

are these the official record? Or is it the OJ log that's the

official record for what goes on there?

A No. I mean, the OJ -- you know, the Operations Journal is

kind of the set-forth guideline. That has to be done on

transfer-ins and transfer-outs, no matter what.

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Obviously, you have to do that on JMS but this is the

most important. So if the numbers get messed up anywhere, you

know, the number of inmates or movement of inmates gets off

for any reason at any point, you can always go back to your

Operations Journal, find out who you moved, when you moved

them and figure out what the issue is at that time.

So, you know, they have a saying -- they had a saying

and, you know: "OJ is God."

OJ has everything in it. So you make sure you put it

in there.

Q Have you ever heard an expression like: 

If it's not documented, it didn't happen.

A I've heard that but I just make it a practice to document

everything that happens.

Q And the practice is to document everything that happens so

you know what happened, correct?

A Correct.

Q Because a written record is more accurate than memory,

correct?

A Correct.

Q And you would also agree with me that a written policy is

easier to follow than one that's passed on by custom or

practice?

MR. STRUCK: Your Honor, this is outside the scope of

cross.

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THE COURT: Sustained.

BY MR. SHOWALTER: 

Q Mr. Struck asked you some questions about minimum, medium

and maximum. And it sounded like your testimony was that you

were permitted to house minimum security with medium and

medium with maximum.

A Minimum with medium or medium with maximum.

If I remember correctly, that's the way it is. Now,

you would have to refer back to policy on that, but I'm

positive you can go one up or one down classification-wise, if

necessary, approved by a supervisor-type thing.

But I would -- with the option given, I would house

classification first.

Q And just to be clear, you also testified that -- under

questioning from counsel for Maricopa County that you would

not have looked at the booking detail for Zach Daughtry when

you put Ryan Bates in the cell?

A It is on JMS.

Q But you testified that you wouldn't -- that wasn't your

practice. You would have simply looked at Bates' booking

detail and then you would have checked Daughtry's

classification and the comments.

MR. STRUCK: That misstates his testimony.

THE COURT: Overruled.

THE WITNESS: So, no. I think something is confused

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here, because I would have checked, you know -- everybody's

JMS is going to get checked.

JMS has a number of things in it. As far as the

housing roster in itself is inside of JMS.

There's notes for individual inmates inside of JMS as

well. 

So it's not just like one screen. There's quite a

few things that are in that system that you look through. And

one of them would be notes.

When you bring up the DBK1, I believe it was, that's

going to have their booking details. And we saw that a little

while ago.

And then when you hit "Enter" to the next screen,

it's DZBK-something. But it's going to bring up the notes

that, I believe, we also looked at. So it's going -- it's one

follows the other.

And then you would also look at the roster. When

you're going to move an inmate from wherever they're coming

from to your -- your pod or into that cell, you would look up

the housing roster as well. It shows you everybody that's

already been transferred in on JMS.

So very similar to that headcount roster, it's just

on that system. So there's a couple of differ places you go

inside of JMS. When I refer to going into JMS, it's referring

to checking all those things because you have to check those

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things where, you know, that's just what we do. That's our

job, so.

Q Do you have any independent recollection of doing that

with respect to either Ryan Bates or Zach Daughtry?

A No, not a particular recollection of doing it before or

when it happened, but I did it on everybody. So whenever an

inmate would come in and I was the tower officer, I would

check all those things and make sure everything was okay to

house those people or those inmates to where they're supposed

to go and nothing, no policies being violated, you know, the

security levels are good and they would be housed there.

You know, it's really not a lot. They're

"house-alone," they're Medical, they're lower-tier, lower-bunk

and the things we have been talking about the whole time I

have been up here, so.

Q And then Mr. Struck also asked you some questions about

Psych and you testified that it sounded like you rely on --

you don't know what Psych does, correct?

A Well, I know a couple things they do. I have never worked

in Psych, so I'm not an expert, but.

Q Do you know what the medical providers at Psych do with

respect to what determination they're making as far as their

standard of care is for releasing somebody from General

Population -- I'm sorry -- for releasing somebody from Psych

into General Population?

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MR. STRUCK: Foundation.

THE COURT: Sustained.

MR. SHOWALTER: I'm just asking him if he knows what

their standard is.

BY MR. SHOWALTER: 

Q When you look at a JMS note on release from Psych to

General Population, what details are included in that?

A Reclassed. So, I mean, I believe reclassed from P to G

would mean reclassed from Psych to General Population.

Q And that's always what it says?

A Yes. Yeah. When they're going -- when they go from G to

P is when they're going to Psych; when they go from Psych,

they go from P to G. Yeah.

Q Are there any other details about these people included in

those notes from Psych to Detention?

A From Psych to Detention? I mean, "house-alone,"

"keep-aways." I'm sure they have the ability to put that

information in in that same place, so I don't -- but, I mean,

that's -- I don't know. That's what I would look for and they

can put it in there.

Q Let me ask you this. When you had an inmate in

Administrative -- I'm sorry -- in Disciplinary Segregation, do

you consider Disciplinary Segregation to be General

Population? Does Detention consider Disciplinary Segregation

to be General Population?

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 REDIRECT EXAMINATION - WILLIAM HOVANEC 

MR. STRUCK: Outside the scope. Foundation.

THE COURT: Sustained.

BY MR. SHOWALTER: 

Q Other than that note from Psych saying "Reclass from P to

G," have you ever seen any other documentation in the JMS

notes about Psych issues for a particular inmate?

A Not that I recall. That's usually handled with, you

know -- by the Psych Unit, the other stuff. And so I'm not a

doctor. Even if they wrote stuff in there, I wouldn't know

what it is.

Q You assume that Psych is doing their job so that you can

to yours?

A Yes.

Q And with respect to Classification, you assume that

Classification is doing its job of properly and correctly

classifying inmates so that you can do your job, fair?

A Correct.

MR. SHOWALTER: Mr. Hovanec, thank you.

THE WITNESS: Mr. Hovanec. Thank you.

THE COURT: All right. You may step down and you may

call your next witness.

MR. ROBBINS: Your Honor, we call Detention Officer

Steven Hansen.

(Witness duly sworn)

THE CLERK: Please state your name for the record,

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spelling your first and last name.

THE WITNESS: Steven S-T-E-V-E-N. H-A-N-S-E-N.

STEVEN HANSEN, WITNESS, SWORN

DIRECT EXAMINATION 

BY MR. ROBBINS: 

Q Good afternoon.

A Good afternoon.

Q Can you please introduce yourself to us by telling us your

name -- go ahead?

A Steven Hansen.

Q And, obviously, you are employed with the Maricopa County

Sheriff's Office?

A Correct.

Q And how long have you been employed with Maricopa County

Sheriff's Office?

A A tad over five years.

Q And what would your start date have been?

A Approximately, February 19th, give or take.

Q February 19th of?

A 2013.

Q Okay. And was that the day you were sworn or you gave an

oath?

A Roughly, I don't know. Possibly.

Q Okay. But you would have gone to an academy that took

eight to nine weeks?

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A Correct.

Q You would have taken an oath to defend the Constitution of

the United States?

A Correct.

Q You would have then sworn to also take care of the care,

custody and control of the inmates in the Maricopa County

Jail?

A Correct.

Q Okay. And go ahead and look at the screen. I'm going to

use the demonstrative exhibit of the floor layout.

I'm going to put up a demonstrative. That just means

that it shows us, basically, what something looks like.

And you were not working on 2E on the day that Ryan

Bates was put into a cell with Zachary Daughtry, correct?

A Correct.

Q And you weren't working in 2B that day either?

A Correct.

Q You were kind of a floating -- a floating floor officer.

Basically, you would be there for anyone on the second floor?

A More other less, yeah, just to help out, yeah.

Q Yeah. And so this morning we spoke to an Officer Hewitt

and he was over -- let's see. Is there a way? Oh. 

So we talked with an Officer Hewitt that was the

floor officer that was the person who Ryan Bates walked into

the sally port for. And you know Officer Hewitt, correct?

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A I do, yes.

Q And we have talked with -- how do I erase? 

So we talked with Officer Hewitt and we just talked

with Officer Hovanec who was the tower officer in 2E. I don't

know if you knew that, but you might have seen him out in the

hallway.

A Yeah. I don't remember. I just remember he's a tower

officer.

Q So let me -- but they were the people that worked on --

Hewitt was 2E. Hovanec was 2B. And you were working on the

floor. So you would work on 2A, 2B, 2C, 2D, 2E and 2F, just 

depending on what needed to be done?

A If they needed help, correct, but I was assigned to level

2 control.

Q And I think we have the control -- is that the control

office right here?

A Yes.

Q Okay. And you understand that when Officer Hewitt decided

that there was going to be a consequence or a discipline that

was going to be applied to Mr. Bates, that he took Ryan Bates

to a holding cell, correct?

A I don't remember Bates being taken to a holding cell. I

came to find that out later.

Q Okay. What was your job in terms of putting Mr. Bates

into a cell?

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A I just came over to meet my partner Officer Huber and I

just helped him escort Mr. Bates.

Q And do you know whether you escorted him from a holding

tank over to 2B?

A From what I recall, I met him in front of, I believe,

2 Edward, 2E, and just escorted him over to 2B.

Q Did you ever see him come out of the holding tank?

A No. Not that I recall.

Q Did you see him come out of the door on 2E?

A No.

Q So, as I understand it, you would have taken him from

basically here in front of 2E in through this sally port and

then over to the cell, correct?

A Correct, but not the floor office.

Q I know. I gave you a detour.

A Yeah. But, yes, correct, into the 100 pod.

Q Right. That's if -- that's basically what you were

responsible for?

A Correct.

Q You did not make the cell assignment, correct? That was

told to you by other people?

A Yes.

Q And you did not decide that there would be discipline,

correct?

A No.

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Q That wasn't part of what you were doing?

A Nope. I was just simply escorting point A to point B.

Q And you are assuming that the correct decision's been made

in terms of discipline, correct? 

A It is a Disciplinary Segregation pod, so I assumed some

type of rule violation was committed.

Q And you assume that the person has been classified

correctly so they are in the right area of the jail, correct?

A Yes.

Q And when you put them into a cell, you assume that the

person in that cell belongs in maximum security Disciplinary

Segregation, correct?

A For the most part, I would assume that, yes.

Q It wasn't your decision, but you rely on the other people

to do their jobs the right way so you can do your job the

right way, fair?

A Fair enough, correct.

Q And when you -- but you do have an insight that we can

share in terms of why there was a bit of a hurry to get him

into a cell; is that fair?

A From my point of view, I didn't think anything was rushed.

I simply met up with him and escorted him. Nothing seemed

rushed at all.

Q Okay. Because we had the opportunity to speak before,

correct?

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A Yes.

Q You and I at a deposition?

A Yes, correct.

Q And basically, you had an understanding that Mr. Bates was

being moved because there was a shift change and they wanted

to have him in a unit where he could be counted, correct?

A Correct. But it doesn't mean that things were rushed.

Q Okay. But rush, it wasn't a decision that was made after

consulting -- it was a decision that was made, basically, to

put him somewhere before the next shift began, correct?

MS. HESMAN: Objection, Your Honor. Foundation.

THE WITNESS: Basically, not to --

THE COURT: Sustained.

THE WITNESS: Do I answer that question?

MR. ROBBINS: No. I'll lay a predicate so you can

answer it.

BY MR. ROBBINS: 

Q You heard that night -- or that day -- I guess it was

night. That night you heard why they were moving him at the

time they were moving him, correct?

A You mean concerning from his rule violation?

Q Yeah, why they were moving --

A I found out later that, yeah, he was in an unauthorized

area.

Q But the reason they were moving him at the time they were

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moving him was to get him into a cell so when they did count,

he would be in the cell?

MS. HESMAN: Objection, Your Honor. Foundation.

THE WITNESS: No, I don't --

THE COURT: Sustained.

Whenever there's an objection, you need to wait to

answer until I rule on the objection.

THE WITNESS: Okay.

BY MR. ROBBINS: 

Q Now, you had been taught how to recognize behavior and

signs of mental illness, correct?

A Correct.

Q And you had -- they had talked to you among other things

about paranoid schizophrenics, correct?

A Yes.

Q And your understanding was that sometimes people who are

paranoid schizophrenics may be delusional and people might

hear voices?

A Yeah.

Q Right?

A That's a possibility, yeah.

Q And did anyone tell you whether Mr. Bates was having

delusions?

A No.

Q In fact, he did not -- you don't recall him speaking to

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you, correct?

A No. Yeah, he didn't speak to me at all.

Q So if he was having a delusion, he didn't share it with

you, correct?

A I suppose. I mean, I don't know.

Q And no one told you that he was walking around looking for

a fellow named Junior that was nowhere to be found, correct?

A I don't know who Junior is.

Q And you didn't hear it that day?

A Nope. I didn't hear it.

Q And you do recognize who Ryan Bates is, correct, or at

least you did?

A Do I --

Q Let me show you a picture.

Do you recognize who is pictured on Exhibit No. 76,

page 1?

A Yeah. I recognize him.

Q And that is Ryan Bates, correct?

A Correct.

Q And you were taught when you were in the academy that

mentally ill inmates could pose a danger because of the way

they acted in terms of irrationality, correct?

A It's always a possibility, but any inmate can pose a

danger at any time, mental illness or not.

Q Are you telling me that they didn't teach you that

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 DIRECT EXAMINATION - STEVEN HANSEN 

mentally ill people are more unstable than normal people?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Were you taught anything about whether or not mentally ill

people who are unmedicated are unstable?

MS. HESMAN: Same objection, Your Honor, and counsel

is testifying.

THE COURT: Overruled.

MR. ROBBINS: That means you can answer.

THE WITNESS: Repeat the question.

BY MR. ROBBINS: 

Q No problem. Were you taught at the academy that people

who are mentally ill and who are unmedicated are more unstable

than people who are either medicated or not mentally ill?

A I was always taught just to be alert that -- I mean, I

can't -- I can't diagnose whether people have a mental illness

or not. I was just taught to keep your head on a swivel and

be aware of any inmate at any time.

MR. ROBBINS: Okay. Ms. Williams, would you hand the

witness his deposition.

BY MR. ROBBINS: 

Q It's just a book that was typed up after the deposition.

A Okay.

Q Go ahead and look at page No. 26.

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 DIRECT EXAMINATION - STEVEN HANSEN 

A Okay. 26.

Q And at line No. 14, I'm going to read the question and the

answer:

Question: Okay. Did they teach you that mentally

ill inmates could pose a danger to you because of the way that

they act irrationally?

And your answer was?

A Yes.

Q And it still is "yes."

A But that doesn't mean that they can pose a danger any more

than any other inmate that's not mentally ill.

Q Well, when they were teaching you that mentally ill people

can be dangerous because of their irrationality, and when you

answered "yes" to that, has that changed? 

Has anyone taught you --

A No.

Q Has anyone said anything to you that somehow mentally ill

people aren't more dangerous because of their potentially

irrational behavior?

A No.

Q Okay. And let me ask you this.

Mentally ill people can also be targets for violence

in the jails and you were taught that, correct?

MS. HESMAN: Objection, Your Honor. Foundation.

THE COURT: Overruled.

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 DIRECT EXAMINATION - STEVEN HANSEN 

THE WITNESS: They can be a target for any reason,

not just mental illness.

BY MR. ROBBINS: 

Q But mentally ill inmates who act strangely can be targets

for violence and you were taught that, correct?

A It's a possibility. I wouldn't say I was taught that,

but.

Q So you weren't taught that?

A In my experience it's possible, yes.

Q Well, for instance, if someone just pees, just like if

they're sitting in a chair in a doctor's office and they just

start peeing or they're sitting in -- they pee on their

roommates bunk, in your experience as a detention officer,

that can lead to being assaulted within the jail, correct?

A I haven't experienced an inmate peeing on someone's bunk.

I don't know.

Q If someone had that background that they did that to

another inmate for no particular reason, that would be a

person who was potentially going to be the victim of assault?

A I can't speak --

MS. HESMAN: Objection, Your Honor. Calls for

speculation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q What about masturbating in the middle of a pod? In your

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experience is that something that might lead to violence

against that person? 

MS. HESMAN: Objection, Your Honor. Calls for

speculation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q Let me ask you this.

Were you aware -- did you know anything about Zach

Daughtry?

A No.

Q Did you know whether he had, in fact, peed on his

roommate's bed three days before and was beaten because of it?

A No.

Q Do you know whether or not he had masturbated in public in

the jails?

A No.

Q Did you know that he -- that he acted strangely and at one

point had been sent to Psych because of the fear that he would

be injured because of his odd behavior?

A No.

Q Concerning Ryan Bates, did anyone tell you that he had

written in 2007 that he had been on several medications in

many hospitals and had a history of many attempts of suicide

and violence due to being a Value Options patient and that he

had anxiety, was restless and sometimes at night he couldn't

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 DIRECT EXAMINATION - STEVEN HANSEN 

sleep because things went on in his head that shouldn't be and

people were scared.

Did anyone tell you that?

MS. HESMAN: Objection, Your Honor. Counsel is

testifying.

THE COURT: I just didn't hear what you were

objecting.

MS. HESMAN: Counsel is testifying.

THE COURT: Overruled.

THE WITNESS: Can you repeat that?

BY MR. ROBBINS: 

Q Yes. Did anyone ever tell you that Bates had written in

2007 that he had been on several medications, had been in many

mental hospitals, had a history of many attempts of suicide

and violence due to being a Value Options patient, that he had

anxiety and was restless and sometimes at night he couldn't

sleep because things go on inside of his head that shouldn't

and that people were scared of him?

MS. HESMAN: Objection. Assumes facts and hearsay.

THE COURT: Overruled.

THE WITNESS: No. I never knew that.

BY MR. ROBBINS: 

Q And that is something that possibly would have helped you

in doing your job as a detention officer providing the care,

custody and control for Mr. Bates, fair?

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 DIRECT EXAMINATION - STEVEN HANSEN 

A No, because I would have gone off of -- if there was any

red flags that were posed to me in that moment in time. If he

acted normal, which he was pretty much normal when we were

escorting him, there was no red flags that popped up.

Q Go ahead and look at page 29 of your deposition. And, in

fact, I kind of have to start you on page 28 at line 19.

A 28?

Q Yeah. 28, line 19. I'm not going to reread it, but

remember the question I asked you about whether anyone had

told you about what Ryan Bates had written?

A Do you -- did anyone ever tell you -- okay.

Q And then you looked at -- and so that was the thing about

people not having told you about all of those things.

And on the next page, the next question, I asked the

question:

Would that have helped you to do your job to know

that this person was a dangerous, paranoid schizophrenic?

And your answer was?

MS. HESMAN: Your Honor, this misstates the evidence

and it's improper impeachment.

THE WITNESS: No.

MS. HESMAN: He was answering a different question in

the deposition.

MR. ROBBINS: I'll read the whole thing. I don't

want to --

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 DIRECT EXAMINATION - STEVEN HANSEN 

THE COURT: Very well.

BY MR. ROBBINS: 

Q Question: Did anyone ever tell you that he had written in

2007 that he had been on several medications in many mental

hospitals, had a history of many attempts of suicide and

violence due to being a Value Options patient and he had

anxiety, was restless sometimes at night and couldn't sleep

because things go on inside his head that shouldn't and that

people were scared of him?

Did anyone tell you that?

Your answer was: No.

The next question I asked:

Would that have helped you to do your job to know

that this person was a dangerous, paranoid schizophrenic?

And your answer was: Possibly.

Did I read that correctly?

A Correct.

MS. HESMAN: Objection. Asked and answered and it's

an improper impeachment.

THE COURT: Overruled.

THE WITNESS: Possibly. But would it have changed

what I did that day? No.

BY MR. ROBBINS: 

Q I'm sorry. You just said that wouldn't change anything.

If they had trained you to react to information like

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that, you would follow your training, correct?

A Correct.

Q So -- and there is no training of that sort because you

don't get that kind of information, correct?

A Well, I was going off of how I feel.

Q Well, you're not a trained --

A If there was any red flags posed to me, so.

Q Okay. Let's talk about red flags.

If someone walks into the sally port, that's a red

flag, right?

A Not necessarily. Inmates go into unauthorized areas quite

frequently. They do it to kind of push the envelope and test

us.

Q According to Detention Officer Hewitt, it's the first time

that anyone just walked right into that sally port.

Are you saying that inmates walk all the time right

into the sally port?

A For instance, when inmates are out in the day room,

they're supposed to remain off the top tier. A lot of them

like to go up there.

Q Okay. But let's talk about the difference between a top

tier and the sally port.

The sally port is one door away from getting at the

officers, right?

A Correct.

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Q And you don't want anyone -- the top floor, someone might

do something up there on the top floor but that's not a danger

to the officers, correct?

A No, but it could be a danger to themselves. We don't know

if they're going to jump off.

Q Yeah. But you gave an example of people sometimes go up

there and they're not supposed to go up there.

Being in the sally port is a danger to the entire

facility, correct?

A It's a security risk.

Q And you have never had any -- you have never heard of

anyone doing that other than this case if Officer Hewitt

talked to you?

A In my experience, no, but it doesn't mean that it hasn't

occurred before.

Q Okay. But that would be really unusual, fair?

A It's a violation, yeah. It's kind of unusual.

Q If people start asking us -- I'm going to time this a

little bit just because for 40 seconds someone was saying: 

"Where's Junior? Where's Junior? Junior. Where's

Junior? Junior. Junior is here. Junior. Where's Junior?"

I'm at ten seconds, but if I go four times as long as

that, it will be 40 seconds.

MS. HESMAN: Your Honor, this assumes facts. There

has been no testimony that it was that long.

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THE COURT: We'll let the jury recall the testimony.

Overruled.

BY MR. ROBBINS: 

Q If someone is asking those kind of questions about a

person that is not around, a person that's not missing, that's

something unusual and that would be a red flag for you, is

that fair?

A I don't know what's going on inside his head. Junior

could have been another inmate. We don't know that.

Q Well --

A We don't know if someone doesn't exist and I never heard

him say that.

Q Okay. Because if you heard it, you would start saying: 

Wait a second. Is there a Junior around here? Is

there someone that's missing? Did someone escape. 

You would start asking those questions and look at

it, right?

MS. HESMAN: Objection, Your Honor. Speculation and

it's also compound.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q If someone told you that they were looking for someone for

40 seconds without reacting to your input, that would cause

you concern that it was a red flag for mental illness that

this person needed to go to Mental Health, correct?

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MS. HESMAN: Objection, Your Honor. Calls for

speculation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q You talked about red flags.

A red flag is something that you're taught as a

detention officer to look at in order to determine whether or

not someone ought to be referred to Mental Health.

Is that a fair assessment?

A What's your question?

Q I said you were talking -- you used the term "red flag"?

A Yeah.

Q And I have heard that a couple times in this trial, so I

want to know --

A Yeah.

Q -- what is a -- tell us what a "red flag" is?

MS. HESMAN: Objection, Your Honor. Vague.

THE COURT: Overruled.

THE WITNESS: Regarding what?

BY MR. ROBBINS: 

Q Mental illness. Signs of mental illness that clue you in

as a detention officer that you need to get this person to

Mental Health to evaluate whether or not they're having a

florid psychotic episode that they might need medication to

make the person calm enough and not crazy enough to be in the

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - STEVEN HANSEN 

jail under your care, custody and control.

MS. HESMAN: Objection, Your Honor. Foundation.

Calls for speculation.

THE COURT: Sustained.

BY MR. ROBBINS: 

Q What is a "red flag" in the context that you used it for

indicators of problems with mental health?

A For instance, if I heard an inmate possibly talking to

themself or telling me that he is hearing voices.

Q But if they're looking for someone who's not there, would

that be a red flag?

MS. HESMAN: Objection, Your Honor. Foundation.

Calls for speculation.

THE COURT: Overruled.

THE WITNESS: It would probably prompt me to put in a

Mental Health Referral.

BY MR. ROBBINS: 

Q Sure. And if that person who is talking in a way that

you -- that raises that red flag but they won't go back to

their cell, that's another red flag, fair?

A I suppose.

THE COURT: Let's quit for the day and resume

tomorrow morning at 8:30. 8:30 tomorrow. And we will recess

tomorrow at three o'clock.

And remember the admonition, please.

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - STEVEN HANSEN 

(Proceedings adjourned at 5:02 p.m.)

* * * 

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UNITED STATES DISTRICT COURT

 DIRECT EXAMINATION - STEVEN HANSEN 

C E R T I F I C A T E 

I, ELIZABETH A. LEMKE, do hereby certify that I am 

duly appointed and qualified to act as Official Court Reporter 

for the United States District Court for the District of 

Arizona. 

I FURTHER CERTIFY that the foregoing pages constitute 

a full, true, and accurate transcript of all of that portion 

of the proceedings contained herein, had in the above-entitled 

cause on the date specified therein, and that said transcript 

was prepared under my direction and control. 

DATED at Phoenix, Arizona, this 17th day of May, 

2018. 

 s/Elizabeth A. Lemke 

 ELIZABETH A. LEMKE, RDR, CRR, CPE 

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