Prison Legal News v. Babeu, AZ Deposition Deland, censorship, 2012
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Capital Reporting Company 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PRISON LEGAL NEWS, a project of | The HUMAN RIGHTS DEFENSE CENTER, | | Plaintiff, | | vs. | No. CV 11-01761-PHX-GMS | PAUL BABEU, individually and in | his official capacity as Sheriff | of Pinal County, Arizona; PINAL | COUNTY, ARIZONA; Sergeant TONYA | DELGADO, in her individual and | official capacities; Detention | Aide ALYSSA ROMERO, in her | individual capacity; Detention | Aide LAURENDA HENSLEY-SALISBERRY,| in her individual capacity; | Detention Aide CHERYL MCBIRNIE, | in her individual capacity; | Detention Aide JOHN JOHNSTON, in | his individual capacity; | Detention Aide LAUREN MCVICKER, | in her individual capacity; | LORETTA VALDEZ, in her individual| capacity; DALTON GAY, in his | individual capacity; ERICA CHAVEZ| in her individual capacity; DENA | KELLY, in her individual capacity| Sergeant AMADO MARTINEZ, in his | individual and official | capacities; Sergeant LEONARD | ARNOLD, in his individual and | official capacities; Training | Specialist DAVID LINDERHOLM, in | his individual and official | capacities; Lieutenant FRANCIS | HAWKINS, in her individual and | official capacities; Lieutenant | DENNIS RUSHING, in his individual| and official capacities; | Lieutenant MATTHEW HULL, in his | individual and official | capacities; Lieutenant DARREN | RUSHING, in his individual and | (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 2 1 2 3 4 5 6 7 8 9 official capacities; Lieutenant VERNITA GANT, in her individual and official capacities; Lieutenant MICHELE MCNEELY, in her individual and official capacities; Lieutenant GILBERT HOYAS, in his individual and official capacities; Captain TERRY JOHNSON, in his individual and official capacities; Captain JAYME VALENZUELA, in his individual and official capacities; and Deputy Chief JAMES KIMBLE, in his individual and official capacities, | | | | | | | | | | | | | | | | Defendants. | __________________________________| 10 11 DEPOSITION OF GARY DELAND 12 13 DATE: October 31, 2012 14 TIME: 9:30 a.m. 15 LOCATION: St. George Executive Suites 169 West 2710 South Circle, Suite 203A St. George, Utah 84790 REPORTED BY: Russel D. Morgan Certified Shorthand Reporter License Number 108442-7801 16 17 18 19 20 21 22 23 24 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 3 1 2 3 4 A P P E A R A N C E S For the Plaintiff Prison Legal News: BLAKE THOMPSON ROSEN BIEN GALVAN & GRUNFELD, LLP 315 Montgomery Street, Tenth Floor San Francisco, California 94104-1823 (415)433-6830 5 6 7 8 9 10 For the Defendants: GEORGIA A. STATON JONES, SKELTON & HOCHULI 2901 No. Central Avenue, Suite 800 Phoenix, AZ 85012 (602)263-1700 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 4 1 2 I N D E X EXAMINATION BY: 3 PAGE: MR. THOMPSON 4 4 5 E X H I B I T S 6 Plaintiff's Exhibit: 7 1 Subpoena 8 2 Expert Statement and Report 45 9 3 Nashville NSA 2012 Conference Program 75 10 4 Pinal County Facility Procedures 137 11 5 Expert Report of John L. Clark 144 12 6 Pinal County Facility Procedures, Rev: 11/09/11 162 8 13 14 (Exhibits attached to the transcript.) 15 16 17 18 19 20 21 22 23 24 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 5 1 GARY DELAND, 2 called as a witness by the Plaintiff, who, having 3 been duly sworn by me, was examined and testified 4 as hereinafter set forth. 5 --o0o-- 6 EXAMINATION BY COUNSEL FOR THE PLAINTIFFS 7 8 9 10 BY MR. THOMPSON: Q Good morning. My name is Blake Thompson. am the counsel for the plaintiff in this case. Can you state your name for the record. 11 A Yes. 12 Q And can you spell that? 13 A G-a-r-y, W-a-l-t-e-r, D-e capital L-a-n-d. 14 Q Have you had your deposition taken before? 15 A Yes. 16 Q Approximately, how many times? 17 A Oh, a few dozen, I guess. 18 19 20 21 22 23 24 25 I Gary Walter DeLand. I have never counted. Q Have those always been for on behalf of a defendant? A Not always, but, certainly, in the vast, vast majority of the cases, that's true. Q Do you remember any particular cases in which you were an expert on behalf of a plaintiff? A A case in 2004, I believe in Arizona. (866) 448 - DEPO www.CapitalReportingCompany.com I think © 2012 Capital Reporting Company 6 1 it was called Valenzuela, or something like that, 2 against the Arizona Department of Corrections. 3 that time, it would be several years, a suicide case in 4 Kane County, Illinois. 5 that would be. 6 1980s, I guess. 7 Q 8 cases? 9 A 10 them. Prior to But I don't recall what year Certainly, probably, sometime in the And did you testify in court in any of those The case in -- yeah, both of them. Both of Both of them were Federal District Court. 11 Q 12 cases? 13 A Yes. 14 Q Have you ever had your deposition taken in a 15 And were you testifying as an expert on those case about jail mail or publication policy? 16 A Yes. 17 Q What case or cases was that? 18 A The only one that comes to mind is a case 19 20 called Cheshire vs. PLN. Q So, you don't remember any other cases besides 21 that, that you testified regarding mail or publication 22 policies of a correctional facility? 23 A No. I can't swear that it never has before, 24 but if it has, it's been a very long time ago. 25 recall it. (866) 448 - DEPO www.CapitalReportingCompany.com I don't © 2012 Capital Reporting Company 7 1 Q Okay. Also just for the record, I want to 2 note that Lance Weber, who is general counsel for the 3 Human Rights Center, is on the line via conference call. 4 MS. STATON: 5 MR. THOMPSON: 6 MS. STATON: 7 MR. THOMPSON: 8 quiet. 9 BY MR. THOMPSON: 10 Q Okay. Did you say something, Georgia? I just said all right. Okay. Sorry. It's kind of So, I know you are familiar with these rules, 11 but just to go over them, the court reporter is going to 12 transcribe my questions and your answers. 13 an opportunity to revise your responses. 14 changes you make, I'll have the ability to ask you about 15 them later. 16 on videoconference, you need to answer verbally and not 17 by nodding or gestures. 18 You'll have But any And, of course, especially because we are If I ask you a question that you don't 19 understand, please let me know. 20 questions about the form of the deposition? 21 A No. 22 Q Okay. Do you have any And is there any reason today you 23 wouldn't be able to answer my questions fully or 24 truthfully? 25 A No. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 8 1 Q No medication of any kind that's impairing 3 A No. 4 Q Okay. 2 5 you? (Exhibit No. 1 was marked for identification.) 6 7 MR. THOMPSON: It's the subpoena for documents. 8 9 I am going to mark this as Exhibit 1. MS. STATON: Okay. BY MR. THOMPSON: 10 Q Have you seen this document before? 11 A Yes, I have. 12 Q And what is it? 13 A It is a subpoena for information or objects or 14 to permit inspection of premises, although, I think this 15 is just for production. 16 17 18 19 20 21 22 Q And did anyone ask you to produce documents responsive to these requests? A Yes. The subpoena indicates which documents were requested. Q And did anyone ask you to produce documents responsive to these requests? A Well, the subpoena did, but not individually. 23 That's what I was relying on to know that I was being 24 requested to provide certain kinds of documents. 25 Q So, how did you receive the subpoena? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 9 1 2 A I don't know. by email. Whether it was in the mail or But, at some point, it was on my desk. 3 Q And did you provide documents to counsel for 4 defendants? 5 A Some. But not all of those. I had objections 6 to some. So, went over them with Georgia Staton, the 7 attorney for defendants, then provided those documents 8 that were available, those documents that we felt were 9 not overly burdensome and so on. 10 Q And what were your objections? 11 A Do you want to go through them individually? 12 Q If you can just tell me what you remember of 13 14 your objections? A Well, in part such things as notes. When I 15 take notes, as soon as I complete the notes, whether 16 it's a walking tour or interview or whatever, I go ahead 17 and transcribe that into the outline of the report I'll 18 be writing. 19 As I begin writing, then that information is there. 20 incorporate it or don't incorporate it based on whether 21 it's sufficiently relevant. 22 testimony given in past depositions and whatnot. 23 don't save any of those. 24 25 Then the notes themselves are never saved. I There's also requests for I There were a number of things that were asked for that I just simply don't save that I don't maintain. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 10 1 There are other things, I don't recall right off the top 2 of my head, that would have been a very extensive 3 process to try to locate them. 4 5 6 Q What kinds of documents would require a very extensive process? A Like I said, off the top of my head, I 7 couldn't tell you exactly. Let me see what was asked 8 for and it might be of some assistance. 9 Producing all communications and any documents that may 10 have come to me at some point in time. 11 the email that I receive. 12 emails a week, at least. 13 them I get rid of them. Okay. I don't save all I receive a couple hundred And so, when I'm through with 14 Let's see. 15 rely on, I think was in there. 16 endless amount of documents that I reviewed at one time 17 or another. 18 would have taken a lot of time and then probably 19 produced nothing anyway. 20 Q Things that I read that didn't That could have been an So, there were a number of such things that So, emails, in regard to Request Number Two, 21 which are communications about this case, were there 22 emails regarding this case that you would have deleted 23 before responding to this? 24 25 A There may have been. But what I asked was that the attorneys provide all of them. I am sure that (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 11 1 they are much better record keepers than I am with 2 respect to email, because it would be part of their 3 case. 4 5 So, I asked them for help in assembling those. Q Was there anyone else you communicated with about this case by email? 6 A No. 7 Q Is it your understanding that the attorneys 8 provided the emails between you and them that would have 9 been discoverable? 10 A That's my understanding, yes. The other 11 concern I had is not knowing for sure what the federal 12 rules allowed and what they didn't allow. 13 necessary for me to confer with them about what would be 14 provided and what would not. 15 Q It was Can you explain what you were describing 16 earlier about taking notes and then incorporating them 17 into another document? 18 A Yes. 19 Q Are you talking about handwritten notes? 20 A Yes. 21 Q So, what kinds of handwritten notes did you 22 23 have regarding this case? A There would have been some handwritten notes 24 that I would have made when I interviewed Montano and 25 Kimble. Since I didn't tour the facility, there (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 12 1 wouldn't be notes on that. There would be a very 2 minimal number of notes in this particular case. 3 in response to your question about why, I find when I 4 have toured facilities or taken a lot of notes, it's not 5 an exact transcription of what happened. 6 get ready to write my report. 7 quite sure in all instances what I meant by certain 8 notations that I had made. 9 before I ever do anything like that, I look at the But, I wait until I And very often I'm not So, I found it very useful, 10 complaint, identify each of the areas I'm likely to 11 opine in. 12 interviews, whatever, while everything is still fresh in 13 my mind, I incorporate those notes in a more narrative 14 fashion into my, under each one of those various 15 opinions. 16 Then, after I have toured a facility or done Then when I get ready to actually start 17 writing the report at some point, I can determine what's 18 relevant, what needs to be incorporated in that opinion. 19 And I have a more accurate record of what I saw, what I 20 observed, what was said. 21 Q And you throw away the handwritten notes? 22 A Yes. 23 Q That's your general practice? 24 A Yeah. 25 That's my constant practice, not general. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 13 1 Q 2 notes? 3 A Why is it that you don't keep the handwritten Well, for one thing, I found many years ago, 4 when I did save them, I was asked about notations and 5 notes. 6 taken them. 7 because it was no longer fresh in my mind. 8 not required to maintain those notes, I came up with a 9 better process where I could have more accurate You know, it had been a long time since I had I couldn't always answer the question Since I am 10 information, I could have information put together while 11 it was still fresh. 12 those notes any longer. 13 14 15 Q Then there was no need to maintain So, I don't. So, you don't keep them because you are not required to keep them; is that correct? A Well, I'm not required to keep them. But they 16 are also no longer valuable since I already put that 17 information where it will be the most use to me and 18 where I can more accurately put it into my report. 19 Q So, in this case, how long after you took 20 written notes did you incorporate them into some other 21 document? 22 A Probably within a few hours, because I 23 simply -- when I went back to the motel that night, I 24 was there doing some training, both of them were 25 available, so I asked them questions about this. (866) 448 - DEPO www.CapitalReportingCompany.com And © 2012 Capital Reporting Company 14 1 so, when I went back to the motel that night, I went 2 ahead and took what notes I had made, put them into the 3 outline and then discarded them. 4 5 Q When you say you put them into that outline, is that a document on the computer? 6 A Yes. 7 Q So, did you provide certain documents to 8 counsel for defendants? 9 A You mean in response to? 10 Q Yes. 11 A Yes. I don't recall exactly what was 12 provided. 13 see what was provided. 14 outline. 15 affidavit in a case called City Weekly vs. Cache County. 16 Probably provided -- I think I provided my expert report 17 in DeWitt. 18 well, City Weekly was an expert report, what would have 19 been an affidavit, would have been PLN vs. Cheshire, I'm 20 sorry. 21 recall for sure if I provided anything else. 22 an updated CV. 23 24 25 Q I guess I could take another quick look to Let's see. I think there was a lesson I think I also provided an PLN vs. DeWitt. I may also have provided -- Those things I know that I provided. I don't Probably Had counsel for defendants provided you with some documents prior to that? A Yes. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 15 1 Q And what types of documents were those? 2 A There were what turned out to be several 3 binders full. 4 a video disk, CD, to view all of those documents, so I 5 didn't have to cart everything into the deposition. 6 Q But they said that they would provide on So, they didn't provide your copies of the 7 documents, they provided their own copies of the 8 documents? 9 A Correct. They would have been the same since 10 I also make it a practice never to make notes on any of 11 the documents. 12 them, if something comes up, I type it into that same 13 outline that we have talked about. 14 Q I keep them pristine. And, as I read So, did you take any written notes on other 15 paper as you were reviewing a deposition transcript, for 16 instance? 17 A No. As I'm reading the deposition transcript, 18 if there's something I thought was relevant, I would 19 type the entirety of the text or, at least, at the very 20 least, a reference to it into the appropriate place in 21 my outline. 22 I have done that. 23 Q You'll see places in my expert report where So, did you have any written notes on this 24 case that were thrown away other than the notes from 25 your conversations with Montano and Kimble? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 16 1 A No. I can't say that at no time I didn't jot 2 down the name of something or other that I was going to 3 look for in the next few minutes. 4 a reminder to me to do something else. 5 never survive more than a few minutes after I used it. 6 I would wad it up and throw it away. 7 8 But it would just be But those would Q When was the first time you heard about this A I couldn't tell you exactly. case? 9 It seems like it 10 was earlier this year. I know it was a while after it 11 had been filed. 12 not aware I was going to be involved with it. 13 remember exactly when I was called. 14 it would probably be late winter, early spring. 15 could be off on that. I heard that it had been filed, but was I don't If I had to guess, But I 16 Q How did you hear that it had been filed? 17 A I heard it secondhand from a fellow by the 18 name of Jim Chip who does some work with me. He had 19 heard it directly from one of the people at Pinal 20 County. 21 facility. He had been doing some inspections of their And they mentioned it. 22 Q What kinds of inspections was he doing? 23 A An inspection to compare their practices to 24 Arizona's guidelines, jail guidelines, helping them with 25 that. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 17 1 2 Q So, was he hired by Pinal County or by someone A Someone else. else? 3 I don't know. Pinal County 4 probably didn't hire them. It was probably a group 5 called AARMS who provide the software to do those 6 inspections. 7 Q Can you explain what AARMS is? 8 A Yeah. 9 It's a company that does, that provides internal inspection software for jails. 10 Q So, what did he tell you about this case? 11 A Just that they had been sued. 12 a lot of information on it. 13 complaint. 14 was just a point of information. He didn't have He hadn't seen the Neither had I at that time, of course, so it 15 Q So, why did he tell you, I am asking? 16 A Because we interact periodically. He also -- 17 AARMS also, or the individual who runs AARMS also 18 supervises something called NIJO, National Institute of 19 Jail Operations, which provides jail training. 20 does some work for them as well. 21 it. 22 to him probably weekly, at least, on one matter or 23 another. 24 for the Utah Sheriff's Association. 25 interaction between people that have various different And he told me. And he So, he became aware of I see Mr. Chip probably, or talk I also use him sometimes to set up training So, there's (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 18 1 functions. 2 3 Q So, why did he think you would be interested in this particular case? 4 MS. STATON: Objection. 5 Wait. 6 going to be a little difficult. 7 can. 8 foundation. 9 A Foundation. Wait. Let me -- because there is a time lag, Gary, it's But I'll do the best I I'm objecting to the last question on form and I can't tell you why, you know. 10 obviously, he has his own reasons. 11 to question him. 12 BY MR. THOMPSON: I mean, But it would be best 13 Q So, you don't know why? 14 A He didn't say for these reasons I'm telling 15 you this. He told me what it was. 16 motivation for him to answer. And I leave his 17 Q Why did he tell you about the case? 18 A That they had been sued. 19 That they had been sued, an issue involving PLN. 20 Q Did he just tell you what the issue was? 21 A Yeah. I don't think he knew any more than 22 that. 23 said that they had been sued by PLN. 24 25 At least, based on what he explained to me, he Q So, he didn't tell you what the issue that they were being sued about was? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 19 1 2 A No. And he knew that I had been involved with a PLN case in Cache County. 3 Q Was his inspection there covering mail 4 operations? 5 A I'm sure that over the, you know, several 6 different periods of time when he would go in on those 7 inspections, that would be one of the several issues 8 that he would ultimately look at. 9 time he was there he was only partway through that 10 process of inspecting them. 11 understanding. 12 13 14 Q But I know at the At least, that's my So, why was AARMS hiring someone to do an inspection of the jail? A 15 Well, they do that all over the country. MS. STATON: 16 foundation. 17 A Objection to the form and AARMS does work in Alabama. They do work in Utah. They do work in 18 Arizona. They do work in a 19 variety of different states. 20 Kansas. 21 stuff going on. 22 either local people or others that they are familiar 23 with, go out and do that. 24 in Alabama. 25 hires him to do the work. Some in Wyoming. Some in I don't know all the places that they have But, they have to have people, usually I know Mr. Chip was involved I know he was involved in Arizona. AARMS That's up to them. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 20 1 2 3 BY MR. THOMPSON: Q So, you described AARMS as a company that provides software, correct? 4 A Yes. 5 Q So, is someone hiring them to do an 6 inspection? 7 A No. Actually, Arizona countys' insurance pool 8 contracted with them sometime back to do that, for not 9 just Pinal County, but for any of the counties that were 10 participating that asked for assistance with those 11 inspections. 12 13 14 Q So, the Arizona countys' insurance pool hires AARMS, then AARMS hires someone else; is that correct? A They contracted with AARMS. I don't know for 15 what period of time. 16 of the counties in Arizona which they cover. 17 would be the ones that he would be concerned about, 18 those would be the ones that he would be interested in. 19 20 21 Q And then for, I think there's 13 And those And then does AARMS produce a report to the county? A They -- yeah. They would -- it's an online 22 inspection system which provides realtime data on what's 23 happening with any of the guidelines that they are 24 looking at, what progress they have made and so on. 25 it's all on website firewall. But It's not a paper system. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 21 1 Q So, is it correct that when someone like Mr. 2 Chip goes in, he's going in to set it up, then the 3 county is inputting data as time goes on? 4 A No. As I understand it, AARMS already has it 5 set up. And all they have to do then is provide pass 6 codes for individuals at the individual agencies who are 7 going to be authorized to get into the system and make 8 any data entries. 9 that has been referred to as inside-out. What Mr. Chip would do, it's a system That is 10 instead of the auditors coming in first and doing the 11 inspections, saying, okay, fix all these things, that 12 system, as I am aware of it, requires the jail commander 13 to do the initial inspections and audit. 14 Then a follow-up auditor from the outside will 15 come in and look only at those things they claim to be 16 in compliance with. 17 of compliance with A, if they have already recognized 18 that and they are working to try to fix it. 19 There's no sense saying you are out So, what will happen is that individual will 20 then come in, it could be Mr. Chip, it could be somebody 21 else, whoever else they hire, and look at those things 22 they believe that they are compliant with, which may 23 take a less charitable view of and tell them what they 24 need to do to come into compliance. 25 basic role. So, that's his He doesn't set anything up. That's set up (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 22 1 2 by AARMS already. Q So, what's the end result of an inspection 3 conducted by Mr. Chip? 4 something else? 5 A No. Is it a written report? Is it The end result is the client agency knows 6 where they stand with respect to any given set of 7 standards or guidelines to which they are being 8 inspected. 9 mistaken. That's the purpose, I think, if I'm not ASIF also has a code where they can get in 10 and look at any of the jails that are participating, 11 that they are insuring, so they can also get a sense of 12 what progress is being made. 13 to get people to move forward, do it in a way that what 14 their efforts are not immediately discoverable, 15 otherwise, people are not willing to find their worts, 16 as you might guess. 17 people to find those things that are not fully compliant 18 or compliant at all, I suppose, in some cases with the 19 guidelines that Arizona has adopted to run those 13, 20 maybe 14 jails. 21 participating. 22 Q The whole idea is to try So, it's a way of trying to force I don't know exactly how many are Is there a written report that's produced at 23 the end? 24 inspector has determined that are not compliant? 25 A Or how does the jail know what areas the Because the record is all made online. (866) 448 - DEPO www.CapitalReportingCompany.com At any © 2012 Capital Reporting Company 23 1 given time, with the system, you can look and see what 2 the jail inspector has done, his notes on what they need 3 to do. 4 noncompliant, because they didn't have a written policy 5 on a particular topic or they had a policy that did not 6 include the issues, all of the things that were 7 required, then you may find his notes recognizing that. 8 And you may also find in a compliance section that they 9 have now rewritten the policy and electronically 10 If the jail inspector realizes they are attached it to the file. 11 Or to take an odd example, let's say you have 12 gasoline next to the furnace. 13 picture that it's no longer there, and here's where it 14 now is. 15 furnace, I suppose. 16 they can pull up a screen and see by color code every 17 standard that they are noncompliant, partially compliant 18 or fully compliant with. 19 written report. 20 you stand on any given standard. 21 22 Q You can also attach a Not that anybody would put gasoline by a But the idea is at any given time So, it's much better than a It provides you realtime data on where Those determinations of where someone is at is based on the judgment of the inspector? 23 A Yes. 24 Q So, after you heard from Mr. Chip that first 25 time, when was the next time you heard about this case? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 24 1 A It had to have been, I'm guessing, at least a 2 couple of months. 3 my fingertips. 4 away. 5 doing anything with it. 6 Staton saying that they would like my assistance on the 7 case. 8 I had to work. 9 agreed to take it and get as much done as I could in the 10 I just don't have that information at But I know for certain it was not right I had no -- I did not believe I was going to be But then I got a call from Miss Unfortunately, it was a very short timeline that And I had other work going on. So, I time available to me. 11 Q Do you mean it was a very short time between 12 when they called you and your expert report was 13 completed? 14 A Yes. I am very often scheduled out three or 15 four months. Not very often, it's almost a given. And 16 I don't usually like to take cases that I don't have at 17 least three or four months before a deliverable product. 18 I have done a lot of work with Miss Staton. 19 talked about the difficulty getting it done in a short 20 time. And we We agreed I would do it. 21 Q So, how long did you have approximately? 22 A I don't recall. It was -- well, I just don't 23 recall. It was far less than my normal three to four 24 month requirement. 25 I have that much time, but I already had my time already Or, you know, there's sometimes when (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 25 1 booked out. 2 training sessions. 3 for example now. 4 before. 5 to, look at my schedule to see whether two months, three 6 months, four months is too tight. 7 8 9 Q I have four or five expert reports or I haven't been home for three weeks Indiana last week. Alabama the week And Kentucky the week before that. So, I have What did you understand you were supposed to be offering opinions about in this case? A Well, I was told that they had conceded an 10 issue involving post cards, so I would not be talking 11 about that. 12 was the policies, procedures and actions of the Pinal 13 County officials with respect to accepting or rejecting 14 publications, PLN, of course, being one. 15 look at that in the context of what they were trying to 16 accomplish in their jail. 17 18 19 Q Basically, what they wanted me to look at And, also, to And that's what I did. And you are testifying as a rebuttal expert here, correct? A I don't know if I was asked to be a rebuttal 20 expert. I was just told I was testifying as an expert 21 witness. 22 the expert witness for the other side's already issued a 23 report before I do. 24 report is when we both replied, and then I'm, you know, 25 replying yet again to that. In all cases, or on nearly all cases, not all, But what I consider a rebuttal So, my initial expert (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 26 1 2 report I have never thought of as a rebuttal. Q So, you weren't told that you were supposed to 3 be limited to responding to the opinions of the expert 4 for the plaintiff in this case? 5 A Oh, yeah. But that's pretty typical. 6 at two things. 7 complaint. 8 other side. 9 and to the expert witness. I look One is the complaint, the operative And the other is the expert witness for the So, I was responding both to the complaint If issues were moot at that 10 point, issues had already been resolved, then that was 11 out of play. 12 didn't talk about post cards, thus, neither did I. 13 was no longer on the table. 14 Q So, of course, the plaintiff's expert My question is, were you told that you were 15 limited to rebutting the opinions expressed in the 16 expert report of the plaintiff's expert? 17 A It's possible. I don't recall being given 18 that specific instruction. 19 put an expert report together. 20 response to both the complaint and the plaintiff's 21 expert. 22 that I would be prohibited from discussing. 23 24 25 Q That I was being asked if I could And it was certainly in I don't recall being given any specific limits What did you do to prepare to write the expert report? A Went through documents that I was provided, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 27 1 depositions, policies and procedures. 2 had been written. 3 full of materials that ultimately were printed out to 4 work from. 5 things. 6 sense of where I was going and identified which things 7 were particularly relevant to what I would be doing, 8 then I started actually constructing the report itself, 9 actually started filling in the narrative. 10 11 12 Q Any reports that Like I said, there was a few binders Certainly, expert report, those kinds of Once I had reviewed those enough that I had a So, did you read all the deposition transcripts from beginning to end? A Some that I considered most important I read 13 beginning to end. Some that, as I would go through 14 them, I didn't think was providing a whole lot of 15 additional information I didn't read beginning to end. 16 But, for example, if I wanted to know about training or 17 I wanted to know about when somebody learned or thought 18 they learned what policy was, then I would go into 19 depositions and use the index in the back to find all 20 possible references to that topic and then go read those 21 and bring it in. 22 each officer went to school and what grades they got, 23 any of that sort of thing. 24 relevant to any of the opinions, I could go to the index 25 in the back. You know, I didn't need to read where But anything I considered And as I would exhaust that opinion, I (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 28 1 would see if there was anything I thought was important 2 to add. 3 they gave me? 4 So, did I read every single page of the stuff Q Of course not, no. So, you said some of them you thought were 5 more important you would read beginning to end. 6 remember which ones those would have been? 7 8 A No. Like I said, it was not so much -- well, yes, I would. DeNiro. 9 Q Who is that? 10 A Or, no. 11 Montgomery. 12 expert witness? I read DeNiro's two volumes. Excuse me. Wait a minute. 13 Q No. 14 A Isn't he? 15 Do you I got mixed up. No. Montgomery. Yours is DeNiro? Your Who the heck is your expert witness then? 16 Q Our expert witness is John Clark. 17 A Thank you. 18 right now. 19 yes. I'm writing three expert reports So, I apologize. 20 Q His deposition? 21 A No. So, it was Clark I read, His report -- yeah, I think his, the only 22 report. DeNiro, who I just mixed up, is the case I have 23 to have finished by day after tomorrow. 24 different case, so I apologize for that. 25 two-volume deposition. That's a whole His was a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 29 1 Q So, any deposition transcripts in this case? 2 A Okay. Let's go back and re-do this one. 3 Probably from the problem of having too many things you 4 are working on simultaneously. 5 Montano's I did. 6 looked for specific information that I wanted in there. 7 I know that there were people that worked, for example, 8 in the mail room that talked about when they learned 9 they didn't accept publications or where they came to Kimble's, I did. Any others I would have just simply 10 those conclusions. 11 deposition and some of it I read simply those parts that 12 I could discover from the index that they would be 13 talking about. 14 Q So, some of those I read much of the So, besides reading the documents that were 15 provided, did you do anything else to prepare for the 16 expert report, to write the expert report? 17 A Well, as I mentioned, when I was in Pinal 18 County doing some training, they were doing some 19 regional training for themselves and several other 20 counties, I took the opportunity, since both Chief 21 Deputy Kimble and Captain Montano were there, to talk to 22 them when I wasn't actually doing the instruction. 23 There were two of us that were instructing at that time. 24 So, that gave me an opportunity, when the other 25 instructor was working, to take them aside, sit down (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 30 1 with them, go through the information that I needed to. 2 And mostly, probably, Kimble was the most valuable, more 3 so than Montano. 4 Q Why is that? 5 A He just seemed to have more information that I 6 was actually looking for. 7 the top of the sheriff's administration down. 8 works for Kimble. 9 10 He also was seeing it from Q So, how did you decide to talk to those two A They were available. men? 11 Also, because Kimble, in 12 particular, is more in a policy setting role. 13 wanted to talk to him. 14 I was looking for for Montano. 15 him. 16 programs we have done. 17 him questions about it. 18 terms of providing information. 19 Montano I really I don't recall all the specifics But I am familiar with I have known him from contact in the training Q And he was there. So, I asked Kimble was the most useful in So, did you decide who you wanted to talk to 20 and ask to speak to them or are those just the people 21 that were provided to you? 22 A Well, I could have gone into the jail and 23 talked to other people, but I was mostly concerned about 24 policy issues. 25 Montano was the captain, those were the two people I And since Kimble signs the policy and (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 31 1 thought I could glean the most from in terms of 2 timelines, policy, what was done, why it was done. 3 individuals working in the mail room had all been 4 deposed under oath, so I had their testimony to work 5 with. 6 7 8 9 Q The And how did you pick Commander Montano as opposed to any of the other -A Well, in part, because I'm familiar with him. In part, because he was there. And, in part, because 10 he's got a high position. It's an administrative level 11 position within the jail. So, I got the information I 12 was looking for from a combination of talking to him and 13 to Kimble. 14 sheriff, but not about this case. 15 information the sheriff might have Kimble would have and 16 then some. You know, the sheriff, I talked to the I figured what 17 Q How long did you speak to Mr. Kimble for? 18 A If I had to guess, I would say probably 20 19 20 21 22 23 24 25 minutes or so. Q And did you speak separately with Commander Montano or was it at the same time? A shorter. Q No. It was separately. And his was probably Maybe 10, 15 minutes at the most. And where was that conversation? Was that at the jail? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 32 1 A There's a training room there at the 2 jail/sheriff's complex. 3 recall. 4 retired to and talked. 5 room. And I -- there was -- I can't It was a break room or another room that we It might have been the break 6 Q So, did you enter an actual jail facility? 7 A Not on this occasion. I have been in that 8 jail before, but I didn't see that touring the jail was 9 going to have, you know, provide any useful information 10 in this particular case. 11 confinement case or some use of force or other incident 12 that occurred, I would want to be inside the facility 13 for sure. 14 15 Q If it had been a conditions or So, you did not speak with any of the mail room staff, correct? 16 A No. 17 Q You did not speak with any prisoners, correct? 18 A No. 19 Q And you didn't speak with anyone else besides 20 21 Kimble and Montano; is that correct? A No. Not in respect to this case. Obviously, 22 I talked to a lot of people when I was there. 23 clarify the question, not in response to this case, no. 24 25 Q What were you at the jail for? But, to What was the training you were there for? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 33 1 A Pinal County decided sometime back they wanted 2 to do a number of trainings courses, one or two a year. 3 This one was a civil liabilities, prisoner rights 4 presentation. 5 by the name of Carrie Hill and I did. 6 recently this spring -- or, no, this summer. 7 even late fall, I guess. 8 September, which was on mental health issues. 9 Steve Sampson out of Georgia and I did that. 10 11 12 Mostly prisoner rights, which an attorney They did one more Or maybe Yes, probably August or That one, Did a brief, I think, four hours in that one. He did the rest of the training for two days. Q So, this prisoners' rights training, was that 13 the one you were there for when you spoke to Mr. Kimble 14 and Montano about this case? 15 A Yes. 16 Q When was that? 17 A I can consult with that -- where's the CV I 18 gave you? 19 you quite easily. 20 would have been August of this year. 21 would have been August of last year, it looks like. 22 23 Q It would be in there. I can find that for Let's see, with Steve Sampson that The other training So, the civil liabilities and prisoner rights training was August of last year; is that correct? 24 A 25 about. Yeah. So, whichever one of the two I talked I thought it was the civil liabilities training, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 34 1 but, you know, those are the two dates that I trained 2 according to this, so if that's an accurate date for the 3 training, it would be one of those two sessions. 4 5 Q So, in August of 2012, you were there for a mental health training; is that right? 6 A Yes. Let me also see what date it says in my 7 expert report that I talked to them. 8 easier. 9 would have talked to them. Hopefully. Okay. That's even August 16th, 2012 is when I So, it would have been the 10 second training program. I guess. Anyway, I talked to 11 James Kimble August 16th, 2012. 12 during a training session. 13 with another instructor, so I had time away from the 14 podium. And I know it was In either case, I was there 15 Q 16 there? 17 A No. 18 Q Why did you not think that was relevant to 19 Have you ever been in a mail room in the jail this case? 20 A Well, it was, basically, a policy and practice 21 case. 22 features of the mail room would add to the discussion. 23 24 25 I wasn't sure what looking at the physical Q And you didn't think that talking to the mail room staff would be helpful? A They had already been deposed and had (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 35 1 testified under oath. 2 upon, sworn testimony rather than a subsequent 3 discussion. 4 Q 5 So, that's what I chose to rely So, did you draft the report yourself, the expert report? 6 A Yes. 7 Q Did you have any help doing that? 8 A No. 9 Q Did you provide any draft reports to counsel 10 11 In the entirety. for defendants? A Yeah. I believe before they got the final 12 report I sent them, asking them if there was anything 13 else that they thought needed to be included in the 14 scope of the report. 15 for me to correct. 16 17 18 19 20 21 22 Q And Georgia found a bunch of typos So, did you add any other topics to the report at that point? A No. She didn't ask for me to expand the report, so I didn't. Q And have you done any additional work on this case since you submitted the expert report? A Two things. One was to try to respond to the 23 subpoena duces tecum. And the other was to spend some 24 time last, yesterday afternoon and last night reviewing 25 my report and a few other documents prior to giving a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 36 1 deposition. 2 Q 3 4 Have you been provided with any other documents since you submitted your report? A Let's see, Georgia sent me copies of exhibits 5 that you would be using today. 6 night, and, really, didn't having any time to do 7 anything with them, then this morning looked and saw it 8 was basically the same materials I reviewed yesterday, 9 for the most part: 10 I got those late last Copies of the policies and procedures, my expert report, Clark's report. 11 Q 12 trial? 13 A Do you plan to modify your report before No. Well, let me add one caveat to that. In 14 reviewing my report last night, I went through and found 15 that 4.5, I had made a reference in my report and called 16 it 4.3. 17 replicated that 4.3 as I was writing constantly. 18 there's probably a dozen, a dozen and-a-half 4.3s in 19 there that are supposed to be 4.5. 20 to clean that up, I would do so. 21 22 23 24 25 Q So, I would certainly want to add a note. Then So, So, if I was asked Other than those, you don't have any other plans to modify your report? A in there. Q No. I can't think of anything that would go And I haven't been asked to. And in preparing for this deposition, did you (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 37 1 speak to anyone to prepare? 2 A Sure. Spoke with Georgia Staton. 3 Q And when was that? 4 A For maybe 10 minutes on the phone yesterday. 5 Yesterday afternoon. 6 note from somebody, or a call from somebody, that I 7 wanted to speak to her this morning. 8 inaccurate. 9 special. 10 11 12 13 Then I also -- she had gotten a So, she called. But that was And I said, no, nothing And I was headed out the door when she called me. Q So, have you worked with Chief Kimble prior to this case? A Chief Kimble had been in some training classes 14 I had done in the past. 15 did our initial training program for them, the prisoner 16 rights program, I had had an opportunity to speak with a 17 woman by the name of Nicole Yusif, who works for them 18 and found her to be, have developed a very, very good 19 prisoner grievance program. 20 to Kimble a couple of times about whether I could bring 21 her out to our annual conference in Utah, and then also 22 scheduled her for an annual conference seminar at the 23 National Sheriff's Association. 24 25 Also, during the time that we So, you know, I have talked So, I think AARMS has also now included Kimble on one of their committees -- not AARMS. NIJO. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 38 1 N-I-J-O. has put him on one of their committees to 2 review training issues. 3 So, yeah, I see Kimble from time to time. I 4 see him at conferences. I see him at training sessions. 5 So, but I do so much training around the country, and I 6 have done a bunch in Arizona, so they called and asked 7 if I would do it for them as well. 8 Q What's your relationship with NIJO? 9 A NIJO is an appendix to the National Sheriff's 10 Association. It was created to develop a national 11 training program and national model policies program, 12 which will probably be kicked off early next year, and a 13 jail standards or guidelines program that the National 14 Sheriff's Association wants to begin doing 15 certifications on next year. 16 of outsourced to NIJO. 17 Tate McCotter, T-a-t-e, capital M-c-C-o-t-t-e-r, has 18 included, like I say, included him on one of his 19 committees. 20 Q So, what's your relationship to NIJO? 21 A I provide training for them. All of that they have kind And the fellow who runs that, And I also happen to sit on that committee. I provide a lot 22 of materials for them to use in what they are doing. 23 And I am also on their training committee. 24 25 Q So, do you have contracts with them to do the training? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 39 1 A No. Pretty much everything is handshake. 2 They call and say we've got training set up in Wheaton, 3 Illinois. 4 Alabama or Washington, Indiana, wherever it may be, then 5 I schedule it and go. We have training set up in Orange Beach, 6 Q But they compensate you for that? 7 A Oh, yes, absolutely. 8 When we do that type of training we get compensated. 9 Q In the trainings you do for Pinal County, are 10 those through NIJO or is that a separate arrangement 11 between you and the county? 12 A 13 the county. 14 not go through NIJO. 15 with DeLand & Associates. 16 We don't have a written contract. 17 18 Q That was a separate arrangement between me and I do a lot of training on my own that does But that was a separate contract Separate handshake, I guess. And so, under that agreement with Pinal County, how many training sessions are you providing? 19 A Well, I have done two. And it will be up to 20 them whether they want to continue to sustain the 21 program. 22 in. 23 other counties said, is there any way that we could 24 sponsor it in the future so this training moves around 25 the state. They have, like I said, invited other counties And, at the last session we did, a couple of the Whether they do that or not, I don't know. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 40 1 If they do, then it would mean that Pinal County would 2 not be taking the lead perhaps in all the future ones. 3 They were hoping to do at least a half dozen programs 4 over the next four years. 5 Q How much do they compensate you for doing 7 A I think -- I'm thinking that was about $2,500. 8 Q For each session? 9 A Yeah. 10 Q So, you have done two sessions for $2,500 per 6 11 that? Not each day, but each session, yes. session? 12 A Right. 13 Q And you said they want to do a half dozen over 14 the next four years, half dozen more? 15 A Yeah, four to six. They talked about four to 16 six. They said if we can keep the interest up we can 17 maybe do as many as half a dozen. 18 speculation at this point, of course. But that's all 19 Q Who are you training when you go there? 20 A It's jail administrators and supervisors, for 21 the most part, although, we do see some line officers 22 come to the training as well. 23 24 25 Q So, what level in the jail? Are we talking lieutenants? A It could be. Of course, small jails may not (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 41 1 have more than a lieutenant running the whole thing, 2 where others may have majors, commander, chief deputies. 3 So, rather than trying to look at rank so much, it's 4 better to look at functions. 5 mid-level managers or supervisors for larger facilities 6 might be two separate tracks. 7 you'll also have some line level people. 8 9 So, the chief executives, And, like I say, then The mental health program we did, we also saw a bunch of nurses and medical people, mental health 10 people from some of the jails, because Steve Sampson was 11 a renowned instructor, and they wanted to hear what he 12 had to say. 13 Q 14 15 How many people attended this most recent session you were there for? A I would say probably around 50. Certainly 16 more than 40, but it quite easily had been 50. 17 even have been more than that. 18 little less than that. 19 the 40s for sure. 20 exceeded 50. 21 22 23 Q It might The first session was a It would have probably been in But this one could have easily And who was at the first session? Was that the same group of people you described? A Yeah. It was a smaller number of counties 24 that attended. They got word of what had taken place at 25 the first one, so we had more people interested in doing (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 42 1 so. 2 developed as resulted of it. 3 4 5 Like I say, now the interest in hosting this Q So, how many people from Pinal County were at that first training? A First session, they were probably two-thirds. 6 Second session they were probably half or less. 7 that's just a guess, of course. 8 Q So, two-thirds of how many? 9 A Two-thirds of 40, say, depending on how 10 accurate my estimating is. 11 the same number of people at the second one. 12 little less, because it was a more narrow focus. 13 had more people attended overall. 14 15 16 Q But They probably had, roughly, Maybe a But we Can you describe the content of that first training? A Yeah. I did a basic overview of 1983 and 1988 17 for them. Some discussion of the Prison Litigation 18 Reform Act. 19 substantive issues. 20 force, duty to protect and prisoner discipline. 21 does medical and mental health conditions of confinement 22 issues, first amendment, Pria. 23 Pria at that session. 24 particular training session. 25 Religious Freedom Restoration Act. Then Carrie Hill and I split up the I ordinarily do searches, use of She Although she didn't do That wasn't done at that Oh, and she also does the And RLUIPA, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 43 1 Religious Land Use and Institution Persons Act, which 2 deal with prisoner religious issues. 3 higher standard than the constitution does in that area. 4 5 Q Since that has a So, you don't do any training on mail publication issues? 6 A Occasionally. But once -- Carrie and I train 7 together. And I apportion that to her. Last spring, I 8 know I did one or two sessions, because neither one of 9 us could be there for the full three days. I could do 10 two days, she could do two days, so we kind of played 11 around with the schedule. 12 It was probably Orange Beach, Alabama last year, or this 13 spring, I should say. 14 think I did the mail issues there. 15 16 Q And I did -- trying to think. And San Bernardino County, I And do you have written materials that you provide to the people being trained about mail issues? 17 A Yeah. For the regular training programs we 18 do. 19 those, the portion of that training outline that dealt 20 with mail issues as part of the package we responded to 21 the subpoena duces tecum on. 22 23 24 25 We have written materials. Q I think we employed So, do you use the same packet or same training materials for your training? A Until the law changes. Until something comes up that says it's time to change this. So, you know, if (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 44 1 I put out a training outline with five or six topics in 2 it, and Carrie puts out a training outline with five or 3 six topics in it, you can be sure that one or more of 4 those have had some modification. 5 just to be changing. 6 Q But we don't change So, if we were provided materials from the 7 Alabama first amendment training, would that have been 8 the same materials that were provided to the people in 9 Pinal County who were trained in August of 2011? 10 A No. Because she did that training. I didn't. 11 She did the training at Pinal County. 12 PowerPoint presenter. 13 you notice -- the case law would be similar, obviously, 14 but we use very much different outlines. 15 16 17 Q So, she's a And I don't use PowerPoint, so And what issues does she cover in the first amendment session of her training? A Mail visits, telephones, privacy and 18 communication or lack of. 19 touches on religion from a First Amendment standpoint, 20 RLUIPA, Religious Land Use and Institutionalized Persons 21 Act is what she focuses on. 22 23 24 25 Q And then, although, she In terms of mail issues, does she cover any different material than you cover in your mail training? A It's probably the same. emphasis would be different. Obviously, her She might cite some cases (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 45 1 differently than I cite since there are any number of 2 cases out there, I suppose. 3 to a case such as Cheshire, PLN vs. Cheshire, because 4 that was a case I testified in, at least at deposition, 5 before the summary judgment came down. 6 7 8 9 Q I might pay more attention And, approximately, how many hours have you spent working on this case so far? A I'm not sure in terms of hours. If I had to guess, you know, charging 300 an hour, if you divide 10 that into how much I've charged them, and I don't know 11 that exactly, but I would be surprised if it's more than 12 15,000. 13 a little more, I suppose. 14 you can probably come to a number. You know, probably a little less. If you want to do the math, 15 Q So, that's about 50 hours, maybe? 16 A Sounds about right. 17 Not as much as I do on some other cases, but -- 18 Q Okay. 19 A Just about ready to ask for one. 20 21 22 It could be Let's take a brief break. (Whereupon, a brief recess was taken.) BY MR. THOMPSON: Q I am going to mark the expert report as 23 Exhibit 2. For the record, this is Defendant's Expert 24 Disclosure Statement, which includes the expert report 25 of Gary W. DeLand. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 46 1 2 (Exhibit No. 2 was marked for identification.) BY MR. THOMPSON: 3 Q Can you turn your attention to page 4? 4 A Okay. 5 Q So, it says you are the executive director of 6 the Utah Sheriff's Association? 7 A Yes. 8 Q What are your responsibilities for the Utah 9 Sheriff's Association? 10 A Among other things, I oversee the jail 11 inspection system and the standards which they are 12 inspected to. 13 Academy training program, other in-service training 14 programs for jails. 15 have jails. 16 technical assistance to the jail commanders when they 17 have questions with respect to whether policies are 18 correct or those kinds of things. 19 I run the Jail Commander Certification We have 29 counties. So, we train all of them. 28 of them I also provide I have also put on a conference each year, 20 which is law enforcement and corrections for the 21 association. 22 attendees. 23 16, 17 years. 24 them. 25 meetings, except those times when I am out of town, and, I think this year we had about 800 I have been doing that for about the last Those are the main things that I do for I also, of course, attend their monthly business (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 47 1 basically, serve at the pleasure of the sheriffs. 2 Q So, is it a full time position? 3 A No. In fact, several years ago I asked them 4 to reduce my contract amount from 50, from 55,000, 5 whatever they were paying me, down to about 30, 35, 6 somewhere. 7 because it was requiring too much of my time working for 8 them. 9 them, or with the money that I gave back to them, they 10 hired somebody else to do some of my responsibilities, 11 which included the legislature, which I don't like to 12 do. 13 14 I don't remember the exact number even, So, with some of the money that I gave back to Q So, does the Utah Sheriffs Association have other staff? 15 A Let's see, they have somebody who oversees the 16 vendors at the conference. 17 handles fund raising for the association. 18 an individual who handles the legislature, as I 19 mentioned, which I do nothing on that. 20 one other person who basically handles our financial 21 side. 22 contractors, not employees. 23 They've got -- and she also There's also And then we have All of us are actually contract employees or There's also an individual who works free for 24 the association, other than we provided him a vehicle, 25 who actually is the hands-on for our jail inspection (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 48 1 program. 2 bought him one. 3 for us. 4 5 Q He's got MS and needs a special vehicle, so we But he works, other than that, for free So, are you the one that conducts all the training for the sheriffs association now? 6 A I am the one who sets it up. And I conduct a 7 lot of it. 8 City. 9 Lieutenant Shawn Stewart, so we'll be doing three days 10 11 12 Like, a couple of weeks I'll be in Park But I'll be sharing that responsibility with of training, but I'll be doing one of those days. Q Does the Utah Sheriffs Association have jail standards? 13 A Yes. 14 Q Did you draft those? 15 A I drafted those about 17, 18 years ago, before 16 they had hired me. 17 had written their standards that they hired me. 18 19 Q As a matter of fact, it was after I And so, how many days a year are you doing training for jail staff, would you say? 20 A In Utah, you mean, or all over the place? 21 Q Let's start with Utah. 22 How many days a year are you doing training for Utah jail staff? 23 A If -- let's see -- 24 Q Approximately. 25 A Accounting the fact that I may only do a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 49 1 couple of days, hours on one day and then a couple more 2 the next, working with other instructors, it would 3 probably be something in the neighborhood of half a 4 dozen days a month, sometimes more, sometimes less. 5 conservatively, at least four days a month. So, 6 Q In Utah? 7 A Yes. 8 Q And, then, what about other training of jail 9 staff? 10 A How often are you doing that? Well, in the past, I have tried to limit the 11 time I have been doing training. But since I have been 12 helping NIJO set up training programs, I have done quite 13 a bit of training this year. 14 programs in San Bernardino, Orange Beach, Indiana, just 15 this past week. 16 session. I have done three-day Back to Orange Beach for a two-day Let me look at my CV again. 17 Q That's all right. 18 A Yeah. I got the idea. I don't like to travel, and got kind of 19 tired of that. 20 working, I have been taking a lot more training. 21 Q But to make the training program So, it says you are a member of the training 22 committee for the National Sheriffs Association; is that 23 correct? 24 A Yes. 25 Q What does that entail? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 50 1 A Well, it's the training committee of the 2 Committee of Executive Directors and Presidents. So, 3 there's two different committees I am on involve 4 training at NSA. 5 and Executive Directors Committee. 6 committees that are underneath that, including the 7 training committee, are part of that. 8 subcommittee of the main committee. And if you'll look, it says Presidents And all those It's a 9 Q So, what does that subcommittee do? 10 A It, basically, provides trainers, or 11 recommends trainers for our -- we meet three times a 12 year, that committee. 13 business and part training. 14 individuals that can provide relevant training. 15 recommend trainers and training topics to the various 16 other executive directors of the sheriff's association. 17 We don't actually conduct any training on our own. 18 19 Q So, part of those sessions are So, we look at lining up Also, And when was the last time you worked full time in a correctional facility? 20 A 1992. 21 Q And where was that? 22 A I ran the Utah Department of Corrections. 23 the prisons and halfway houses were part of that 24 process, or that organization, I should say. 25 Q And So, at that time, were you working in a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 51 1 correctional facility though? 2 A No. I was working -- my office was located 3 separate from that, but made it a point, at least two 4 days a week, sometimes more, to be at the prison, 5 meeting with staff, sometimes pulling shifts with two or 6 three in the morning, whether I needed to make sure I 7 knew what was going on and to stay current in the kinds 8 of problems my staff were dealing with, going out on 9 Christmas Eve with candy to them in Salt Lake. 10 Q So, when was the last time you were actually 11 working five days a week full time in a correctional 12 facility? 13 A That would be at the Salt Lake County Jail in, 14 probably, 1979. 15 and out of Utah's jails all the time, working with them. 16 Q Then, you know, the part-time basis, in And when you do the training that you do now 17 in jails in Utah, or any other place you described, are 18 you actually in the jails doing the training or are you 19 doing that in a separate room somewhere? 20 A Varies. It varies. You know, the recent 21 training we did in Indiana was a room adjacent to the 22 jail. 23 before that in Alabama it was a hotel in Orange Beach. 24 So, wherever they want us, that's where we go. 25 inside the criminal justice complex adjacent to the jail It was part of the jail building. The week (866) 448 - DEPO www.CapitalReportingCompany.com It was © 2012 Capital Reporting Company 52 1 in Pinal County. 2 certainly. 3 Q But not right inside the bars, So, what kind of work do you do now that has 4 you actually inside the jail, you know, in housing units 5 or areas like that? 6 A In my own state, because I'm, you know, a 7 technical assistance provider and oversee, you know, I'm 8 in charge of the jail inspection program. 9 opportunity or the need on some occasions to go sit down I have the 10 with jail commanders at different places. We also hold 11 our monthly business meetings in a variety of locations 12 around the states which gives me an opportunity to go 13 into the jail, whichever county we are there, and sit 14 down with the jail commander, tour his facility, talk to 15 his staff. 16 different functions when I'm there. So, it's a wide variety of opportunities and 17 Of course, then I also, in most instances 18 where I'm doing expert witness work, tour the jails 19 there. 20 practice issue, so I didn't worry about it. 21 22 23 Q Like I say, this one was more of a policy and And when you say you oversee the jail inspection program here in Utah, what does that mean? A Well, since I put the standards together 24 originally, I now keep the standards up-to-date. 25 brought in this individual who, like I said, he's (866) 448 - DEPO www.CapitalReportingCompany.com I © 2012 Capital Reporting Company 53 1 retired. 2 that we buy him a vehicle. 3 couple of weeks about the progress different jails are 4 making. 5 want, I either call the jail commander or the sheriff on 6 the phone. 7 spend some time with them to try to get them cranked 8 back up again. 9 10 11 Q He's working free for us with the exception So, he and I talk every If some of them are not making the progress we Or, if it's convenient, we'll drive over to So, are you actually doing any inspections, or is that all the other person in the organization? A No. We have four part-time inspectors that we 12 have trained, almost all but one of whom are former jail 13 administrators or mid-level managers, all of them with 14 exceptional experience, in any event. 15 have them do the inspections. 16 what they will do. 17 18 Q So, what I do is And then I train them on I would like to turn your attention to page 6 of your report. 19 A Okay. 20 Q In paragraph 5 -- 21 A Yes. 22 Q -- you say you provided training and/or 23 technical assistance for other jurisdictions concerning 24 how to outline format, write and validate policy 25 procedures on manuals. Can you explain what outline, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 54 1 2 format, write and validate means? A Yes. Especially when I was doing a lot of 3 work for the National Institute of Corrections, they had 4 me doing a lot of this. 5 start writing standards, you know, the important thing 6 is to outline and determine what are the topics that 7 they are even going to need to include. 8 basically, an outline becomes a table of content under 9 which any number of individual standards will be placed. 10 Format. And by that, I mean, before you You know, How are you going to assemble the 11 standard? 12 saying, hey, do this, do this, do this? 13 that I train to, at least, is to have the text of the 14 standard, which is what we want you to do, much like 15 policy in a manual would be what we want you to do. 16 Then a rationale statement. 17 Are you just going to have a brief statement Or, my approach I have told people you shouldn't trust what I 18 tell you to do unless there is a reason for it. So, 19 what is the basis for that particular standard? You 20 know, usually they are legal based, the ones we are 21 doing. 22 say, Arizona State University or the department of 23 justice or someone else that has really good data that 24 justifies doing something a particular way. 25 But there may be studies that have been done by, Then we have a compliance discussion, which (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 55 1 would be not, you know, somewhat similar to procedure in 2 a manual. 3 a 50 bed jail and a 5,000 bed jail are, obviously, going 4 to approach things differently. 5 keep between the digits. 6 basically have to do to comply. 7 want to do it within these limits. 8 9 10 Q Everybody's under the same constitution, but So, basically, try to You know, here's what you You figure out how you So -- What does validating the policies and procedures manual mean? A Part of it is what I just mentioned with 11 regard to the rationale statements. 12 do not provide a rationale for the policy and 13 procedures. 14 that way, it's because some other county did it or an 15 AJA manual suggested they do it, or some other such 16 thing. 17 look at why they do what they do, number one. 18 Most places I go to So, when you begin asking why you do it So, validating is getting people to take a hard And, number two, to contrast their policies 19 and procedures with the case law; you know, get with 20 their county attorney. 21 outlines, but those aren't legal advice, they are simply 22 training guides. 23 together with whoever their legal provider is and make 24 sure they have sufficient research to know whether their 25 policies are on track or not. They can look at our training But we recommend that they get So, that's, you know, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 56 1 what we are talking about validating. 2 basically, what I am talking about. 3 4 Q That's, Have you put together any documents on how to write like a policy and procedure manual? 5 A Back in the early '80s I did, because we used 6 it. And I see a lot of it in the training programs I 7 did. 8 couple of decades. But I haven't seen those outlines for probably a 9 Q So, are those used anymore, to your knowledge? 10 A I doubt it. I'm sure other people have come 11 up with their own ideas about how to do things. 12 instruction, I bring up policies and procedures and talk 13 about state created liberty interests and rationale 14 statements and so on, but it's not a how to, it's just, 15 basically, some of the things they need to be aware of 16 when they are writing policy manuals. 17 Q In my So, when you give those presentations, do you 18 have materials that describe your philosophy for how to 19 right a policies and procedures manual? 20 A No. I hand out materials that would simply 21 talk about why we have policy manuals, and those two 22 things I just mentioned to you, probably a page, page 23 and-a-half of an outline, I'm guessing. 24 25 Q And where do you give that training? Who do you give that to? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 57 1 A Well, it depends on what people ask for. If 2 they just want prisoner rights, I don't do it. 3 want prisoner rights and civil liability, then we add 4 that to the training outline. 5 recently, this last training session we did, that was 6 part of it. 7 Q When you say the last one, which one do you 9 A Washington, Indiana. 10 Q Was this discussion of how to draft policies 8 If they For example, just The week before, it was not. So -- mean? 11 and procedures part of a training you did in Peoria, 12 Illinois of 2011? 13 A I have to look at the training outline. I'm 14 not sure. I thought this was mostly a prisoner rights 15 thing. I would have to look at it. 16 how you draft them, the training is simply here's some 17 things to keep in mind when you do draft them. 18 and I haven't for a long, long time, but NIC used to 19 send me out to do that type of training. 20 spend two days teaching them how to write, having them 21 write various aspects of a policy, then breaking down 22 what was right and what was wrong with it. 23 course of two, sometimes three days, actually, we had 24 some as long as a week, you know, people left with, 25 hopefully, an understanding of how to write a policy. The training is not If I do, And we would (866) 448 - DEPO www.CapitalReportingCompany.com And over the © 2012 Capital Reporting Company 58 1 But I haven't done anything like that in decades. 2 it's just a 15 minute discussion as part of protecting 3 yourself against liability. 4 Q Now You say in your report that you wrote jail 5 standards for Michigan and Alabama and Arizona; is that 6 correct? 7 A Yes. 8 Q So, does that mean you wrote them from 9 10 scratch? A No. I wrote the Utah standards, as I 11 mentioned. 12 to do it for Arizona. 13 Court of Appeals, obviously. 14 statutes in the ARS, or Arizona Revised Statutes. 15 what I would do then, is update or modify those 16 standards to meet Ninth Circuit Arizona District Courts 17 and, if appropriate, any state court cases, which we 18 didn't run into many that have helped. 19 that anything that was written was consistent with the 20 Arizona Revised. 21 And they are all legal based. So, I'm going They are in the Ninth Circuit They also have state So, And make sure Then there was a committee that would go 22 through. 23 their needs unless it was something that was far enough 24 off track that I said no. 25 And they would adjust what I had written to Alabama, almost nothing in statute, but they (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 59 1 have got 11th Circuit case law. 2 District Courts. 3 which they have not adopted yet, but, same thing. 4 at the statutes. 5 there, then modify what's already been written to fit 6 that requirement. 7 8 9 Q And they have Alabama So, you know, in writing Michigan's, Look You looked at Sixth Circuit case law So, who is commissioning you to write these standards in these other states like in Michigan? A Michigan, it was the Michigan Sheriff's 10 Association. 11 adopted yet, is they are working with their risk 12 management people to fund getting this thing together. 13 I don't know when that will happen. 14 15 16 Q And they are the reason they haven't been So, you have already drafted a standards, but they haven't been issued; is that correct? A That's right. In Alabama, it was an Alabama 17 risk management firm, but they only do 45 counties out 18 of, I don't know, some, probably close to a hundred 19 counties in Alabama. 20 applicable to those counties, because they want the 21 counties they insure to follow them. 22 training two weeks ago there. 23 counties I heard ask the representative of that group if 24 they could buy in and use the standards as well. 25 just depends. So, the standards are only Although, I was There were a number of So, it In Arizona, it was Arizona Counties (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 60 1 Insurance Pool that funded the initial project. 2 sure how it's funded now, whether they get paid by the 3 individual counties or what. 4 5 6 Not Q And, in Michigan, is it an insurance pool A Yes. also? Well, they are the ones who will 7 ultimately fund it. But it was the Michigan Sheriff's 8 Association that asked that we do it. 9 fortunate there. Then I was They offered us an attorney who had 10 researched the statutes for me, which saved me that 11 responsibility. 12 13 14 Q So, do you start with kind of a template from the Utah standards, then adopt it to the local law? A Yes. You know, if the Tenth Circuit is 15 different than the Sixth or the Michigan or whatever 16 other Federal District Courts have taken a different 17 approach than, say, the Utah, then, obviously, I have to 18 reflect that. 19 Q You also described some jail policies and 20 procedures manuals you have written in Utah. 21 look on page 14 -- If you 22 A Actually, it's on 13 and 14 on my copy. 23 Q Yes. So, on page 14, it looks like in the 24 last 10 years you have written policies and procedures 25 manuals for four jails here, is that correct, the four (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 61 1 2 3 4 5 6 counties? A Iron County, Uintah County, Millard County and Cache County. Q So, what's your role in writing those manuals? Are you drafting those entirely yourself from scratch? A Yes. What we do is, you know, there's an 7 endless number of chapters that could go in a manual. 8 So, I agree to do 200 or 150 or whatever number of 9 chapters they want. Then I give them a list of the 10 various topics they could ask for. 11 have policies they feel comfortable with in some area or 12 may not want to put out money that may not have any 13 liability attachment. 14 they want written and which ones they want done first. 15 Then, over the course, usually is a couple of year 16 project, because it takes them a while, when I write, to 17 go through it and make suggestions on changes and so on. 18 19 20 Q Some people already So, I let them prioritize what So, then are those manuals you drafted revised by counties or do you give them a finished product? A Well, it just depends. In, for example, 21 Millard County that's mentioned there, all I do is 22 provide them the draft. 23 with it after that. 24 wanted a finished product. 25 for it, of course. It's up to them what they do With regard to Cache County, they Then they paid a lot more So, I would send them a draft. (866) 448 - DEPO www.CapitalReportingCompany.com They © 2012 Capital Reporting Company 62 1 had a series of committees, depending on what the topic 2 was that reviewed that. 3 comments in, make their suggestions. 4 they wrote was a clear violation, in my judgment, of the 5 constitution, or something it was going to get them in 6 trouble, that's the way I redrafted it for them, then 7 sent the finished product to them. 8 9 They would then put their Then, unless what Toward the end, they started saying, look. can even do our own finished product if all we are doing 10 is changing, you know, typos or very minor things that 11 don't have a great deal of impact. 12 that as well. 13 14 15 We Q And I agreed to do So, are those policies and procedures manuals changing since you finished them? A Sure. In fact, I built in a requirement that, 16 at a minimum, every 18 months they have reviewed the 17 manual and -- reviewed individual chapters. 18 chapter will have a different suspension date, of 19 course. 20 little changes, six months out, eight months out, then a 21 new 18 month review date is attached to it. 22 it's intended that they do that, because laws change or 23 maybe what I wrote didn't work out so well. Each Most of the time they will find they have made But, yes, 24 Q So, are you involved in those changes? 25 A No. No, that's all on them. That would be a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 63 1 separate contract. 2 Q And for those four counties on page 14, did 3 you write the sections of those policies and procedures 4 manuals regarding mail publication issues? 5 A Yes. Each of the four, I did. They may be a 6 little different from jail to jail. 7 made changes in them, and I don't know for sure, I 8 couldn't tell you with respect to every single chapter 9 what happened, but, yeah, I would have written all four 10 of those. 11 12 But if somebody Q Those four counties, bigger or smaller or about the same size as Pinal? 13 A Let's see. I think Pinal County has about 14 400,000 residents. 15 this county we are in now, it is just under, I think 16 it's 180, 175,000 last I heard, so it would be half that 17 size. 18 would be substantially smaller. 19 20 21 So, the ones that I was writing for, Iron County, Millard County, and Uintah County Q And have you written mail policies for any other correctional facilities? A Let's see, yeah. Summit County several years 22 ago, a lot of that policy would now be outdated, but 23 several years ago I wrote one for Summit County. 24 just take a quick, quick, quick look. 25 the 1980s. Let me Sonoma County, in Again, that's so long ago I'm sure most of (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 64 1 what I have written is outdated. I did a complete 2 manual for them. 3 a result of those being written, I was asked to do a 4 model policy manual which could or could not be used by 5 the various counties that were interested. 6 terminated that contract about three-quarters of the way 7 through. 8 that one. 9 said, you know, we are getting to where we can now write Arizona Model Detention Guidelines, as However, we And I don't recall ever getting to mail on Certainly, they got to a point where they 10 using your format and so on. 11 terminated the contract? 12 great idea, since I don't really like writing manuals, 13 and I didn't have the time. 14 15 16 Q Would you mind if I I told them it would be a So, did you write a model mail policy for that manual? A No, I don't believe I did. Because I remember 17 when I was talking it seems like I had a conversation 18 with Bill Hardy on an entirely different matter on 19 another day. 20 didn't write the mail policy, you know, for Pinal 21 County. And it seemed to me he said, too bad you Something to that effect. 22 Q What did he mean by that? 23 A Well, I guess he had been sued. And so, I 24 guess he thought somehow if I wrote it it would be less 25 likely that would be the case. I don't know if that's (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 65 1 true, but that was, again, another manual that was 2 written. 3 about three-quarters of the way through. 4 recall ever getting to the mail policies. But, like I say, that contract we terminated So, I don't 5 Q That was a contract with -- 6 A With ACIP, Arizona County Insurance Pool. So, 7 they own that manual. Then we had a whole series of 8 manuals at the Utah Department of Corrections. 9 know, many, many years ago, when none of this case law You 10 was around, I had written it for Salt Lake County. 11 have also written for a private correctional operation 12 called Promontory, and also for the Purgatory 13 Correctional Facility. 14 15 Q I But that was in the late 1990s. Okay. Can I turn your attention back to Okay. page 4? 16 A Sure. 17 Q So, you list that you were a senior adviser 18 19 for the Iraq Minister of Justice? A Yes. And Department of Prisons part of that, 20 because they also had courts. It had nothing to do with 21 the courts. 22 Q So, were you employed by the United States? 23 A Yes. There were two pockets of money over 24 there; one for the military and one for what's called 25 CPA, which is the civilian side. Coalition Provisional (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 66 1 Authority. 2 came through, I guess it would be Justice and the State 3 Department. 4 seized from the Iraqi Government, you know, the box cars 5 full of hundred dollar bills that might have been around 6 when they came in. 7 Q So, I was being paid with the money that Much of that money was money that had been So, in Note 2 on page 4, you say you helped 8 establish the Iraqi Correctional Services Training 9 Academy? 10 A Yes. 11 Q What was that? 12 A Well, when we came in, we were under order to 13 stand up as many facilities as we possibly could, 14 because we were simply being housed on bare ground with 15 concertino wire around it and, generally speaking, slit 16 trenches where they would burn off the waste. 17 Abughraib, for example, they had a place called Camp 18 Victory. 19 just sectioned off with concertino wire enclosing and 20 separating the prisoners. 21 not sure I got everything that you were asking there. 22 Q At And that's all that was when I got there, was Ask the question again. I understood the response. I am So, you said in 23 footnote 2 you renovated open federal detention and 24 prison facilities. 25 open? Can you describe what you mean by (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 67 1 A Yeah. One of the things that happened over 2 there was, there would be some damage, obviously, from 3 the fighting. 4 that was the least of the problems. 5 we found had simply been -- vandalized isn't even the 6 word -- stripped might be a better word, and sold. 7 know, the seal would be gone, the glazing or what you 8 call the glass would be gone. 9 off the floors. Abughraib was shot up pretty good. But The facilities that You Tile would be taken up So, what you had to do is go back and 10 rebuild. In fact, they had just built a place, I think 11 it's in one of these documents, Kan Ban'i Saad. Brand 12 new facility. My team 13 arrived there a month ahead of me. 14 new pristine facility. 15 it. 16 guns. 17 produced international journalists. 18 a standoff. I think there's like 4,000 beds. And it was a brand But some Arabs had moved into And when they told them to get out, they produced 19 So, they came back with the military. And they So, it was a bit of And while that was going on, they tore the 20 prison down, literally. 21 building probably twice the size of this room left, an 22 administrative building, even the walls had been torn 23 down and sold. 24 25 Where there was one single I mean, they are really good. We built a place called Karck, or were working on it. Laid down tile. Next day, came back. (866) 448 - DEPO www.CapitalReportingCompany.com All the © 2012 Capital Reporting Company 68 1 tile was gone. 2 selling it. 3 rebuild the facility that had been stripped of security 4 equipment, locks, bunk beds. 5 even bother to provide beds for them. 6 been there was no longer there. 7 rebuild it all. 8 9 10 Q There was a guy three blocks away So, what we did was have to go back and A lot of them we didn't But whatever had So, we had to go So, that was one of the facilities that was renovated and open that you managed? A Yeah. Abughraib, we really liked that 11 facility for one reason, and that was it was really big. 12 It had been built by a German construction firm. 13 well designed and built. 14 The downside to it, it was right on the edge of the 15 Sunii Triangle. 16 But there were so many beds that once we tore out the 17 kitchen and rebuilt it and put in a hospital and those 18 things, when I left we actually cut the ribbon on it. 19 But it didn't have any inmates in it because we had -- 20 all the locks hadn't arrived yet. 21 waiting for a shipment of locks. 22 felt because our tour was up, he wanted us to be there 23 when they cut the ribbon even though there wasn't any 24 prisoners there. 25 know how long after we left they started putting It was And the damage was repairable. And they were mortared every night. And we were still But, General Campbell So, that came a month or so. (866) 448 - DEPO www.CapitalReportingCompany.com I don't © 2012 Capital Reporting Company 69 1 prisoners in it. 2 Q So, when did you leave there? 3 A September. 4 Q September 2003? 5 A 2003, yes. I had offered to go home, come 6 back and extend, but at that time they weren't doing 7 that. 8 lined up a whole bunch of work thinking I could not do 9 that, so I never got back. 10 Then, later, they were. Q But I had gone ahead and So, you say here that the Abughraib facility 11 was turned over to the US Army Military Intelligence 12 Unit? 13 A Right. 14 Q So, when was that? 15 A Well, I left in September. Lane McCarter 16 left, then General Campbell that we worked for, we all 17 left September -- there was a general over there who 18 since has been kicked out of the army, demoted, and then 19 had to leave by the name of Janis Carpinski. 20 I left, something we had refused to do before, because 21 of which money we were using to rebuild this place, they 22 had tent cities, we had the hardened facilities for the 23 government. 24 these military intelligence prisoners. 25 As soon as She went ahead and turned over for housing Also, a very professional unit out of Nevada, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 70 1 the 72nd or 73rd MP Company followed home a month after 2 us. 3 Appalachia. 4 there then a couple of months later. 5 everything had changed. 6 was gone. 7 now the military unit that provided security, they were 8 also gone. 9 exception of Carpinski. 10 11 And they brought in a group from, I guess, Upper Q And you saw the problems that were caused Lane was gone. So, you know, General Campbell was gone. I Our whole team was gone. And So, it was all brand new faces with the So, when you were there, were there two separate facilities, one to house Iraqi prisoners? 12 A Three. 13 Q Yes. 14 A Three. You are talking about in Abughraib? When I say first got there, there was 15 Camp Victory, which it was inside the walls, but it was 16 nothing more than concertino wire and dirt. 17 I left, they had put tents in there and latrines. 18 then they also opened another unit which they referred 19 to as IFs, interment facilities. 20 grounds, in a huge, huge area, you know, Abughraib is a 21 place, but in this case it was three separate places. 22 And the interment facility was built in units of 500. 23 You would have tents and support facilities also in 24 tents for 500 inmates at a time. 25 left there was somewhere between 2,000 and 2500 in Camp By the time But Also, on the Abughraib I think at the time I (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 71 1 Gancie -- G-a-n-c-i-e, if I remember the spelling 2 correctly. 3 operations going on simultaneously at Abughraib, a 4 prisoner of war camp, a IF facility unit, and then what 5 we were building for the Iraqi government. 6 7 8 9 10 11 Q So, there were three facilities, three What was the part that you were building called? A Just simply referred to it as Abughraib. it was the hardened facilities. It was the brick and mortar. Q So, is it your testimony that they moved, the 12 military intelligence unit moved into the brick and 13 mortar facility that you had participated in putting 14 together? 15 A Yes. Which my understanding was that they 16 weren't supposed to do that. 17 came out of this plot which was to do things for the 18 Iraqi Government. That was money, you know, 19 Q So, who were you funded by? 20 A We were funded by CPA. 21 22 23 24 25 But The military funded the other two operations over there. Q Have you given any presentations at conferences about prisoner mail issues? A Maybe a long time ago. I can't think of anything in recent days that I have. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 72 1 Q You don't remember anything particular in the 3 A Well, what do you mean past? 4 Q You say a long time ago. 5 A Oh, back in the days when I was, you know, 2 past? 6 working with NIC a lot, I did a lot of training at ACA 7 and whatnot. 8 included that, among other things, that I have been 9 talking on. 10 11 There could have been a program which But I don't recall it being a specific topic that I actually provided training on. Q Did you give a presentation at the National 12 Sheriff's Association conference in Nashville this year 13 about prisoner mail issues? 14 A No. 15 Q Were you going to give a presentation there? 16 A Before the explosion, you mean? 17 Q Yes. 18 A Well, we were all sitting around having dinner What happened? 19 one night, about 9 o'clock. 20 explosion which took out about 75 yards of that big 21 hotel complex. 22 23 24 25 Q And there was a hellacious So, what was the presentation you were going to give? A The next day it was going to be on, basically, the PLN issues. It was becoming a hot topic. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 73 1 Q What do you mean by PLN issues? 2 A Well, publications. But PLN, there are a lot 3 of cases around the country, as you know, where PLN has 4 sued. 5 up in Washington, Oregon. 6 attention was given to that. 7 didn't know until I got to the conference I was speaking 8 on that. 9 searches. You know, the DeWitt case, and a bunch of cases 10 Pick a state. So, a lot of So, in fact, even then I I thought I was speaking on use of force and But things had gotten juggled. But, in any event, I would have been happy to 11 speak on it except the place blew up. 12 all the training programs which were due on that, I 13 believe it was a Wednesday. 14 training that was going to go on that was jail related. 15 16 17 Q So, they canceled And we had a whole track of What do you mean you thought you were speaking about use of force? A Well, when I originally talked to Tate 18 McCotter, he said, would you be willing to do a couple 19 of workshops? 20 He said, what do you want to do? 21 preference would be those two. 22 work it out. Sure. What do you want me to talk on? I said, well, my He says, okay. We'll 23 Q What do you mean those two? 24 A Oh, those two would be use of force and 25 searches. The Florence decision, I think, by then had (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 74 1 come down. In any event, when I got there, I had found 2 that Carrie Hill had wanted to do one of those topics. 3 They had requested different kinds. 4 would you mind doing that? 5 take lesson outlines to those national conferences 6 anyway, because you don't know how many people you are 7 going to have in your room. 8 could have 210. 9 when I go there, so I'm not going to put out the money to develop outlines. 11 on what I already know. 13 14 Q That's fine. I don't You could have 10. You And besides, I don't get paid to train 10 12 No. They just said, I simply stand up and talk based So, you didn't have any materials for that discussion on -A No. I probably wouldn't have anyway, not 15 knowing that I was going to be speaking on that. But I 16 didn't prepare any materials on the two topics I thought 17 I was going to teach either. 18 being paid, you are just asked to come in and do a brief 19 workshop, or a couple of them -- Like I say, if you are not 20 Q So, what were you planning on talking about? 21 A Well, what would have been talked about was, 22 as I had worked it out in my mind, I would talk about, 23 first of all, what the First Amendment requires with 24 respect to being able to communicate with people in the 25 outside world, who people should be able to talk to. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 75 1 Talk about the fact that others may want to communicate 2 with inmates and, perhaps, have an editorial interest 3 such as publishers. 4 Second would be, you know, how you screen 5 materials. Are you allowed to read it. Those kind of 6 things, third. 7 our discussion would be, if you are not going to allow 8 it in, what are the criteria that you can use, how you 9 avoid content based screening, and then how you go about Fourth, wherever we are at this point in 10 allowing appeals, usually the grievance process for 11 staff -- or inmates. 12 instructions to the sender, you know, the publisher, in 13 this case, you know, PLN or Time Magazine or whoever it 14 would be that may want to send something in. And then written notice with 15 Q So, those are all kind of general topics? 16 A Yeah. 17 Q Was it going to be specifically about PLN in 18 any way? 19 A PLN was the catalyst more than the star of the 20 show. 21 guess is that would be one way to get people in there, 22 is to put PLN somewhere in your discussion, in your 23 description. 24 I don't remember how they advertised it. My (Exhibit No. 3 was marked for identification.) 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 76 1 2 BY MR. THOMPSON: Q So, for the record, this is a 5-page document. 3 It's not the whole conference program, but it was a 4 couple hundred pages. 5 pages. 6 discussion we have been having. But this is the introductory And then on the page it describes this Do you see that? 7 A Yes, I do. 8 Q On page 57, the program? 9 A Yes. 10 Q So, is that the presentation we have been 11 discussing? 12 A 13 blurb here. 14 probably. 15 more basic approach to it so there was a foundation 16 against which to apply anything I was going to be 17 talking to. 18 talk about rights to receive, rights to inspect and 19 review, all those things, and then got to PLN, since 20 that's also listed here. 21 Q It is. Like I say, I didn't write this little But I would have talked about those things, But I would have started, you know, with the So, we did talk First Amendment. We did What does it mean that PLN is trying to sucker 22 jail administrators into rejecting subscriptions to 23 their publication? 24 25 A Well, I didn't write that, so -MS. STATON: Wait. Objection. Form and (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 77 1 foundation. 2 Go ahead, Gary. THE WITNESS: Okay. Like I say, I didn't 3 write that. I do know there's a general feeling among a 4 lot of administrators, and even some trainers, that PLN 5 puts out actually a pretty good product. 6 it. 7 pursue litigation almost as much as publish. 8 mean calling jails and saying we are going to send a 9 whole bunch of free subscriptions into your jail, I subscribe to They had gotten to where they seem to be trying to By that, I 10 knowing it would be a very difficult thing for jails to 11 accommodate that. 12 Now, suddenly knowing that you can't get 13 pornographic materials into a jail, putting ads for 14 porn, now, I don't think the ads themselves are a 15 problem, because there's nothing titillating about the 16 ad itself. 17 to when I am doing training sessions around, or when I 18 am listening to Carrie Hill do a training session raise 19 that issue, you know, can't we keep it out because of 20 the ad? 21 jail, and turning materials away if they try to get them 22 in. 23 But, a lot of jail commanders I have talked No. But the materials we can't have in the So, I'm sure that's why this was crafted in 24 the fashion that it was, is that PLN has become a very, 25 very important issue to jail commanders. They see all (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 78 1 these big awards. 2 in attorneys fees, mostly. 3 the state of Washington in one of the classes we did a 4 while back that said they had two or three cases there 5 with six figure awards. 6 I see the awards listed periodically on the internet 7 when I am doing research on the PLN. 8 surprising that that kind of rhetoric would be used by 9 the people who put these programs together. 10 Q I think DeWitt was nearly $600,000, But there was somebody from So, I know they are out there. So, it's not So, do you agree with that statement that's 11 written here, that PLN seems to be trying to sucker jail 12 administrators into rejecting subscriptions to their 13 publication? 14 A I don't know if I would use the word "sucker," 15 but I do think it's fair to infer that they are 16 encouraging people to turn down what they are offering. 17 You know, take Cache County, for example. 18 said there is no way we can handle all of that. 19 well, I have already written your policy and procedures 20 on that. 21 have got subscriptions in the library. 22 matters. 23 prisoners we weren't keeping PLN out, for example. 24 were simply deciding how they would achieve access to 25 it. You don't have to worry about it. They just I said, And you That's all that As long as you can get the materials to the We And so, we were ahead of the curve. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 79 1 You know, I get called a lot on cases, 2 probably four or five times I can think of, where they 3 say we have been sued by PLN. 4 I say, can I ask you a question upfront? 5 what your policy says with respect to publishers. 6 Because you win these kinds of cases at the front end, 7 not the back end. 8 place, then it makes it tougher for you to deal with it. Would you take the case? Yes. Tell me If you don't have the policies in 9 Q What do you mean, what kind of policies? 10 A For example, take the case we are dealing 11 with. 12 the suit was filed that specifically provided a remedy 13 for the publisher. 14 if you didn't get at the front end, that's the policy 15 that provided for that. 16 is going to be at best, incredibly difficult to defend. 17 Pinal County did not have a policy at the time Q So, that's one of those cases where You already have an issue that Is there anything else about the Pinal County 18 policy here that fits that description of kind of 19 waiting too long and not handling it at the front end 20 that's caused a problem here, in your opinion? 21 A 22 23 24 25 No. But if they had called me before -- MS. STATON: the form. A Excuse me. Let me just object to Go ahead, Gary. If they had called me in advance, prior to all of this when the case was first filed, I would have made (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 80 1 the same observation then as I have with these other 2 individuals who have contacted me. 3 BY MR. THOMPSON: 4 Q What do you mean made the same observation? 5 A That you need to have in policy a remedy, an 6 appeal process for publishers who have a right to expect 7 that their editorial comments will be available to the 8 prisoners unless it meets a criteria based on safety, 9 security, order, discipline, whatever that would be a 10 legitimate penological interest. 11 12 Q So, is there anything else you would have advised them before this litigation had been filed? 13 A Just on the basis of the phone call, probably 15 Q Have you ever viewed their policy? 16 A If I reviewed their policies, I can't think of 14 not. 17 anything off the top of my head. I'm sure we are going 18 to get into their policies at some point today. 19 can look at that directly. 20 issue. 21 Q Then we But that would be the main That's the one that makes it tough to defend. You said earlier that you thought it would be 22 fair to infer that PLN was encouraging correctional 23 facilities to not accept their terms. 24 opinion? 25 A Is that your At least not accept the materials in the (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 81 1 fashion they are provided. And the reason I say that is 2 not just some thought that's been bouncing around in my 3 head, but from being in training classes, talking to 4 jail and prison officials, you know, at conferences I 5 attend or speak at or whatever else. 6 that's one of the first things that we used -- when we 7 see somebody saying we are going to send all these 8 subscriptions in that have suddenly overburdened our 9 mail room, or when we see ads for materials the inmates When PLN comes up, 10 couldn't get sent to their cells anyway, that's the 11 impression that a lot of my fellow corrections 12 professionals have inferred from that. 13 Q I guess I'm trying to understand where PLN, in 14 your opinion, that PLN is encouraging the materials they 15 rejected. 16 PLN may be including the ads so that the materials are 17 rejected? 18 A With respect to the ads, you are saying that I'm telling you that's been something that's 19 been discussed among other corrections professionals 20 that I come in contact with on a very frequent basis. 21 PLN would probably be pleased to know how much they are 22 talked about in the system. 23 to exactly what PLN have in mind when they do that, so I 24 won't say what their intentions are. 25 that that is a very commonly held inference among many Or not. But I can't speak But I can tell you (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 82 1 of the people that I have talked to, or who have called 2 me with respect to, hey, we just got something in from 3 PLN demanding we do all these things, and include all 4 these subscriptions and so on. 5 Q So, you referenced a number of subscriptions. 6 I'm trying to understand how that fits in with your 7 statement about PLN encouraging jails who reject them. 8 Can you explain that? 9 A Well, again, I'm not going to say what their 10 intent is, okay, but in terms of how it's being 11 discussed nationally, if you have a mail room that is 12 already working somewhat near capacity, and they'll 13 assign a number of staff there that it takes to do that, 14 then, all of a sudden, you are starting to receive large 15 numbers of subscriptions that you have to process. 16 you have to understand as well, jails only house 17 prisoners normally for a relatively short period of 18 time, which also then creates the problem of, what do I 19 do with the subscription after the inmate's gone? 20 do we process that? Can we just throw it away? Do we 21 have to forward it? Where do we forward it to? There 22 are all kinds of problems that go with subscriptions. 23 And because of those issues, jail officials are 24 reluctant to accept subscriptions. 25 for them. And How Prisons, it's easy They have people for a long time. (866) 448 - DEPO www.CapitalReportingCompany.com They can © 2012 Capital Reporting Company 83 1 do what they are going to do. 2 So, one of the things I have recommended, when 3 I have been asked, is that you can get around that by 4 putting subscriptions in your library. 5 prisoner can check it out whenever he wants to. 6 we are talking about now is based on this blurb in here, 7 is, what are the impressions of PLN? 8 that's a commonly held impression by any number of 9 people that I talk to around, at the conferences, 10 11 12 Then any But all I can tell you training programs, whatnot. Q The impression is sending a quantity of subscriptions so that they will be rejected? 13 A Yeah. 14 Q To try to overwhelm the mail room? 15 A Well, I don't think they care about, that's 16 their intent, overwhelming the mail room per se. 17 like I said, the impression, the inference that's being 18 drawn by any number of other people in the system is 19 that PLN does this to make it more likely they will 20 litigate. 21 But, You know, I share that opinion to some degree. 22 Like I say, I don't have anything to know what's going 23 on in the minds of those people at PLN. 24 been -- when I ran the prison, for example, PLN came in. 25 Since that time, it was, I know by a director after me, But that's (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 84 1 they stopped accepting it. 2 think they lost. 3 why every single, you know -- not every single 4 prisoner -- but a whole group of prisoners, many of who 5 may not be there by the time the first subscription 6 arrives, they are going to get free subscriptions, when 7 we can just as easily put it in the library and 8 negotiate that with PLN any time they wanted to, it does 9 certainly leave that inference hanging in the air. 10 Q And they got sued. And I But until somebody can explain to me So, you said you share that opinion to some 11 degree, that PLN is sending subscriptions in order to 12 pursue litigation; is that correct? 13 A Yeah. What I am basically saying is, I can 14 certainly see how people could arrive at that conclusion 15 or that inference. 16 why they need a whole bunch of subscriptions if we are 17 more than willing to provide subscriptions through a 18 library, or why there would be ads for pornographic 19 materials which inmates couldn't receive anyway. 20 Because I have trouble figuring out You know, if somebody in PLN said we do it for 21 these reasons, and they have any kind of logical 22 justification for that practice, then it might make more 23 sense to me. 24 understanding the why. 25 come to some pretty firm conclusions about that as they Right now, I just have trouble And a lot of other people have (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 85 1 have had to deal with some issues. 2 3 Q County that you have talked to? 4 A 5 6 THE WITNESS: little quicker. We need to have this delay a Yeah. I'm doing the best I can here. THE WITNESS: Yeah, I know. Okay. Could you re-ask the question since I got us off track? 13 MR. THOMPSON: 14 (Record read.) 15 Object to the form and Sorry. MS. STATON: 11 12 Wait. foundation. 9 10 I don't recall talking about -MS. STATON: 7 8 So, is that the opinion of people in Pinal A Can you read that back? I don't remember addressing that specifically 16 with them. 17 just know it's a, like I said, a fairly common theme 18 across other jail people around the country that I deal 19 with on a fairly frequent and random basis. 20 BY MR. THOMPSON: 21 22 23 Q That conversation has been too long ago. I So, you don't remember talking to anybody at Pinal County about why this litigation happened? A No. I could -- if somebody corrected me that 24 I did, that would be fine. 25 conversation. I just don't recall any such My only concern, when I was talking to (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 86 1 Kimble and Montano on those interviews, was about how 2 they handled the publications, you know, the timeline 3 for when those things changed, what they remembered 4 about the process and why different changes took place. 5 I don't recall ever getting into any proposed inferences 6 with respect to why PLN does what they do. 7 8 Q Have you worked on other cases in which you have worked for defendants who are being sued by PLN? 9 A Yes. 10 Q Which cases are those? 11 A PLN vs. Cheshire. That was a Cache County, 12 Utah case. I was called at the 11th hour when they 13 decided that they were not happy with their current 14 expert in DeWitt, PLN vs. DeWitt or PLN vs. Bertha 15 County, however it's captioned, and did write a quick 16 expert report there. And I was also contacted by PLN 17 vs. Columbia County. Initially, I wasn't going to take 18 it. 19 to mediation. 20 got called back and asked if I would put an expert 21 report together. Then I agreed. Then they decided they were going So, just short of shredding the file, I 22 Q So, are you drafting that report now? 23 A No. I told them that the timeline they had 24 was too short. I already told them what my schedule was 25 like, and they would to have to do without it. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 87 1 Q So, you are not working on that case? 2 A Well, they haven't fired me yet. 3 know. 4 they have or if they are even trying. 5 reason I had time to do an adequate report for them. 6 am not going to just change the caption on an expert 7 report I have already done and send it to them. 8 right now, no. 9 again, seeing if there was anything I can do to knock 10 If they get an extension. I don't that out. 11 Q 12 cases? 13 A And I don't know that But if for some I But They called us recently as last week And the answer was no. How did you become involved in those PLN Did you know the attorneys? People called me. I did not know the 14 attorneys in DeWitt. I did not know the attorney in 15 Columbia. 16 Staton. 17 used to work in my legal office when I ran the 18 Department of Corrections, so I knew him very well. 19 Frank Myler. I did know previous, from other cases, Miss And the attorney on the Cheshire case actually 20 Q So, the attorneys in those cases all reached 21 out to you? 22 A Everybody did. You know, I certainly didn't 23 call Pinal County or, even though it was in my own 24 state, I didn't call Cache County. 25 turn down probably about one out of every five or six I am plenty busy. (866) 448 - DEPO www.CapitalReportingCompany.com I © 2012 Capital Reporting Company 88 1 cases I get called on just for nothing more than I don't 2 have time or they have too tight of a requirement for 3 deliverables. 4 Q 5 6 All right. Let's take a break. (Whereupon, a brief recess was taken.) BY MR. THOMPSON: 7 Q I want to move on to page 17 of your report. 8 A Okay. 9 Q So, the bottom paragraph, you say that 10 defendant's existing policies and procedures 11 unambiguously allowed approved publications to be 12 received for PCJ prisoners. 13 constitutes a publication under defendants' policies, 14 you know, when this litigation was filed? 15 A In your opinion, what In general it would be something that is sent 16 by a publisher, someone who publishes any sort of 17 document and then wants it to be sent in by subscription 18 or whatever other means by purchase. 19 magazine. 20 course. 21 22 23 Q It could be a newspaper. So, it could be a It could be PLN, of And why do you understand publications to be defined that way? A Because those are the things that normally are 24 being sent to jails that fall into that category. 25 know, that's basically the way that jails, including (866) 448 - DEPO www.CapitalReportingCompany.com You © 2012 Capital Reporting Company 89 1 when I am writing, they may be defined as a publisher 2 publishes something and gets subscribed to and sent in. 3 We normally separate those from books. 4 though there's a publisher, obviously, for books as 5 well, but those are usually dealt with as a separate 6 issue. 7 Q 8 9 You know, even So, when you refer to publications for support, you are not referring to books? A No. There's a very similar process for 10 reviewing them to see whether they can come in or not. 11 But there's a different, you know, process with respect 12 to what you do if you deny them. 13 are some differences. 14 talking about in this context would be, you know, 15 magazines, documents such as PLN, anything that a 16 publisher sends in, some type of periodical, perhaps. 17 But it could be one or several issues of a periodical. 18 Q So, you know, there But the publications that we are I just want to understand. So, when you talk 19 about publications here, you are not talking about 20 books; is that correct? 21 A No. They are a separate related issue. If I 22 don't allow a particular book in, we don't send to the 23 publisher and the author and everybody else an 24 opportunity to argue about that. 25 periodicals. But we do with We do with publications as I have (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 90 1 described them. 2 3 Q But book issues are not covered in your expert report; is that correct? 4 A No. I don't think I wrote anything on books. 5 I wouldn't have intended to, because I didn't recall 6 being any -- I may have referenced library or something, 7 but -- 8 Q 9 So, if we go to the first opinion on page 18, A-1.1 -- 10 A Yes. 11 Q -- can you explain what you mean on the bottom 12 of page 18 when you say in the last paragraph, "Clark, 13 in his expert report, neither discusses nor seems to 14 understand that changes must be made in a deliberate, 15 thoughtful and effective manner." 16 that? 17 A What do you mean by Looking over Clark's background in his 18 material that he submitted, he's worked for the Bureau 19 of Prisons, sufficiently familiar with them or 20 Corrections Corporation of America, other large firms 21 that have facilities scattered about the country, that 22 there is, even though there may be some minor 23 differences from facility to facility, the core policy 24 and procedures tend to be the same. 25 Prisons, I think, publishes theirs in the CRFs. In fact, Bureau of (866) 448 - DEPO www.CapitalReportingCompany.com In any © 2012 Capital Reporting Company 91 1 event, that's quite different. And he did not seem in 2 his report to give any attention to that. 3 different from coming in to a new operation where there 4 is no central theme where the operational philosophy, 5 the understanding of laws, where the organizational 6 structure is so much different than what you are going 7 to put into place. 8 wondering what he would have done. 9 took over the Department of Corrections, where it was It's quite You know, reading his, then For example, when I 10 really a horrible operation, what was there to rely 11 upon? 12 that would have been terribly useful to us. 13 having to start from scratch. 14 took two or three years to get all of the basics of 15 policies in place. 16 first month we were there, writing them. You know, they didn't have anything in writing 17 We ended up That process actually And we were starting, literally, the So, I did not think that Clark gave any 18 attention or had any interest in looking at what it 19 means to come into something totally fresh with nothing 20 in place, or very little in place, perhaps, that you 21 plan on keeping, that you want to take a bad situation 22 and make it good. 23 Q And what do you mean on page 18? You kind of 24 talk about this same issue in the second to last 25 paragraph on page 18 about, "I have had the experience (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 92 1 of completely reorganizing and changing existing 2 policies, procedures, practices and culture of the Utah 3 State Department of Corrections, and previous to that 4 the Salt Lake County Jail." 5 A Yes. 6 Q So, is that your understanding of what was 7 8 9 required here in Pinal County? A Yes. For example, when I ran the Salt Lake County Jail, they didn't have written policy and 10 procedures when I came down. 11 Department of Corrections, they didn't have a policy 12 manual such. 13 instructions, which were a whole bunch of contradictory 14 memoranda and, you know, some cases, letters that were 15 stuck in one file that you could go through and see if 16 you could find anything that made any sense. 17 When I took over the They had what they call letters of So, when we started looking at how we were 18 going to classify it, looking at the classification 19 system, it was not going to work the way we needed to 20 work it to work. 21 discipline process. 22 over their mail issues on how they were handling mail, 23 including attorney mail. 24 doing was not just starting from scratch, but changing 25 the culture, having to find people to put in place that They had no written prisoner They had already recently been sued So, basically, what we are (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 93 1 could actually make it happen. 2 things you want at the top, but they don't hit the 3 bottom through the chain of command. 4 restructuring. 5 outside, because I found that a lot of the people I was 6 going to be working with were not capable of doing or 7 not willing to do what we needed to do to turn this 8 place around. 9 Q You can order all the So, we were I brought in a lot of folks from the So, my question was, is that your 10 understanding of what the situation was in Pinal County 11 before this current administration came in? 12 A Very much so, yes. 13 Q Why do you think that? 14 A Because that came out of discussions that I 15 have had with the two individuals that I talked about. 16 And long before the suit was filed, I just remember in 17 casual conversation with Paul Babeu when he put on a 18 presentation in an NSA conference I was at. 19 to him. 20 sort of thing. 21 change, turn the whole thing around. 22 the same people at the top. 23 in that have experience. 24 Kimble and Montano in connection with this particular 25 case. How arre things going? New sheriff. We talked All that And he said, Well, we are trying to I am not keeping I am bringing other people I also know from talking to (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 94 1 2 3 Q So, what is your understanding with what the issues they had when they came in? A They felt the operation itself was too loose. 4 That, perhaps, people were promoted to the top that 5 couldn't get the job done. 6 there were some policy and procedures that were outdated 7 or certainly not what they were going to be looking at. 8 I think I mentioned earlier one of the best grievance 9 policies I have seen, including better than some I have They felt, you know, that 10 written, is the one that they use there that Michele 11 Yusif and, I think, Montano put together. 12 Michele Yusif did. 13 But I think So, what they have been trying to do is 14 professionalize. 15 knew from the Department of Corrections in Arizona and 16 Illinois. 17 in Arizona. 18 from the various places they worked to see what would 19 work a heck of a lot better than was the case in Pinal 20 County. 21 wrote. 22 Q 23 24 25 You know, Kimble can rely on what he Montano, I think, had background, he told me So, they were trying to pick and choose So, you know, that's the basis for what I So, did you know Sheriff Babeu before he became sheriff of Pinal County? A No. I only knew him after he got elected. He had a very distinctive appearance, bald headed, and (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 95 1 young handsome fellow. 2 conference, you know, National Sheriff's Conference, the 3 first time I ever talked to him, because he was doing a 4 presentation to one of the committees, I liked his 5 presentation. 6 same thing, was would you like to come out and do a 7 presentation at our annual conference, which he agreed 8 to do. 9 So, when I saw him at the So, the next thing I talked to him about, Beyond that, if I see Paul at a conference, or 10 if I happen to run into him when I'm there doing a 11 training session, not the first one, but I did the last 12 one, then we say hello and talk like with any other 13 sheriff that I know. 14 Q So, when you come into a situation like you 15 described at Utah State Department of Corrections, what 16 are the most important steps to take to identify what 17 the problem areas are? 18 A Well, the first thing you do is, you have to 19 try to look at everything that's going on in the system. 20 So, you know, for example, I would go to the prisons 21 themselves. 22 Three at the time I left. 23 administrators themselves to find out what their view 24 was of what they were doing, you know, what their 25 objectives and philosophies were, that kind of thing, We had two of them at the time I got there. And I talked first to the (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 96 1 find out how much that was going to square with what I 2 wanted. 3 Also talked to supervisors to see how they 4 went about moving the messages up and down the chain of 5 command and what their own views were of the system. 6 lot of them were very candid. 7 would turn out, were terribly competent, which was 8 another problem. 9 people, because you found out you have a somewhat 10 A Not all of them, as it And then spend time with line level different message at each level of the system. 11 But I found that even making these 12 walk-arounds, you know, was not sufficient to know all 13 this stuff. 14 had the resources that they do not have, for example, at 15 Pinal County. 16 person auditing unit plus support staff, secretaries and 17 whatnot that had been put in place by the legislature 18 slightly before I was hired to take the job. 19 So, I had something going for me, because I And that was I had an eight man or eight So, I sat down with them. And I gave them 20 their marching orders. One of the things I need is, how 21 competent are my people? 22 the training that's been done, which turned out to be 23 almost none; the personnel files, to see what kind of 24 discipline issues we are dealing with; performance 25 evaluations to see how they are being rated there. So, I need you to go into all (866) 448 - DEPO www.CapitalReportingCompany.com I © 2012 Capital Reporting Company 97 1 sadly found out a crappy system, had 93 percent of their 2 people that were rated as top level superior, which told 3 me a great deal about my supervisors who were rating 4 them. So, there were all kinds of things we did. 5 First of all, I had to find out who the 6 players were. Second thing is I had to become very 7 familiar with the physical plants, the different 8 facilities. 9 you all the names so you won't have to spell them. The Oquirrh units, you know. I won't give But 10 we have a number of different prison units at each site, 11 and so I wanted to see how they operated and see what we 12 were going to have to do differently, then look for 13 policy and procedures. 14 disappointment there. 15 Then had that very big Look at their training system. Found out what 16 training money they had went to train the high 17 executives at retreats and almost no training at all for 18 lower staff levels. 19 training requirement under state law that really put 20 them under the gun. 21 get that changed. 22 23 24 25 Q And, at that time, there was no So, I went to the legislature to So, like in Pinal County, how do you recommend people go about implementing a training system? A With respect to training, there is probably two main things I would have them look to. (866) 448 - DEPO www.CapitalReportingCompany.com Number one © 2012 Capital Reporting Company 98 1 is, what are the basic training requirements that will 2 provide you an understanding of the legal and 3 operational requirements for your facility. 4 are some standard models out there. 5 Arizona they have an academy system they can go through. 6 So, that's a good start. 7 developing training programs that are targeted. 8 example, you know, obviously, SWAT teams are going to be 9 trained to the things that they do. And there In fact, even in The other is to look at So, for If you are going to 10 have people responsible for investigating major 11 incidents, that they understand what laws they are 12 applying, use of force is different in the street, the 13 laws are different in the street than they are in a 14 jail. So, get those properly trained. 15 If you have people who are responsible for 16 prisoner discipline, are they up to speed on everything 17 that's now required are or they simply using old systems 18 they have used forever, which may be outdated under the 19 law. 20 Q Is there any particular training for mail room 21 staff that you would recommend to someone like Pinal 22 County? 23 A I didn't in this case. This was over with by 24 then. But what they had already told me was that after 25 they found out things were not going well, they (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 99 1 developed a training program on their own. 2 the supervisors train the staff then as to what the 3 appropriate measures were that they should be taking. 4 So, where they had already done that and they weren't 5 asking me at this point, there was no need to, you know, 6 tell them to start training, they were already doing 7 that. 8 9 And they had In my own mail room, since it was actually part of one of the early lawsuits that had taken place 10 just both before I got there and another one right after 11 I arrived, it required going in, sitting down, having 12 them explain how they functioned, how they came to the 13 conclusions which things could be rejected and which 14 couldn't, why they were calling some things legal mail 15 one day and not legal mail the next and so on. 16 we had had that opportunity, then simply put new 17 policies together and said this is how you function from 18 now on. 19 So, once So, we did have mail room issues as well. 20 once we got that together, we did it mostly by policy 21 and procedure, although, we did have a couple of 22 two-hour training programs to lay out the basics that 23 they needed to know. And And I taught those personally. 24 Q When was this? 25 A 1985. You know, it was kind of a running (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 100 1 thing that went on. 2 of the explosion hit corrections when I arrived, where 3 we start making major changes in terms of how we did 4 business there. 5 Q But 1985 was when the biggest part When you are talking about kind of job 6 specific training, my question was whether mail room 7 staff are the type of staff that would generally get job 8 specific training in terms of what you recommend to 9 people? 10 A Yes. Yes. You know, if you've got people who 11 are going to be working only in the medical unit, I 12 don't need to train them in mail. 13 going to be in the mail room, I don't need to train them 14 on medical. 15 training as nearly as possible job specific. 16 can provide the general training as well. 17 are specific things that you need your grievance people 18 or classification people or discipline people to know, 19 then they need to receive some training in that area. 20 21 Q That kind of thing. If they are only So, you want to have Then you But if there You talked about going in and sitting in the mail room, visiting with the staff? 22 A At the Department of Corrections? 23 Q At the Department of Corrections. 24 A Yes. 25 Q So, as you are advising sheriffs or jail (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 101 1 management, do you advise them to go visit the mail room 2 in any kind of -- 3 A No. The reason that it jumped to the top of 4 my priority lists, ordinarily it would have been way 5 down the list, you know, important security issues, use 6 of force, you know, those things that keep the prison 7 secure and the inmates safe, staff safe would be the top 8 issues. 9 case just before and a mail case right after where we But, as I mentioned, we had already had a mail 10 had screwed up. 11 sued, that immediately changes your priorities very 12 quickly. 13 of went, back to our priority list. 14 Q So, that got my attention. So, that's what happened. You get Got that taken care So, this discussion in A-1.1 about 15 reorganizing and restructuring major organizations, is 16 that responding to something specifically in Mr. Clark's 17 report? 18 A In a sense, yes. Because, as I mentioned 19 before, in reading Clark's report, he was opining with 20 respect to things they should have done and so on 21 without being able to look at the environment in which 22 they worked. 23 that different places through here that there's a big 24 difference between moving from one facility to another 25 in the Bureau of Prisons and then basing your opinions You know, I have tried to make a point (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 102 1 on your experience in that regard and having to come 2 into a jail you have never been in before with policies 3 that are remarkably different than anything you have 4 seen before, I can take you to 10 jails and you can get 5 10 entirely different approaches to running it, because 6 sheriffs are elected, and they run it accordingly. 7 Q What's your experience with the Bureau of 8 Prisons that leads you to believe that underlies the 9 description of differences in a BOP and county jails 10 11 that you described in your report? A For one thing, I had the opportunity to review 12 large numbers of their policies which they make 13 available. 14 things I found in them is that those policies tend to be 15 written to be system wide. 16 upon, you know, they have minimum security and maximum 17 security facilities and so on, but how they handle mail, 18 for example, is not going to change through the system. 19 How they handle prisoner discipline is going to be the 20 same, my experience, pretty much through the system. 21 And it's not hard to do. And one of the You can tweak a policy based In some of my training classes, we have had 22 Bureau of Prisons' personnel in there. In fact, back in 23 the, gosh, late '70s early '80s I did a training program 24 or two that were largely for or were heavily attended, 25 that would be a better way to put it, by Bureau of (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 103 1 Prisons' personnel. 2 from time to time with Bureau of Prisons' people. 3 forgot his name now, but one of their attorneys that 4 handled a lot of the litigation for them. 5 opportunity over the years to talk. 6 I have also been on speaking panels And So, I had an You know, and an analogy to that would be CCA, 7 Corrections Corporation of America, where they have 8 80,000 prisoners. 9 I'm in Michigan, or wherever I may be, if they have 10 facilities, there are certain commonalties that run 11 through it. 12 require very specific things separately, like they do in 13 Idaho. 14 and then adjust them to fit. 15 If I am in Idaho or I'm in Arizona or Now, maybe who they contract with will But they still maintain their own setup policies So, you know, it's just hard to, if you 16 haven't done it before, to see how much different it is 17 to walk into an environment, jails, plural, where there 18 is the commonalty of approach is not there at all 19 compared to what you would get in a big organization 20 that needs to have, you know, a common theme on how they 21 run things. 22 Q 23 Okay. Can I point you to page 19 of the report? 24 A Sure. 25 Q The last paragraph. Well, let me just give (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 104 1 you a minute to read that last paragraph. 2 A Okay. 3 Q So, that paragraph is talking about how long 4 it takes to write policies and procedures, correct? 5 A Right. A single policy, you can write in a 6 fairly short time. 7 and go through the priorities that you need, that takes 8 a long time. 9 Q But to put together what you need So, how does that relate to what your opinion 10 is about Pinal County? 11 policies, you know, or do you have some opinion about 12 how long it took them to write policies in Pinal County? 13 I am trying to understand how this is relevant to this 14 case. 15 MS. STATON: 16 form of that question. 17 Gary. 18 A Okay. Do you have an opinion about the Hold it. Let me object to the A form objection. Go ahead, I don't know exactly how long it took 19 them to write any policy or their policy as a whole, or 20 even if they are totally through it now. 21 talking to them -- and, also, it seems like I got some 22 of that from Kimble's deposition, they had to 23 prioritize, which is the same thing I have done. 24 are the policies we have to have the quickest? 25 are the ones that have the greatest impact on personal But, in (866) 448 - DEPO www.CapitalReportingCompany.com What Which © 2012 Capital Reporting Company 105 1 safety, on institutional security and so on. 2 what I am trying to make sure that whoever reads this 3 report understands is, that's not like turning on a 4 light switch. 5 policies without understanding your system reasonably 6 well, then you are completely rewriting them later 7 because you screwed up one. 8 9 Q And so, And, in fact, you start quickly writing So, do you have any opinion about whether the length of time it took them to write policies caused the 10 problems that happened that are the subject of this 11 litigation? 12 A 13 14 Well, it certainly would contribute. MS. STATON: Object to the form. Go ahead, Gary. 15 A It would certainly contribute to them becoming 16 aware of any problems in the mail room, because if what 17 you are really focusing on, your primary intent is the 18 safety, security related policies and procedures or the 19 prisoner management things, such as discipline and 20 classification, which, you know, and supervision that 21 drive the system, obviously, you are going to put those 22 at the top. 23 their way into doing a complete evaluation of the mail 24 room. 25 writing, some of those don't get done until the second So, it would take longer for them to work Just like with lower priority policies when I was (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 106 1 year. But, on the other hand, they weren't causing us 2 problems. 3 as quickly as it did but for a couple of lawsuits, one 4 before and one after I got there. 5 Mail probably wouldn't have got done with me So, that's basically what I was trying to 6 point out, is, you can't flip a witch. To write 7 policies, you have to begin to understand, you know, the 8 organization. 9 the sheriff are both new to the process. And if you think about it, Kimble, and They are new 10 to the system. 11 Kimble came from outside, Montano and some others. 12 that provided that lack of institutional knowledge and 13 the need to become more acquainted with the system 14 before you start launching a whole bunch of policies. 15 BY MR. THOMPSON: 16 Q They are new to the sheriff's office. So, So, on page 21, having that opinion A-1.3, so 17 here you are saying, as I understand it, that, again, 18 you are saying to expect a perfect knowledge of all 19 constitutional and statutory law that defines prisoners' 20 rights is asking a lot. 21 A It is. 22 Q Are you saying that as a legal matter or as A As a practical matter. 23 24 25 a -For example, we stopped doing it now, but we used to do a pretest and a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 107 1 posttest for our three-day training programs. You have 2 a lot of people with a lot of experience in jails, a lot 3 of administrators and supervisors. 4 passing the tests that we provided them on legal 5 questions sometimes as low as 60 percent, and a high 6 mark might be in the 80s, low to mid 80s. 7 there's 60 to 15 percent of information you don't know 8 and you don't -- you know, I have always asked the 9 question when you start, how many of you spend 20 hours And they were That means 10 a week in the law library, before I talk about where you 11 can get the information that you need. 12 That was one thing I was trying to point out. 13 It does not excuse not following clearly established 14 law. 15 were supposed to send stuff to the publisher doesn't 16 mean, okay, you are exempt then. 17 an appeal notice to the publisher. 18 is, it's very hard to know all of that stuff. 19 notice the next page, I transitioned into the Prison 20 Litigation Reform Act where Congress tried to deal with 21 that by having a grievance process that prisoners, 22 unfortunately, not PLN, but prisoners had to go through 23 if they were suing to give us a chance to fix things. 24 That was a great way for people who can't have that 25 perfect knowledge of everything that's expected of them Okay? The fact that they didn't know that they You still had to send But what it does say (866) 448 - DEPO www.CapitalReportingCompany.com If you © 2012 Capital Reporting Company 108 1 to be able to fix it, you know, as Pinal County 2 ultimately did without having to litigate all these 3 things. 4 more effective way to do things than simply litigate 5 them. 6 7 Q Is it your understanding here that no prisoner alerted the jail to their inability to receive PLN? 8 9 Congress found that there was an easier way, a A I don't know, to tell you the truth. I am sure at some point when I read that I would have known 10 that. 11 know what specific notice. 12 I won't try to. 13 But I don't recall now. Q I apologize. I don't My guess isn't important, so Did you review any documents in which any 14 prisoners notified the jail that they were unable to get 15 PLN? 16 A You know, I may very well have. I don't 17 recall whether that was in the form of a grievance or -- 18 I would say one of the problems with taking a number of 19 cases at the same time and then having this many 3-ring 20 binders full of information is you can't remember every 21 single thing you read. 22 important to the individual opinions I went back and 23 reviewed. 24 whether I ever read any particular prisoner complaining 25 about PLN. So, those things that were But I can't tell you, as we sit here now, If they did, who they complained to, whether (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 109 1 it was the mail room and it stayed there or whether it 2 was the sheriff or somebody else up the line. 3 4 5 Q So, this opinion A-1.3, is that responding to something that Mr. Clark had opined about? A It all is in the same basis that I talked 6 about the previous opinion, that, you know, again, from 7 a slightly different tack, Mr. Clark worked for a system 8 with enormous resources, a large legal staff, and people 9 who can vett policy and procedure when it's written 10 initially, and then get it out into the system. 11 policy and procedures when a law changes take place, get 12 it out of the system. 13 lawyer because his organization is well staffed with 14 those kinds of folks. 15 That Mr. Clark would not have to be a So, one of the things I was trying to point 16 out, or two things, actually, from that opinion. One 17 is, that just simply electing somebody or hiring 18 somebody doesn't make them a constitutional expert, 19 number one. 20 recognition of that, required everything to go through a 21 grievance system. 22 PLN, the courts already required theirs to go through 23 the grievance system because they had a court approved 24 grievance system. 25 could sue. And number two, that Congress, somewhat in Mr. Clark's organization, prior to So, you went through that before you They had that benefit for years. (866) 448 - DEPO www.CapitalReportingCompany.com Now, with © 2012 Capital Reporting Company 110 1 PLRA, which has been around, I think since '95, '96, 2 that extended to everybody, but it only applies to the 3 prison you are suing, is my understanding. 4 wouldn't have required PLN, I guess, to go through that 5 process, at least not to my awareness. 6 Q So, it You were talking about vetting policies. What 7 is your understanding about whether the mail policies at 8 issue in this litigation were vetted by anyone outside 9 the jail? 10 A I'm sure that they were not. If they had 11 been, I'm sure they would have told me about that. In 12 fact, Kimble said the first thing that he really knew 13 about the mail policies is an issue is when they were 14 sued. 15 accordingly when he had some outside expert come in and 16 evaluate it. So, I would be very surprised if he could testify 17 Q So, in opinion A-1.5 on page 22 -- 18 A Sure. 19 Q I don't think there is an A-1.4. 20 A No. 21 Q In A-1.5 -- 22 A Yes. 23 Q -- what is your understanding of how Chief Looks like we skipped 1.4. I misnumbered them. 24 Kimble and Commander Montano learned about the problems 25 in the mail room? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 111 1 A They got sued by PLN in the incident case. 2 Q So, is it your understanding they had no 3 previous awareness that newspapers and magazines were 4 not being allowed? 5 A That's my understanding. 6 Q And what's your understanding, from speaking 7 to them, about what they did once they learned about the 8 lawsuit? 9 A What I was told, I believe by both of them, 10 but for sure Kimble, was that once they did that they 11 looked at their written policies as they were, trying to 12 figure out exactly what they were required to do, then 13 over time, published a series of policies 4.5 to resolve 14 that. 15 have -- I can't remember whether it had the procedures 16 for appeal the way they are now. 17 tried to do is just keep fixing that policy, moving it 18 forward to where they thought it needed to be, again, 19 similar to the approach that I have recommended with 20 people, write it, review it, write it, review it. 21 I think the first policy they published may not Q But what they have So, is it your understanding that they were 22 revising the policy before this litigation was filed or 23 only after? 24 A 25 it after. My understanding was that they were revising I think, I don't remember the words he used, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 112 1 but it seemed like Kimble had said something to the 2 order that that was not on his radar, or that was not 3 his high priority at the time, that he was working on 4 bigger issues when the suit came down. 5 Q So, if this new administration had put forth a 6 mail policy before this litigation was filed, would that 7 change any of your opinions? 8 9 A Well, it might. But they already had a policy that you had to accept publications that was established 10 before the lawsuit was ever filed. 11 in the mail room weren't following that policy. 12 would it have helped? 13 can lead a horse to water thing. 14 which they had clearly in place, with reference after 15 reference after reference to publications being 16 accepted, and they still didn't. 17 Q And, yet, the people So, Hopefully so, but, under that you You can have a policy, What do you recommend to jail management when 18 they implement a new written policy? 19 recommend they do to make sure it's followed through? 20 A What do you First thing, to make sure that staff read it 21 and have continued access to it. The second is that 22 they put a training/orientation session together so that 23 they can explain the new policy, explain where the 24 changes have occurred, and instruct staff that they will 25 be enforcing the policy from hereafter now that it's in (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 113 1 place. 2 something like a mail room and that the whole issue has 3 to do with publications, it's not a long training 4 program. 5 Here's how you receive them. 6 determining whether they can or can not be accepted. 7 And here is the procedures that you will implement to 8 ensure that the sender and the receiver both have their 9 opportunity to challenge your decision, and that you 10 will not be making those decisions in the mail room. 11 The decision will go up to the chief deputy or to a 12 commander or captain, somebody of higher rank than the 13 people that made the original decision. 14 basically what would go into the training. 15 16 Q And, you know, if you are talking about Here's what we consider publications to be. Here's the criteria for So, that's In A-1.6, you talk about Chief Kimble becoming aware of the misapplication of the policy? 17 A Yes. 18 Q And so, what is your understanding of what the 19 20 mail room staff misunderstood or misapplied? A Well, what they were misapplying is the policy 21 itself, because the policy did not prohibit 22 publications, newspapers or publications. 23 understanding is, although the policy was in existence 24 they were not following it. 25 looking at some of the depositions of the people in the So, my In fact, I know from (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 114 1 mail room that Sergeant Martinez or Kuykendall or other 2 unnamed persons told them when they came in it was a 3 progressive knowledge, if you will, knowledge in 4 italics, upon which they were relying on this 5 institutional history. 6 relying on rather than somebody saying maybe I should 7 look at the policy. 8 9 Q And why, in your opinion, were they relying on that progressive history? 10 11 So, that's what they were MS. STATON: Wait. to the form of the question. 12 A Objection to form. Object Foundation. Well, that would not be terribly unusual. 13 Across the board, one of the things that I find I have 14 to do in my training a lot is -- well, when I am talking 15 about writing policy, for example, rationale statements. 16 Why? 17 have a policy of opening inmate mail, or we are going to 18 have a policy of reading inmate mail, why? 19 serve some legitimate penological interest. 20 has to be some legal requirement for it. 21 has to come up with a damn good reason why we should be 22 doing it. 23 rationale for what you are doing. 24 of your question. Why do we have this policy? If we are going to It has to Or there Or somebody So, there needs to be a stated and understood I kind of lost part Am I at all -- 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 115 1 BY MR. THOMPSON: 2 3 Q My question is, why do you think the staff was relying on -- 4 A Right. In that process, in doing that 5 training, I ask people, where did you get your policy 6 manual from? 7 finally get to somebody who does, or when you are doing 8 a technical assistance assignment or doing a jail 9 review, it usually is, well, it came out of the ACL Most of them don't know. But when you 10 manual, which is not a good place. 11 county next door does. 12 write ours. 13 seemed like a good idea at the time without realizing 14 the courts, or even state statues may have a different 15 view of how you should be handling it. 16 17 Q That's how the We borrowed their manual to Or, it's conventional wisdom, it just What's your understanding of where the mail policies at issue here came from? 18 A Prior administrations. That seemed fairly 19 clear from the depositions of the mail room officers I 20 read. 21 Q But the mail policies that were drafted under 22 this administration, it is your understanding those were 23 drafted from scratch by the jail management or was there 24 some template that they were using? 25 A You know, that's a question I should have (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 116 1 asked but did not. 2 3 4 MS. STATON: and foundation. A Let me object. Object on form Go ahead. I don't know where that first policy signed by 5 Kimble came from, how he put that together. 6 question I asked nor was it information volunteered. 7 BY MR. THOMPSON: 8 9 Q It wasn't a Do you suggest that jail staff use a particular template when starting, say, a new mail 10 policy? 11 think are maybe not a good idea, which is the ACA, the 12 jail next door, conventional wisdom. 13 you do recommend people use to draft a mail policy? 14 A I mean, you described a couple of things you Yeah. Is there anything Legal requirements, for starters. You 15 know, this wouldn't be an issue if they had met all the 16 legal requirements. 17 So, that's the first thing. 18 constitutions or statutes of the United States or your 19 home state in this case, Arizona, that would be the 20 first thing. 21 We would not be sitting here now. What is required by the The other is then to take those policies and 22 tailor them to the manpower, the philosophical approach 23 that you want to take. 24 mail, but maybe you don't want to. 25 things. You may have a right to read All those kinds of So, you stand between the ditches, so to speak, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 117 1 tailor that to fit how you choose to operate your own 2 facility. 3 the legal requirements and then validate or vett their 4 policies accordingly if they already exist, or write 5 them originally, keeping those things at the front of 6 the parade. 7 Q But first thing I recommend people look at is So, Opinion A-1.7 on page 23, where you say 8 that the mail room practices began prior to election of 9 Sheriff Babeu and Chief Kimble. 10 11 What's the relevance of that to this case? A Only that they did have something in place 12 that caused the people in the mail room to believe they 13 were properly handling the mail. 14 information and looking at those depositions, you know, 15 it provides an explanation, not an excuse, but an 16 explanation for why they were handling things the way 17 they did. 18 Q So, taking that Circling back to my previous questions about 19 your process for gathering information, so when you met 20 with Chief Kimble and Commander Montano, you took 21 written notes, correct? 22 A Yes. 23 Q How many pages are we talking about? 24 A There weren't that many, because there weren't 25 that many questions. There might have been two or three (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 118 1 pages, two pages, probably, of, and this is just 2 guessing, but mostly what I was concerned about was, you 3 know, how the matter was being currently handled, how 4 they discovered it. 5 that time much of the case, so I was verifying some 6 information somewhat. 7 lot of notes. 8 9 Q I had already read, of course, by But it didn't require an awful What did they tell you? You said you were asking how the matter was being currently handled? 10 how did they tell you about what they were doing in 11 August that -- So, 12 A What they were doing when I had that 13 discussion? 14 Q Yes. 15 A They believed that they had finally fixed the 16 problem, because they had plugged in the missing pieces 17 of that. 18 had had training sessions with the individuals involved, 19 had the supervisors participate in that training so that 20 the message was coming from the horse's mouth, so to 21 speak, the people who would be supervising the mail room 22 would also be participating in the training. 23 Then, in terms of enforcing compliance, they And then, from that time on, using that, 24 basically, that AARMS system, that would become an issue 25 that they would check to see that it remained current. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 119 1 2 3 Q So, how is that being tracked in the AARMS system? A Well, on the AARMS system, you know, policy is 4 clearly there. And when you have an outside auditor 5 come in, the outside auditor can then, especially 6 knowing this is an existing problem, or a previous 7 problem, I should say, not existing, check to make sure 8 the mail staff is indeed handling things the way they 9 were supposed to. But the primary things they did was 10 change the policy, provide the training. 11 two critical issues. 12 of how they went about choosing to enforce it that they 13 did, you know, that they made sure that that was 14 continuing to, or move forward now that they have 15 retrained them. 16 Q Those were the Then a third would be irrespective So, I'm trying to understand what your 17 understanding is about how they are enforcing it. 18 are they doing now, to your knowledge? 19 A What Well, they, for the most part, put the onus 20 back on the individual supervisors. They have a 21 responsibility, if they want to remain supervisors, to 22 supervise. 23 ensuring the policy would be followed would be relying 24 on the supervisors who now know the new policy for sure, 25 who participated in the training and are now going to be But my understanding was the onus for (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 120 1 the ones that oversee that group of folks. 2 will also be the ones that evaluate, do performance 3 evaluations and so on. 4 to assign that responsibility to. 5 understanding of how they did it. 6 7 8 9 Q So, they So, they are the proper people And that's my And is it your understanding that mail practices are being tracked through the AARMS system? A Only in a general way. The individual, you know, the AARMS system's probably not looking over 10 anybody's shoulder, obviously, except when the inspector 11 comes in, then the inspector would talk to staff, would 12 look at any documentation they might have on how they 13 function. 14 be, you know, wide intervals, really, the onus falls to 15 them to do it themselves. 16 themselves. 17 AARMS system was requiring internal auditing. 18 then can go in, yeah, we know our policies are in place, 19 we know this, this and this, but periodically check to 20 make sure it's being followed. 21 Q But since any outside inspection is going to And they can internally audit That's the main purpose for having the And they So, is your opinion in this case based on any 22 knowledge about whether there has been any AARMS 23 inspection related to the mail room recently? 24 25 A There had been AARMS inspection, but I don't know if it was related to the mail room per se. (866) 448 - DEPO www.CapitalReportingCompany.com I don't © 2012 Capital Reporting Company 121 1 have an opinion as to what impact the AARMS system has 2 had or necessarily will have. 3 to be from the self-audit portion of that system where 4 the administration and supervisors determine how they 5 are going to ensure that that is enforced. 6 Q The real impact is going But your opinion is not based on any knowledge 7 of whether or how they are using, whether or not Pinal 8 County is using the self-audit system; is that right? 9 A No. No. That's kind of a side issue. The 10 primary way you should do that is, because that's not 11 specifically what AARMS would be looking at, is through 12 your supervisors and then you supervising your 13 supervisors. 14 Q And on page 24, on the end of the first 15 paragraph, I just want to ask you about the last 16 sentence. 17 publications was not a policy adopted by all these 18 people? 19 A What do you mean by the practice of denying Well, the last policy that was written before 20 the suit was filed was clear that these publications 21 were allowed in. 22 July 8th, 2010, and then became effective on July 18th, 23 2010. 24 was filed. 25 publications was not a policy adopted by Sheriff Babeu, That was the one that was changed on So, the policy was in place at the time the suit So, when I say the practice of denying (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 122 1 Deputy Kimble or the commanders, that's what I mean. 2 Kimble had signed a policy that was in existence prior 3 to the lawsuit being filed, which has reference after 4 reference to allowing those things in. 5 6 MR. THOMPSON: MS. STATON: 8 only. 9 a side, one side only. 13 14 Yeah. I would like a mini script I don't want the full size so it's four pages to All exhibits attached plus an E-Tran. 11 12 Let's take a break. Half hour? 7 10 Okay. (Whereupon, a lunch recess was taken.) BY MR. THOMPSON: Q So, I want to ask you about opinion A-2.1 on page 24 about evaluating the credibility of witnesses. 15 A Yes. 16 Q What is the basis for that opinion? 17 A Well, my understanding is that the credibility 18 of witnesses is a jury question. So, I try to avoid 19 anything I write of saying somebody is or is not 20 credible. 21 opinion, or something of that order, and call those into 22 question. 23 Mr. Clark or a particular witness is not credible. 24 That's, my understanding, is a jury question. 25 all that means. I might look at facts that are contrary to an But I'm not going to say at any point that (866) 448 - DEPO www.CapitalReportingCompany.com That's © 2012 Capital Reporting Company 123 1 2 Q So, as a legal matter, you are saying you think it's a jury question? 3 A Right. 4 Q Okay. On page 25, A-2.2, can you explain why 5 Mr. Clark's experience at the BOP does not assist him in 6 understanding the operation of a county jail? 7 A It may assist him in understanding the 8 operation of the county jail, but it does not, in my 9 judgment, since he hasn't had the experience of running 10 county jails or having to deal with the fact that every 11 county jail is unique and operates with a separate set 12 of policies, philosophies and whatnot, that he has the 13 same background to make that evaluation, or, even as a 14 good one, for example, where Kimble does, where Kimble's 15 worked in different procedures, all in entirely 16 different systems. 17 Q Sorry. It's an experiential thing. I didn't understand the last part 18 where you said about comparing them to Kimble. 19 explain? 20 A Yeah. Can you For example, Kimble has worked in 21 Illinois Department of Corrections. So, that was a 22 system independent on its own. 23 quite a different system, different philosophy of 24 operation, different policies, different procedures, 25 different requirements. Then he went to Arizona, And then he was asked to come (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 124 1 to Pinal County, which is now a big switch, is no longer 2 in a prison system with its resources, and prison 3 systems have more resources than jails, generally. 4 Now, he's had to take on yet another entirely 5 different approach to running a corrections facility. 6 And each time he moves from one to another, the quality 7 of the agency that he's going to, and the quality of 8 their policies, the manner in which they function is 9 going to be quite different and, in this case, a 10 substantial drop in terms of how well an organization 11 was running before they got there. 12 Q So, you are drawing a distinction between, 13 like, a system of correctional facilities and a single 14 kind of jail facility like we have in Pinal County here, 15 is that what I am understanding? 16 A Well, perhaps I'm not explaining myself 17 clearly. Basically, what I am trying to say is, that if 18 Clark, you know, he's a corrections professional. 19 got a very decent background. 20 the slightest. 21 into an independent jail system at any time in his 22 career or move from one entirely different system to 23 another. 24 within the same umbrella of the Bureau of Prisons. 25 don't think very many people appreciate the degree of He's I don't question that in But he has not had to insert himself You know, he's been able to, enviably, stay (866) 448 - DEPO www.CapitalReportingCompany.com I © 2012 Capital Reporting Company 125 1 difference among jails even in the same state in terms 2 of how they function and how an elected official brands 3 what he's doing in his own way. 4 So, it would have been much more helpful, I 5 suppose, if Mr. Clark had that background. But he seems 6 to be, in my judgment, and he references the Bureau of 7 Prisons from time to time, he seems to be coming at 8 things from his experience in that well funded, well 9 ordered, heavily resourced, great legal team approach to 10 running a facility. 11 system, pick up on the mild differences between the 12 facilities and go on. 13 Q And then you just move within that So, you have referenced a couple times the 14 difference in resources between the BOP and the Pinal 15 County Jail. 16 A Can you explain why that's relevant here? It's huge. If you have people who are, as the 17 Bureau of Prisons does, who are steeped in, trained in, 18 are constantly involved in dealing with corrections law 19 issues, then you've got people who can provide the 20 necessary information to people who do the manual 21 writing. 22 together and make sure that everything that's written is 23 in a similar format is consistent with what the basic 24 needs, objectives, and mission of the agency are, then, 25 you know, you have a great step up on anybody else. If you have people who can put the manuals (866) 448 - DEPO www.CapitalReportingCompany.com But © 2012 Capital Reporting Company 126 1 that's not what happens when you move from prison system 2 to prison system to jail system, as was the case with 3 Kimble. 4 Then the move to the third one was a huge difference. 5 And jails don't run the same as prisons. 6 classifications systems have to be different by 7 necessity. 8 prisoners from jails. 9 investigation reports, so we know all about their 10 The first two are a substantial difference. Their Prisons receive their, well, receive They come with presentence background, those kinds of things. 11 Jails get whoever comes in off the street. 12 You could have somebody that's wanted in nine states for 13 murder, and if they only shoplifted at the 7-Eleven, you 14 don't know that about them. 15 procedures, how well do you know the people that are 16 working for you? 17 jails and prisons. 18 would had to have begin to learn and master as he moved 19 from prison systems into the unique nature of jails. 20 Q So, classification, intake There is a variety of differences from And these are things that Kimble So, if you look on page 26 of your report in 21 the bottom of the first paragraph, the last sentence of 22 that paragraph says, "And in the latter assignment, 23 Kimble was responsible for undertaking the daunting task 24 of reorganizing and redirecting the operation, 25 management, policies and culture of that jail." (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 127 1 A Yes. 2 Q So, what is your understanding of how Chief 3 Kimble is responsible for reorganizing the operation of 4 the jail? 5 A Where did I get that information? 6 Q Yes. 7 A I got it from him that that was the task he 8 was given by Sheriff Babeu. 9 not running at the level they believed it should have. 10 That there were things that were known before they got 11 there, I don't know what all those things might be, that 12 the facility was not one of the better operations in the 13 state. 14 direction had to change. 15 evaluating, doing all the things we have talked about 16 before. 17 18 19 20 21 That particular jail was But, for whatever reason, they determined the Q And then that requires So, were there specific issues that they were aware they needed to solve? A Undoubtedly. But he didn't get into what those individually were. Q And what do you mean by that he was 22 responsible for reorganizing and redirecting the 23 policies? 24 25 A Well, that's what the sheriff asked him to do, is reorganize the entire operation. When you do that, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 128 1 you can't leave the policies behind, obviously, because 2 the policies are what document what you are doing 3 differently. 4 how you require it to be done. 5 as you evaluate the need for change, you have to also 6 make a part of that being changing policies and 7 providing training to implement the policies. 8 9 10 11 Q They document what you are requiring and So, as you make changes, So, is there anything in particular about the policies of Pinal County that he explained to you to be re-organized? A He didn't talk about any specific policy. 12 just talked in general about how much they believed 13 changes had to take place in order to have this be a 14 quality facility. 15 16 17 Q He And what's your understanding of why their culture needed to be reorganized? A Well, culture, generally, deals with, when we 18 talk about it in the terms that I am, has to do with how 19 people view their responsibilities, their job, how they 20 view the function at the jail, all of those things 21 independent of necessarily particular policies or 22 procedures. 23 particular case, there, apparently, is not a lot of 24 follow-up in terms of whether policy and procedures are 25 accurate, whether there was an inadequate amount of In this instance, well, as we see in this (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 129 1 training, that the things they were doing at various 2 levels in the jail may not comport with the legal 3 requirements. 4 security, make sure that a variety of things that they 5 considered to be high priority items got dealt with 6 quickly. 7 way to discuss it is to look at what I found myself 8 going into the Utah State Prison system. 9 So, you had, you know, to make sure that But when you are changing -- maybe a better Basically, it had been run by people who had 10 an entirely different approach. 11 were not the big issues. 12 social work aspect of things. 13 I replaced. 14 there, they looked at everything differently. 15 whether it's a more modest change or a big change, you 16 still have to alter the culture. 17 writing policies, training and supervising and letting 18 people know where things are changing and what you 19 expect of them. 20 Q Security and safety It was the more touchy, feely Those are the people that When you talk about changing the culture So, And the process is So, when you talk about policies and 21 procedures not being adequate, not having an adequate 22 amount of training, are you referring to what happened 23 in the previous administration of Pinal County? 24 25 A Yes. It's something that we have already talked about in my deposition, is how they got their (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 130 1 information on what is the policy of the facility. And 2 that was, well, it was just passed on from one 3 individual to the next as opposed to having those things 4 dealt with in policy and training, you know. 5 know, that's basically what I am referring to is that if 6 that's the administrative approach, if that's the 7 administrative culture, you know, that everything's 8 running fine, so why worry about it, we'll worry about 9 things when they go wrong, that's something that needs So, you 10 to change. 11 they were setting their priorities in areas that they 12 considered it to be more important, as Kimble explained 13 it to me. 14 Q And that's what they were trying to do. Okay. But On page 26, opinion A-2.3, I am having 15 a little trouble following what you are saying here. 16 Can you read that and try to explain to me? 17 A From the beginning to the end? 18 Q Just the opinion part. 19 A Okay. That one sentence. It's my opinion that Clark's rush to 20 brush aside as not credible the failure of so-called low 21 level staff to forward any questions regarding what the 22 correct policy was regarding magazines, newspapers and 23 pamphlets is wrong. 24 writes about administrative staff incorrectly blaming 25 lower level staff for what happened. In his opinion, if you recall, he And, you know, if (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 131 1 they had questions about what policy was, they had the 2 opportunity to ask them. 3 referring to his opinion in that regard, that he 4 discounted and strongly opined against the 5 administration saying they should have told us if they 6 had any questions about this, we did not know that they 7 were not following policy, that they had misinterpreted 8 the policy. 9 misinterpretation and how much wasn't even -- it wasn't And so, this is basically I don't know how much it was 10 even being referenced, because the language is pretty 11 clear that we do accept publications. 12 Q So, it says above that is not credible, the 13 failure of so-called lower level staff. 14 saying that lower level staff did forward questions? 15 A Right. You are not What I am saying is, the extent the 16 opinion that he was giving, that, essentially, it was 17 the administration's fault and that low level staff 18 can't be blamed for any of this, and I am paraphrasing 19 what he said, of course, I don't think that was 20 credible, you know, the action, or the opinion, I should 21 say, was not credible in light of the facts that are out 22 there. 23 Q So, I just want to clarify. I think you said 24 this earlier, but is it your opinion that Chief Kimble 25 and the jail commanders were not aware of the mail room (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 132 1 2 3 4 5 6 staff practice of denying newspapers and magazines? A That's my understanding from what I have read and from my discussions with both Kimble and Montano. Q And is your opinion that that lack of knowledge on their part was reasonable? A Well, in light of the frame of reference that 7 I applied, that when you come into a new system, and 8 you've got several hundred things to change, or a 9 hundred things to change, you know, number 99 on the 10 list, you know, you can't learn everything at once. 11 can't know everything that's happening at once. 12 system that runs 24/7. 13 going on. 14 for them to approach it in the way that they did, by 15 setting priorities and trying to resolve those 16 priorities as they went. 17 a grievance capability of what, under ordinary 18 circumstances, where if there's a problem, that staff, 19 or prisoners, I should say, could bring to the attention 20 of their concerns, and they get a chance to fix it 21 before litigation is filed. 22 litigation came from outside, which makes that 23 problematic for them. 24 25 You It's a And there's all kinds of things So, I think that it's absolutely reasonable And, especially where you have Second, in this case the But there's any number of things, I would say, in any jail in the country, and probably any facility (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 133 1 that I have ever run, clearly, there are things that go 2 on that I don't know about, and things that any 3 administrator is going to be surprised exist. 4 you can do is continue to push forward to find out as 5 much as you can, when these things come up, deal with 6 them. 7 Q But all So, if I'm understanding you correctly, you 8 are saying it's reasonable that their lack of 9 acknowledgment was reasonable in the mail room, was 10 reasonable because they weren't prioritizing the most 11 important issues, and so it's reasonable that they 12 hadn't gotten to that issue yet; is that correct? 13 A 14 15 16 Yes. And it's also reasonable -- MS. STATON: of that question. A Wait. Wait. Object to the form Now go ahead, Gary. The reasonableness would also be based upon 17 the fact that they can't be all places at all times. At 18 some point in time, if you have this many things to do, 19 you can't do them all by flipping a light switch. 20 that's why I said it's reasonable. 21 adopt an approach where you try to prioritize the most 22 important issues, those issues that involve life, 23 safety, those issues that involve serious security 24 concerns, supervision of inmates, meeting the basic 25 essentials of life for prisoners. So, It's reasonable to Then, as you move (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 134 1 through that priority list, hopefully, you get to mail 2 before it becomes a problem. 3 In this case, that was not true. But they 4 then did what they had to do. 5 determined that the change was needed, made it, then 6 conducted training to implement it. 7 not unreasonable. 8 9 Q They went ahead, So, the approach is On page 27, your opinion A-2.4, it's your opinion that mail room staff misunderstood the written 10 publications, policies and procedures. 11 they misunderstood the written policies and procedures? 12 A For two reasons. Why do you think One, they were relying on 13 passed down information. 14 appear anybody bothered to read the policies where the 15 language was very clear that publications are allowed. 16 Reference after reference after reference to how you 17 accept, how you turn away, the whole issue of the 18 acceptance of publications. 19 20 21 Q And, secondly, it doesn't And what do you advise jail staff on how to avoid this problem of relying on oral histories? A Well, I tell you only what I have done. And 22 it does crop up in my training. When I took over the 23 Department of Corrections, we rewrote policies. 24 put out tests on each policy. 25 supervisor would be required to administer a test which We also At any given time, a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 135 1 I decided was the appropriate one, you know, this 2 policy, that policy. 3 their people knew about it. 4 variety of ways to do it. 5 supervisors, give them their marching orders, and let 6 them know they have to meet their supervisory 7 responsibilities, which include, in this case, the mail, 8 and to enforce policies if they want to continue to be 9 supervisors. 10 And then we found out how much That's one way. There's a One is to appoint competent You know, the problem with delegation, and the 11 only way we can run an operation is through delegation, 12 you have to depend on the quality of the people to whom 13 you delegate. 14 might like it to be. 15 command for the information that flow up and down. 16 an imperfect approach that you have to delegate. 17 yet, it's essential. 18 things. 19 simply put things in place and then deal with the 20 problems that flow out of it anyway. And that's not always everything you You have to depend on the chain of It's And, And it's the only way you can run So, those of us who live in that environment 21 Cognitive skills of individuals, motivation of 22 individuals, attention to detail of individuals all play 23 into that. 24 change because we staff jails with human beings, not 25 robots. And there is no way it's ever going to (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 136 1 Q On page 28, in opinion A-2.5, in paragraph A 2 you talk about the difference between policies and 3 procedures and practices. 4 A Yes. 5 Q So, what is your opinion here about policy 4.5 6 that you have referenced in your report? 7 your understanding, a policy or a procedure? 8 9 10 A It's both. want you to do. It's a policy, which is what we And it's a procedure, which means how we want you to implement it. 11 Q Is that, in So, it's both. And when you train jail staff, do you usually 12 have two separate documents, a policy document and a 13 procedure document, or do you have one document? 14 A I recommend you have one document so you don't 15 have to go look in two places. 16 with here are policy statements, and then you can finish 17 with procedures. 18 have two or three sections where you repeat that 19 process. 20 know, one might talk about reading mail. 21 about screening mail. 22 mail. 23 what our policy is, then the procedures of how you carry 24 it out, but all in the same document, I recommend. 25 Start out the chapter And you may, within a single policy, In this section of this particular policy, you One might talk One might talk about rejecting But in each one of those sections you'll have Q Then in paragraph B you talk about official (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 137 1 practices versus unofficial practices. 2 A Yes. 3 Q Can you explain the difference between those A Yes. 4 5 two? This is an area I had a strong 6 disagreement with Mr. Clark. He talked about there was 7 an official practice. 8 Well, what's official is what's written. 9 official is what has been adopted. And that was not to accept it. What's And what's official 10 is what Kimble affixed his signature to. 11 official. 12 procedure may be, is simply how people actually perform. 13 So, in this case, you have a policy and procedure 14 Chapter 4.5, that say, publication, publication, 15 publication, publication. 16 which they were engaged in, which was to avoid allowing 17 those things to come in. 18 procedure. 19 That's A practice, irrespective of what a policy or Then you have a practice So, practice is different than Practice is different than policy. They can 20 be the same if you have a written policy and procedure, 21 and the practice carries that out. 22 becomes official at that point. 23 as Clark has said in his expert report, an official 24 practice when it's never been blessed, if you will, by 25 the administration, and where it is clearly, clearly Then the practice But you can not have, (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 138 1 contrary to what has already been written, signed and 2 was in place before the lawsuit was filed. 3 4 Q exist if it's contrary to the procedure? 5 6 So, you are saying official practice can't A No. A practice can exist, but not an official practice. 7 Q Correct. 8 A Because the only thing that's official is what 9 the agency and the responsible authority have deemed to 10 be how we are -- what we want and how we are going to do 11 it. 12 guess, if you want to attach that word to them, once 13 they become in alignment with what the official policies 14 and procedures require. 15 So, you know, practices can become official, I Q And if jail management was aware of a 16 practice, but it was contrary to what was written down 17 in the policy, would you consider that an official 18 practice? 19 20 21 A I'm not sure I understood the question. Can you try again? Q If jail management were aware of a practice, 22 and it was contrary to what was in the written policy, 23 would you consider that an official practice? 24 25 A Arguably so. MS. STATON: If they -Let me object. Let me object to (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 139 1 form and foundation. 2 A Arguably so. Go ahead. If they have full knowledge that 3 this is what's going on and are basically just saying, 4 oh, hell, we don't have time to change our written 5 policy and procedures, let's just leave it there, they 6 are doing it the way we want it done, so why bother 7 ourselves with changing policy, then they have probably, 8 by omission, created an official practice. 9 would require actual knowledge of how things were done 10 and a reasonably conscious decision to let it continue 11 on. 12 BY MR. THOMPSON: 13 14 15 16 Q Okay. But that So, let's move on to the actual written policy. (Exhibit No. 4 was marked for identification.) BY MR. THOMPSON: 17 Q This is the January 31st, 2010 policy. 18 A Okay. Take a second to look at it. Okay. 19 haven't read it all, but I have read enough to get a 20 sense of what's there. 21 Q Okay. So, you say in your opinion B-1.1 that 22 it was the official policy of the PCJ to permit 23 publications to be received by prisoners? 24 25 A Yes. I The time the lawsuit was filed, that was the case. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 140 1 Q So, I asked you this earlier, in general, but 2 in relation to this specific policy, do you understand 3 publications refer to newspapers and magazines and 4 books? 5 A Yes. 6 Q So, you think it include books? 7 A Yeah. Individual policies, individual 8 agencies can choose to list those any way they want. 9 policies I have written, I have separated books from, 10 basically, what you might call periodicals or 11 subscription items. 12 them is different. 13 them are somewhat different. 14 not published. 15 they are published, but we don't have to notify the 16 author and the book publishing company that this 17 particular book is not on our list of allowed books. 18 So, it's not that it's not a publication. 19 like separating them in the policies and procedures so 20 that we group like things together. 21 Q In Because the way that you review And the way that the law applies to So, it's not that they are As I mentioned earlier in my testimony, It's simply I So, what in this policy, in the Pinal County 22 policy makes it clear to you that publications refers to 23 newspapers and magazines and books? 24 25 A Let me go back to what I was looking at here until I find it. Okay. The first thing they talk about (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 141 1 at 4.5.6 on publications. 2 to screening and review. 3 them, there's no reason to screen them or review them. 4 You just send them back where they came from. 5 6 7 Q All publications are subject If you are not going to accept My question is, how do you know how publication is defined? A Oh. Let's see. Let me move to the front. 8 They have a definitions section. 9 there. They don't. See if they have it in They don't define it there. So, it 10 could be defined the way I defined it or it could be 11 different. 12 the same context, then they would be defining it 13 somewhat differently than I do. 14 problem. 15 But books weren't an issue in this particular case, so I 16 didn't worry about books. 17 18 Q In this case, if they talk about books in And that's not a It just simply means we define it differently. Do you see on page PCSO38 of this policy on Exhibit 4 in 4.5.6.2? 19 A Yes. 20 Q What do you understand recognized publisher, 21 22 distributor or authorized retailer to mean? A It's not defined, so I couldn't tell you. For 23 sure, obviously, the publisher and the distributor, 24 which -- ordinarily, what I certainly write in policy is 25 the publisher and book clubs. Those are the two hardest (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 142 1 things to manipulate. Distributors could mean book 2 stores. 3 would not agree with. 4 about book stores, here in St. George there used to be a 5 book store called the Avalet. 6 mine and a law abiding woman happened to mention to me 7 when we were having coffee over there one day that she 8 buys books for friends at the Texas Department of 9 Corrections prisons, and then she takes a bunch of books It could mean Ebay, I suppose. And that, I For example, when you are talking A very close friend of 10 she's read and includes them, and then they mail them 11 all off at once. 12 violating the policies and procedures of the Texas 13 prison system, nor did the bookstore. 14 nefarious. 15 those books. 16 manipulate. 17 and is willing to do that for you, that's very easy to 18 do. 19 things in the binding where they are hard to get. So, she didn't realize she was And she was not She didn't have hacksaw blades and drugs in But the point is, it's very easy to If you know someone who owns a book store You buy a book and insert what you need to, hide 20 One of the reasons why, especially hard-bound 21 books need to come from those sources, is because they 22 are incredibly difficult to search. 23 needles into the hard bindings. 24 things. 25 Q You can slide You can do all kinds of So, this policy of January 2010, why do you (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 143 1 think that after 18 months of this policy being in place 2 the mail room staff still misunderstood it, in your 3 opinion? 4 correct? 5 A This lawsuit was filed in September of 2011, Right. As I said before, I can't explain why 6 mail room people didn't bother to read policy, so I 7 don't have an answer to your question specifically as 8 you have asked it. 9 allowed it. I can only say that the policy It was in place. A series of policies 10 after this continued to allow publications and went 11 further in their discussions. 12 read it. 13 asked in deposition to one of them. 14 Q So, I don't know why. And, still, they didn't That's a question best Do you see on the first page of this policy, 15 it says in the top right-hand corner that it supersedes 16 the April 5th, 2005 policy? 17 A I do. 18 Q Did you review the April 5th, 2005 policy? 19 A No. 20 Didn't consider it necessary to what I was opining on. 21 Q Why is that? 22 A Well, because that policy was no longer valid, 23 and that it had already been replaced a couple of times, 24 at least, by the time the suit was filed. 25 concerned about what the policies were that were in (866) 448 - DEPO www.CapitalReportingCompany.com So, I'm more © 2012 Capital Reporting Company 144 1 place at the time that the suit was filed. 2 know, in future cases, that's how I would look at it 3 unless there was some overriding reason to go back and 4 do a historical review, you know, back to the beginnings 5 of the jail. 6 7 8 9 Q And, you So, do you know whether newspapers and magazines were allowed under that April 5, 2005 policy? A I don't know it under policy. I only know what people testified to in their depositions, that they 10 were relying on word passed on to what the policy was. 11 So, where that came from, whether that was in that 12 earlier addition, I couldn't tell you. 13 they did it, I don't know. 14 didn't do what they were supposed to do, and that was 15 relate their responsibilities back to what was written 16 in policy. 17 Q It's just why I can only tell you they So, if someone came to you and said they were 18 putting in place a new policy like this one in Exhibit 4 19 to allow newspapers and magazines for the first time, 20 what would you advise them as to how to implement that 21 policy? 22 23 A What steps would you take? Well, the first thing -- to implement the policy or to write the policy? 24 Q Implement the policy. 25 A Follow it. Here's the policy. Here's what it (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 145 1 says to do. 2 an hour. 3 training class. 4 policy. 5 to carry it out. 6 implement it, when that's what you are dealing with, is 7 to make sure that they understand they are supposed to 8 follow it. 9 Q Do you have any questions? We'll give you Give them an hour or two orientation or And then, when it's through, here's the You have heard the explanations. It's your job So, at that point, the way you Now -- well, that answered the question. So, the orientation that you described, would 10 that be for mail room staff or for all officers at a 11 jail? 12 A It would only be for officers in the jail who 13 in some way had to deal with the mail. 14 room policy, as written, may also talk about how it gets 15 handed off, for example, to staff from the mail room to 16 get from that to individual prisoners. 17 case, yes, you would provide training at least on those 18 portions of the policy that were germane to the duties 19 of those other persons. 20 21 22 Q Now, the mail So, in that And what would you do to make sure that that policy was being implemented? A Well, we have gone over this several times. 23 But the main way that you do that is you assign 24 competent supervisory staff who understands the policy 25 to be present in the mail room on a daily basis to make (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 146 1 sure it happens. 2 do is you notify your grievance staff if they are 3 getting grievances on people not being provided the 4 publications that they were entitled to, that the 5 grievance officers know to bring that to your attention. 6 So, you know, there's a variety of ways that might take 7 place. 8 Q 9 10 11 Okay. And, certainly, another thing that you I want to mark the expert report of John Clark as Exhibit 5. (Exhibit No. 5 was marked for identification.) BY MR. THOMPSON: 12 Q 13 his report. 14 A Okay. 15 Q Do you see those bullet points in paragraph -- 16 A I see the bullet points to which you are 17 18 19 I want to turn your attention to page 12 of referring, yes. Q So, do you disagree with Mr. Clark on that those steps should have been taken? 20 A To some degree. 21 Q Which ones do you disagree with? 22 A Well, obviously, the first one changed the 23 policy. That's good. Change the inmate handbook, 24 obviously, at some point, that should be done as well. 25 The policy writers and handbook writers might be two (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 147 1 different groups of people, so that may potentially fall 2 between the cracks. 3 and saw where that could potentially have happened. 4 But, yes, you should change the handbook. 5 website. 6 my website about that. 7 sure if policy writers would ever think about. 8 be something you should probably do, yes. 9 have any effect on how staff operated? I was thinking of my own operation Change the Heck, I wouldn't have known I had anything on That's one area that I'm not It would But did it Did the handbook 10 have any effect on how the staff operated? 11 disagreement is only to the extent that these apply to 12 this particular case. 13 do, nor did the website have anything to do with what 14 they were doing. 15 I guess my And the handbook had nothing to The other thing is promulgating the new policy 16 through brief announcements and locations generally 17 visible to all the prisoner population, such as bulletin 18 boards in housing areas. 19 policies we write, including the mail policies, that we 20 don't want them to have access to. 21 have access to information included in there, some 22 limited information, but the security procedures and 23 other kinds of things dealing with mail we would never 24 want the inmates to have. 25 it says the new policy, it doesn't say portions of the Well, there's an awful lot of We will let them So, if what he was saying -- (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 148 1 new policy or the fact that we are now accepting 2 publications. 3 through brief announcements and locations visible to all 4 prisoner population." 5 he means there, but if he means they should have the 6 policy, they shouldn't. 7 bulletin board. 8 be awfully thick. 9 to have all that information. 10 Q He says "promulgate the new policy So, I am not entirely sure what It should not be on their For one thing, the bulletin board would Sure. The second, you just don't want them So, you disagree with promulgating or 11 putting actual policy on the bulletin board, but if by 12 brief announcements he meant a short summary of the 13 policy, do you disagree with that? 14 A No. If all he was intending to do was, say, 15 on a prisoner bulletin board or announcement or 16 whatever, we just changed the policy, I don't have a 17 problem with that. 18 That's fine. 19 Q You can now get publications. I think we just talked about that. Sure. But to 20 clarify, you don't disagree with that that says ensure 21 the jail staff are trained on the new policy? 22 A Oh, no. Quite the opposite. I think that was 23 well stated. You know, and the other couple of things 24 that I talked about aren't bad things to do. 25 they are very good things to do. In fact, But it just doesn't (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 149 1 have much to do with how the mail room operates. 2 Q I want to clarify. On page 13 of his report, 3 he talks about jail staff members not being aware of a 4 policy to change -- of the policy changed to allow 5 newspapers or magazines. 6 I want to clarify. 7 they were unaware, right? 8 that right? 9 A I think you said this before. You don't have any opinion on why That's right. You said you didn't know; is I did bring up the fact that 10 someone testified why they were doing it the way they 11 did. 12 But beyond that, no. Q Okay. And do you have any opinion on why, as 13 it says on page 13, the inmates reported that 14 correctional officers had told them that newspapers and 15 magazines were not allowed? 16 they might have been told that? Do you have any opinion why 17 A No. 18 Q On page 31 of your report, opinion B-1.3, you 19 talk about the jail adopted a process of routinely 20 updating policies and procedures? 21 A Yes. 22 Q And then, in the basis for opinion, you talk 23 about you know what that process of updating was. 24 you explain what your opinion is about how they were 25 routinely updating policies and procedures? (866) 448 - DEPO www.CapitalReportingCompany.com Can © 2012 Capital Reporting Company 150 1 A Well, obviously, the one policy came out prior 2 to the lawsuit which allowed publications but did not 3 have a specific requirement with regard to how to deal 4 with publishers and how they can appeal the process. 5 So, once they got sued, they found out that was 6 necessary to change. 7 They also deal, I know, with ICE prisoners and 8 others. So, I know that I have seen within their policy 9 and procedures they have several places where they have 10 to make exception for ICE prisoners. 11 obviously, plays into it when those started appearing in 12 the policy and procedures. 13 So, that, I think I mentioned early on that when I do 14 train with respect to policy and procedures, I tell 15 folks to review an update on a constant basis. 16 what they were trying to do. 17 major constitutional violation that you are facing. 18 just find that what we are doing could be done better in 19 a different way, or we now have a different client on 20 board like ICE or the marshal service that needs these 21 things done somewhat differently. 22 that inmates are complaining about something and, quite 23 frankly, it's legitimate, so, we'll change it. 24 25 That's It doesn't have to be a You Or we are finding out So, there is an endless number of reasons why you update. But I noticed that they have done so. (866) 448 - DEPO www.CapitalReportingCompany.com And © 2012 Capital Reporting Company 151 1 there were updates even after the initial policy drafted 2 following the lawsuit. 3 Q So, is it your opinion about this, just based 4 on seeing the different mail policies, or was there 5 something that Chief Kimble told you that leads you to 6 believe that they have a process of routinely updating 7 the policies? 8 A Combination of the two. 9 Q So, what is it that he told you? 10 A Just that they continued to update their 11 policies. Not just mail room policies, but all the 12 policies that they find. 13 and you are having to move as quickly as possible, 14 something I'm quite familiar with, you'll find that the 15 stuff you put together to get it out quickly, after 16 further consideration could have been better written, 17 could have been more clear in its explanations. 18 number of things. 19 you've gotten through most of your priorities, you fix 20 that. 21 you haven't got to it, there's a variety of ways you put 22 yourself in a position of changing things. 23 recall exactly how we discussed it, only that we did 24 discuss his ongoing process of trying to keep these 25 policies up to snuff. You know, when you come in, Any So, when you then have the time Or, when it's called to your attention, even if (866) 448 - DEPO www.CapitalReportingCompany.com But I don't © 2012 Capital Reporting Company 152 1 2 Q And do you have anything on the jail's practices for implementing new written policies? 3 A Well, the only one that I am directly familiar 4 with -- well, actually, that's not true. There's two 5 that I am somewhat familiar with. 6 room. 7 depositions of staff. And then, also, discussions, I 8 suspect, with Kimble. I can't remember that precisely 9 at this moment, of what they did to implement it. 10 was provide the new policy, to provide a training 11 program, have the supervisors who were key to the 12 process participate in the training. One would be the mail And there was testimony that I picked up from 13 That The only other one I can think of that I have 14 been familiar with where they went through that process, 15 and I happen to know about it, were the grievance 16 policies. 17 grievance policies that I sat down and talked to those 18 that were involved and went through that process with 19 them and ended up asking Nicole to come actually train 20 for us. 21 Q That's because I was so impressed with their So, on page 32, you list five different 22 policies. I just want to clarify. The only policy 23 about which you are expressing an opinion about how it 24 was implemented is the policy after this lawsuit was 25 filed, right? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 153 1 A Well, yes. Although, I do reference the 2 failure to implement that one aspect of things in the 3 previous policy. 4 obviously. 5 Q Okay. So, one plays off the other, But you don't have any opinion about 6 whether what they did to implement these 2010 and early 7 2011 policies was adequate or not? 8 9 A The only thing that I asked about was how they implemented the policy changes period. And I don't 10 recall asking them, did you repeat that process exactly 11 each time this thing went out? 12 changes, they probably didn't do anything except call it 13 to the attention of their supervisors. 14 saying that because that's how I would do it, and that's 15 how it would normally be done. 16 If there were only minor But I'm only When you have major change, that's when he was 17 talking to me about how they went ahead and fixed the 18 problem that got them into trouble. 19 Q The policy change after the lawsuit was filed? 20 A Right. 21 Q Okay. B-1.4 on page 32, you talk about the 22 process for appeal which you referenced a couple times 23 earlier today? 24 A Yes. 25 Q My question is, what's the basis for your (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 154 1 opinion about the need for an appeal process? 2 legal opinion or opinion about what is good corrections 3 practice or both? 4 A Is it a Well, certainly it's good corrections 5 practices. But I base it even more on the supreme 6 courts recognizing that it was necessary. 7 based on the fact, if you don't mind my talking about my 8 impressions of what the court has said, that the 9 publisher had a right to have the editorial content And that was 10 received by others. 11 affect safety, security, order, discipline, you know, 12 that sort of thing, no, you couldn't keep it out. 13 14 15 Q And unless there was content that So, why do you say it's good correction practice? A Well, it's good corrections practice because 16 there's a certain amount of follow-through then that's 17 necessary on any decisions that you make. 18 documents decisions. 19 or, say, you know, put another stamp on this and send it 20 back, the process doesn't get documented. 21 it's good corrections practice, because now that you 22 have the responsibility to give both the prisoner and 23 the publisher their day in court, so to speak, you have 24 one documented in the grievance system, and you've got 25 one documented in whatever logs or files that you And it also If all do is throw the item away (866) 448 - DEPO www.CapitalReportingCompany.com So, I think © 2012 Capital Reporting Company 155 1 contain that information. 2 Q Why is that documentation helpful? 3 A Well, it's very helpful because of situations 4 like that we are in right now, number one. It's also 5 very helpful because if you have that documentation 6 available, then you've got something for Kimble and his 7 supervisors to review. 8 know, if you just send it back and there is no notation 9 made, there's no documentation that occurs as to what What was it to review? You 10 happened. 11 administration, maybe even your supervisors in the dark 12 if there's no requirement that you document. 13 the documentation becomes automatic with either the 14 grievance system or the publisher's appeal. 15 Q So, it's a nice way to leave the And so, So, in opinion B-2.1, about the handbook, you 16 say on page 33 that Clark's reliance on the handbook 17 language was mistaken. 18 A Why do you think it's mistaken? Well, because it had nothing to do with how 19 the mail room operated. The handbook did not have to be 20 distributed to the mail room. 21 to the prisoners. 22 in the mail room, the prisoners didn't, you know, 23 process mail, then it was -- might be useful to them, 24 but it wouldn't have any impact on the mail room besides 25 not reading their own policies and procedures, why would It had to be distributed And since the prisoners didn't work (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 156 1 2 they read the handbook. Q You don't think the prisoners' understanding 3 of the policy as described in the handbook would have 4 any effect on whether the jail might receive notice that 5 the policy's not being followed? 6 A Potentially so. My experience with prisoners, 7 if they are unhappy, whether it's a matter of policy or 8 matter of practice, if they are unhappy with what they 9 are doing, and they have a grievance system available to 10 them that allows them to grieve it, they are more 11 concerned about getting the item to the attention of the 12 people who may or may not do something about it rather 13 than concerning themselves with whether a practice and 14 policy are in perfect alignment. 15 surprised that there are many, if any, prisoners that 16 would say, oh, heavens, I can't file a grievance because 17 it says right here that this is their policy. 18 got their policy, you can grieve their policy. 19 don't see how that had any effect on the prisoners. 20 There might be somebody that looks at that and decides 21 not to, I suppose, but I don't think so. 22 23 Q So, I would be If you've So, I And so, when you ran the Salt Lake County Jail, did you have an inmate handbook at that point? 24 A Yeah. Actually, we did. We did. 25 Q So, did you, I guess in that situation, or in (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 157 1 other situations, have you drafted inmate handbooks 2 before? 3 A Yes. 4 Q And do you give jail management any training 5 or recommendation as to how an inmate handbook should be 6 revised? 7 A No. To tell you the truth, I never give them 8 any advice like that. The only thing we had in our own 9 system is when policies changed. There was a list of -- 10 it was called a distribution list. 11 would not want to testify under oath that I am 12 absolutely sure, that the handbook was on that list. 13 14 15 And I believe, but Q What do you mean by the handbook was on the A The distribution list. list? What we provided to 16 the prisoners was two things: One was the handbook. 17 What they relied on the most, however, was what we 18 called the resource manual, prisoner resource manual. 19 And I don't necessarily recommend others do this. 20 fact, sometimes I recommend they don't. 21 do is take our actual policy and procedures on certain 22 key issues, eliminate those pages that had things that 23 inmates should not see, and redact other things. 24 they had our policies minus those that they were not 25 allowed to have. In What we would Then That made it a lot easier than going (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 158 1 back to change handbooks, because as we wrote a new 2 policy on the distribution list, the redacted policy of 3 this will go in the resource handbook. 4 book in each of the living areas that they could 5 reference. 6 Q So, you had a I just want to clarify what you were saying 7 with the distribution list. 8 person who is responsible for updating the handbook was 9 on the distribution list? 10 A You are saying that the What I am saying, I believe so, but I would 11 not want to testify absolutely that that was true. 12 Elliot, I recall, was the name of the person who handled 13 policy and procedures. 14 for her. 15 would have been. 16 was. 17 Q Pam We did have a distribution list And it would have been logical to assume it But I don't recall for sure that it And what's your experience as to how often 18 prisoners rely on and review an inmate handbook in jail 19 facilities? 20 A 21 I have no idea. MS. STATON: 22 foundation. 23 A Okay. I am objecting to form and The answer remains the same. I have no 24 idea. I have never done a study and asked them how many 25 times a week they do or don't reference these things. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 159 1 2 3 4 BY MR. THOMPSON: Q I mean, is it important to document, in your opinion, for setting rules for prisoners? A Well, the handbook serves, it's most important 5 purpose is the inmates use it properly, is to understand 6 how they file a medical request, how they do, how they 7 do, how they do. 8 then the other things are prohibited. 9 things that you either can not do or must do in order to It's mostly a book of how to do. And These are the 10 avoid being disciplined. 11 serves. 12 appropriate and inappropriate conduct. 13 to provide information to prisoners on how they access 14 various services in systems. 15 it's approached in Pinal County. 16 Q So, those are the purposes it One is to constrain conduct or define And the other is I don't know exactly how When you do training for jail management 17 staff, do you address how to use the inmate handbook or 18 what to put in it or anything like that? 19 A I don't recall ever having done a training 20 program where I have taught about the handbook. 21 entirely possible at some point it's come up. 22 not in my lesson outline, certainly. 23 prisoner orientation. 24 do it however you want to. It's But it's I do talk about Then there's, you know, you can 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 160 1 Q So, when you talk about prisoner orientation, 2 is there any training you give about how to involve a 3 handbook in that orientation? 4 A No. I have written policies on it, but I 5 haven't actually -- well, that's not true, now that I 6 think about it. 7 talking about admission processes. 8 need to have some means of notifying prisoners about the 9 things that I just talked about. It does come up in training when we are And that is that you You know, the Los 10 Angeles County Jail, for example, has a major production 11 on screen, you know, in English and one in Spanish. 12 people who speak Farsi, or some other language, can have 13 a telephone on their ear while they lay out a lengthy 14 explanation. 15 ask. And Then you are told if you have questions, 16 A lot of times handbooks become what the Sears 17 Catalog used to be in the old days in an outdoor toilet, 18 something that's used for scratch paper, used for 19 purposes unintended. 20 handbooks out in the Salt Lake County Jail, for example, 21 we put them up on the wall, and half of them were torn 22 up the next day. 23 need to know this is your ticket to have the television 24 on. 25 having these on the wall. I know when I first put the So, then we put them on and said, you If you want the television on, let us know that by If you decide you don't want (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 161 1 to watch television for the next 30 days, tear these up. 2 Then they stayed up. 3 The Department of Corrections, we relied much 4 more. 5 handbook, but we relied much more on this resource 6 manual because it had much more information on it. 7 I think we still had a handbook. Q 8 9 Let's take a break. (Whereupon, a brief recess was taken.) BY MR. THOMPSON: 10 11 Okay. I know we had a Q Do you have an opinion about whether prisoner mail rules should be on a jail's website? 12 A I suppose they are useful to people who are 13 writing in, but I don't recall that we ever had ours on 14 a website. 15 type. 16 Q So, no, I don't have an opinion of that Do you do any training now on, you know, what 17 jail rules or practices should be on a website open to 18 the public? 19 A 20 21 No. I don't think the word "website" has come up in my training in all the time I have been doing it. Q And do you have an opinion on whether the 22 information on the jail's website in this case would 23 have affected the problems at the jail in terms of 24 rejecting newspapers and magazines? 25 A Not at all. Like I said -- (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 162 1 2 3 MS. STATON: Hold it. Let me object to the form and foundation. A Not at all. Mail staff -- or, excuse me -- 4 yeah, the mail room staff was not going to go to the 5 website to see what they ought to do if they really 6 wanted to know written signed policy and procedures. 7 And I doubt PLN checks websites before they send their 8 stuff out. 9 the time. They send it out all over. They are going to send it. Jails get it all And they are 10 going to expect the jails to deal with it appropriately. 11 So, the website, I think, is a total nonstarter in this. 12 Q I want to clarify. I was asking if you have 13 an opinion on whether or not the website affected a 14 problem here. 15 do have an opinion you don't think it had any impact on 16 the rejection of newspapers and magazines? 17 18 19 20 A And your answer was not at all. And you Yeah. When I said not at all, that is my Okay. Moving to Section C of your report on opinion. Q page 34. 21 A Yes. 22 Q So, is it your understanding that the jail 23 previously had a policy that limited mail to post cards 24 and one-page letters? 25 A Yes. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 163 1 Q And is it your understanding, did the jail 2 previously have a policy which limited incoming mail to 3 postcards only? 4 A Since the postcards was not on the table, I 5 read it, but I can't tell you exactly what was in there. 6 I know that they had a postcard in one page. 7 recall, I thought perhaps the one page actually made 8 their defense of the postcards more difficult. 9 that's all. I don't recall. As I But Since I wasn't asked to 10 opine on it I became vaguely familiar with it, and it 11 would be inappropriate for me to opine much about that. 12 Q You say, in your opinion C-1.1, the changes 13 made have adequately addressed the issues in this 14 litigation. 15 based on? 16 A So, can you explain what that opinion is Pretty much everything we have talked about so 17 far. 18 adequate due process to publishers, and they now have a 19 policy that requires them to do so, and they have a 20 process that has to be followed, if they had a policy 21 that didn't even allow publications to come in and 22 that's now been addressed, not just through policy, but 23 now through training and stricter oversight, that's what 24 that refers to. 25 If the issue is that they are not providing Q So, is that based on a written policy you (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 164 1 reviewed? 2 A Based on written policy and discussions with 3 the two officials that I have referred to, Montano and 4 Kimble. 5 Q What do you mean, in subsection (c) of C-1.1, 6 that any question about allowing publications were not 7 resolved? 8 9 A Point me to where that is. Oh, I see it. Yeah, there should no longer be -- I mean, the policies 10 have now addressed the topic. 11 question in anybody's mind that publications are 12 allowed. 13 that due process is required through the grievance 14 system for prisoners and through the mails with an 15 appropriate opportunity for appeal for the publisher. 16 So, I'm not sure what there is left to resolve. 17 Q There should be no There should be no doubt in anybody's mind Was there something in the updated policy that 18 specifically clarified the issue for you? And I can 19 show you -- 20 A Yes. 21 Q -- the policy, if that's helpful. 22 A Well, I can't remember exactly where 23 everything appears in all the policies. But let me look 24 at them one at a time until I find what I am looking 25 for. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 165 1 2 3 Q (Exhibit No. 6 was marked for identification.) BY MR. THOMPSON: 4 5 Sure. Q So, this is the November 20th, 2011 policy, which was the first policy that followed the lawsuit. 6 A Okay. Let me just quickly move through it. 7 Okay. There's two places where it discusses it, 8 actually. 9 starts at Mail Refusal, 4.58. The first, if I can refind it. The first And the general statement 10 procedures with respect to mail refusal, they deal with 11 the issue for inmates and also for the publisher. 12 at 4.5.8.5, any publication or other mail is rejected if 13 any publication or other mail is rejected. 14 shall also be notified in writing of the reason the mail 15 was rejected and the process for informally appealing 16 the rejection. 17 Then it goes on 4.5.8.6. And The sender If the sender wants 18 to appeal the denial of the publication, the challenge 19 shall be forwarded to the chief deputy within seven 20 working days of the sender receiving the notification of 21 denied mail. 22 will do. 23 discusses publication review process -- Then it goes on from there about what he Also, if you move to 4.5.13, where the policy 24 Q Sorry. 25 A 4.5.13. Can you clarify what number? (866) 448 - DEPO www.CapitalReportingCompany.com 4.5. -- © 2012 Capital Reporting Company 166 1 Q Okay. 2 A Let me see what I am looking for now there. 3 Okay. 4 of denied mail form shall be completed and sent to the 5 inmate and sender of the affected publication. 6 then, of course, that would refer back to what they have 7 already talked about. 8 general mail, and it also appears -- general incoming 9 mail, and it also appears in the publication review 10 11 Moving on down the page at 4.5.13.5, notification And So, it appears both in the process. Q So, in reference to your statement about any 12 question about allowing approved publications is now 13 resolved? 14 A To me, yes, it is. 15 Q So, the two sections you just pointed me to 16 were about notifications of denied mail, right? 17 A Right. To both inmates and to the publisher. 18 Q So, what in the publication leads you to 19 believe that the question about allowing publications at 20 all is resolved? 21 A Well, that was resolved even before the 22 lawsuit. If you look on page 29 of my report, there's 23 an exhaustive list of the issues with respect to 24 allowance of publication. 25 actually required to read policy, they are actually So, now that the mail room's (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 167 1 required to apply that instead of what somebody told 2 them has been the practice for some number of years. 3 That issue is resolved already. 4 taking care of the publishers and their appeals. 5 and they did not strip out of the policy, you know, as 6 they wrote subsequent policies, the fact that 7 publications are allowed. 8 it's allowed now. 9 publications can come in. The second issue is So, it was allowed before, So, there should be no question that The second question is what 10 happens if you have to turn one down. 11 resolved in this one. 12 Q So, And that is So, on page 34, part C that we were looking 13 at, about allowing approved publications, there's 14 nothing in the policy that's changed that leads you to 15 believe that? 16 based on conversations with jail management or -- 17 A 18 Is that something that in your opinion is My opinion is based on the fact that -MS. STATON: 19 form of that question. 20 answer. 21 THE WITNESS: Hold it. Let me object to the Okay. You can go ahead and Okay. Is there any way to turn 22 her volume up? Well, we are near the end of the depo 23 anyway. Well, I am basing my opinion on, just 24 conversations you ask? 25 the fact that the requirements are all now in one place. Okay. No. I'm basing my opinion on (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 168 1 You know, each new policy has taken care of that. 2 now they have been trained to it. 3 supervisors are being held responsible for ensuring they 4 carry it out. 5 inappropriate information to develop a nonofficial 6 practice, now they have official policies, official 7 training, if you will, and supervisors who have been 8 given their marching orders. 9 BY MR. THOMPSON: 10 Q And And now that the So, where before they were going on You mentioned supervisors being held 11 responsible a couple times. 12 particular that you are aware of that they are doing to 13 hold supervisors responsible that they weren't doing 14 before? 15 A Well, yes. Is there anything in And I can't tell you exactly how 16 they deal with their supervisors in all situations. But 17 there was certainly a level of frustration that Kimble 18 mentioned to me that, apparently, the supervisors hadn't 19 been reading the policy either because, for the most 20 part, the immediate supervisors knew what was going on 21 or had participated in the process. 22 do know, now that they have to carry it out, it would be 23 a violation of their -- I don't remember what they call 24 it, code of conduct or what, that requires officers to 25 carry out policy and procedures as written and leaves So, now that they (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 169 1 them subject to discipline if they don't. 2 pretty much a standard approach for dealing with that. 3 4 Q So that's I want to clarify one thing on page 36 of your report. 5 A Sure. 6 Q Paragraph 4. 7 A Okay. 8 Q You discuss that you have written policy and 9 10 procedure manuals. This is in opinion C-1.2. And you describe this process to do so. 11 A Yes. 12 Q I want to clarify, is this the process that 13 you generally use to write a policy and procedure 14 manual? 15 A It's exactly the process I use. 16 Q All right. 17 A The review that it mentions there I do before 18 I send it out. Then the client agency also reviews it. 19 And then, when all those reviews have taken place, then 20 it's written in final form. 21 Q Can I bring you back to Mr. Clark's report? 22 A Okay. 23 Q It's on page 15 of his report in paragraph 28. 24 A Okay. 25 Q Sure. Let me read that. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 170 1 A Okay. This has to do with an inmate receiving 2 four pages of material that had been copied from a book. 3 Those materials were denied with notification. 4 5 Q Sorry. That's paragraph 29, I think. Can I have you focus on 28 first? 6 A Oh, sorry. Let me read that then. 7 Q So, my question is, did you review any logs 8 showing what publications have been denied since this 9 lawsuit was filed? 10 A No. 11 Q Okay. I guess I have the same question with 12 respect to paragraph 29. 13 did you review any notifications of mail being returned? 14 15 A No. Q Yes. 17 A No. 21 I'm not aware of that. It wasn't -- the first time I saw that was in his expert report. 19 20 You are talking about the pages copied out of books? 16 18 If you had a chance to read, Q And you haven't reviewed those documents since A No. then? And I would agree with him, by the way, 22 that they should have allowed those in. 23 problem. 24 Q In paragraph 28 or 29? 25 A Twenty-nine. That's not a (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 171 1 2 3 Q You agree that pages copied out of books should be allowed? A Right. There's nothing in the policies and 4 procedures that allows that. 5 says you can't tear things out of books, because that 6 alters the book itself. 7 is that was somehow a misunderstanding of what the 8 provision of policy wanted. 9 Q There's something that So, the only thing I can assume And then at the end of paragraph 29 about 10 inmates being notified of newspaper clippings or pages 11 copied from magazines, do you also agree that would not 12 be problematic? 13 A Yeah, those should be allowed. 14 Q So, based on page 37 in your report, paragraph 15 B3 of C-1.3 -- 16 A Yeah. 17 Q -- so you are discussing the jail's efforts to 18 train staff? 19 A Um-hmm. 20 Q And you say staff received training and 21 instruction from supervisors. 22 of what that training or instruction was? 23 A Not specifically. Do you have any knowledge I mean, that is, I haven't 24 seen any training outlines or whatnot. Chief Kimble, 25 when we talked, indicated that what they were training (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 172 1 to was the new policy itself. 2 discussion about it, asking for anybody, you know, any 3 questions anybody might have about the policies as 4 written. 5 Q And then, having So, is there any other basis for your opinion 6 that that training was adequate other than what Chief 7 Kimble told you? 8 9 A No. explanations. That's what it would be based on, his And then, of course, in Linderholm's 10 deposition, in several of the individual officers' 11 depositions they talk about having, you know, Linderholm 12 helped deliver it, the other individuals talked about 13 having received it. 14 of testimony with respect to what happened with respect 15 to the training. 16 Q So, there seems to be a commonalty I think we have covered this, but I want to 17 clarify as it relates to this opinion. 18 expressing an opinion on whether the training that 19 occurred before the litigation was adequate or 20 inadequate, are you? 21 22 23 24 25 A You are not I don't even know if they did it before. I never asked. Q Okay. So, you are not expressing any opinion on that? A No. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 173 1 Q Okay. In subsection (c)(2), on page 37 of 2 your report, you say that the PCJ recognizes the value 3 of reading material for prisoners. 4 that opinion? 5 A What's the basis for Well, they have a jail library. They have 6 jail library services, for one. You don't put a library 7 together, I guess you don't think they ought to have 8 reading materials available to them. 9 lawsuit, they have made sure now they can also get their And, since the 10 publications. 11 books, as long as it was within the procedures that were 12 required. 13 14 15 Q They have always been allowed to get What's your knowledge of the jail library services based on? A No. Have you visited a library? I asked if they had a library. Yes. 16 They said an extensive library is, I think how it was 17 described to me. 18 probably asked to, you know, the officials themselves on 19 how extensive their library is. 20 21 Q But that would be better questions So, your opinion is based on the fact that they have a library? 22 A Yes. 23 Q So, you are not aware of what materials are in 24 the libraries, so just books or just magazines or just 25 newspapers? (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 174 1 A Yes. 2 Q You are not aware of that? 3 A Yes, you are correct, I'm not. 4 5 Is that a better way to answer that? Q Yes. So, on page 38, you express an opinion 6 about Pinal County policies as compared to the BOP 7 policies? 8 A I do. 9 Q So, have you reviewed the BOP mail publication 10 11 policies? A I don't know that I have looked at that 12 particular policy. 13 different policies and procedures at different times 14 from the Bureau of Prisons. 15 them, I couldn't tell you, certainly not in recent 16 times, if I did. 17 know they are very competent policy and procedures, well 18 written, well researched. 19 Q I have looked at lots and lots of But whether that was one of But I have read them enough that I So, you say that the jail is free to adopt its 20 own policies and procedures. Is there anything about 21 the BOP policies that you think is not appropriate for a 22 county jail facility like Pinal? 23 A Sure. 24 Q What would that be? 25 A Oh, classification, housing. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 175 1 Q Sorry. 2 A Oh. Just in terms of mail and publication? No. They are entitled to receive 3 publications. 4 appeals from both inmate and the publisher. 5 they choose to put those together so they accomplish 6 those things is up to them. 7 Q And they are entitled to, you know, have But how So, I just want to clarify, because you say in 8 C-2.2, that the BOP policies and procedures are neither 9 binding or likely the best approach for PCJ? 10 A Right. 11 Q I want to understand what you mean by they are 12 not the best approach. 13 other than mail, or is there something particularly 14 about the mail policies that are not the best approach? 15 A Are you talking about procedures I am talking about procedures other than mail. 16 He references in his report, as you may have noted, 17 their policy and procedures from time to time, but as if 18 that was, you know, perhaps where these folks ought to 19 be. 20 helpful in many respects in drafting initial policies 21 before Babeu and those people got there, or even in the 22 first set of policies afterwards. 23 jail is unique. 24 according to how they believe they ought to come 25 together as long as they meet the necessary You know, their policies probably would have been But each individual And they are going to craft those (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 176 1 requirements. 2 deal with volumes issues that small jails don't. 3 There's a variety of things that could come into play, 4 how they are distributed in a huge facility or huge sets 5 of facilities. 6 You know, the Bureau of Prisons has to Whether or not you can communicate by mail 7 between prisons isn't an issue. For example, for Pinal 8 County, because it's one facility, so there would be 9 issues. But in terms of the specific things we are 10 talking about in this case, I don't have a problem with 11 the general requirement that those three things occur. 12 13 Q All right. I need to check on something real quick. 14 A Absolutely. 15 Q About done. 16 17 Can I take a two-minute break? (Whereupon, a brief recess was taken.) BY MR. THOMPSON: 18 Q One thing I forgot, the very last opinion. 19 A Mine or his? 20 Q Yours. I just wanted to confirm, so you are 21 not expressing any opinion on the postcard and one-page 22 letter policy, right? 23 24 25 A No. I understood the issue had been conceded, so there was no sense going there. MR. THOMPSON: I have no further questions. (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 177 1 But we would reserve our right to recall Mr. DeLand if 2 there are other documents that are produced that were 3 relevant. 4 Georgia, do you have any questions? MS. STATON: 5 reservation. 6 court. I reject your so-called That's an issue you can take up with the 7 MR. THOMPSON: 8 MS. STATON: And we will read and sign. 9 MS. STATON: Why don't you send it to me. 10 11 Okay. Then I'll pass it on to you. THE WITNESS: Good. That will provide a good 12 record of where it's been. 13 (Whereupon, the proceedings were concluded at 2:51 p.m..) 14 15 16 17 18 19 20 21 22 23 24 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 178 1 C E R T I F I C A T E 2 3 STATE OF UTAH 4 COUNTY OF WASHINGTON 5 THIS IS TO CERTIFY THAT THE FOREGOING PROCEEDINGS WERE 6 TAKEN BEFORE ME, RUSSEL D. MORGAN, A CERTIFIED SHORTHAND 7 REPORTER IN AND FOR THE STATE OF UTAH, RESIDING AT 8 WASHINGTON COUNTY, UTAH; 9 THAT THE PROCEEDINGS WERE REPORTED BY ME IN STENOTYPE, 10 AND THEREAFTER CAUSED BY ME TO BE TRANSCRIBED INTO 11 TYPEWRITING, AND THAT A TRUE AND CORRECT TRANSCRIPTION OF 12 SAID TESTIMONY SO TAKEN AND TRANSCRIBED TO THE BEST OF MY 13 ABILITY IS SET FORTH IN THE FOREGOING PAGES 5 to 177. 14 15 16 ___________________________ 17 RUSSEL D. MORGAN, CSR LICENSE #87-108442-7801 18 19 20 November 11, 2012. 21 22 23 24 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 179 1 2 3 November 13, 2012 Gary Deland c/o Georgia A. Staton Jones Skeleton & Hochuli Phoenix, AZ 85012 4 IN RE: Prison Legal News v. Paul Babeu, et al. 5 Dear Mr. Deland: 6 7 8 9 10 11 12 Please be advised that, pursuant to California Code of Civil Procedure Section 2025.520 or Federal Rule of Civil Procedure 30, the original transcript of your deposition, taken October 31, 2012, in the above-referenced matter, has been completed and is now ready for your reading, correcting, and signing, by appointment at our office, Capital Reporting Company, 1050 Northgate Drive, Suite 180, San Rafael, California 94903. Pursuant to the applicable rules, the transcript will be available for 30 days. Any errata changes must be signed by the deponent within the 30-day time period. 13 14 The official transcript for the noticing counsel, with exhibits, will be mailed in accordance with said rules, depending on the action of the deponent. 15 16 Please do not hesitate to contact us if you have any questions. 17 18 Best Regards, 19 20 RUSSEL D. MORGAN, CSR LICENSE #87-108442-7801 21 22 23 cc: Original Transcript All Counsel 24 25 (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 180 1 A C K N O W L E D G E M E N T O F D E P O N E N T 2 3 I, GARY DELAND, do hereby 4 acknowledge I have read and examined the foregoing pages 5 of testimony, and the same is a true, correct and 6 complete transcription of the testimony given by me, 7 and any changes or corrections, if any, appear 8 in the attached errata sheet signed by me. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 _________________ ______________________________ 25 Date GARY DELAND (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company 181 1 2 Capital Reporting Company 1050 Northgate Drive, Suite 180 San Rafael, California 94903 (415) 499-DEPO (3376) 3 4 5 6 E R R A T A S H E E T Case Name: Prison Legal News v. Paul Babeu, et al. Witness Name: GARY DELAND Deposition Date: October 31, 2012 Page No. Line No. Change/Reason for Change 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 __________________________ ______________ 25 Signature Date (866) 448 - DEPO www.CapitalReportingCompany.com © 2012 Capital Reporting Company Page 1 16th 34:8,11 2025.520 179:7 38 174:5 17 46:23 48:15 88:7 203A 2:15 3-ring 108:19 175,000 63:16 21 106:16 177 178:13 210 74:8 18 48:15 62:16,21 90:8,12 91:23,25 143:1 22 110:17 23 117:7 4 4 4:3,10 46:3 65:15 66:7 139:15 141:18 144:18 169:6 180 63:16 179:10 181:1 24 121:14 122:14 4,000 67:12 18th 121:22 25 123:4 4.3s 36:18 19 103:22 2500 70:25 1979 51:14 26 126:20 130:14 4.5 36:15,19 111:13 136:5 137:14 165:24 1.4 110:18 1980s 6:6 63:25 27 134:8 4.5.13 165:22,25 10 31:23 37:4 60:24 74:7 102:4,5 1983 42:16 2710 2:15 4.5.13.5 166:3 1985 99:25 100:1 28 46:14 136:1 169:23 170:5,24 4.5.6 141:1 $ $2,500 40:7,10 $600,000 78:1 | | 1:4,5,6,7,8,9,10, 11,12,13,14,15,1 6,17,18,19,20,21 ,22,23,24,25 2:1,2,3,4,5,6,7,8, 9 1 1 4:7 8:4,5 1988 42:16 1050 179:10 181:1 1990s 65:13 108442-7801 2:18 1992 50:20 11 178:20 11-01761-PHXGMS 1:6 2 2 4:8 45:23 46:1 66:7,23 11th 59:1 86:12 2,000 70:25 12 146:12 11/09/11 4:12 20th 165:4 24/7 132:12 29 46:14 166:22 170:4,12,24 171:9 2901 3:9 4.3 36:16,17 4.5.6.2 141:18 4.5.8.5 165:12 4.5.8.6 165:17 4.58 165:9 40 41:16 42:9 3 3 4:9 75:24 400,000 63:14 2:51 177:13 30 47:5 161:1 179:7,11 415 181:2 13 20:15 22:19 60:22 149:2,13 179:1 20 31:18 107:9 300 45:9 415)433-6830 3:4 200 61:8 30-day 179:12 45 4:8 59:17 2003 69:4,5 499-DEPO 181:2 137 4:10 2004 5:25 31 2:13 149:18 179:8 181:5 14 22:20 60:21,22,23 63:2 2005 143:16,18 144:7 315 3:3 144 4:11 31st 139:17 2010 121:22,23 139:17 142:25 153:6 5 5 4:11 53:20 144:7 146:9,10 178:13 32 152:21 153:21 5,000 55:3 33 155:16 2011 44:9 57:12 143:3 153:7 165:4 3376 181:2 50 41:15,16,20 45:15 47:4 55:3 34 162:20 167:12 500 70:22,24 35 47:5 55,000 47:4 2012 2:13 4:9 34:4,8,11 178:20 179:1,8 181:5 36 169:3 57 76:8 37 171:14 173:1 5-page 76:2 15 31:23 58:2 107:7 169:23 15,000 45:12 150 61:8 16 46:23 162 4:12 169 2:15 (866) 448 - 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