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Judge Neil Wake takes action in the jail conditions lawsuit against Arpaio

By John Dickerson 

After a decades-long court battle with Sheriff Joe Arpaio and his predecessors, a lawsuit alleging poor conditions in the Maricopa County jails is finally moving forward.

Health and corrections experts are currently examining conditions in Arpaio's jails, in connection with Hart v. Arpaio, a class-action lawsuit brought by Phoenix attorney Debra Hill and the American Civil Liberties Union on behalf of jail inmates against the MCSO. The case is unique in that it addresses only pretrial detainees, who await trial and are legally innocent until proven guilty. The lawsuit claims that Arpaio is violating the constitutional rights of those detainees.

On May 28 — as Hart v. Arpaio was proceeding — Arpaio held a press conference to counter reports about the costs of inmate lawsuits to his office. At that media event, Arpaio misrepresented L.A.'s jail lawsuit costs by $300 million and inaccurately stated that he's never lost a trial by jury.

In December, New Times reported that nothing had happened in Hart v. Arpaio for three years. (The suit's original name is Hart v. Hill — Hart is named for the inmate allegedly mistreated by then-Sheriff Jerry Hill's reign in 1977. Jerry and Debra Hill, the plaintiff attorney, are not related.)

U.S. District Judge Earl Carroll, now 82 and renowned for his turtle-like speed on this and other cases, had been presiding over the case since 2004 and doing little with it ("Inmates' Rights Lawsuit Languishes," December 20, 2007).

Carroll recused himself from the case in April, with no explanation. Judge Neil Wake has taken over the case and done more in several weeks than Carroll did in several years — imploring attorneys on both sides to prepare for a speedy trial and allowing plaintiff experts into Arpaio's jails.

The case is scheduled for trial in August. Last month, attorneys gathered in Wake's courtroom to debate access to jail records, a fundamental sticking point in the case.

Dennis Wilenchik and Michele Iafrate, private attorneys contracted with the county, represented co-defendants the county and Arpaio, respectively. For the first time in the case's history, Hill says, the county distanced itself from Arpaio by clarifying that Arpaio (a county employee) has a separate attorney. Debra Hill and ACLU National Prison Project attorney Margaret Winter, from Washington, D.C., represented the inmates.

During the hearing, Wilenchik tried legal tactics clearly designed to delay the case. Wake refused, making it clear that he's focused on a speedy trial.

"I don't want any foot-dragging or waiting," he told Wilenchik. "I want cooperation to get these records produced. I have no doubt that you will work to get those records produced."

When Wilenchik mentioned that the case had already sat for 30 years, Wake replied, "I didn't wait 30 years! I'm not waiting four years. I'm not waiting four months."

Regarding the death records, Wilenchik told the judge, "I'm sure there are death records somewhere. The issue is whether they're maintained in some order of semblance. I don't believe they are. We have statistics that show the number of deaths are significantly lower than other metropolitan jails."

Those fatality statistics are generated by Arpaio's staff and by Correctional Health Services, a county department that provides healthcare in the jails. The actual number of inmate deaths may be greater than indicated because the figure does not necessarily include inmates who are transferred to the county hospital — where some have died minutes or days after leaving the jail. For this and other reasons, Hill argued for direct access to medical records.

"There should be a hospital log," the ACLU's Winter said. "It's one thing for them to say on paper that they have a system or a policy or procedure. What matters is whether patients who need hospital care actually get it. To look into this problem, the experts need to actually look, and there should be a log. If there's not a log, that in itself is something our experts can use."

Judge Wake ultimately granted access to that log and other records, which are being reviewed this month by the plaintiffs' health and corrections experts. The judge also granted four experts (medical health, environmental health, mental health, and correctional) direct access through the end of June.

Hill says the findings will be key evidence at the August trial.

Wilenchik represents the county on civil matters despite the fact that County Attorney Andrew Thomas fired him as a special prosecutor last October, after Wilenchik ordered the arrests of New Times' two top executives for writing a story about abusive grand jury subpoenas. The Arizona Bar Association is currently investigating both Wilenchik and Thomas.

Arpaio has long denied that conditions in his jails are poor. Numerous independent experts have disagreed, including Amnesty International and the Department of Justice (DOJ), which, in 1999, forced Arpaio to agree to improve jail conditions. But the DOJ has not monitored Arpaio's compliance with that agreement in eight years.

New Times reported on Arpaio's jail conditions and the extraordinary number of lawsuits they have generated in December ("Inhumanity Has a Price," December 20, 2007), citing national corrections experts who say the jail violates the constitutional rights of inmates.

Two months later, the jail's director of healthcare, Dr. Todd Wilcox, resigned from his job, also citing the violation of inmates' constitutional rights.

Just days after Judge Wake indicated that Hart v. Arpaio will go to trial in August, Arpaio called a press conference to report that he has prevailed in seven lawsuits brought by individual inmates.

Those seven are a fraction of the more than 2,500 jail conditions lawsuits that have been filed against Arpaio in federal court alone, according to court dockets. Arpaio faces more than 200 additional lawsuits filed in the county court.

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