Greene: Despite promises of reform, Hancock and team failed to seek answers, accountability in excessive force homicide

A disturbing report outlines Mayor Michael Hancock’s administration’s inaction in response to sheriff’s deputies’ killing of a mentally ill homeless man in Denver’s jail.

The 47-page review by Denver’s Independent Safety Monitor Nick Mitchell’s office shows in painstaking detail the administration’s unwillingness – and, at points, flat-out refusal – to fully investigate the 2015 homicide of Michael Marshall and to learn from fatal mistakes in the case.

It also finds a “troubling culture” in which layer after layer of city officials – from the deputies who killed Marshall, to their sergeants and captain, to the Internal Affairs Bureau, to Safety Department brass, and ultimately to Hancock himself – seem, systematically, to keep ducking accountability.

“This report says what we’ve been saying all along: That from the very beginning the city started covering up for what they did to my uncle, as if it’s perfectly fine that they killed him,” says Natalia Marshall, Michael’s niece. “This goes all the way from the bottom to the top. They’re all morally bankrupt, all of them – including the mayor for ignoring and making excuses about what isn’t in any way excusable.”

Hancock’s office hasn’t responded to The Colorado Independent’s inquiries about the report Mitchell released Monday morning. The administration is referring reporters to a letter Deputy Safety Director Jess Vigil wrote Mitchell last week dismissing many of his findings.

“To claim that the investigation was ‘flawed’ without record support does not make it so,” Vigil wrote.

* * *

Marshall, 50, was mentally ill and homeless when arrested on Nov. 7, 2015 on charges of trespassing and disturbing the peace at a motel where he sometimes stayed on Colfax Ave. His bond was set at $100. Deputies said he physically threatened them four days later during a psychotic episode in the jail.

That threat is questionable given that video evidence shows Marshall – who was 5 feet, 4 inches tall and 112 lbs – trying to evade deputies rather than hurt them.

Deputies restrained and suffocated Marshall to death while the city was still reeling from another, similar killing in Denver’s Van Cise-Simonet Detention Center five years earlier. Marvin Booker, a frail, homeless street preacher, was slain by deputies who also claimed he physically threatened them despite video evidence to the contrary.

In October 2014, Booker’s family won a $4.65 million jury award for his July 2010 homicide and the city’s subsequent attempts to downplay, cover up and even lie about it.

Hancock, in response to what was then an unprecedented pay-out, hired two outside consulting firms to perform what he called a “top to bottom” review of the city’s Sheriff’s Department.

Seven months later, in May 2015, those consultants issued a scathing report blasting the nearly 1,000-member department for its “leadership vacuum” and for lack of “supervisory accountability.” A review by the Chicago-based Hilliard Heinz LLC found the city didn’t report or investigate incidents of wrongdoing in the department, created a culture in which both deputies and managers lied – even in court, under oath – about force incidents, and failed to discipline staffers even in cases of death and injury. When it came to its internal affairs operations, the report found the department needed to “dramatically alter the way it investigates and reviews force incidents.”

“What went on after most force incidents really can hardly be called an investigation at all,” one of the consultants said in 2015.

Hancock called those findings a “turning point for the city” and promised to make reforms.

“I’m one of those folks that if we’re going to fix the problem, we’re really going to fix the problem,” he said at a May 2015 news conference.

Yet the “implementation team” Hancock assigned to enact the reforms was made up mostly of the same appointees under whose watch reviewers found patterns of evasion and inaction. They included then-Safety Manager Stephanie O’Malley, then-acting Sheriff Elias Diggins, and then-City Attorney Scott Martinez, all of whom defended the city in excessive force cases and other SNAFUs.

Five months after the consultants’ review and recommendations were made public, Hancock appointed Patrick Firman, a career corrections officer from a Chicago suburb, to lead Colorado’s biggest and most urban sheriff’s department. As sheriff, Hancock promised, Firman would be a “change agent.”

Deputies killed Marshall less a month later.

Hancock’s administration agreed to pay Marshall’s family $4.65 million – the same amount as the jury’s award in Booker’s case – in November 2017  to keep them from pursuing their civil rights case in court. The deal presumably will force the Safety Department to, among other things, train officers how to handle inmates with mental illness, how to avoid use-of-force, and how to manage situations like those that led to Marshall’s and Booker’s killings and to dozens of other excessive force incidents.

Yet the legal settlement didn’t hold anyone accountable for the city’s inaction after Marshall’s homicide. That’s what Mitchell – the independent safety monitor who is tasked with watchdogging the city’s Safety Department – exposes in his office’s review.

* * *

Mitchell’s report shows that the Sheriff’s Department was well aware of Marshall’s mental illness, and had categorized him when booking him into the jail as having a “major mental illness” and “currently exhibiting major psychiatric symptoms including psychotic symptoms of auditory and other types of hallucinations, paranoia, delusional symptoms, mania, or symptoms consistent with psychotic depressive disorders.”

Video of deputies’ November 11, 2015 assault on him shows it began with Marshall fidgeting with his laundry and some papers in the jail’s 4th floor “secure sallyport.” A tall, stocky sheriff’s deputy stepped into the frame and stood watching Marshall, who collected his belongings and held them tightly to his chest. A second deputy walked by, and a third approached so that two deputies were standing on each side of where Marshall was seated. Both were notably larger than he and both stood for a while, holding their belts, watching him. Marshall adjusted his sagging pants, then stood up, blanket in hand and tried walking between one of the deputies and the wall in an attempt to get past him.

The deputy reached out, pinned Marshall to the cement block, then swung him back toward the bench. Two other deputies approached and swung Marshall to the floor where the three officers seemed easily to restrain him. A fourth officer walked up and stood over the others as they held Marshall to the floor, apparently without much physical effort.

Five minutes into their hold on Marshall, his body went limp. A nurse who had been called to the scene asked Bret Garegnani, the main deputy restraining Marshall, “Could you please release his neck a little bit? You know, you know that he’s throwing up.” She reported that Garegnani’s response was, “Well, we have to restrain him,” and said he ignored her.

Deputies put a mask-like device called a spit hood over Marshall’s mouth while he was throwing up – a move the medical examiner said caused him to choke and go unconscious. They continued restraining him on the sally port floor for 10 minutes and 41 seconds after his body had gone limp. Then, they buckled his lifeless body into a restraining chair rather than carrying him away in the wheelchair nurses had provided. Video shows deputies didn’t remove the restraints for 4 minutes and 30 seconds after Marshall’s head had lolled forward.

He was in a coma and died nine days later when his family took him off life support.

* *

Denver policy requires that the Internal Affairs Bureau review all use-of-force incidents and that its reviews be “thorough, complete and impartial.” Mitchell’s office says it “has serious concerns” about the bureau’s investigation into Marshall’s killing. 

Though Denver police interviewed the deputies involved to assess for criminal conduct, internal affairs investigators apparently didn’t bother questioning them, the report finds.

“The deputies had not been asked questions sufficient to determine whether they handled Mr. Marshall’s mental illness appropriately under DSD policy, whether they reacted properly to Mr. Marshall’s medical emergency, or whether they held Mr. Marshall in a prone position for an unreasonably long period under DSD policy. They had not been asked to address whether continuing to use force on Mr. Marshall after he had lost consciousness and vomited was consistent with DSD policy.”

Vigil, in his letter to Mitchell, said the Internal Affairs Bureau “mistakenly believed it could rely upon the investigation conducted by (the Sheriff’s Department) and did not need to conduct any additional investigation into the deputies’ conduct.” In other words, the administration thought it appropriate for the Sheriff’s Department to determine whether its own staff mishandled the case.

In addition to not questioning the deputies, Mitchell’s report finds, Internal Affairs ended its so-called investigation also without having questioned the nurses at the scene nor “obtaining other information necessary to completely and impartially evaluate” Marshall’s killing.

Mitchell finds fault with the three Sheriff’s sergeants and one captain who witnessed most Marshall’s killing but gave deputies no direction and took no action to prevent it. None bothered to ask why the deputies were restraining Marshall so heavily, nor whether it was safe to continue doing so.

One of those sergeants later said he “didn’t see anything unusual” while he watched deputies kill Marshall, “so it just seemed like a very routine, as much as use of force is routine . . . .”

Mitchell’s report says the sergeants should have been suspended for failing to supervise the deputies during the incident. Not having disciplined them, it argues, compromised the disciplinary case against Captain James Johnson, who was suspended for 10 days for his “lackadaisical approach” and “passive management of the situation” while standing by and watching with the sergeants. Johnson successfully appealed his suspension to Denver’s Career Service Board on grounds that it was inconsistent for the city to discipline him for failing to supervise deputies and not the sergeants who directly supervised them.

Deputy Garegnani, for his part, received a 16-day suspension, a response Mitchell calls “not commensurate with the seriousness of his misconduct.” Vigil, in his letter dismissing Mitchell’s findings, noted that Garegnani’s suspension was also overturned by the Career Service board. The Safety Department, Vigil wrote, “was simply not willing to impose disciplinary action that was unsupported by evidence and that would not stand on appeal. To do otherwise compromises the integrity of the process.”

Natalia Marshall, in response, says “The city barely slapped those guys on the wrists,”

Mitchell’s report chastises the city for promoting another deputy involved in Marshall’s killing, Thanarat Phuvapaisalki, from the Sheriff’s Department to the Police Department three weeks after the incident while he was subject of a criminal investigation and while the Denver District Attorney’s office was still looking into the case. (Then-DA Mitch Morrissey chose not to press charges).

Phuvapaisalki had used a gooseneck hold on Marshall and controlled his head during much of the incident. He also told nurses they couldn’t put Marshall’s lifeless body in a wheelchair and needed a restraint chair, forcing Marshall to stay prone on the floor until the restraint chair arrived. Mitchell’s report said he shouldn’t have been hired as a cop while being criminally investigated. To this day, it also noted, the city has made no official findings regarding his conduct.

“Contrary to your assertions, the disciplinary decisions in this case were not flawed,” Vigil countered in his letter trying to repudiate Mitchell’s report.

Mitchell’s review slams the Internal Affairs Bureau for trying to close its investigation and declaring that “the deputies and supervisors in this incident performed within the policies and procedures set forth by the Denver Sheriff Department” without having gathered crucial evidence such as asking deputies to explain the pressure they put on Marshall’s head, neck and back.

What’s “even more troubling,” it says, is that the Bureau tried to decline the case for disciplinary action despite ample evidence of misconduct, such as Garegnani applying pressure to Marshall’s body “for an extended period of time after he had already gone limp and vomited while being restrained in handcuffs, leg irons, and by body weight.”

“The attempts by IAB to cut short its investigation into Mr. Marshall’s death…raised troubling questions about IAB’s willingness to conduct a thorough and impartial investigation of this serious case, as DSD policy required,” the report reads.

Vigil, in response, wrote Mitchell that “nothing in the Marshall investigation demonstrates bias or partiality, nor is there a ‘culture’ of bias or impartiality” in the Sheriff’s Department’s internal affairs process.

Mitchell’s report goes on to knock the Sheriff’s Department for failing to release videos of Marshall’s killing until The Colorado Independent filed a lawsuit to obtain them.

It criticizes the department for employing, until recently, a use-of-force trainer who saw videotapes of deputies’ handling of Marshall and deemed their methods “well done” and “done the way we want it done.” This, despite $24 million the administration pumped into the department to pay for “comprehensive reforms,” including training.

The report blasts the department for failing to develop a protocol for learning from its use-of-force mistakes – a reform the outside consultants’ strongly recommended three years earlier.

* * *

Mitchell, who works at Hancock’s pleasure, is no bomb thrower. Despite news stories describing his report as “scathing,” it is, decidedly, not. Rather than chastising Sheriff Firman or the administration directly, Mitchell targets his findings more generally on the Sheriff’s Department they’re responsible for overseeing. Rather than calling out what looks like a systematic whitewashing of Marshall’s homicide, he chose softer, more diplomatic and forward-looking language to describe the city’s knee-jerk reaction defending its role in his death.

“It is those reflexive conclusions — that the incident was well handled, the force was appropriate, and minimal changes to policy and training, if any, are needed — that we believe the DSD must learn from,” the report reads.

Natalia Marshall says that in a high-profile, high-stakes case such as her uncle’s killing, the buck stops nowhere short of the mayor himself.

“The way Hancock handles this situation shows he’s not capable of leading the city and getting that jail under control,” she says.

“He really should step down. Like, immediately.”

What is scathing about the Marshall case isn’t Mitchell’s report about it. It’s the administration’s silence and seeming indifference about having killed a man in jail in 2015 much the way it did another in 2010 without bothering to seek the truth or learn from either case.

I’ve spent much of the day mulling Vigil’s assertion to Mitchell that the administration wasn’t “willing to impose disciplinary action that was unsupported by evidence.” The nerve of that statement stuns me given that, under Vigil’s watch and Hancock’s, the city willfully failed to pursue and disregarded evidence.

The gall of Vigil’s next sentence – “To do otherwise compromises the integrity of the process.” – astounds me even more.

There is no integrity in the administration’s handling of Marshall’s case, nor of Booker’s case in which a grand jury is investigating the disappearance and knowing switching-out of the Taser deputies used to kill him. There is no integrity in a mayor who repeatedly has pledged reforms and accountability, only to continuously put the proverbial foxes in charge of guarding the proverbial henhouse. There’s no integrity in any politician who refuses, time and again, to stand up and answer questions about people brutalized and lives ended because of his administration’s excessive use of force.

In his administration’s handling of Marshall’s death, Hancock has proven that he isn’t, in fact, “one of those folks that if we’re going to fix the problem, we’re really going to fix the problem.” He has failed to make good on his reform promises. And in that failure, another sick, vulnerable man died. Killed on his watch, as a consequence.

File photos of Michael Marshall, left, and Denver Mayor Michael Hancock, right.

A recovering newspaper journalist, Susan reported for papers in California and Nevada before her 13 years as a political reporter, national reporter and metro columnist at The Denver Post. “Trashing the Truth,” a series she reported with Miles Moffeit, helped exonerate five men, prompted reforms on evidence preservation and was a finalist for the Pulitzer Prize in investigative journalism. Her 2012 project, “The Gray Box,” exposed the effects of long-term solitary confinement. The ACLU honored her in 2017 for her years of civil rights coverage, and the Society of Professional Journalists honored her in April with its First Amendment Award. Susan and her two boys live with a puppy named Hymie whom they’re pretty sure is the messiah.

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