Creative Commons License
Super Friends by Whitney Holwadel Smith is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.
Based on a work at Super Friends: July 2010

Thursday, July 22, 2010

End of one road

The quest for legal justice is over. Last month I received the response from the last attorney on my list, who declined to take the case. I won't use his name in reprinting the letter he wrote, but otherwise am reproducing it here in its entirety. I should say that I was deeply moved by his genuine understanding and how moved he himself was by Whit's story and voice. Together with his realistic legal assessment, that personal response tells me that I can trust his judgement.

Not that it diminishes the disappointment at all. Whit's path to that cell and that decision was the result of a whole series of injustices perpetrated by officials, administrators and guards of the Federal Bureau of Prisons. A combination of malicious acts, callous disregard, insensitivity and mistreatment. None of which, either singly or in toto, meets the strict legal definition of wrongful death. It's not about common sense, or right and wrong, it's about the letter of the law, which allows the system to inflict a hundred small wounds in an individual, watch him bleed to death and then say they aren't responsible. But it was wrongful death, and I will always hold the BOP responsible for my son's death. He wanted nothing more than to serve the remainder of his time and come home, and he was doing everything in his power to prepare for a successful homecoming. I would remind everyone that he had only recently begun taking classes through Ohio University; believe me, if he had had any intention of taking his own life before signing up, he would have absolutely spared me the expense and found some excuse not to enroll.

Following is the text of the letter I refer to above:

Dear Jeff:

I cannot recommend that you pursue a legal claim for Whitney’s death. Judges and juries are increasingly reluctant to hold correctional officials responsible for medical neglect where there is some evidence that the inmate was receiving some medical attention and care. In this case, the documents reflect that Whitney was being seen, and was being treated with medications, for his depression and suicidal ideations.

In addition, cases involving suicide are very difficult to prevail upon. The defendants simply argue that the inmate was intent on killing himself, would have succeeded sooner or later, and they should not be held responsible for damages to his estate for an act he would have committed when free. Whitney’s handwritten “death journal” makes very clear his intent. I don’t believe a jury would blame the prison for the fact that Whitney managed to acquire and smuggle into his cell the plastic bag that he subsequently used to kill himself. The fact that a bag was found previously and confiscated, I think, would tend to support the defendants’ argument that they were not deliberately indifferent to his safety, and cannot be held responsible for an inmate’s persistent efforts to smuggle contraband into his cell in order to do himself harm.

In terms of damages (which I must take into consideration because I would be handling this on a contingent fee), Whitney had established no income stream. Any attempt to prove that he had future income potential would open the door to the defendants’ introduction of evidence of Whitney’s criminal record, the pending charges against him, and his potential sentence. He had no children who might have supported a sizable loss of consortium claim. Finally, Indiana law is simply draconian when it comes to recoverable damages. Indiana voters have bought “tort reform” hook, line and sinker and have passed a number of laws in an effort to discourage plaintiffs’ lawyers like me from filing cases in their state by making the economics of contingent fee litigation completely unworkable.

I am troubled by the fact that Whitney was found with his hands and feet bound to his bunk, but his handwritten “death journal” relates a prior suicide attempt in which he attempted to hang himself after tying his own hands and feet. I am also bothered by the fact that although it was discovered that there was a piece of paper with a note covering his cell window at 2:38 a.m. the morning he was found, and efforts to communicate with him at 3:00 and 3:04 a.m. were unsuccessful, no one attempted a visual check by simply opening the flap of his door until 3:20 a.m. However, it would be difficult to prove that a more prompt response could have prevented Whitney’s death.

For these reasons, I cannot recommend you pursue litigation, and am not in a position to help you if you choose to do so.

However, that said, I was profoundly affected in reading the documents you sent me. I have on my wall in front of me the lyrics to Bob Dylan’s “Chimes of Freedom,” and Whitney’s story brings to life the line from that song: “… For each young heart, for each channeled soul, misplaced inside a jail, we gazed upon the chimes of freedom flashing.” There is great sadness, great tragedy – but great truth and great importance, on a variety of levels – in Whitney’s story.

I can tell you that, as an inmates’ rights lawyer, my greatest struggle is against public ignorance and apathy about what occurs in the institutions where we now incarcerate more than two million of our fellow citizens, and about the people and stories behind those bars. I think Whitney’s writings, in which he presents a moving and articulate voice, could go a long way toward dispelling some of the ignorance that makes our efforts to improve conditions in our jails and prisons so difficult, and often so futile. If just one person changed their mind because of the record Whitney left behind, then perhaps all of this could count for something.

So, I encourage you to consider publishing Whitney’s letters, his blogs, etc. Like I said, there is something profoundly moving about Whitney’s story, something that even got to me, and I’ve seen a lot in doing inmates’ rights work over the last 20 years. Whitney’s decency and his humanity clearly show through, as does the talent we all lost when he passed. His story raises important questions about how people like Whitney find themselves in jail, why we put them there, and why we treat them the way we do. Please consider sharing Whitney’s story with a larger audience.

If there is anything I can do to help, please let me know. And please accept my deepest condolences for your loss.