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Henry County Va Grand Jury Report Prison Conditions 2010

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VIRGfNIA:
IN THE CIRCUIT COURT OF Hnmy COUNTY
[!/YIto ooQO<Jl;,-oo
Ii'RE:

REPORT OF SPECIAL GRAND JURY
DIPA'I<:LLED ON SEPTDlBER 19, 2007
ORDER

THIS day came the Special Prosecutor and moved that the Report of the special
grand jury dated January 22, 2010 be made available to the pUblic. In accordance with
Virginia Code § 19.2·213, it is so ordered.
Entered this 1st day of Febmary, 2010.

The Honorable David V. Williams
Judge

I ask for this:

~~

Christopher B. Russell

SpecIal Prosecutor
Commonwealth's Atlorney
P.O. Box 150
Buena Vista, VA 244! 6
(540) 261-8700; (540) 261-5333 fax

VIRGINIA:
IN THE CIRCUIT COURT OF HENRY COUNTY
INRE:

REPORT OF SPECIAL GRi\ND JURY

By Order entered by the Circuit Court of Henry County, Virginia on September
19, 2007, this Special Grand Jury was empanelled to investigate and report upon
conditions that involve or tend to promote criminal activity and consider bills of
indictment pursuant to Virginia Code § 19.2-206(A)(iii).
Pursuant to law and based on reports from the Grand Jurors that. the Grand Jury
was making progress in its investigation and desired to continue its work beyond the time
period initially authorized, the term of the Special Grand Jury was extended numerous
times by Order of the Court. In one such Order, entered March 5, 2009, the Court further
found that Robert L. Bushnell, Henry County Commonwealth's Attorney and counsel to
the Special Grand Jury, was so situated with respect to celiain matters being investigated
by the Special Grand Jury so as to render it improper for him to continue to act as counsel
for the Special Grand Jury. Accordingly, pursuant to Virginia Code § 19.2-155,
Christopher B. Russell, Commonwealth's Attorney for the City of Buena Vista, Virginia,
was appointed to act in place of and otherwise perform the duties and exercise the powers
of the Commonwealth's Attorney of Henry County in regard to these proceedings. The
teml of the Special Grand Jury was extended most recently by Order of the COUli entered
November 24,2009.

l1li._.

The following individuals were appointed and duly sworn as Special Grand
Jurors: _ ,

j ,---

• • • • •, a n d _ . Mr. • • • was appointed
foreman.
DESCRIPTION OF PROCEEDINGS
Pursuant to § 19.2-206 of the Code of Virginicr-ftfl.d the directives of this Court,
the Special Grand Jury conducted an investigation of the matters referred and, pursuant to

§ 19.2-213, files this Report.
SUMMARY OF PROCEEDINGS
The Special Grand Jury convened many times, including the following dates:
March 19,2008, May 29,2008, July 10,2008, August 26,2008, September 12,2008,
October 30, 2008, November 14,2008, May 11,2009, August 4,2009, September 15,
2009, November 23, 2009, and January 22, 20 I O. Evidence was heard in the form of oral.
testimony, physical examination of evidence, and the review and examination of
documentary evidence. Among the witnesses were Cllrrent and former members of the
Hemy County Shcriffs Department, investigators and ag,ents of the Virginia State Police,
and current and former inmates of the Henry County jail. Witnesses were given broad
access to the Special Grand Jury and were given the oppOliunity to identify other
witnesses that may provide relevant information for pUl1)OSCS of the Special Grand Jury's
consideration.
Each witness was individually sworn to tell the truth, the whole truth, and nothing
but the truth and the witnesses were individually instructed that they did not have to
answer any question or produce any document that would or might tend to incriminate
them, that they had the right to counsel of their own choice present during testimony, and
that they may be called upon to testify in any case that may grow out of the investigation

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and report of the Special Grand Jury. All witnesses that chose to have legal counsel
testified in the presence of that counsel.

LEGAL BACKGROUND
The Special Grand Jury considered a number of legal

a~thorities

during its

deliberations. Among these authorities are §§ 15.2-1627, 18.2-64.2, 18.2-434, 18.2-474,
18.2-474.1 and 53.1-203 of the Code of Virginia (1950) as amended, which are reprinted
here in relevant part:

§ 15.2-1627. Duties of attorneys for the Commonwealth and their assistants
B. The attorney for the Commonwealth and assistant attorney for the
Commonwealth shall be a part of the department of law enforcement of the
county or city in which he is elected or appointed, and shall have the duties and
powers imposed upon him by general law, including the duty of prosecuting all
warrants, indictments or informations charging a felony, and he may in his
discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the
conviction of which carries a penalty of confinement injail, or a fine of $ 500 or
more, or both such confinement and fine. He shall enforce all forfeitures, and
carry out all duties imposed upon him by § 2.2-3126.
§ 18.2-64.2. Carnal knowledge of an inmate, parolee, probationer, detainee or pretrial or
posttrial offender; penalty
An accused shall be guilty of carnal knowledge of an inmate, parolee,
probationer, detainee, or pretrial defendant or posttrial offender if he or she is an
employee or contractual employee of, or a volunteer with, a state or local
correctional facility or regional jail, ... ; is in a position of authority over the
inmate, probationer, parolee, detainee, or a pretrial defendant or posttrial offender;
knows that the inmate, probationer, parolee, detainee, or pretrial defendant or
posttrial offender is under the jurisdiction of the state or local correctional facility,
a regional jail, ... ; and carnally knows, without the use of force, threat or
intimidation (i) an inmate who has been committed to jailor convicted and
sentenced to confinement in a state or local correctional facility or regional jailor
(ii) a probationer, parolee, detainee, or a pretrial defendant or posttrial offender
under the jurisdiction of the Department of Corrections, the Department of
Juvenile Justice, a secure facility or detention home, ... , a local or regional jail for

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the purposes of imprisonment, a work program or any other parole/probationary
or pretrial services program or agency. Such offense is a Class 6 felony.
For the purposes of this section, "carnal knowledge" includes the acts of
sexual intercourse, cunnilingus, fellatio, anallingus, anal intercourse and animate
or inanimate object sexual penetration. I
§ 18.2-434. 'What deemed perjury: punishment and penaltv
If any person to whom an oath is lawfully administered on any occasion
willfully swears falsely on such occasion touching any material matter or thing, .. ,
he is guilty of perjury, punishable as a Class 5 felony. Upon the conviction of any
person for perjury, such person thereby shall be adjudged forever incapable of
holding any office of honor, profit or trust under the Constitution of Virginia, or
of serving as a juror.
§ 18.2-474. Delivery of articles to prisoners
No person shall willfully in any manner deliver, or attempt to deliver, to any
prisoner confined under authority of the Commonwealth of Virginia, or of any
political subdivision thereof, any article of any nature whatsoever, without first
securing the permission of the person in whose charge such prisoner is, and who
may in his discretion grant or refuse permission. Any person violating this section
shall be guilty of a Class 1 misdemeanor.
§ 18.2-474.1. Delivery of drugs, firearms,

e~plosivcs,

etc., to prisoners

Notwithstanding the provisions of § 18.2-474, any person who shall willfully in
any manner deliver, attempt to deliver, or conspire with another to deliver to any
prisoner confined under authority of the Commonwealth of Virginia, or of any
political subdivision thereof, any' drug which is a controlled substance regulated
by the Drug Control Act in Chapter 34 of Title 54.1 or marijuana, shall be guilty
of a Class 5 felony. Any person who shall willfully in any manner so deliver or
attempt to deliver or conspire to deliver to any such prisoner, firearms,
ammunitions, or explosives of any nature shall be guilty of a Class 3 felony.
§ 53.1-203. Felonies by prisoners: penalties

It shall be unlawful for a prisoner in a state, local or community correctional
facility or in the custody of an employee thereof to:
1. Escape from a correctional facility or from any person in charge of such prisoner;
2. Willfully break, cut or damage any building, nlmiture, fixture or fastening of
such facility or any part thereof for the purpose of escaping, aiding any other

4

prisoner to escape therefrom or rendering such facility less secure as a place of
confinement;
3. Make, procure, secrete or have in his possession any instrument, tool or other
thing for the purpose of escaping from dr aiding another to escape from a
conectional facility or employee thereof;
4. Make, procure, secrete or have in his possession a knife, instrument, tool or
other thing not authorized by the superintendent or sheriff which is capable of
causing death or bodily injury;
5. Procure, sell, secrete or have in his possession any chemical compound which he
has not lawfully received;
6. Procure, sell, secrete or have in his possession a controlled substance classified
in Schedule III of the Drug Control Act (§ 54.1-3400 et seq.) or marijuana;
7. Introduce into a correctional facility or have in his possession firearms or
ammunition for firearms;
8. Willfully bum or destroy by use of any explosive device or substance, in whole
or in part, or cause to be so burned or destroyed, any personal property, within any
correctional facility;
9. Willfully tamper with, damage, destroy, or disable any fire protection or fire
suppression system, equipment, or sprinklers within any correctional facility; or
10. Conspire with another prisoner or other prisoners to commit any of the
foregoing acts.
For violation of any of the provisions of this section, except subdivision 6, the
prisoner shall be guilty of a Class 6 felony. For a violation of subdivision 6, he
shall be guilty of a Class 5 felony. If the violation is of subdivision 1 of this section
and the escapee is a felon, he shall be sentenced to a mandatory minimum term of
confinement of one year, which shall be served consecutively with any other
sentence. The prisoner shall, upon conviction of escape, immediately commence to
serve such escape sentence, and he shall not be eligible for parole during such
period. Any prisoner sentenced to life imprisonment who escapes shall not be
eligible for parole. No part of the time served for escape shall be credited for the
purpose of parole toward the sentence or sentences, the service of which is
interrupted for service of the escape sentence, nor shall it be credited for such .
purpose toward any other sentence.

PURPOSE
The \-vork of the Special Grand Jury is to investigate and report upon conditions in
Henry County that involve or tend to promote criminal activity and consider bills of
indictment.
FINDINGS
The grand jury finds that during the last five years there have been repeated
instances of unprofessional and criminal conduct by certain members of the Henry
County Sheriffs Department with regards to the Henry County jail. This conduct falls
into five general categories. The categories identified in the following list will be
discussed in detail.

1. Correctional officers inappropriately passing messages and materials between
inmates in different cell blocks.
2. Correctional officers illegally smuggling prohibited materials such as cigarettes
into the jail.
3. Correctional officers illegally smuggling or facilitating the smuggling of drugs
into the jail.
4. Male correctional officers having inappropriate sexual and sexually charged
contact with female inmates ranging from casual flirtation to carnal knowledge to
behavior so perverse as to be outside the scope of the criminal law.
5. Failure of Sheriffs Department supervisors and administrators to take adequate
steps to prevent and eliminate the foregoing behavior, including general
deficiencies in basic training of officers and correctional officers and specific
deficiencies related to internal investigations and communication with the Office
of the Commonwealth's Attorney.
With regard to category (1): passing materials between inmates by correctional
officers, the grand jury finds substantial direct evidence of this behavior in the Henry

6

County Jail on numerous occasions. The grand jury believes that this conduct could have
serious adverse consequences if the materials included contraband or communication
concerning testimony in pending trials, future criminal conduct or matters that could lead
to violence amongst inmates. Ho\vever, delivering an item from one inmate to another is
not criminal if the guard had no idea what he or she was delivering. The grand jury feels
that a correctional officer who is given an item by one inmate with a request that it be
delivered to another inmate should take possession of the item and promptly tum it over
to a supervisor so that its nature can be determined and the item and the inmate who
sought to have it delivered can be appropriately handled. Any delivery of unknown
materials between inmates is a serious dereliction of duty and compromises the security
of inmates and correctional officers.

With regard to category (2): smuggling of cigarettes and other prohibited
materials into the jail, the grand jury finds that on numerous occasions behvecn 2004 and
2007, Deputy Lois Markland provided cigarettes to at least half a dozen inmates, in
defiance of the Sheriff s prohibition of tobacco products in the jail. The grand jury
believes that each of these transactions is a misdemeanor crime under Virginia law.
However, since each transaction occurred more than one year prior to its discoYery, the
grand jury concludes that any indictment for the act of delivering the prohibited material
into the jail is time-barred by the applicable Virginia statute of limitations. Lois
Markland testified under oath to the grand jury that she never delivered even a single
cigarette to any inmate. The grand jury concludes that her testimony in this regard
included \villfully false statements of material facts; therefore, after deliberation the grand
jury has returned a true bill of indictment against her alleging perjury.

7

Deputy Brian Gilley admitted to the grand jury that he delivered cigarettes and
alcohol to female inmates on several occasions more than one year prior to his admission.
I

The grand jury believes that each of these transactions is a misdemeanor crime under
Virginia law. However, since each transaction occurred more than one year prior to its
discovery, the grand jury concludes that any indictment for the act of delivering the
prohibited material into the jail is time-barred by the applicable Virginia statute of
limitations.

With regard to category (3) involving the illegal smuggling of drugs into the
Henry County Jail, the grand jury finds that this activity did occur in 2004. Because of
uncertainties involving the preservation and/or identification of evidence necessary to
pursue criminal convictions resulting from this conduct, upon deliberation the grand jury
concludes it is unable to retum any true bills of indictment.

With regard to category (4) and sexual contacts between male cOlTectional
officers and female inmates, the grand jury heard testimony that instances of camal
knowledge as defined in Virginia Code § 18.2-64.2 have occurred in the jail during the
past five years. After mature deliberation, the grand jury concludes that the weight of
this evidence does not justify returning any true bills of indictment under § 18.2-64.2.
Nevertheless, the sexual and sexually charged contact is a grave concern. In addition to
reports of carnal knowledge, the grand jury heard evidence that female inmates danced
provocatively in the presence of male officers. The grand jury heard evidence that
female inmates intentionally and indecently exposed their private parts to male offlcers.
Most disturbing, a male officer testified to the grand jury that he photographed his penis

8

while on duty in the jail, that he displayed the photograph to at least one female inmate,
and that he delivered to a female inmate a receptacle containing his semen. The grand
jury and State Police Agents learned for the first time about this particular incident many
months after it occurred and long after any p.h..YSical evidence of this disgusting behavior,
perhaps thankfully, disappeared. Accordingly, successful prosecution is not possible.
Additionally, aspects of this behavior appear to be outside the scope of the criminal law.

During its investigation of the matters related to sexual contacts, Deputy Glenn
Stokes testified under oath to the grand jury regarding a certain individual who was an
inmate at the Henry County jail during the time Stokes worked there. The grand jury
concludes that Stokes' testimony in this regard included willfully false statements of
material facts; therefore, after deliberation the grand jury has returned a true bill of
indictment against him alleging perjury.

The grand jury finds that the presence of drugs and contraband and sexually
charged conduct in the jail reflects glaring failures on the pari of Sheriff s Office
supervisors and administrators to take adequate steps prevent and eliminate this behavior.
Specifically, these supervisory failures as outlined in category (5) above include the
following: (i) an internal practice of giving far too much deference to correctional
officers suspected of inappropriate or illegal conduct; (ii) the failure of the Henry County
Sheriffs Administration to consult with the Commonwealth's Attorney or pursue any
criminal charges related to these activities in the Fall of2004; (iii) ignoring or
minimizing complaints about specific correctional officers from inmates and from other
officers; (iv) the inappropriate administrative response to a letter from the

9

Commonwealth's Attorney in March 2006 regarding many of the concerns outlined in
this report; (v) inadequate internal investigations of illegal behavior by con-ectional
officers; (vi) the apparent effort by the Shdiffs Department administration to halt a
pending internal investigation of contraband smuggling by a correctional officer; (vii) a
general administrative failure to ensure adequate basic training of correctional officers.

CONCLUSIONS AND RECOMMENDATIONS

The grand jury finds that in addition to the deplorable, irresponsible actions of
correctional officers with regard to incidents involving drugs in the jail, other
contributing factors include a deeply flawed jail trustee system. Jail trustees - inmates
with special privileges who are permitted to move around the jail much more freely than
the jail population at large- have too much privilege. For example, trustees have liberal
access to the jail's control room. Insufficient supervision oftrustees in and around the
control room contributed to the presence of illegal drugs and contraband inside the jail.
The grand jury believes that the trustee program requires thorough examination and
reform including markedly increased supervision of trustees in order to ensure the safety
of the jail population and the lawful and orderly operation of the jail.
In addition to the flawed trustee system, the grand jury finds that the system
involving inmate financial accounts, known as "canteen" funds, requires thorough
examination and reform. Inmates are permitted to keep too much money in individual
jail accounts. Excessive balances do not serve any legitimate purpose in the operation of
the jail. The grand jury heard evidence of numerous individual canteen balances that
were excessive, including at least

on~

balance that exceeded $1,000.00. The grand jury

10

finds that insufficient regulation of these accounts contributed to the illegal smuggling of
drugs and other contraband into the jail, as well as the illegal, unsafe circulation of drugs
and contraband inside the jail. The grand jury suggests a strict cap on an inmate's
canteen balance as an example of a policy change.

The grand jury finds that during the past several years Sheriff Perry has made
commendable reforms, not the least of which is recognition that serious problems have
existed in the Henry County jail related to the safety of inmates and officers and the
integrity of this vital component of our local justice system. Other noted reforms and
good faith actions by Sheriff Perry include: video cameras in the jail; cooperation with
this grand jury investigation; the creation of new positions of Lieutenant of Professional
Standards and Internal Affairs Sergeant.

Much more is needed in the way ofreforrn. The Sheriffs Office must examine
any written or unwritten policy or practice that involves discouraging contact with the
Commonwealth's Attorney. The Commonwealth's Attorney is part of the department of
law enforcement in this county. Conducting successful prosecutions, achieving public
safety, securing accountability for offenders, and meeting other goals of the justice
system demands effective and open communication and dialogue within the department
of law enforcement.
In addition, the Sheriffs Office must reach out to other agencies and resources for
training as to internal affairs investigations. Specifically, training is needed regarding the
subtleties and challenges inherent in effectively interviewing an officer under suspicion
or a probably biased individual making a complaint against an officer. The officers need

11

more education of the subtleties of internal and criminal investigations involving officers
as illuminated in the United States Supreme Court's decision in Garrity, et al. v. New

Jersey. To achieve these imperatives, the Sheriff's Office should seek a closer working
~

relationship with the Virginia State Police, the Virginia Departmen1.Df Criminal Justice
Services, the Virginia Sheriffs' Association, and specialized law enforcement training
providers such as John Reid and Associates.
The Sheriff's Office should also make concerted efforts to work with State and
Federal law enforcement agencies to review information obtained by these agencies in
criminal investigations related to the Henry County Sheriff's Department and its
personnel. Even if such information did not meet statutory criteria to result in criminal
charges, it may nevertheless be very useful to administrators in seeking to address the
concerns, problems and issues outlined in this report.

In conclusion, during the past five years serious problems have continued to exist
in the Henry County jail related to the safety of inmates and officers and the integrity of
this vital component of our local justice system. These problems have included criminal
behavior in the jail, failures of supervision and training, inadequate operating procedures,
and inadequate administrative responses to the discovery of problems. In addition to tbe
safety concerns outlined herein, the grand jury believes that these problems reflect a
larger, pervasive drug problem in this county that cannot be overemphasized. Drug
enforcement must be vigilant. More generally, the problems in the jail revealed during
the course of this special grand jury investigation reflect poorly on our fine community
and require immediate action. Sherit1Pcrry is commended for several accomplished
reforms. Much more is needed. HeJ].ry County citizens deserve an outstanding,

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•

professionally trained law enforcement team of which they can be confident and proud.
Above all, our citizens deserve the safest community possible.

EXPRESSION OF GRATITUDE AND RESPECT

The Special Grand Jury expresses its sincere appreciation to Henry County
Commonwealth's Attorney Robert 1. Bushnell and Special Prosecutor Christopher B.
Russell for their counsel and assistance and to the Virginia State Police for the
outstanding work of the special agents assigned hereto.

SUBMISSION

This, the unanimous Report of the Special Grand Jury, is respectfully submitted
this 22 nd day of JanualY, 2010.

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