Skip navigation

Trine - The Walworth County Jail Meets TLC - and Loses, fall issue The Warrior, 2020

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
The Walworth County Jail
Meets TLC
- And Loses
Bill Trine, Faculty Emeritus

T

his is an inspiring story of how two TLC lawyers used
the discovery obtained during the representation of an
individual client to then file a class action to force the
permanent closure of a county jail in South Dakota, a 111 year
old dilapidated ‘fire hazard’ described as a ‘dungeon.’ The story
also provides the educational tools and steps that can be used to
ethically obtain the clients necessary to pursue such a class action
seeking a preliminary and permanent injunction to close the jail;
a description of the law and facts supporting the constitutional
issues raised; and more importantly, how a heroic client and her
lawyer can sometimes discover, and then pursue, the opportunity to make a difference in the lives of many other people.

The Beginning
It all started when a petite and meek mother named Lori
Brandner, was expected to operate the family’s bar/restaurant
business in a rural community in South Dakota. She had a medical history of failing eyesight and transient ischemic strokes related to a complicated blood coagulation disorder requiring specialty care and a daily regimen of prescription medications. One
night after work, a fire started in the bar and Lori was charged
with second degree arson, a charge requiring proof of an intent
to defraud the insurer. This was Lori’s first and only significant
experience with the criminal justice system. She was free on
bond until convicted by a jury in February 2016. The evening
following trial she was terrified as a kindly deputy transferred
her, together with her large satchel of prescription drugs, to the
Walworth County Jail.
She was placed in the jail’s decrepit “women’s cell” and was
only sporadically provided with her blood thinner medications.
A month into her incarceration, her plea to a correctional officer
of her fear that she was having a stroke was ignored. She then
suffered a stroke in her bunk, but the jail’s intercom system was
dysfunctional and could not be used to seek help. The other
women in her cell began hollering and pleading with the jailers
for help for nearly an hour.
With no response, a phone card was obtained and Lori was
able to call her husband to alert him that she needed an am-

bulance. Her husband’s plea for help was also ignored as the
jail staff was determined to rely on their guts to determine that
Lori was a “faker.” So her husband called Lori’s criminal defense
lawyer, Brad Schreiber, that evening, and Brad Schreiber called
the jail demanding that an ambulance be called. Lori’s lawyer
saved her life.
She was hospitalized for weeks after her stroke, and was then
returned to the Walworth County Jail. Ultimately, she was
transferred to the South Dakota Women’s Prison and was greatly
relieved, feeling much safer there. Brad Schreiber specializes in
criminal defense, so he referred Lori to Stephanie Pochop, a seasoned and highly respected civil trial lawyer in Gregory, South
Dakota.
Stephanie agreed to bring a 1983 civil rights lawsuit on Lori’s
behalf for damages resulting from the deliberately indifferent
failure to provide medical care at the Walworth jail.
Stephanie discovered that Lori needed very little direction in
re-enacting her fear of dying during her stroke with no one able
to make the jail staff call an ambulance, and visualizing how her
daughters and parents would feel if she died in jail. However,
Lori explained that her primary goal was to get the Walworth
County Jail closed so that no one else would experience the terror that she had suffered while incarcerated there. She was disappointed when told that she did not have standing to take action
to have the jail closed because she was no longer a detainee. But
she never gave up, and what her lawyer, Stephanie Pochop, then
discovered during the litigation was so shocking that Stephanie
was determined to do something.

The Undisputed Facts and What
Stephanie Discovered
The Walworth County Jail is well over 100 years old. It was
originally built as a sheriff’s residence in 1905 and had been remodeled over the decades to minimally accommodate criminal
defendants. In preparing Lori’s case, Stephanie read and summarized all of the Walworth County Commissioner’s published
minutes of meetings from 2013 onward, looking for anything
related to jail policies and problems. She also hired a law student
The Warrior

Fall 2020

33

The Walworth County Jail Meets TLC – And Loses
to watch, summarize and time stamp over 140 hours of YouTube
recordings of Walworth County Commissioner meetings. She
contacted lawyers whose clients had ended up in the jail, seeking
additional information. In doing so, a common statement made
was, “it’s a shit hole.” One person stated, “if you ever wonder
what ‘hell’ would be like, go there.”
From the recordings of Commissioner meetings, she discovered the names of expert witnesses that the Commissioners had
retained, and the evidence provided by those experts and others condemning the jail and its operation; the recommendations
for its closure; and the facts supporting deliberate indifference
to ongoing violations of detainees’ and prisoners’ constitutional
rights. Armed with that information, she contacted the various
correctional facility experts and architects that the County had
hired over the years to obtain their expert opinions about the
jail.
The crumbling facility was such a fire hazard that the local volunteer fire department came to a County Commissioners meeting and put the County on notice that the department would
not be responsible should a fire occur. For years the Commissioners refused to replace a condemned fire escape on the second
floor. A small investment of $17,000 in safety would have made
the padlocked window that served as the fire door on that floor
“safer” but that was never seriously considered. One Commissioner suggested that inmates could jump from the second story
into a nearby tree in the event of a fire.
Stephanie discovered that over the years the Commissioners
had essentially turned the jail into a profit center by contracting with surrounding counties and the U.S. Marshals service to
house prisoners, and routinely voted to increase the fees charged
to those entities per inmate. With increased fees each year and
savings from the unconstitutional way the jail was operated, the
County had accumulated $5 million plus in savings, no small
feat for a very rural county with a small population base.
Expert after expert told the Commissioners that their facility
was beyond repair, and described their jail as substandard and
dangerous. The County’s own experts and their own States Attorney warned the Commissioners, repeatedly, that they were
exposing themselves and the county to liability. Yet for years they
ignored the warnings until they finally passed ‘Resolution 201809,’ officially recognizing “the need for a new county jail.” The
Resolution was placed on the November 2018 ballot, proposing
a $10.5 million bond issue to build a new jail. The bond issue
failed, leaving the Commissioners with the only remaining remedy—close the jail and transport all detainees and prisoners to
the jails in surrounding counties! This they refused to do, despite
all uncontroverted evidence they had received over the years that
the jail was outdated, beyond repair, grossly inadequate, and
dangerous. The primary reason they refused to do this was the
loss of income that would result in closing the jail.
Stephanie was frustrated and outraged, but her successful trial
practice had always consisted of representing individual clients.
She didn’t know how to effectively seek class certification or how
to ethically find plaintiffs with standing to file a class action.

34

The Warrior

Fall 2020

She had been able to obtain a damage settlement for Lori, but
she and Lori wanted to do more. So Stephanie reported her evidence to the Department of Justice, hoping it would take action
because the U.S. Marshals office had a contract with the County
to house their inmates in the jail. She didn’t hear back, though at
some point the U.S. Marshal’s contract with Walworth County
was cancelled.

Enter Jim Leach
Then one day her friend, Jim Leach, a graduate and former
teacher at TLC, called and said he and his wife Ann were driving
through her part of the country, and they agreed to meet and
‘catch up.’ Stephanie passionately related her Walworth County
Jail story to Jim. To her relief, Jim soon contacted her and said
he was interested in the case and was willing to review the more
than 2,500 pages of materials she had accumulated. Stephanie
reported that “the next thing I knew, Jim was burning up a beautiful summer weekend to drive across South Dakota to go to the
Walworth County Jail to interview potential clients. Then he
sent me a draft of the Complaint that we would jointly file with
the United States District Court.”
In reviewing the documentary evidence supplied by Stephanie, Jim recognized that the County Commissioners’ recorded
meetings and retained experts had already supplied all of the
damning evidence necessary to support a Court ordered injunction to close the jail. All they needed were clients with standing
to file a class action, and then the filing of a complaint in the
Federal District Court for injunctive and declaratory relief–a
complaint which would tell a detailed and uncontroverted story
that supported the closure of the jail. Jim and Stephanie worked
together to prepare a Complaint, then Jim searched for potential
plaintiffs presently incarcerated in the jail. He did this by obtaining the names of inmates through a business called Tiger Commissary, which allows family and friends of inmates to buy them
junk food and which has a contract with Walworth County. Tiger Commissary posts the names of prisoners on the internet.
He was then able to determine the nature of the charges brought
against each pre-trial detainee and prisoner by researching South
Dakota’s online case docketing system.
On September 5, 2020, Jim went to the jail with a legal assistant to use as a witness, if needed. He asked for admission to
the jail to visit with detainees and prisoners. The jailers let him
in because he had a South Dakota Bar Association card. Two and
a half hours later he had signed up seven clients, all pre-trial detainees. He knew that if he and Stephanie filed a lawsuit only on
behalf of the individual pretrial detainees, their release from custody would deprive the court of jurisdiction because, in the eyes
of the law, there would no longer be any “case or controversy.”
But a class action for the plaintiffs and for all future detainees
would solve that problem. Six of the seven clients were Native
Americans; Walworth County is adjacent to the Standing Rock
Sioux and Cheyenne River Sioux Reservations.

How Jim Ethically Obtained the Clients
Jim carefully explained to each potential client that he was

The Walworth County Jail Meets TLC – And Loses
not bringing a lawsuit for money damages and would not charge
them an attorney fee or court costs. The clients would instead
be class representatives in a class action to close the jail. If that
occurred and they were still detainees, they would probably be
transferred to another jail in the area. The ABA Model Rule of
Professional Conduct 7.3(b), which South Dakota and most
states have adopted, which prohibits direct solicitation of clients,
only applies, “when a significant motive for the lawyer’s doing so
is the lawyer’s or law firm’s pecuniary gain.”

rocket scientist to go to the jail and see that it needs to
be replaced.”
• On March 10, 2015, former Sherriff Mohr told the
Commissioners that there were serious problems with a
remodel. He pointed out that in one cell there was a ten
inch drop in the floor from one side of the room to the
other. He believed the County “could figure on a 2.5
million dollar remodel and still have an old building.”
• On August 18, 2015, the Commissioners received a report from Solien & Larson Engineering, P.C. on their
The Complaint
findings after their structural inspection of the jail, conThe Complaint seeking a Class Action for Injunctive and Decluding that it is not feasible “to renovate the structure.”
claratory Relief was filed the next day, September 6, 2020, in
• On October 6, 2015, Rowenhorst and Dean Marske,
the Northern Division of the United States District Court in
AIA, the President and Principal Architect of HKG Arthe District of South Dakota. The Complaint carefully details
chitects, Inc, a reputable local architectural firm, met
the evidence supporting a permanent injunction prohibiting the
with the Commissioners and asked them what they
County defendants from violating the constitutional rights of
wanted to do with the jail, stating that “doing nothing
people held in the Walworth County Jail, stating that the deis not an option.” There was discussion of building a jail
fendants had been told by their own experts, in great detail, why
in a nearby town, “closing the
the jail, built in 1909, “is outjail,” building a regional jail,
dated, grossly inadequate, and
“or doing something for only
He
knew
that
if
he
and
Stephanie
filed
a
dangerous.” The Complaint
Walworth County inmates.”
lawsuit
only
on
behalf
of
the
individual
pretrial
then tells the story provided
• On January 17, 2017,
detainees, their release from custody would
by all of the documents and
Commissioner James Houck
videotapes of Commissioner
deprive the court of jurisdiction because, in the
stated that the jail “is falling
Meetings previously discoveyes of the law, there would no longer be any
apart and we need to do someered by Stephanie, including
“case or controversy.” But a class action for the
thing about it right now.”
these facts:
• On February 7, 2017,
plaintiffs and for all future detainees would solve
• In a 2018 brochure atMarske and Matt Beaner with
that problem.
tempting to convince
Kyburz-Carlson Construction
the public of the need
met with the Commissioners
for a new jail, the Walworth County Jail Committee,
to present preliminary plans for a new Walworth County
consisting of two of the five county Commissioners and
jail facility and discussed the steps to move the project
the County Sheriff, posed and answered the question,
forward.
“Why do we need a new jail?” Their answer was: “It is no
• On April 4, 2017, Rowenhorst told the Board that the
longer a safe option for the community, staff or inmates.
County’s options are to close the jail and transport the
Unless replaced, there is an overwhelming amount of
inmates elsewhere, or to build a new facility.
liability that may cost the county taxpayers millions of
• On June 7, 2017, Brad Hompe, a correctional expert
dollars due to potential lawsuits.”
associated with the National Institute of Corrections,
• Defendants, on the advice of their States Attorney, chose
met with the Commissioners and told them that he was
not to notify their insurer of the condition of the jail, so
“shocked with the condition of the facility and workthat the insurer would not cancel their insurance covering condition of employees.” He stated that the “facilage.
ity was very outdated and could no longer support your
• On August 6, 2013, the Commissioners met with Jim
needs.”He recommended that they “pursue the option to
Rowenhorst, a correctional expert who has participated
purchase a new jail.” The video of the meeting reflects
in more than 150 projects in 42 states, who described
Hompe’s actual remarks to the Commissioners: “I have
the jail’s inadequacies and advised the Commissioners
to be very brutally honest with you. I am shocked to say
that: “...federal case law concerning jail facilities and opthe least about the condition of the facility … ; there is
erations makes it very clear that the lack of funds is not
absolutely no question in my mind that you have to do
a defense to poor facilities and inadequate staff. Those
something … ; your liability is through the roof. I cansmall counties that choose to operate a jail and ignore
not believe that you haven’t had significant litigation alminimum requirements do so at their own risk.”
ready”; “I’ve never seen anything like it to be honest with
• On April 22, 2014, a former Walworth County Sheriff,
you. It’s beyond anything you can do structurally-wise
Duane Mohr, told the Commissioners: “It doesn’t take a
or remodeling”; “Anybody that’s in the middle of a fire,

The Warrior

Fall 2020

35

The Walworth County Jail Meets TLC – And Loses
they’re not going to be able to last long in there;“You’ve
been made aware of the situation as a Board and I think
you’ve got some county and personal liability at this point
if you don’t do something, that could be considered deliberately indifferent”; and, “If you choose to ignore it,
and someone decides to take you to federal court, it is
my belief that you’re going to be in big trouble.”

The Commissioners were present, as was the public. Hompe
stated, in part:

• “Your old jail … simply does not meet federal law, national correctional standards that are acceptable in the
community anymore.”
• “I think the bigger issue is that you have overwhelming
life safety issues there, not only for the inmates but for
your staff and the community.”
The Complaint then summarizes Hompe’s written report
•
“The
bottom line is that the facility no longer meets the
dated June 21, 2017, which is 25 pages long and describes all
needs
and is, in my mind, as a person in this business for
of the jail’s many deficiencies that make it unsafe and in need of
25
years,
it should no longer be used.”
either replacement or shutting down, including fire exit prob•
“The
bottom
line is that it does not meet standards, and
lems; booking area problems; requiring inmates to strip in front
the
overwhelming
liability is the biggest problem because
of a camera that is recorded and visible to staff; no exercise or
it’s
not
a
matter
of
if, it’s when you are going to have a
program space; no space for healthcare or provisions for onsite
lawsuit
because
of
what
you have and not doing somemedical services; inadequate food service; failure to meet inthing
about
it
and
it
won’t
be a couple hundred thousand
mates’ basic needs; inadequate training of staff and supervision
or
even
a
couple
million,
it
will be millions.”
of inmates; unsanitary facilities and mold; presence of pests or
•
If
the
Commissioners
don’t
make a decision to do somevermin; inmates on suicide watch have no intercom; and “inadthing,
“they’re deliberately
equate or contaminated ventiindifferent
meaning they iglation.”
What makes this case particularly historical is
nored
the
issue. In Federal
The findings, observations
the
fact
that
it
was
filed
in
the
Federal
Court
on
court
you’ll
be found guilty of
and opinions of Brad Hompe
that
and
you
will pay dearly.”
September
6,
2020,
during
a
raging
COVID-19
become more powerful and

pandemic, yet it was resolved on
believable when the ComFaced with years of overplaint explains that his emwhelming evidence of the
November 5, 2020, just two months after it was
ployer, the National Institute
need to eliminate the present
filed, because of Jim and Stephanie’s unrelenting
of Corrections, is an agency
jail and to either stop operatand aggressive actions.
within the Federal Bureau
ing it or to build a new jail,
More importantly, their swift actions resulted
of Prisons that is headed by
the Commissioners passed a
a Director appointed by the
resolution to place a proposed
in the permanent closure of the jail, making a
U.S. Attorney General, and
bond issue on the November
difference in the lives of many people, now and
the Federal Bureau of Prisons
2018 ballot to build a new jail.
in future years.
is a federal law enforcement
The Commissioners then met
agency under the United
with the Walworth County
States Department of Justice. This lends great credibility to the States Attorney James Hare to decide what to do if the bond
Complaint allegations.
issue failed. Hare informed them that if they kept the jail open
On November 7, 2017, the Commissioners again heard from and the insurance carrier canceled insurance because of the risks
Brad Hompe who told them they had only two options, “to and they continue to operate the jail, “there’s going to be a lot of
build a new facility or to close the current jail and no longer exposure on this county”… “and you can all be held personally
provide inmate detention in Walworth County.”
liable.”
In drafting the Complaint, Jim and Stephanie then state that
Before the election on the bond issue, the Walworth County
despite all of the expert opinions and information provided to Jail Committee drafted and circulated a brochure urging the
the Commissioners in years 2013 through 2017, in December passage of the bond, which states that the jail “design is outdated
2017 and January 2018 the Commissioners approved seventeen and unsafe, … and cannot meet Federal laws.”
two-year contracts with South Dakota counties to house their
The expert, Hompe, then prepared a slide presentation to supprisoners for $95 per day, and “continue to house prisoners from port the bond issue explaining why the jail does not meet Fedother counties pursuant to similar contracts.”
eral law and must be replaced.
A Judge reading this Complaint would have to be impressed
The bond issue was defeated, but the jail was not closed. It
with the evidence that would be available to the plaintiffs at trial continued to be a profit center for the County.
based on the story being told by the defendants’ own experts and
The Complaint concludes, alleging that operating the jail viowitnesses. The Complaint then describes even more shocking lates the Fourteenth Amendment right to due process of law of
evidence to support the Plaintiffs’ claims. On June 19, 2018, the people held in the jail or people who will be held in the jail
Hompe again spoke, this time at a meeting in the Walworth before the lawsuit is concluded; a demand made for permanent
County courtroom.
declaratory and injunctive relief to remedy the unconstitutional
36

The Warrior

Fall 2020

The Walworth County Jail Meets TLC – And Loses
conditions under which the class is confined; and for attorney
fees and costs.

Motions
Despite the raging pandemic in South Dakota, on September
30, 2020, immediately after the defendants filed their Answer,
Jim and Stephanie filed a Motion for Expedited Hearing on
Class Certification, Expedited Discovery Schedule, and Expedited Hearing on Motion for Preliminary Injunction; a Motion
to Certify the Class; and a Motion for Order Shortening Defendants’ Time to five days to respond to plaintiffs’ motions.
A lengthy persuasive brief in support of these motions was also
filed, again describing the shocking years of the County Commissioner’s unconstitutional misconduct and the expert testimony that the jail must be closed or a new jail constructed.

The End
The defendants immediately refused to totally shut down the
jail, wanting to use it only for short-term detainees. In response,
Jim and Stephanie noticed the Commissioners for depositions.
This caused the defendants to finally give up and enter into a
Settlement Agreement which provides in part:
“a. Walworth County and the individually named Defendants agree, swear and promise that they will never
incarcerate, house, hold, or detain any person in the
current Walworth County Jail, or any part of it, for any
amount of time whatsoever, no matter how brief. This
agreement, oath and promise applies fully and completely even if Walworth County re-names the current
Walworth County jail, or any part of it, a ‘detention
center,’ a ‘holding center,’ a ‘temporary holding area,’ or
anything else.”
“b. Walworth County agrees to pay $91,000 to James D.
Leach and Stephanie Pochop by November 12, 2020”
for attorney fees and costs. This was paid by the County
and not the insurance company.

Epilogue
Stephanie reports that after serving her sentence in prison,
Lori Brandner “put her life back together; she pushed herself
mightily to rehabilitate her physical health,” she learned Braille
to help compensate for her failing eyesight; she obtained an academic degree; and “she started a non-profit that offers services
to help other women as they learn to become independent.” She
happily celebrated the closing of the jail when informed of the
legal victory by Stephanie.
Stephanie Pochop attended the TLC in July 2019 and worked
on Lori’s case while at the college. She states that this was “immensely helpful.” In forcing the defendants to close the jail, she
felt euphoric for weeks thinking, “This is why I went to law
school.” She fulfilled her promise to Lori “that I would not give
up trying to get the jail closed–and Lori stayed in contact with
me to remind me of my promise.”
Jim Leach attended TLC in 1994 as a trial lawyer with a
background in psychodrama. He then served on the teaching
staff for years, leading groups in psychodrama and teaching trial
skills. He has been a successful trial lawyer in South Dakota and
encouraged Stephanie to attend TLC in 2019. Jim is a wonderful, caring person, a great trial lawyer and my friend of 25
years. He has now been invited to return to TLC’s faculty, has
accepted, and plans happily to continue to be a part of TLC in
the future.q
Bill Trine lives in Boulder, Colorado with his wife, Jeni. He has retired
from the practice of law, where he was a proud and active trial lawyer for
55 years. He is a past president of the Colorado Trial Lawyers Association,
a founder and past president of the Washington D,C. based Trial Lawye
for Public Justice (now ‘Public Justice’), and on the Board of Directors of
the Florida based Human Rights Defense Center which publishes Prison
Legal News. He served on the teaching staff of the Trial Lawyers College
from its inception in 1994 until his retirement in 2015, but continues to
be active in the College as an Emeritus member of the Board. He is the
co-author of a bestselling book for lawyers, and the author of more than
75 published articles regarding the practice of law.

All inmates, both detainees and convicted prisoners, have now
been transferred to facilities in other counties in South Dakota,
and the jail is permanently closed, thanks to the heroic and courageous efforts of Jim Leach and Stephanie Pochop, and the initial persuasive concern of Stephanie’s client, Lori Brandner. This
is a classic example of “Ways in Which Trial Lawyers Make a
Difference.” See article by that title in the Fall 2016 Issue of the
Warrior Magazine.
What makes this case particularly historical is the fact that it
was filed in the Federal Court on September 6, 2020, during a
raging COVID-19 pandemic, yet it was resolved on November
5, 2020, just two months after it was filed, because of Jim and
Stephanie’s unrelenting and aggressive actions.
More importantly, their swift actions resulted in the permanent closure of the jail, making a difference in the lives of many
people, now and in future years.

The Warrior

Fall 2020

37

 

 

Disciplinary Self-Help Litigation Manual Side
CLN Subscribe Now Ad
Federal Prison Handbook - Side