“Texas Disguising Jail Deaths” story in Prison Legal News

Click here for the story as it ran in the December issue of Prison Legal News.

In 2012, a 53-year-old Black woman named Edwinta Deckard was arrested on a misdemeanor theft charge and held in the Nacogdoches County Jail where she died after three days. Her death was an ordeal of dehydration and trauma, as repeated bouts of diarrhea were ignored by jail staff, and her condition spiraled downward. Cellmates begged jailers to get her medical help, and toward the end they witnessed jailers manhandle her as she lay unconscious.

The awful details of her rough treatment came out when two of the jailers were indicted for criminally negligent homicide, and a $30 million wrongful death lawsuit was filed. However, charges against the jailers were mysteriously dropped when Visiting Judge Guy Griffin signed an order to quash the indictments against the two jailers, and a federal judge dismissed the lawsuit.

Since this was a death in custody, or DIC, Deckard’s death was required by law to be reported to the state, and as such, the details and summary would be officially recorded.

However, that didn’t happen. There’s no record of her death in the custodial death database at the office of the Texas Attorney General (AG). Thus, neither the jail, the county sheriff, nor Nacogdoches County was held accountable. Not reporting a death in custody is a violation of a statute and could have resulted in the sheriff being charged with a class C misdemeanor, but by the time I discovered that Deckard’s death had never been reported, the violation was past the two-year statute of limitations.

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The Nacogdoches County Attorney actually chuckled when he told me that. The irony— that a sheriff wouldn’t be charged for his misdemeanor, but a woman had died in his jail for a misdemeanor—didn’t seem humorous to me.

Edwinta’s unreported death might be seen as a fall-through-the-cracks fluke if it weren’t for an increasing number of rumors, verified stories and most recently, concerns put forth by the Texas Commission on Jail Standards (TCJS). In its comprehensive Self-Evaluation Report to the state in 2019, TCJS cited a failure to accurately report deaths as the second of five major issues hindering the regulation of county jails. That, and the fact that their list doesn’t even match the Texas AG’s custodial death list, seems to indicate there are probably more unreported deaths than the 100 cases listed in the state’s custodial death database for 2019.

“I would say that this number is likely inaccurate,” says Eva Ruth Moravec, executive director and co-founder of the Texas Justice Initiative (TJI). “TJI has stumbled across dozens of deaths that were not reported to the OAG.” The nonprofit created and maintains a highly respected website that provides multiple filters to make it an invaluable tool and resource about deaths in custody. But when it comes to the actual numbers, Texas Justice Initiative has no choice but to use the numbers based on the death-in-custody reports the state’s 254 counties report to the Attorney General’s Office.

Bottom line: Nobody knows how many of the more than one million people booked into Texas county jails died in those jails last year.

And if there’s no official report, how can a mother find out, for example, whether her son died of medical causes or committed suicide or was murdered? Unless someone blows the whistle.

•       •      •

In 2019, Christopher DuBoise was a 36-year-old Native American living in the conservative city of Midland, when his mother called the sheriff’s office for help because he was “acting weird and hallucinating.” Sheriff’s deputies found him walking down the street and charged him with public intoxication. On May 23, 2019, he was booked into the Midland County Detention Center where he allegedly attacked another detainee during the booking process. As the Midland Reporter-Telegram unraveled in subsequent reporting, he was placed in an isolation cell and hanged himself within an hour. Jail staff attempted to resuscitate him before EMTs transported him to the local hospital.

DuBoise had a history of mental illness and substance abuse, and his mother reportedly told the Texas Rangers, “I wanted to help him, I didn’t want him dead.”

As is typical in many counties, a judge who is also designated a justice of the peace performs coroner duties. On that evening in Midland, Judge David M. Cobos was the magistrate/JP on duty. Called to the hospital to certify the death of DuBoise, Judge Cobos heard that Sheriff Gary Painter had been present in the ICU with DuBoise, and yet there was no deputy present when he arrived, nor was there any communication from the sheriff’s office about the man having been in jail. When a nurse pulled him aside to tell him that DuBoise had arrived at the hospital already brain dead, Cobos knew that he didn’t have the full story.

The judge called the jail and asked whether DuBoise was an inmate. He says two different officers told him, “I don’t know what you’re talking about.” Despite the stonewalling, Cobos was able to confirm that the Midland County Detention Center staff had performed CPR on DuBoise before transporting him, and that shortly thereafter, the sheriff’s office had issued a surety bond releasing him from custody.

Cobos looked for the signature of Christopher DuBoise, since surety bonds require the individual’s signature, but the words “unable to sign” filled the blank. (This was verified by the Midland Reporter-Telegram, which obtained a copy of the bond.)

Judge Cobos then called the sheriff to leave a message asking for an explanation about the lack of signature and the entire situation, and to let the sheriff know that he was calling the Texas Rangers to report it. But hours after he completed the examination and ordered an autopsy be done on Christopher DuBoise, Cobos had still not heard back from Sheriff Painter.

Painter and the judge were well-acquainted, having worked side by side in the sheriff’s office more than 30 years ago, when Cobos was a major crimes investigator for Midland County. Cobos had gone on to work in nearly every area of law enforcement, from jailer to patrol officer. After moving into the judicial role, he implemented a crime stoppers program and a program to divert juveniles from the criminal justice system. He has served in the gubernatorial administration of three Texas governors and knows nearly everyone in Midland-Odessa law enforcement. Calling in the Rangers wasn’t something he wanted to do, but he felt duty-bound to.

A few hours later, when Cobos did finally get a call from the sheriff’s office. “I thought ‘Great, he wants to talk,’” he said. “But the dispatcher was crying, and she told me to go to the Sheriff’s house.”

In a bizarre twist of fate, Cobos found himself certifying the death of the 72-year-old sheriff, who had died at his home from an apparent heart attack.

•.     •      •

At the Texas Commission on Jail Standards’ quarterly meetings and at legislative hearings at the capitol, sheriffs typically complain about any increase in tracking, reporting, or training requirements, all of which contribute to their much-despised paperwork. Deaths in custody add even more paperwork: one report must be created for the Commission and another for the Texas Attorney General and, at the same time, an independent law agency must be brought in to interview and investigate at the jail. A new rule stipulated that the law enforcement entity could not be the one operating the jail where the victim died. Thus, it is now typically the Texas Rangers or a nearby police department that determines whether any criminal acts contributed to the custodial death.

The state legislature created that new requirement in the 2017 Sandra Bland Act, named for the 28-year-old Black woman who died following a traffic stop and confrontation with a state trooper in the tiny town of Hempstead, Texas. Bland was arrested and jailed in the Waller County Jail, July 10, 2015, where, three days later, she evidently hanged herself. Her death sparked national outrage, and family members questioned whether the young woman on her way to start a new job at her alma mater, Prairie View A&M University, would commit suicide. The family won a $1.9 million lawsuit against the county.

By not reporting a person’s death due to injuries or poor medical care in its jail, a sheriff’s office avoids all that and more. A veteran investigative team from WFAA-TV reported last year on how the Bowie County sheriff suddenly ordered the release of a dying woman from the Bi-State Jail. As a result, the private, for-profit LaSalle Corrections, which runs the jail, skirted the required report about the death of 47-year-old Holly Austin, who suffered for weeks without receiving medical care for lethal symptoms, as confirmed by evidence caught on video. Austin died two days after Bi-State released her to a local health care center. But no criminal investigation was required, and thus, there could be no grounds for a lawsuit, either. An analysis from the TCJS Self-Evaluation Report seems to confirm that cases like this are not unusual:

On multiple occasions, counties have not reported a death because they claim that at the time of death the inmate was not in custody. This is because when the inmate’s medical condition became acute, and the jail had either released the inmate abruptly on a Personal Recognizance Bond (PR Bond) without the inmate’s signature or immediately transported the inmate to a hospital … jail staff then deemed the inmate was free—no longer “in custody.”

The staff and inspectors at TCJS have no way to know when a sheriff’s office is disguising a DIC by rushing someone to the hospital who’s on the brink of death or already dead. As TCJS director Brandon Wood said, “Someone must blow the whistle—a jailer, a family member, a reporter, a member of the public, or a county official.”

As I reread media coverage of Edwinta Deckard’s sad death in Nacogdoches, it struck me as odd that the Texas Rangers had conducted an official investigation of her death, and a Nacogdoches County grand jury had indicted two jailers, and yet somehow, no Ranger or county official noticed that Sheriff Thomas Kerss had not filed a death in custody report with the AG’s office. Or perhaps they thought it best to go along with the sheriff.

Some Midlanders thought that Judge Cobos should have gone along with their sheriff, that Cobos had overreacted by reporting DuBoise’s death to Texas Rangers. Others blamed his actions for triggering Sheriff Painter’s heart attack, despite there being no indication that the sheriff ever heard Cobos’ message and despite the sheriff having a history of heart trouble.

Cobos understands the emotional response of people who thought he overreacted, but he feels strongly that his role as a magistrate/justice of the peace requires him to hold everyone—including law enforcement—to the letter of the law. And the judge said that Christopher DuBoise’s mother, Victoria Nez, very much wanted to know what happened. After all, she was the one who had called the police about her son, and now he was dead.

“That mother asked me about the investigation. I was determined to roll every rock over to make sure she got answers. With no investigation, you wouldn’t know how he died. Was he killed by an inmate or by a staffer, and it was made to look like a suicide? Or did he kill himself? I wanted that family to have answers, and now they have answers.”

“When you see something wrong, you’re obligated to take action,” he said. And he believes that’s the way 99.9% of the justices of the peace in Texas operate.

“I felt like somebody was trying to cover something up. I just did my damn job,” said Judge Cobos.

About the author: Diana Claitor is co-founder and communications director of the Texas Jail Project.

Click here for the story in Prison Legal News https://www.prisonlegalnews.org/news/author/diana-claitor/