In a stinging rebuke of Santa Clara County Sheriff Laurie Smith, two Santa Clara County supervisors are proposing the public release of a confidential investigative report into county jail operations.
The report is related to an inmate who became incapacitated due to alleged jail mismanagement of his transfer to a psychiatric unit. If three board members approve a board referral from Supervisors Joe Simitian and Otto Lee, the report could be sent to the state Attorney General's Office, the Santa Clara County grand jury and other local investigative bodies. It might also be released in at least summary form to the public. The Board of Supervisors is scheduled to discuss the proposal at its Tuesday meeting.
Simitian, who represents Palo Alto and Mountain View on the board, said taking such a step is unprecedented for him in his decadeslong career in public office. Given what he described as a persistent lack of transparency, accountability and the limited control the supervisors have in regulating the sheriff, he felt they no longer had a choice but to petition state and county agencies, he said during an interview on Friday.
Since 2015, one inmate has been beaten to death by guards and two others have been severely brain damaged due to head trauma allegedly caused by mismanagement. Simitian said the incidents are deeply disturbing. He noted the Sheriff's Office wanted control of the jails in 2010 and is responsible for the culture of staff and any mismanagement that has led to these incidents, which cost the life of one man and the independence and well-being of the two others.
In just four years, the county has paid $13.6 million to settle two lawsuits, with a third legal action not yet resolved. The county's payments overall could reach an estimated $25 million in taxpayer money, according to the board referral.
In the eight-page referral document, Simitian and Lee are asking the board to direct the County Counsel to release its 19-page, Feb. 10, 2020, report on the near-fatal injury of former inmate Andrew Hogan. They also proposed for 38 related video/audio recordings to be made public and turned over for investigation, along with a raft of other documentation related to the sheriff's office's transparency, accountability and possible political influence.
On Aug. 20, 2018, Hogan was booked into Santa Clara County's Elmwood Correctional Facility in Milpitas. He was having a mental health crisis and was harming himself, including banging his head. Five days later, as his condition worsened, he was transported to a psychiatric ward at the Main Jail in San Jose.
While shackled, but having not been provided protective headgear or appropriate restraints, he repeatedly banged his head inside the van during transport and sustained a severe brain injury. Left in the van for an extended period of time, he was eventually transported to a hospital for treatment of his head trauma, according to the referral.
Hogan's parents became his conservators after the brain damage made it impossible for him to care for himself. They sued the county and settled for $10 million in March 2020, according to county documents.
In a second case of alleged bungling of an injured inmate's critical care, officers in August 2019 moved inmate Juan Martin Nunez onto his bed without stabilizing his spinal cord after he had fallen. Nunez, who is now quadriplegic, had told the officers that he was unable to move before they put him on the bed. His lawsuit seeking damages is still unresolved.
In a 2015 fatal incident, three jail guards beat inmate Michael Tyree to death. The guards were later found guilty of his murder; the county settled a lawsuit filed on behalf of Tyree's minor child for $3.6 million.
The supervisors sought to avoid future tragedies after Tyree's death. They launched a "blue ribbon" panel to make recommendations on jail reform. Lee and Simitian said there's been little information forthcoming on how the jail is implementing the panel's 623 recommendations and two judicial consent decrees, which had prompted the county to spend $78 million annually and $370 million on one-time funds to improve jail conditions.
Instead, they point to a persistent pattern of opacity in the sheriff's office. After Tyree's death, the county developed the Office of Correction and Law Enforcement Monitoring to investigate mismanagement and misconduct. After six years, the sheriff's office hasn't shared information in response to the Office of Correction's inquiries, they said.
Nine months ago, the supervisors unanimously approved a resolution urging the sheriff's office to finalize an information-sharing agreement with the Office of Corrections, but Smith still hasn't signed an agreement and has retained outside legal counsel using county funds to represent her in resisting the agreement, Simitian and Lee said in their referral.
Smith also rebuffed access to records sought by the board's independent management auditor and from the media, according to Simitian and Lee.
In the Hogan case, the sheriff also hasn't been transparent regarding any disciplinary action taken against personnel who were responsible for the mismanagement, nor has she explained the lack of information, Simitian and Lee stated.
Coincidences have led Simitian and Lee to call for an investigation into whether the lack of transparency and accountability might be politically influenced. The on-duty supervisor responsible for operations at the time of the Hogan incident, Watch Commander Amy Le, received a promotion a few months after the incident.
A November 2018, $300,000 donation to Smith's reelection campaign by the Santa Clara County Correctional Peace Officers Association, of which Le was then president, effectively doubled Smith's campaign war chest. One month after Smith won the hotly contested race and shortly after the Hogan incident, Le received the promotion, according to a 2019 ABC 7 News report.
In their lawsuit, attorneys for Hogan said they were "unaware of any meaningful disciplinary actions taken against the correctional officers involved in the delay between Mr. Hogan's arrival at Main Jail and his eventual transfer to the hospital to receive medical care. Indeed, payroll records indicate that the Watch Commander on duty during the Hogan incident (then-Lieutenant Amy Le) was promoted to Captain with a concomitant increase in pay 3 1⁄2 months later," they wrote.
Simitian and Lee noted that coincidence is not proof of malfeasance, but "the apparent coincidences merit further scrutiny."
They noted that Smith took the Fifth Amendment against self-incrimination when called upon to testify before the criminal grand jury on Aug. 3, 2020, in a case that has implicated her second-in-command in a gun-permits bribery scheme in exchange for donations to her campaign.
"The determination to withhold information is further apparent in connection with the assault and melee at Elmwood Correctional Facility on November 30, 2020, by 31 alleged gang members who repeatedly attacked an individual inmate over a period of almost six minutes without intervention by corrections staff," the board referral noted. "Notwithstanding the fact that the incident took place last fall, the Board, the County Executive, County Counsel, and the public were not made aware of the incident until six months later, when the matter was revealed by local news media."
Holding the sheriff's office accountable is not directly within the board's power, Simitian noted. In fact, Smith has maintained she is not accountable to the board since she is an elected official, and a state government code also separates her from the supervisors' oversight, according to Simitian.
The same government code, section 25303, states, however, that the county board of supervisors "shall" supervise official conduct of all county officers, particularly related to management and safekeeping of government funds. The code specifies that such supervision includes the budgetary authority of the board over the district attorney and sheriff, Simitian and Lee noted.
Costing the county tens of millions of dollars in litigation settlements, in their reading, would fall under that category, Simitian said. Simitian and Lee think the supervisors have a duty and the authority to direct opening a confidential report to free up information that is important in an investigation by agencies with jurisdiction over the sheriff, such as the state Attorney General and the grand jury.
Smith, for her part, plans to hold a press conference at 9:30 a.m. on Tuesday morning to provide an "update of accuracy" related to the board referral item, a Monday media advisory stated.