Trial Coverage: Week 1

He has served on close to a thousand cases as a consultant to state and federal governments and in private lawsuits regarding confinement issues, inmate disciplinary systems, and administrative segregation, including Supermax facilities, and stated he has experience with site visits in at least 40 states.

Martin said he has been qualified by courts as an expert in corrections administration 50 to 75 times.

Martin conducted interviews and site inspections over a four-year period at S.C. Department of Corrections facilities over the past six or seven years. Martin stated that he rarely relied solely on information supplied by inmates, but that "I do use it as I do any other evidentiary material; giving it greater or lesser weight based upon consistency across the population."

Among the issues Martin evaluated were the facilities themselves, how they are laid out, populations, staffing, information related to mental health inmates, and information related to use of force in a restraint chair.

When asked if he got what he requested, he replied, "For the most part, I did. With respect to use of force, I was supplied a summary of witness testimony and reports; but that is not the best evidence. I wanted incident packets," referring to packets of reports of mentally ill inmates subjected to the use of force that include detailed individual reports and supervisory reviews.

In describing the essential elements that need to be assessed during an administrative review of use of force, Martin said:

1-      There must be an appropriate need to apply force clearly identifiable and objective.

2-      Once force is used, it is not open season. One application of force does not open the door to more force. There must be some relationship between the action and an inmate's response.

3-      There must be a concrete threat.

"The law requires you to use only the force necessary to deal with that threat," Martin said.

Martin described his concerns about SCDC conditions by saying, "The law requires you to use sound correctional standards and principles to limit use of force where you can to use tactical capacity to shut down the threat. If the inmate was harmed, yet had been unarmed and presented only a modest threat, then one must ask ‘why this level of injury given the level of threat?’"

Martin said that according to national corrections model standards, the term "harm" is not limited to physical harm, but also includes pain, injury, and/or risk to the person’s mentality.

In a chart he prepared describing when use of force is precluded:

1-      You cannot use force for the singular reason to cause pain.

2-      You cannot use force beyond that which is necessary to accomplish your tactical objective.

The SCDC force policy states officials will use mechanical restraints to gain control, but Martin said, "It is not control when you inflict pain; it is control when it neutralizes threat. Mere refusal on the part of an inmate that does not create a danger cannot in and of itself be a reason to use force."

Martin discussed at length the application standard for the use of chemical agents. He said the policy states: "General munitions may be used to control… but only after a lesser agent has been exhausted, except in urgent circumstances." Martin emphasized that is a very important exception and that "urgent circumstances" is not a refusal of an inmate to go back to his cell.

Beginning with a deposition of SCDC Associate Warden Bell, Martin began a long list of descriptions of incidents when inmates were sprayed with chemical spray that, in his opinion, was used excessively and inappropriately. A theme emerged of corrections officers using chemical sprays, which he cited was a "default response."

Dozens of instances were described, many with video accompaniment from the prisons' video cameras, of inmates who were, by national standards definitions, either not posing a threat or, in case of threat, where Martin said the response was far more forceful than called for.

Martin agreed that there were cases shown where threats were in evidence, but offered alternate responses that would have posed far less risk to the inmate, in addition to the rest of the prison population and the corrections officers themselves.

Martin advocated the use of short bursts of spray if the inmate is threatening or creating a danger, but continued to express his concern that in SC prisons, if an inmate refuses to comply but doesn’t pose a threat, the spray is used.

Martin described the spray as "OC spray, which is a cayenne pepper spray that causes mucous membranes to swell; dilates capillaries, causes temporary paralysis of larynx and body tissues to be inflamed."

He said most now prohibit the spray to be used on officer trainees because of the risk of ocular damage, pulmonary edema and respiratory arrest. High levels of exposure may cause serious adverse effects and possibly even death.

"Some agencies no longer use it," Martin said. "That is a key, to me. It is harmful to officers and harmful to inmates, but it is safer than the previously used CN gas."

Martin described the nearly 1000 cases he has reviewed since looking at SCDC use of pepper spray including one used on a non-responsive inmate prior to medical transport, at least one where the report submitted by corrections officers contained fallacies, as shown in the video, and about the many cases where a can more properly sized for crowd control was emptied onto an already compliant inmate instead of the more appropriate half-second burst.

Amounts well over the manufacturers recommendations – at times up to nearly 18 ounces - were released, with repeat doses long after the inmates were subdued.

Martin testified time and again that the number of uses and amounts administered were far beyond what is needed when a threat occurs, and that many times there was no threat or there were other responses that might have been more appropriate.

He stated under oath that "in reviewing thousands of incidents across the US, I had never seen MK9 – crowd control contaminant - so frequently used inappropriately by corrections. It is unprecedented."

When asked if Martin has ever been subjected to OC spray, he described the burning sensation, the gagging and watering of the eyes and stressed that it is not designed to be sprayed directly on individuals.

When asked about the frequency of the use of chemical sprays, Martin testified the events are frequent and routine when the inmates are locked up and behind bars. One inmate was sprayed with 14 ounces of MK9. He repeated that he has never seen that level of dispersion before despite thousands of observations.

In describing another inmate who refused an order to relinquish his clothes to be placed in a strip cell, he said a full can of MK9 (at 17.75 ounces) was discharged on the inmate.

Martin said, "I have never seen anything to that effect. I would say it is flagrant, reckless, abusive, egregious, irresponsible and unprofessional; unprecedented in my career in law enforcement; barbaric; totally heightening the risk of harm to maximum levels. There is no reason for this to be used in the manner in which it was used."

Court adjourned until 9 a.m. Monday , Feb. 13, 2012.

Dr. Metzner earlier emphasized the importance of consistency in counseling sessions with inmates who have mental illness diagnoses. He stated that the normal length of time to declare counseling sessions non-productive in an outside setting is much shorter than the time needed to determine that for mental health clients who are incarcerated. He testified that studies show positive reinforcement works best on that population; and while not always possible, it is the best methodology to employ. He stated that in order to achieve good outcomes that can protect the patient, as well as other inmates and staff, it is necessary to maintain consistent and appropriate staffing levels with those who are appropriately credentialed, and who in turn are supervised by an adequate number of Ph.D. level psychologists and board-certified psychiatrists.

When asked how S.C. compares to other states in regard to staff credentials, he answered, "Badly."

Regarding issues of inappropriate behavior by counselors, Dr. Metzner agreed on cross-examination that the state was justified in terminating staff for failing to adhere to professional ethics and standards of conduct. However, Dr. Metzner indicated that the risk of inappropriate behavior on the part of counselors with their patients could be reduced if the state hired staff who have the recommended levels of education, training, credentials and licensure, in keeping with national standards.

Regarding issues of S.C.'s lower-than-national average suicide rate among the prison population, Dr. Metzner testified that more can and should be done to reduce the rate. Dr. Metzner cited a case in which a relative reported receiving what she thought sounded like a "suicide note" in the mail, reported it to authorities, but that information was not turned over to the mental health staff; he said with timely intervention, that could have been prevented.

Dr. Metzner described the Lee Correctional Supermax unit as "having feces all across the walls and floor" and a very small, fenced alternate containment area, which is known by the prison population as "the dog run."

He outlined the conditions under which restraint can be used and how it must be administered and supervised, with constant supervision required, notation every 15 minutes of the patient’s status, and release and movement of limbs frequently to prevent clots, which can form in the legs and arms after restriction of movement. He noted that after eight hours of restraint without intermittent release and movement a person would "get up, walk to the shower and be dead within two minutes."

That was in contrast to videos from prisons shown in the plaintiff's opening arguments the second day of trial that graphically showed two prisoners kept for extended periods in restraint despite pleas for medical assistance.

Dr. Metzner recommended the department adopt policies to determine compliance in drug administration so the staff will be in accord about what should be reported to psychiatric supervisors.

He agreed that improvements have been made in staffing on cross-examination, but on redirect, said more could be done. Defense counsel raised his voice and asked if Dr. Metzner knew there is a nursing shortage or whether he was aware how hard it is to get a psychiatrist to accept a position in a penitentiary. Judge Baxley admonished counsel to not yell at or badger the witness.

Dr. Metzner then replied, "It depends on what you pay them."

The judge remarked that he has not had a witness kept so long on the stand in his court before, so he excused the witness and stood to shake his hand.

Susan Porter was challenged as a witness, but was qualified by the judge on the basis of her technical expertise. Porter compiled data from various text files submitted by the Department of Corrections. The SCDC took exception to her manipulation of their data, but the judge determined that because the department could not provide the charts requested, Porter's work was a benefit and would be allowed into testimony.