Withheld evidence, judge’s conflict hinder case seeking prison riot damages

November 28, 2018 - 4:17pm

A revelation that the head of Nebraska’s prison system kept secret a publicly-financed consultant’s report about the 2015 Mother’s Day riot at the prison in Tecumseh set off a chain reaction that led a judge to declare a mistrial in a lawsuit against the Department of Corrections.



Judge John Colborn listens during testimony.

Assistant Attorney General Jessica Forch. (Photos by Omaha World-Herald)

Attorney Joy Schiffermiller (right) reviews documents with witness Doug Kobernick. (Photo by NET News)


 

Disclosure of the report, while not directly responsible for the mistrial, brought about a series of discussions between the presiding judge and attorneys representing the opposing sides.

In the civil lawsuit, John Wizinsky, a former inmate at the Tecumseh Correctional Institution, claimed the uprising aggravated his post-traumatic stress disorder and diabetes. He blames Nebraska’s prison system for ignoring the problems leading up to the disturbance and failing to rescue trapped inmates not participating in the melee that left two prisoners dead.

Lancaster District Judge John Colborn announced the mistrial Wednesday morning, on the third day of testimony, as it became clear the case hinged on the role of prison management and how chronic overcrowding at Tecumseh contributed to tensions among the inmates.

Colborn concluded his service on a state corrections reform group, established following the disturbance, could be an ethical issue. After court returned to public session, he announced his need “to recuse myself because of my personal knowledge and personal involvement in justice reform including prison overcrowding” adding “those are obviously issues in this case.”

Wizinsky’s attorney, Joy Shiffermiller, said later she and representatives of the Nebraska attorney general’s office, representing corrections, did not pressure the judge to make the decision and told him they would be fine with the trial proceeding as scheduled.

Early testimony in the case centered on Wizinsky’s mental health following the riot and what he witnessed while trapped with other inmates.

Discussion of whether the prison was overcrowded and sufficiently staffed at the time came during the Tuesday morning testimony of former Tecumseh Warden Brian Gage. He mentioned his participation in two outside studies of the causes of the riot, confusing attorneys on both sides. One was released publicly. Gage said he had never seen the second study after he ended his employment with corrections.

Sciffermiller told the court she had only been provided with one study of the riot, despite requests that any such material be turned over as potential evidence. 

After a lunch break, Assistant Attorney General Jessica Forch provided the court with a copy and it was put into evidence, even as Schiffermiller quickly scanned its contents for the first time.

Forch told the court “there was no ill-will” in not providing the report sooner in the evidence discovery process.

Asked by the judge if she was aware of the report prior to the day’s events, Forch replied she “became aware of it when the director (Frakes) handed it to me last week.”

“He handed it to me and the director informed me he’s never even released this and he’s never even told anybody about this report,” Forch said.

Frakes was in the courtroom Tuesday afternoon but his testimony was cut short by the judge who wanted to speak to the attorneys in private. Frakes did not return to the witness stand and was never asked about the contents of the document.

NET News learned the report, “Riot at Tecumseh State Correctional Institution: Causes, Course, and Change,” was co-authored by Bert Useem, Ph.D., an expert on prison disturbances from Purdue University and Dan Pacholke, at the time a staff member with the Washington State corrections system with whom Frakes had worked previously. 

State records on file with the Nebraska Treasurer’s Office indicate the authors were paid slightly less than $20,000. It was completed and sent to Frakes in August 2015. 

Two months earlier, Frakes did release another consultant’s study to policymakers and the public authored by another of Frakes’ former Washington State colleagues, Tom Fithian. 

The existence of the August 2015 report came as a surprise to members of the Nebraska State Legislature with an interest in corrections. The Inspector General for Corrections, Doug Kobernick, had also never been aware of such a document. (The Nebraska Ombudsman's Office released its own independent review.)

It is unclear how the report might differ from the Fithian review. The Department of Corrections did not respond to an NET News request for a copy of the report or requests for a comment on why the report was withheld from the public at the time. 

Director Frakes has said in the past he is committed to “being transparent and accountable to the taxpayers of Nebraska.”


EDITOR'S NOTE

Following publication of our story, Laura Strimple, Chief of Staff for the Nebraska Department of Correctional Services (NDCS) provided the following statement in response to our request for a copy of the Useem/Pacholke report and to interview Corrections Director Scott Frakes:

Director Frakes requested that a review be conducted in the aftermath of the incident on May 10, 2015 at the Tecumseh State Correctional Institution. That report was requested today by the Inspector General and has been forwarded to him.

NDCS provided the documents requested by Mr. Wizinsky’s attorney, including the Thomas Fithian report. After receiving that report, Mr. Wizinsky’s attorney withdrew the remainder of her request. The report authored by Dan Pacholke and Bert Useem was not provided at that point, but has since been provided to the AG’s office and Mr. Wizinsky’s attorney.

 

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