Stubbornness costs Sangamon County $5.3 million 

With a $2.6 million check from taxpayers in hand, the widow of the late Amon Paul Carlock, who died after a struggle with Sangamon County jailers in 2007, says that she doesn’t feel like a winner.

“Nothing will bring Paul back,” says Mary Andreatta-Carlock. “There are no winners in this situation at all.”

The settlement with Sangamon County and jailhouse doctors made final in September came with no admission of liability or finding of fault, but it was the most expensive lawsuit ever against the county. Between the cost of defending the lawsuit and paying Andreatta- Carlock, taxpayers shelled out nearly $5.3 million.

It didn’t have to be this way, according to Andreatta-Carlock and her lawyers.

“This could have been settled for a fraction of what it cost – it would have been a lot, but not what it ultimately cost,” says Jon Robinson, a Decatur-based attorney who handled the case against the county. “We offered to sit down from the very beginning. You could tell the facts were bad.”

Instead of settling, the county dug in. Billing records show that lawyers were working as early as February 2009 on opening statements for a trial that would never take place. County officials justified the cost by saying that settling the case would encourage more litigation from plaintiffs out for easy money.

The facts leading up to Carlock’s demise were bad enough. Carlock, 57, had serious medical problems when he was booked into the jail. His weight plummeted while in custody. His behavior was irrational, a byproduct, the plaintiff’s experts say, of kidney and liver failure. He was battered and all but dead when he arrived at a hospital after a struggle with guards who performed no first aid after realizing that he had lost consciousness.

After Carlock’s death, records went missing.

There was no video of the fatal encounter between Carlock and jailers, even though a camera was present, and emails weren’t preserved. The county prevailed in a legal tussle over whether records had been destroyed in bad faith, but the victory proved expensive, billing records show, and still left a wrongful-death case that proved untenable.

Before it was over, more than 500 motions and briefs and other documents were filed in federal court by the plaintiffs and defendants. Sharon Elvidge Kelley, an attorney for Andreatta-Carlock, calls it litigation from hell.

“This is a case we had to see through and we would see through,” Elvidge Kelley says. “The more we got into this, the more we found that was shocking to our conscience.”

A fatal altercation

It began on Sept. 28, 2007, when Andreatta-Carlock, who handles audio systems for the state Senate, received a call at work. It was a federal agent.

“He said, ‘We’ve gained entry into your house, you need to come home,’” Andreatta- Carlock recalls.

Arriving home, Andreatta-Carlock found her front door broken down and her husband slumped in a kitchen chair. He was asleep, perhaps owing to prescribed medication, Andreatta-Carlock says. Federal agents had raided the home in search of child pornography. Unable to roust Carlock from his slumber, agents took him to St. John’s Hospital, where he spent nine days, mostly in a psychiatric unit, before he was transferred to the Sangamon County jail.

Even before Carlock was discharged from the hospital, Andreatta-Carlock filed for divorce. She says that she didn’t want to do it, but he insisted. She also didn’t visit Carlock in the jail. Andreatta-Carlock says that her husband told her not to come. She is adamant that she loved him then and loves him still. She says she doesn’t believe her husband was a child molester, as prosecutors alleged, and she points out that he never stood trial and so he remains innocent even now.

“I still have all of his clothes in my house,” says Andreatta-Carlock, who married Carlock in 1988 and rescinded divorce proceedings after his death. “I still wear my wedding ring. As far as I’m concerned, I’m still married.”

Carlock, a diabetic, had a history of depression sufficiently acute that he had been diagnosed as suicidal years before his incarceration, and court records show that he broke a plastic spoon and tried to swallow it at St. John’s following his arrest. He was sick enough that he missed his initial court date, and when U.S. Magistrate Byron Cudmore first saw him eight days after Carlock was booked into the jail, the judge told U.S. marshals to make sure that Carlock got his medication.

Despite Cudmore’s concern, Carlock deteriorated steadily during his 39 days in the Sangamon County jail. He refused medications and food, the county says, and lost nearly 30 pounds. He behaved irrationally, arguing and scuffling with jailers. He declared that he was a newly married Indian. Guards tased him as many as five times in a single day, Elvidge Kelley says, and put him in a restraint chair for 22 hours. She says that he was tased while in restraints. He was housed in the jail’s highrisk area where inmates are checked every 15 minutes.

Although she didn’t visit Carlock during his incarceration, Andreatta-Carlock says that his mental functions were so precarious that he had trouble figuring out how to use a telephone in the visiting area when his sister paid a visit. She says that she got a call from a relative of an inmate who had been in the visiting room and had seen Carlock befuddled by the phone. The person told her that something was seriously wrong. Robinson says that Carlock’s sister was in daily contact with jail officials, trying to convince them that Carlock had serious medical problems.

“It all fell on deaf ears,” Robinson said.

“Nobody did anything.”

When Dr. Joseph Maurer, a physician who worked under contract with the county, eventually ordered blood tests, lab results showed that Carlock’s liver and kidneys were failing. Despite critically high levels of potassium, creatinine and other impurities in Carlock’s blood that could prove fatal if untreated, Maurer waited until the next day before deciding that he needed to go to a hospital. When jailers arrived at his cell to take him to St. John’s Hospital, a struggle broke out.

Exactly what happened during that struggle may never be known, but Carlock was all but dead when it was over. A jailer weighing more than 275 pounds had laid on top of Carlock while the inmate was prone, interfering, plaintiff’s attorneys say, with his ability to breathe. Another guard deployed a Taser. When someone noticed that Carlock wasn’t breathing, a guard put an ammonia capsule at the doomed man’s nose and got no response. A nurse checked Carlock’s ankle, wrist and finally neck before detecting a faint pulse in his carotid artery.

Jailers summoned paramedics but didn’t perform CPR, administer artificial respiration or monitor Carlock to see if he was breathing while waiting for an ambulance. He arrived at the St. John’s emergency room with two broken front teeth and 11 fractured ribs. The treating physician at the hospital opined that he succumbed to renal failure and hyperkalemia, a condition associated with high potassium levels.

An expensive fight

Andreatta-Carlock retained a pathologist who performed an autopsy on her deceased husband and determined that Carlock had suffocated. Another pathologist who reviewed the case for the plaintiff reached a similar conclusion and classified the case as a homicide, deciding that the weight of a jailer on Carlock’s back coupled with broken ribs had prevented his lungs from expanding. Yet another pathologist retained by the plaintiff diagnosed a fatal heart arrhythmia brought on by the altercation with guards.

Dr. Jessica Bowman, a pathologist who conducted an autopsy for the county coroner, determined that Carlock suffered cardiac arrest due to a blocked coronary artery. But her conclusion was undercut by a heart exam Carlock had in 2005, when physicians examined his coronary arteries and found no blockages. A blood test at the time of death excluded a heart attack, according to a cardiologist who treated Carlock in the St. John’s emergency room when he arrived from the jail. Bowman found that paramedics broke Carlock’s ribs while performing CPR, but at least one other pathologist said that the fractures would have been closer to the sternum if the damage had been done by someone trying to restart his heart. Robinson and Elvidge Kelley say ribs were broken when the guard put his weight on Carlock.

That a lawsuit would be filed was clear from the beginning. Four days after Carlock died, his sister asked the sheriff’s department to retain videos and other evidence pertaining to the death. Elvidge Kelley repeated the request less than two months later. The sheriff’s department promised that all pertinent emails, videos and other records would be saved. Attorneys for Hinshaw Culbertson, a law firm that had frequently handled lawsuits against the sheriff’s office, started work on the case more than three months before Andreatta-Carlock sued.

At $175 an hour for a lawyer’s time on the Carlock case, Hinshaw Culbertson charged the county considerably less than it had other clients. For instance, when the firm successfully defended a Freedom of Information Act lawsuit against the University of Illinois Springfield filed in 2011 by the State Journal-Register, Hinshaw Culbertson charged $425 an hour. But the Carlock case involved considerably more hours.

By the time it was over, Hinshaw Culbertson lawyers collected more than $1.5 million from the county for work on the Carlock case. With lesser amounts paid to experts, investigators and lawyers for physicians who treated Carlock as well as a guard deemed to have a conflict with other defendants that necessitated separate counsel, the county’s legal tab reached nearly $2.7 million, more than the plaintiff ultimately received from taxpayers.

The defense argued that it wasn’t fair to second-guess guards faced with an out-ofcontrol inmate who wouldn’t respond to commands. Guards didn’t know the extent of Carlock’s illness when they went to his cell to take him to a hospital, the county contended, and when he resisted guards, they were forced to subdue him. Even if force was unreasonable, the county asserted, guards couldn’t be held liable if they had acted in good faith. The plaintiff had to prove that guards intended to harm Carlock, the county contended, and so the case should be dismissed.

Legal fights over what happened after Carlock died proved as bitter and costly as disputes over the death itself. Although the jail was equipped with a camera that could have captured the struggle between Carlock and jailers, the county said that no one pressed a record button to activate the camera. Despite promises by the sheriff’s office to preserve all evidence, some emails concerning Carlock were destroyed. And audio tapes of an internal affairs investigator’s interviews with two guards were blank when the defense received them.

The stakes were high as Andreatta-Carlock’s lawyers sought to punish the county for missing evidence. If the court found that evidence had been destroyed in bad faith, jurors could be instructed to assume that missing records contained information damaging to the county. The county also faced monetary sanctions if a judge ruled that evidence had been destroyed as part of a coverup.

The county claimed that destruction of emails was inadvertent, and U.S. District Court Judge Sue Myerscough agreed, also finding that missing emails likely didn’t contain anything relevant to the case. Similarly, Myerscough rejected the plaintiff’s notion that the county had hidden or destroyed video or audio recordings. But the victory on the evidence issue, won after a half-dozen court sessions, wasn’t cheap. And the county still faced the underlying wrongful death claim.

A 50-50 chance

Robinson, attorney for Andreatta-Carlock, says that he asked county attorneys about settling the case as early as 2009. Settlement was also on Myerscough’s mind during a 2011 hearing on missing evidence, when she asked Andrew Ramage, a Hinshaw Culbertson lawyer, whether mediation had been discussed with a magistrate judge. Yes, Ramage, answered, but the county board had not authorized mediation so that the parties could settle the case.

“And what would happen if I were to order you to go down that road?” Myerscough asked during the April 18, 2011, hearing that was a prelude to longer, and costlier, proceedings one year later to settle arguments over missing evidence.

“If the court orders the case be mediated, then that’s – I mean, that’s your call,” Ramage answered. “But I can’t promise that the county is going to give any money to settle it. So far, they haven’t.”

County officials talked tough to the media, saying that settling lawsuits against the sheriff’s office would encourage future litigation from plaintiffs in search of quick and easy settlements.

“When we feel we have no liability, it’s better to fight the case to the bitter end,” county administrator Brian McFadden told Illinois Times in 2012, just one month before the county received a quarterly bill of more than $188,000 from Hinshaw Culbertson for legal services – the largest single invoice for legal services the county received during the course of litigation, and mostly generated to defend allegations that evidence had been destroyed in bad faith.

In early 2013, the county didn’t object when Myerscough granted a motion from the plaintiff to enter mediation, but talks went nowhere. After refusing to dismiss the case, Myerscough again ordered mediation in the fall of 2013 and directed county officials with approval authority to attend settlement discussions that lasted less than a day.

Craig Hall, chairman of the county board’s civil liabilities committee, attended the unsuccessful settlement conference a year ago and says that the plaintiff’s price was too high. Shortly after settlement talks failed, Myerscough again urged the parties to settle with the help of a mediator. Instead, the county appealed the judge’s refusal to dismiss the case on the grounds that guards hadn’t intended to hurt Carlock.

With the appeal pending and the litigation more than five years old, attorneys for the county last fall painted a grim picture behind closed doors, according to Hall, who says lawyers told county board members that a trial could last a month or longer and the odds of winning were 50-50. Even if the county prevailed, the verdict could be appealed.

Why did the county fight so hard and spend so much money on a case that its lawyers ultimately determined was a coin flip?

“The legal counsel told us that there were some things that were allowed into evidence that might not have been in our favor,” Hall recalls. “My belief is, we were going to win. The advice was, a jury could go either way.”

Elvidge Kelley says the appellate court ordered mediation after the county appealed Myerscough’s refusal to dismiss the case. Ramage, who had taken a lead role in the litigation and failed to get the case dismissed on the grounds that guards hadn’t intended to hurt Carlock, was replaced by lawyers tasked with handling the appeal, Elvidge Kelley says, and those attorneys apparently realized what their predecessors had not: This was a case that shouldn’t go to trial.

“The evidence never changed from day one, what we alleged, or the facts we alleged,” Elvidge Kelley says. “This case could have been evaluated differently and settled early on. I think there were new attorneys from Hinshaw looking at it. They took a look at it and reevaluated. When they got involved, because of the appeal, they had to do a review of the case and the evidence. That’s my opinion.”

Citing confidentiality provisions in the rules of professional conduct for lawyers that act as the profession’s code of ethics, J. William Roberts, managing partner for Hinshaw Culbertson, declined comment.

Elvidge Kelley wouldn’t say just how much less the county would have paid if the case had settled earlier, but she suggested that a resolution within the first year of litigation might have gotten her client less than half of what the county ultimately paid.

“It might be $1.5 million, it might be $1 million, I’m not going to say – I never got the opportunity to visit with my client to have an actual number,” Elvidge Kelley said. “It (the cost) would have been miniscule compared to what it was.”

Changes made

Sheriff’s officials still insist that jailers did nothing wrong.

But that doesn’t mean changes haven’t been made in hopes of preventing future lawsuits.

The sheriff’s office has increased the number of surveillance cameras in the jail from 125 when Carlock died to 153 today, and all of the cameras record regardless of whether someone presses a button, says undersheriff Jack

Campbell. Today, any use of force captured by a camera would be saved, Campbell says. Emails that were once automatically deleted after six months are now retained for years as a matter of course, he said.

“We’re doing it to exonerate ourselves,” Campbell said. “I think the biggest thing we learned from this was, something that we deleted could be interpreted as a smoking gun. Retain them all, and we don’t have to go through this.”

An internal affairs investigator handled the Carlock death investigation, but detectives now are assigned to investigate all jail deaths, Campbell said. Springfield police will investigate any death involving the use of force, he added.

“We’re going to involve detectives in any kind of death in the jail,” Campbell said. “A detective has a different mindset than someone doing an internal affairs investigation.”

The county has also beefed up medical care in the jail, Campbell says. At the time of Carlock’s death, mental health care was provided for eight hours per week in the jail; it’s now available 24 hours a week. The jail contracts with different physicians, and nurses are no longer county employees, which Campbell says should reduce the county’s liability in case of lawsuits alleging poor health care. Since Carlock died, there has been a significant increase in the number of inmates who are taken out of the jail to receive care at hospitals, from 70 trips in 2007 to 133 last year. Campbell could not explain the trend.

Wes Barr, the Republican candidate for sheriff, did not respond to interview requests, but Jeff Regan, the Democratic candidate, suggested that guards be trained as emergency medical technicians. He also said guards should wear body cameras.

Campbell points out that there is a fire station less than a block from the jail and says guards already have enough to do without having to take the time to undergo EMT training, which would cost money. He said that he favors body cameras for guards, but cautions that the county needs to figure out how to pay for them and use them in ways that won’t raise privacy concerns.

“We’re not afraid of it, but we need to know more about it,” Campbell said.

But getting sued remains part of the job.

Since Andreatta-Carlock sued, at least 25 lawsuits have been filed by plaintiffs who allege wrongdoing at the jail, most recently in August, when Chicago attorney James Murphy-Aguilu filed a wrongful death suit on behalf of Lance S. Jones, who died of a heart attack in the jail last year. In the lawsuit, Murphy-Aguilu says that Jones died shortly after a physician at St. John’s Hospital sent him back to jail with antacids after he had complained of chest pains.

“The county can say all they want that they can throw (liability) back on doctors,” Murphy-Aguilu says. “At the end of the day, they’re the ones who are liable. … The sheriff is in charge of the jail.”

Contact Bruce Rushton at brushton@illinoistimes.com.