In re Zagorski

Full title: IN RE EDMUND ZAGORSKI

Court: Supreme Court of Tennessee, at Nashville

Date published: Aug 16, 2010

No. M1996-00110-SC-DPE-DD (Tenn. Aug. 16, 2010)

Opinion

No. M1996-00110-SC-DPE-DD.

August 16, 2010.

REQUEST FOR ORAL ARGUMENT ON MOTION TO SET EXECUTION DATE

As fully explained in Ed Zagorski's response to the state's motion to set an execution date, an execution date should not be set, because Zagorski's trial and sentencing were tainted by three serious constitutional violations. As this Court has not fully address such issues previously, this Court should hold oral argument on the state's motion and Zagorski's response.

Counsel has been informed by the Appellate Court Clerk's Office in Knoxville that this Court is already hearing oral arguments on September 2, 2010. That would be an appropriate time for oral argument in this matter, as would any other time the Court deems appropriate. Given the serious constitutional violations which occurred at Zagorski's trial and sentencing, this Court should exercise its "inherent supervisory authority over Tennessee's judicial system," State v. Harrison, 270 S.W.3d 21, 25 (Tenn. 2008), grant oral argument, and afterwards, grant Zagorski relief, and deny the state's motion.

Respectfully Submitted,

Paul Bottei #17036 Assistant Federal Public Defender Office of the Federal Public Defender

810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047

___________________________ /s/ Paul R. Bottei

CERTIFICATE OF SERVICE

I verify that I have served a copy of the foregoing upon Jennifer Smith, Office of the Attorney General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this 16^th day of August, 2010.

___________________________ /s/ Paul R. Bottei

RESPONSE TO MOTION TO SET EXECUTION DATE

This Court should not set an execution date but instead should grant Edmund Zagorski relief from his conviction and death sentence, because he was the victim of three separate constitutional violations which, through happenstance, have fallen through the cracks in the Tennessee courts' review of his case. Such claims have not been fully addressed by either this Court or any Tennessee court, though they are meritorious and entitle Ed Zagorski to relief from his conviction and death sentence.

No Tennessee court has fully considered the unconstitutionality and prejudicial effect of Zagorski's custodial statements: (a) in light of all the record evidence that his second and third statements were, in fact, involuntary-the product of extraordinary physical and mental torture and coercion; and (b) in light of governing Supreme Court precedent, including Arizona v. Fulminante, 499 U.S. 279 (1991), which demonstrates that admission of Zagorski's statements was not harmless.

Similarly, no Tennessee court has yet explicitly addressed Zagorski's meritorious claim that he was denied due process under Sandstrom v. Montana, 442 U.S. 510 (1979) by a jury instruction which created a presumption of malice from the mere fact the victim was killed. Nor has any Tennessee court explicitly addressed a clear violation of Lockett v. Ohio, 438 U.S. 586 (1978), wherein the judge unconstitutionally defined "mitigating evidence" as evidence that "justified" or "gave a reason" for the homicides, or "lessened" aggravation.

Given each of these serious violations of Zagorski's fundamental constitutional rights, this Court should deny the State's motion. Rather, this Court should exercise its "inherent supervisory authority over Tennessee's judicial system," State v. Harrison, 270 S.W.3d 21, 25 (Tenn. 2008), as well its duty to prohibit the arbitrary imposition of the death sentence (Tenn. Code Ann. § 39-13-206(c)(1), Tenn. Code Ann. § 39-2-24(c)(1)(1982)) and it should instead grant Zagorski relief from his conviction and death sentence and order a new trial and sentencing hearing, lest Zagorski be executed despite clear violations of his Constitutional rights and the arbitrary imposition of the death sentence.

I. Zagorski's Statements Were Unconstitutional And Harmful, But, No Tennessee Court Has Fully Addressed His Meritorious Claims; This Court Should Thus Consider Zagorski's Claims, Grant Him Relief, And Deny The State's Motion To Set An Execution Date

Edmund Zagorski's challenges to his custodial statements have taken a tortured path through the Tennessee courts. He has challenged three separate statements: one from June 1, 1983; a second statement from July 27, 1983; and a third statement from August 1, 1983. All of the proof — not yet considered by any Tennessee court — shows that as to the first statement, he invoked his right to counsel, which was ignored in violation of Edwards v. Arizona. There is also no reasonable dispute, when one considers all the relevant evidence, that Zagorski's second and third statements were involuntary. As shown infra, those statements were the product of inhumane conditions and unconstitutional coercion, because Zagorski was placed in solitary confinement in an unventilated metal hotbox for 7 weeks during the heat of the summer, which decimated him physically and mentally, made him mentally ill and suicidal, leading him to confess in order to end his ordeal.

A. No Tennessee Court Has Ever Fully Considered All Record Evidence Showing The Involuntariness Of Zagorski's Statements, Nor Conducted An Accurate Harmless- Error Analysis Using Principles Governing The Harmlessness Of Involuntary Statements

The problem with the Tennessee courts' analysis of Zagorski's involuntary statement claims is that, up to now, such analysis has been piecemeal. At no time has this Court or the Court of Criminal Appeals fully considered or analyzed Zagorski's claim in light of all the record evidence and the governing law. The reasons for this are as follows:

On direct appeal, this Court's analysis was fatally deficient in two separate ways. First, this Court did not have before it all of the record evidence which is now before this Court (See pp. 6-18, infra Exhibits 1-23) showing the extraordinary duress and coercion which led to Zagorski's second and third statements, and which establishes that Zagorski's statements were unquestionably involuntary and inadmissible as a matter of due process. As a result of not having before it all the relevant evidence, this Court concluded that there was no evidence of coercion (State v. Zagorski, 701 S.W.2d 808, 812 (Tenn. 1985)), a factual conclusion that is unquestionably false, given all the record evidence (discussed infra) proving that, in light of Zagorski's physical and mental torture, his statements were unquestionably involuntary.

Second, on direct appeal, this Court also stated that admission of all three of his statements was "harmless." Id. In reaching this conclusion, however, this Court never performed a proper harmless-error analysis. This Court never analyzed how Zagorski's three statements were effectively presented and argued as compelling evidence of guilt, an analysis which is demanded by the Supreme Court in Fulminante. See Fulminante, 499 U.S. at 299. This Court thus found such statements to be harmless without applying undisputed principles enunciated by the Supreme Court as governing harmless-error analysis of involuntary statements. In sum, on direct appeal, this Court did not have all the relevant record evidence and it did not apply the governing legal principles which apply to involuntary statements.

In post-conviction proceedings , Zagorski then presented, as a matter of record evidence, undisputed proof of physical and mental coercion which this Court had not considered on direct appeal. See generally P.C.Exs. 15 30 (discussed infra pp. 6-18 and contained in Exhibits 4, 5, 13, 14, 18-23, infra. The Court of Criminal Appeals, however, never considered that evidence in light of standards governing involuntary statements, and thus never decided whether, in light of all the evidence, Zagorski's statements were involuntary. Zagorski v. State, 1997 Tenn.Crim.App.Lexis 535, pp. *29-30. Thus, neither this Court nor the Court of Criminal Appeals has ever made an accurate determination — based upon all the record evidence — of the involuntariness of Zagorski's second and third statements. Instead, the Court of Criminal Appeals adopted this Court's flawed conclusion that admission of such statements was harmless (Id. at p. *30) — despite the fact that this Court's conclusion on direct appeal did not apply the principles governing harmless-error analysis of coerced confession claims, as enunciated in Fulminante.

In sum, on direct appeal, this Court didn't have all the facts and didn't apply the governing law. In post-conviction proceedings, the Court of Criminal Appeals had all the relevant facts, but still didn't decide whether Zagorski's statements were involuntary, instead relying upon an unquestionably errant harmless-error analysis under Fulminante. Consequently, this Court is now faced, for the first time, with all the relevant facts and all the governing law. When this Court thus properly considers the facts and law, it is constrained to conclude that Zagorski's statements were unconstitutional and not harmless, thus warranting a new trial.

B. Zagorski's Challenges To His Custodial Statements Are Meritorious, And This Court Should Therefore Grant Him Relief And Deny The State's Motion To Set An Execution Date

Because no Tennessee court has considered all the facts and all the law in any given proceeding, this Court must do so now, in the interest of justice. When the Court does so, it becomes obvious that Zagorski's statements were all unconstitutional, that his second and third statements were the unconstitutional product of physical and mental torture, and that they cannot be considered harmless under Fulminante. Neither they, nor his first custodial statement, were harmless because, as Fulminante makes clear, such statements were argued by the prosecution as independently showing Zagorski's guilt, and as confirming other evidence of guilt. Under such circumstances, Zagorski's statements were unconstitutional and not harmless, and this Court should thus order a new trial and sentencing hearing, and deny the State's motion to execute Zagorski.

1. All The Record Evidence Establishes That Zagorski's Custodial Statements Were Unconstitutionally Obtained After He Sought Counsel Or After He Was Physically And Mentally Tortured Through Lengthy Solitary Confinement In A Windowless Metal "HotBox" During The Heat Of The Summer

When this Court now considers for the first time all of the relevant evidence introduced in all court proceedings concerning the constitutionality of Ed Zagorski's custodial statements, it is evident that his custodial statements either violated his right to counsel or were involuntary, and that their use at trial was not (as this Court previously thought) harmless. Zagorski will first summarize all of that undisputed evidence and then explain why, as a legal matter, in light of all that evidence, his statements were unconstitutional and not harmless.

Ed Zagorski gave statements to authorities on June 1, July 27, and August 1, 1983. Authorities obtained these statements by ignoring Zagorski's invocation of his rights to counsel and to remain silent, and by subjecting him to torturous, unconstitutional conditions in the Robertson County Jail. The undisputed facts show the following:

a. The June 1, 1983 Statement: Zagorski Invoked His Rights To Counsel And To Remain Silent, Authorities Initiated Questioning, Did Not Provide Counsel, And Did Not Cut Off Questioning Once Counsel Was Requested

Ed Zagorski was arrested in Ohio on May 26, 1983. After his arrest, he was questioned on May 27, 1983 in a West Virginia hospital by Robertson County, Tennssee, Sheriff Ted Emery, Deputy Ronnie Perry, and officers from Ohio.¹

1 Motion To Suppress, p. 32 (Sheriff Ted Emery) (Contained in Exhibit 1).

On May 27, Zagorski specifically invoked his right to counsel, stating that he wanted to talk to a lawyer.² He also exercised his right to remain silent, stating that he "wasn't going to make no statements or answer any questions"³ and he'd "better not answer any questions."⁴ Sheriff Emery did not dispute that Zagorski "had specifically asked for a lawyer."⁵ Not surprisingly, the Tennessee Supreme Court found as a matter of fact that Ed Zagorski invoked his right to counsel on May 27.⁶

2 Id., p. 57 (Sheriff Emery) (Exhibit 1).

3 Id., p. 55 (Emery) (Exhibit 1).

4 Motion To Suppress, p. 56 (Emery)("I better not answer any questions." "Well, like I said, I really should not talk about it.") (Exhibit 1).

5 Id., p. 62 (Emery) (Exhibit 1).

6 State v. Zagorski, 701 S.W.2d 808, 812 (Tenn 1985). No statements made by Zagorski on May 27, 1983 were admitted at trial.

Despite Zagorski's May 27 invocation of his rights to counsel and to remain silent, prosecution and law enforcement authorities initiated another interrogation of Zagorski on June 1, 1983, this time in Tennessee. Robertson County Sheriff Emery, Deputy Ronnie Perry, and Assistant District Attorney General Dee Gay conducted the interrogation in Sheriff Emery's Office in Springfield, Tennessee.⁷ Zagorski was shackled.⁸

7 Trial Tr. 883 (Ronnie Perry) (Exhibit 2);; Motion to Suppress, p. 39 (Ted Emery) (Exhibit 1). Ed Zagorski was appointed counsel after the interrogation on June 1, 1983.Id., p. 29 (Larry Wilks) (Exhibit 1).

8 Motion To Suppress, pp. 52-53 (Emery) (Exhibit 1).

The interrogation began with Zagorski being asked whether he had been read his rights and understood them, ⁹ but he was never provided a written admonition of rights, nor did he waive his rights by signing any waiver form.¹⁰ After stating that he understood his rights, ¹¹ Assistant District Attorney Dee Gay proceeded to ask Zagorski whether he would talk about the case, "whether he would tell us about it."¹² Zagorski reiterated (as he stated in West Virginia) that he wanted to speak to an attorney and didn't want to be questioned.¹³

9 Trial Tr. 883 (Exhibit 2); Motion To Suppress, p. 40 (Emery) (Exhibit 1).

10 Id. (Exhibit 1).

11 Trial Tr. 884 (Perry) (Exhibit 2).

12 Motion To Suppress, p. 40 (Emery) (Exhibit 1).

13 Trial Tr. 884 (Perry) (Exhibit 2); Motion To Suppress, pp. 40-41 (Emery) (Exhibit 1).

Sheriff Emery's testimony makes this clear. When asked whether Zagorski "stated to you and Mr. Gay and Mr. Perry on June the 1^st that he didn't want to answer any questions without a lawyer being present," Emery responded: "Yes."¹⁴ Zagorski said: "I don't want to answer any questions about the murder without a lawyer being present."¹⁵

14 Motion To Suppress, p. 58 (Sheriff Emery) (Exhibit 1).

15 Id., p. 59 (Emery) (Exhibit 1).

Though Zagorski had now sought counsel twice (once in West Virginia and now in Tennessee) and his interrogators knew he wanted counsel, they pressed onward. Rather than cutting off questioning or providing him counsel, Emery, Perry, and Gay "continued to ask him questions."¹⁶ Trying to get information about the offense, the interrogators sought information about how Zagorski "ended up in Hickman County," where the offense may have occurred.¹⁷ Gay specifically questioned Zagorski about Jimmy Blackwell, and Zagorski responded to the ongoing interrogation.¹⁸ He said he was a mercenary, and discussed a scabbard allegedly found near the bodies.¹⁹

16 Id., p. 58 (Emery) (Exhibit 1); Trial Tr. 884 (Ronnie Perry) (Exhibit 2).

17 Motion To Suppress, p. 61 (Emery) (Exhibit 1).

18 Exhibit 3 (Custodial Statement).

19 Motion To Suppress, pp. 42-43 (Emery) (Exhibit 1).

Still without counsel, Zagorski then supposedly stated that he would tell them about the murders.²⁰ With the interrogators having failed to cut off questioning and having continued the interrogation without providing counsel, Gay tried to backtrack, asserting that Zagorski didn't have to talk until he talked to his lawyer.²¹ Zagorski, though, had been cajoled into speaking, and he continued to talk.²² Afterwards, Zagorski provided damaging information concerning his activities and his involvement in the homicides.²³

20 Exhibit 3 (Statement); Motion To Suppress, p. 44 (Ted Emery) (Exhibit 1).

21 Id. (Exhibit 1).

22 Id. (Exhibit 1).

23 The typewritten redaction of the oral statement is not signed by Ed Zagorski and shows no indication he agreed to the contents thereof. See Exhibit 3. This June 1, 1983 statement was then introduced at trial. See Trial Tr. 884-889 (Exhibit 2).

b. Zagorski's July 27 And August 1 Statements Were The Product Of Unbearable, Unconstitutional Conditions At The Robertson County Jail Which Made Him Mentally Ill And Drove Him To The Brink Of Suicide

Starting in June 1983, Ed Zagorski was held in solitary confinement in the Robertson County Jail. Just weeks before, the United States District Court for the Middle District of Tennessee declared the jail unconstitutional, and enjoined Sheriff Emery from imposing the very type of conditions of confinement which he then imposed on Ed Zagorski. Douglas v. Emery, No. 81-3826 (M.D.Tenn. Apr. 15, 1983) (Agreed Order).²⁴

24 Exhibit 4, P.C.Ex. 30 (Agreed Order).

The jail was like a dungeon. There was no natural light.²⁵ There was no air conditioning and no air circulation, and the meager ventilation system rarely worked.²⁶ The drunk tank (used for segregation) was a solid metal cell measuring 8' by 8', ²⁷ with one tiny window.²⁸ It was so dark and bleak that one could not read without straining the eyes.²⁹ Because extended isolation adversely affects mental health, the District Court specifically enjoined Sheriff Emery from placing anyone in such segregation for more than ten (10) days.³⁰

25 Exhibit 5, P.C.Ex. 30: Douglas v. Emery, Stipulations, p. 4, ¶ 1 7 (M.D.Tenn. Apr. 13, 1983); Exhibit 6, p. 7 (Douglas v. Emery, Report Of Inspection Of Robertson County Jail, Anthony S. Kuharich, May 10, 1983).

26 Id., p. 6 ("The facility has no air conditioning. The staff admitted that there is no air circulation."); Exhibit 7, p. 1 (Testimony of Sheriff Emery in Douglas v. Emery, p. 6).

27 Motion To Suppress, p. 64 (Larry Wilks) (Exhibit 1).

28 Exhibit 5, P.C.Ex. 30: Douglas v. Emery, Stipulations, p. 2, ¶ 6; Exhibit 8: "Juveniles Occupy Dingy Drunk Tank At Robertson Jail," The Tennessean, 1982.

29 Exhibit 9, pp. 190-191 (Testimony of Robertson County Lieutenant Elvis Wilson, Apr. 1, 1984 Hearing in Douglas v. Emery, M.D.Tenn. No. 81-3826).

30 Exhibit 4, P.C.Ex. 30, p. 2, ¶¶ 2d, 2e: Agreed Order InDouglas v. Emery, (M.D.Tenn. Apr. 15, 1983).

After Ed Zagorski was arrested, however, Sheriff Emery defied the federal court order, and he did so throughout the time Zagorski was in jail. On June 1, Emery initially placed Zagorski in the solid metal drunk tank³¹ but then transferred him to a similar solid 8' by 8' metal isolation cell.³²

31 See Motion To Suppress, p. 53 (Ted Emery) (Exhibit 1).

32 Motion To Suppress, p. 64 (Larry Wilks) (Exhibit 1).

In direct violation of the federal court order, Ed Zagorski was placed in solitary confinement not for days, but months on end — from June to October 1983. During that time, he was caged in a closed metal cell 24 hours a day, ³³ except for a legal visit or the not-so-rare occasions when he was taken to the hospital suffering from psychiatric illness brought on by the horrific conditions. Throughout those months, as Sheriff Emery admitted, while in jail, Ed Zagorski literally never saw the light of day.³⁴

33 Compare Exhibit 4, P.C.Ex. 30, p. 9, ¶¶ 51-53 (when injunction entered, pretrial detainees were never let out of cell).

34 Motion To Suppress, p. 85 (Ted Emery: Ed Zagorski received no sunshine) (Exhibit 1); Exhibit 10 (Pre-Trial Motion To Be Removed From Solitary Confinement) (describing deplorable conditions of Zagorski's cell).

Needless to say, solitary confinement creates deleterious psychiatric effects. It "can adversely affect a person's mental health."³⁵ According to Dr. Stuart Grassian, M.D., of the Harvard Medical School, solitary confinement causes profound psychiatric disturbance, including panic attacks; perceptual distortions; thinking, concentration and memory problems; paranoia; and hypersensitivity to external stimuli.³⁶ Those in such confinement may act like persons with organic brain damage.³⁷ The effects are similar to those endured by prisoners of war, and can occur even after isolation for just a few days.³⁸

35 Comer v. Stewart, 215 F.3d 910, 916 (9^th Cir. 2000), citing Hoptowit v. Ray, 682 F.2d 1237, 1257-1258 (9^th Cir. 1982) (deprivation of fresh air and light); LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) (inmate placed in dark cell almost all day and night); McClary v. Kelly, 4 F.Supp.2d 195, 205-210 (W.D.N.Y. 1998). Compare Toussaint v. McCarthy, 597 F.Supp. 1388 (N.D.Cal. 1984), rev'd in part 801 F.2d 1080 (9^th Cir. 1986) (inmates spent 24 hours a day in windowless cells that were 5-6 feet wide and 8-10 feet long); Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal. 1995).

36 Exhibit 11, Psychiatric Effects Of Solitary Confinement, pp. 4-7

37 Id. at 6-7.

38 Id. at 10-11, citing M. Meltzer, Solitary Confinement, Group For Advancement Of Psychiatry, Symposium #3: Factors Used To Increase The Susceptibility Of Individual To Forceful Indoctrination (New York: 1956).

Deputy Ronnie Perry acknowledged that "if they put me back there" where Zagorski was confined, "I'd go nuts."³⁹ Ed Zagorski did, soon showing clear signs of mental illness. He began to "act[] irrationally."⁴⁰ By June 18, he was started on the antipsychotic medication Haloperidol (Haldol) after he broke out in a rash "due to nerves."⁴¹ He progressively deteriorated.

39 Exhibit 12 (Transcript of Statement Of Ronnie Perry to Larry Wilks, Esq. and James Walton, Esq.).

40 Exhibit 10, p. 2 (Pre-Trial Motion To Be Removed From Solitary Confinement).

41 Exhibit 13, P.C.Ex. 15 (June 18, 1983 Examination: Progress Notes);See Physician's Desk Reference, Vol. 54, p. 2153 (2000) (Haloperidol "is indicated for use in the management of manifestations of psychotic disorders").

In the early morning hours of July 3, he was brought to the emergency room with "acute anxiety," "sweating [and] anxious" and in an "uncontrollable rage,"having beaten his knuckles bloody against the metal wall; He was given Haldol and Librium.⁴² A few short hours later, he was back at the hospital with an acute anxiety attack, but after being given valium, he was returned to the torturous isolation cell.⁴³

42 Exhibit 14, P.C.Ex. 15 (July 3, 1983, Jesse Holman Jones Hospital Emergency Room Record, 12:53 a.m.).

43 Exhibit 14, P.C. Ex. 15 (July 3, 1983 Jesse Holman Jones Hospital Emergency Room Record, 1:10 p.m.).

Then came a "sweltering summer heat wave" which scorched Robertson County and only exacerbated Zagorski's already dire situation.⁴⁴ Zagorski languished in the cramped, unventilated cell, as the temperature kept rising. The outdoor temperature was 87 on July 9, broke 90 on July 12, and ranged from 97 to 100 between July 21 and 25, peaking at 100 degrees on July 22 — a day of great significance, as discussed infra. Though the temperature dropped below 90 on July 26 and 27, it went back into the 90s between July 28 and August 1.⁴⁵ As the crops withered in the fields, ⁴⁶ Ed Zagorski withered physically and mentally in the metal box.

44 Exhibit 15, "Heat Reaches 100 Degrees; Crops Damaged," Robertson County Times, July 28, 1983; Exhibit 16, "State Crop Disaster Aid Is Sought By Alexander," Robertson County Times, Sept. 8, 1983 (noting "extended drought and extreme heat" gripping the state).

45 Exhibit 15 Exhibit 17 (Recorded Temperatures In Robertson County, July-August 1983). Temperatures between July 9 and August 1, 1983 were: July 9 (87); July 10 (86); July 11 (89); July 12 (90); July 13 (91); July 14 (92); July 15 (92); July 16 (92); July 17 (92); July 18 (92); July 19 (92); July 20 (95); July 21 (97); July 22 (100); July 23 (99); July 24 (98); July 25 (97); July 26 (85); July 27 (87); July 28 (91); July 29 (92); July 30 (91); July 31 (92); August 1 (93). Id.

46 See Exhibits 15 16.

Astonishingly, Zagorski had "lost 30 pounds since he has been in the isolation cell in the Robertson County Jail."⁴⁷ In the midst of the heat wave, Zagorski found himself again in the emergency room on July 16.⁴⁸ This time, having taken an overdose of valium, he was lethargic, his face was swollen, and his speech slurred; he was given Serax, an even stronger tranquilizer.⁴⁹

47 Exhibit 17, "Suspect Bound Over In Drug Deal," Nashville Banner, July 21, 1983.

48 Exhibit 18, P.C. Ex. 15 (July 16, 1983 Jesse Holman Jones Emergency Room Record). July 16 was the fifth day in a row that the temperature exceeded 90 degrees. See Exhibit 17.

49 Exhibit 18, P.C. Ex. 15.

On July 18, Zagorski complained of a "severe headache" and was suffering yet another anxiety reaction.⁵⁰ Without any hope of getting out of the hotbox, though, Zagorski was suicidal, telling the doctor (just two days after the valium overdose) that he "want[ed] to sleep till the police fry him."⁵¹ Yet he was then sent back to the very conditions that were literally driving him crazy.

50 Exhibit 19, P.C.Ex. 15 (July 18, 1983 Emergency Room Record) (Apx. 639).

51 Id.

Two days later, counsel for Zagorski begged the court to remove him from isolation, and to provide him tolerable living conditions. Appearing "listless and dazed"⁵² at a July 20 court hearing, Ed Zagorski and his attorneys implored the judge to "move [Zagorski] out of Robertson County or . . . remove him from isolation."⁵³ The judge refused.

52 Exhibit 17, "Suspect Bound Over In Drug Deal," Nashville Banner, July 21, 1983.

53 Id.

For nearly two months, Ed Zagorski had been caged in an "unbearable" metal box "in solitary confinement in the jail in an eight by eight foot steel room."⁵⁴ As the temperature outside peaked at 100 degrees on July 22, Ed Zagorski remained (as he had been for nearly two months) alone in a metal box whose temperature had climbed to 110-120 degrees.⁵⁵ Ed Zagorski knew, however, that he wasn't going to get out of that terrible box. The judge had just told him so, and he wanted to die.

54 Motion To Suppress, p. 64 (Larry Wilks)(Exhibitl).

55 Compare Exhibit 7, p. 6 (Testimony of Sheriff Emery in Douglas v. Emery: Q. On the hot days, how high would you estimate that the temperature gets? A. It would, I guess be over 100; if it had been 100 outside, it would be that hot or hotter in there."); Id., p. 3 (temperature in the jail rises to the 100 degree range during the summer); Id. (even with use of small electrical fans, temperatures remained in 100 degree range).

Having been broken by unbearable circumstances, Ed Zagorski wanted to make sure he could end his suffering. To that end, on July 22 — the peak of the heat wave when it was 100 degrees outside — he sent out a note saying he "needed" to speak to Deputy Perry or Sheriff Emery.⁵⁶ On July 24, his blood pressure had skyrocketed to 150/90, he had a migraine headache, his extremities were numb, and he couldn't sleep.⁵⁷ Zagorski was, according to the doctor, showing "poor judgment."⁵⁸

56 Trial Tr. 894 (Exhibit 2); Motion To Suppress, pp. 70-71 (Ronnie Perry) (Exhibit 2).

57 Exhibit 20, P.C.Ex. 15 (July 24, 1983 Jesse Holman Jones Emergency Room Record). Zagorski was given Vistaril (an anti-anxiety medication) and Midrin (used to treat vascular headaches).Id.; See Physician's Desk Reference, Vol. 54, pp. 902, 2388 (2000).

58 Exhibit 20, P.C.Ex. 15.

By July 27 — the fifth straight day it had been over 97 degrees outside — Zagorski wanted to be dead. His message to Perry was simple: "[I]f you'll let me pick the type [of] execution and the day of execution, I'll confess to these murders."⁵⁹ Zagorski was not read his rights, nor did he make any written or other waiver of his rights.⁶⁰ Then in a discussion which lasted "probably about three minutes," Zagorski said that he had been part of the murders, and that Dale Dotson's death was a mistake.⁶¹ Zagorski also stated that the killings occurred in Boiling Springs, near Bucksnort, in Hickman County.⁶²

59 Motion To Suppress, pp. 72-73 (Exhibit 1); pp. 76-77 (Ronnie Perry: "[H]e said . . . I'd confess to these murders if you all would do one thing for me; if you all would let me pick the type of execution and the date and time of execution.").

60 Id.

61 Trial Tr. 894 (Ronnie Perry) (Exhibit 2).

62 Id.; Motion To Suppress, p. 73 (Ronnie Perry)(Exhibitl).

Still in this disturbed state on August 1, according to Ronnie Perry, "Mr. Zagorski was brought into Lieutenant Wilson's office, and we sat down and started talking"⁶³ after the "jailer had informed Perry that Ed was wanting to talk to me."⁶⁴ Perry's testimony in no way indicates that Zagorski was read his rights, or that he waived his rights before talking to Perry.⁶⁵ Zagorski then stated that he had been involved in the murders, and that Porter and Dotson were killed after being picked up by Zagorski and others.⁶⁶ Zagorski never admitted killing the victims.

63 Trial Tr. 895 (Perry) (Exhibit 2).

64 Motion To Suppress, p. 74 (Perry) (Exhibit 1).

65 See Trial Tr. 895-896 (Perry) (Exhibit 2).

66 Trial Tr. 895 (Perry) (Exhibit 2); Motion To Suppress, pp. 74-75 (Perry) (Exhibit 1).

Zagorski remained mentally and physically unstable. He took a drug overdose and was found nearly unconscious on September 5, ⁶⁷ he suffered sharp chest pains on September 7, ⁶⁸ and harmed himself again on September 19, shocking himself with an electric fan.⁶⁹

67 Exhibit 21, P.C. Ex. 15 (Sept. 5, 1983 Jesse Holman Jones Emergency Room Record).

68 Exhibit 22, P.C. Ex. 15 (Sept. 7, 1983 Jesse Holman Jones Emergency Room Record).

69 Exhibit 23, P.C. Ex. 15 (Sept.19, 1983 Jesse Holman Jones Emergency Room Record).

2. Zagorski's Statements Were All Unconstitutional, Yet The Prosecution Argued All Those Statements As Proving Zagorski's Guilt

It quite clearly appears that each of Zagorski's statements was unconstitutional.

Zagorski's First Statement Violates Edwards v. Arizona: Concerning Zagorski's first statement, there is no question that Ed Zagorski: (1) invoked his right to counsel on May 27;⁷⁰ (2) authorities initiated interrogation with him on June 1;⁷¹ (3) on June 1, Zagorski again invoked his right to counsel;⁷² but (4) the authorities continued to question him without providing him an attorney.⁷³ This was a clear violation of the prophylactic rule of Edwards v. Arizona, 451 U.S. 477, 484-485 (1981), which provides:

70 Motion To Suppress, p. 55, 56, 57, 62 (Emery)(Exhibitl).

71 Trial Tr. 883 (Perry) (Exhibit 2); Motion To Suppress 39 (Emery) (Exhibit 1).

72 Trial Tr. 884 (Perry) (Exhibit 2); Motion To Suppress, pp. 58-59 (Ted Emery) (Exhibit 1).

73 Motion To Suppress, p. 58 (Ted Emery) (Exhibit 1); Trial Tr. 884 (Ronnie Perry) (Exhibit 2).

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.

With Zagorski having invoked his right to counsel not once, but twice, and with authorities initiating contact on June 1 and not cutting off questioning after the second request for counsel, Zagorski's June 1 statement was taken in clear violation of the Fifth Amendment. See also Maryland v. Shatzer, 559 U.S. (2010) (after invocation of right to counsel, Edwards invalidates all statements resulting from authorities' reinitiation of discussions within two weeks of requesting counsel). This Court's prior conclusion that Zagorski re-initiated discussions after requesting counsel (Zagorski, 701 S.W.2d at 812) simply does not withstand scrutiny.

Zagorski's Second And Third Statements Were The Product Of Physical And Mental Torture And Involuntary: Zagorski's second and third statements were also unconstitutional, because they were involuntary, as was any waiver of his right to counsel. "A confession by which life becomes forfeit must be the expression of free choice," and thus a "confession obtained by coercion — whether physical or mental — is forbidden . . ."Payne v. Arkansas, 356 U.S. 560, 566, 561 (1958).See Blackburn v. Alabama, 361 U.S. 199, 206 (1960) (coercion can be mental as well as physical).

As the Supreme Court recently explained in Berghuis v. Thompkins, 560 U.S.___ (2010), to be admissible a custodial statement must be voluntary, i.e., an "uncoerced statement," and any waiver of the right to counsel must also "'voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception'. . . ." Id., slip op. at 12, 10. Significantly, the Supreme Court in Thompkins made clear that a statement or waiver of the right to counsel is involuntary if it is "accompanied . . . by other facts indicating coercion, such as an incapacitated and sedated subject, sleep and food deprivation, and threats," and/or the fact that "police threatened or injured" a suspect. Id., slip op. at 14, 15. That is precisely the case here.

There is little question that Ed Zagorski's statements (and his waiver of the right to counsel) were involuntary. He was kept in solitary confinement for weeks on end, driven to mental illness and the brink of suicide, and tortured by being cooked in a 110-120 degree metal box. There is no meaningful dispute that he was both physically and mentally coerced into talking to the authorities. He was both physically and mentally "injured" by the shocking, barbarous treatment inflicted upon him by authorities. Any question whether his statement were involuntary is dispelled by the fact that Zagorski made clear that he was willing to talk solely because he wanted to end his ongoing psychological and physical misery by being executed. His statements were not, under any view of the facts, voluntary. They were the statements of a man broken by the abject cruelty of his incarceration.

Indeed, the Supreme Court and numerous other courts have readily acknowledged that statements given under such circumstances are not "voluntary" in any sense of the word. In fact, where defendants have been subjected to harsh conditions of isolation, courts have not hesitated to find statements involuntary.Davis v. North Carolina, 384 U.S. 737, 752 (1966) (custodial statement involuntary where defendant isolated for weeks in windowless cell); Townsend v. Henderson, 405 F.2d 324, 328 (6^th Cir. 1968) (involuntary statement where defendant subjected to solitary confinement and suffered from wounds requiring treatment). Zagorski made no "free and unconstrained choice" to inculpate himself (Culombe v. Connecticut, 367 U.S. 586, 602 (1961)), because Zagorski was decimated physically and mentally by solitary confinement in the 100-plus degree heat for weeks on end. Understandably so.

In fact, Zagorski's case is remarkably similar to the shocking circumstances attending the unconstitutional statement inBrooks v. Florida, 389 U.S. 413 (1967) (per curiam). There, Brooks gave a statement only after being placed in a "windowless sweatbox" for fourteen (14) days and deprived of food. Such "a shocking display of barbarism" did not "escape the remedial action" of the Supreme Court, which reached the only reasonable conclusion under the circumstances: Brooks' statement was constitutionally "tainted" by the "days he spent in such an oppressive hole."Id. at 415, 414. That is precisely the situation here.

Similarly, in United States v. Koch, 552 F.2d 1216, 1218 (7^th Cir. 1977), the Seventh Circuit held a statement involuntary where the defendant was isolated in a windowless "'boxcar' cell for six hours," where that cell was "a 6 feet x 8 feet room" "without visibility outside of the cell." Citing the Supreme Court's decision in Brooks, the Court had little problem finding the statement involuntary, where the "confession was extracted . . . after [Koch] was in exacerbated solitary confinement." Koch, 552 F.2d at 1219. Zagorski was held under even worse conditions for a much longer period of time than Koch. A fortiori, Zagorski's statements were involuntary as well.

In sum, the horrific circumstances here "rise to the level of the kinds of involuntary-confession fact patterns that the Supreme Court has condemned." Jackson v. McKee, 525 F.3d 430, 434 (6^th Cir. 2008). Zagorski's second and third statements were obtained in violation of fundamental principles of decency and humanity, in violation ofBrooks v. Florida, 389 U.S. 413 (1967) (per curiam), andDavis v. North Carolina, 384 U.S. 737 (1966) and the Supreme Court's recent decision in Thompkins. It is thus apparent that this Court's earlier conclusion that Zagorski was "not subject to any coercive action on the part of the state" (Zagorski, 701 S.W.2d at 812) can no longer be sustained, given consideration of all the relevant evidence. Rather, "evidence of coercion . . . both physical or psychological" permeates this record. State v. Walton, 41 S.W.3d 75, 94 (Tenn. 2001).

All told, when this Court finally considers all of the available evidence, it quite clearly appears that each of Zagorski's custodial statements was unconstitutional. The first violated Edwards, and the second and third were involuntary. This Court should so conclude.

3. Admission Of Zagorski's Statements Was Not Harmless Under Fulminante

This brings us to the crux of the issue before this Court: Whether the admission of Zagorski's three statements was harmless. This Court previously said that admission of the statements was harmless "in view of the overwhelming evidence of guilt in this case."Zagorski, 701 S.W.2d at 812. This conclusion, however, cannot be squared with the Supreme Court's discussion of the harmless-error standard inArizona v. Fulminante, 499 U.S. 279 (1991) which makes clear that the statements here were highly prejudicial because of the way in which they were used by the prosecution at trial.

When this Court initially found admission of the statements to be harmless, this Court did not have the benefit of the Supreme Court's decision in Fulminante. In Fulmintante, the Supreme Court emphasized that "A confession is like no other evidence," because it is "probably the most probative and damaging evidence that can be admitted against" a defendant. Fulminante, 499 U.S. at 296. "Certainly, confessions have profound impact on the jury."Id. In fact, this Court has itself recognized that:

[A] confession by a defendant is 'like no other evidence' and the sheer power of an admission of guilt is precisely the reason we go to extraordinary lengths to ensure that it is reliable, i.e., voluntarily made without compulsion or coercion. . . .

State v. Walton, 41 S.W.3d at 94, citing Fulminante, 499 U.S. at 296 and Bruton v. United States, 391 U.S. 123, 139-140 (1968)(White, J., dissenting). Thus, in Fulminante, the United States Supreme Court found harmful an unconstitutional statements which provided the jury "motive and state of mind" and "reinforced and corroborated" other evidence. Id. at 299. The Supreme Court did so where (like this Court did on direct appeal) the state court had affirmed the conviction and death sentence on the grounds that there was "overwhelming evidence" of guilt. Id. at 297 (discussing Arizona Supreme Court conclusion that admission of involuntary statements was harmless).

Here, the prejudice from Zagorski's statement "cannot be soft pedaled, and the error was not harmless." Anderson v. Terhune, 516 F.3d 781, 792 (9^th Cir. 2008) (en banc). The reason for this — which was not discussed by this Court on direct appeal — was that the prosecution emphasized in closing argument that the unconstitutional statements "reinforced and corroborated" (Fulminante, 499 U.S. at 299) other evidence in the case, exactly like the statements in Fulminante which were found not to be harmless.

Indeed, the prosecution here specifically told jurors to rely on Zagorski's custodial statements as grounds for convicting him of first-degree murder:

When you go back there to deliberate, consider the different accounts of the murders that Mr. Zagorski gave to different people at different times.

Trial Tr. 1018 (Exhibit 2).

After making this point, the prosecution proceeded to parse those statements in detail, emphasizing highly damaging aspects of each. Trial Tr. 1018-1020 (Exhibit 2). As to the June 1 statement, the prosecution pointed out that Zagorski admitted some involvement in the offenses. Trial Tr. 1019-1020 (Exhibit 2). As to the July 27 statement, the prosecution argued that Zagorski implicated himself in the crime, said that Dotson's death was a mistake, and that the murders occurred in Red Boiling Springs. Trial Tr. 1020 (Exhibit 2). Finally, the prosecution used the August 1 statement to corroborate the July 27 statement in an effort to bolster the theory of Zagorski's guilt. Id.

In rebuttal, the prosecution again refocused the jury on the June 1 statement, telling jurors to "remember that Mr. Zagorski . . . told General Gay and Detective Perry and the Sheriff" about Dotson and Porter being in their pickup truck and driving toward Kentucky. Trial Tr. 1053 (Exhibit 2). The prosecution followed by tying the statements to their entire case, emphasizing that Zagorski's statements were not only independent proof of guilt but they corroborated the prosecution's other evidence indicating his guilt:

That was out of Mr. Zagorski's very own lips. That's in view of all the hard, hard evidence that we have introduced here as exhibits.

Trial Tr. 1054 (Exhibit 2) (emphasis supplied).

Given the prosecution's arguments, Fulminante controls and makes clear that the admission of Zagorski's statements was not harmless. Indeed, exactly as in Fulminante, the prosecution here used the unconstitutional statements to reinforce each other (Compare Trial Tr. 1020 (Exhibit 2) with Fulminante, 499 U.S. at 299), and to corroborate the prosecution's other evidence. Compare Trial Tr. 1054 (Exhibit 2) with Fulminante, 499 U.S. at 299). Significantly, exactly as in Fulminante, the prosecution used the two involuntary statements as showing alleged motive (Trial Tr. 1020, Exhibit 2), which was critical to the jury's finding, beyond a reasonable doubt, of the elements of premeditation and deliberation. This is exactly what occurred in Fulminante, where the Supreme Court found that the admission of involuntary statements was not harmless. Fulminante, 499 U.S. at 299.

Exactly as in Fulmintante, therefore, the admission of Zagorski's statements was not harmless. Applying Fulminante (which was not available at the time of direct appeal) to the facts here (which were not fully considered on direct appeal), this Court should so hold. This Court should also hold that the admission of the statements was not harmless as to the death sentence, where Tennessee law fully recognizes residual doubt as a mitigating factor supporting imposition of a life sentence. State v. Hartman, 42 S.W.3d 44 (Tenn. 2001).

4. This Court Should Grant Zagorski Relief From His Conviction And Death Sentence And Deny The State's Motion To Set An Execution Date

As the foregoing discussion makes manifest, no Tennessee court has fully considered all the relevant facts nor all the relevant law, which show that Zagorski's custodial statements were all unconstitutional (under Edwards and/or because they were involuntary under well-settled United States Supreme Court precedent), and not harmless under Fulminante. Consequently, this Court should hold that Zagorski's statements were unconstitutional, and not harmless, and should grant Zagorski relief from his conviction and death sentence, ordering a new trial and sentencing hearing in the interest of justice. Because Zagorski's death sentences violate the Constitution, this Court should so hold, and in granting Zagorski the new trial and sentencing hearing to which he is entitled, deny the state's motion to set an execution date.

II. Governing Federal Law Leads Inexorably To The Conclusion That Zagorski's Conviction And Death Sentence Are Unconstitutional Given An Unconstitutional Instruction Which Presumed The Essential Element Of "Malice"

Consideration of the state's motion to set an execution date requires due consideration of the governing Supreme Court law ofSandstrom v. Montana, 442 U.S. 510 (1979) and Francis v. Franklin, 471 U.S. 307 (1985), which establishes that, in violation of due process under the Fourteenth Amendment, Zagorski was unconstitutionally convicted and sentenced to death based upon a presumption of malice.

Ed Zagorski was charged with two counts of first-degree murder, which required proof beyond a reasonable doubt of the essential elements of "malice," "willfulness," "premeditation," and "deliberation." Tenn. Code Ann. § 39-2-202(a)(1983).⁷⁴ The jury here was specifically instructed that the prosecution had to establish that "the killing was malicious."⁷⁵ The jury, however, was instructed to presume the essential element of "malice" from the mere fact that the deceased had been killed:

74 Tenn. Code Ann. § 39-2-202(a)(1983) provided: "Every murder perpetrated by means of poison, lying in wait, or by other kind of willful, deliberate, malicious, and premeditated killing . . . is murder in the first degree."

75 Trial Tr. 1087 (Exhibit 2).

If it is shown beyond a reasonable doubt that the alleged victim was killed, the killing is presumed to be malicious in the absence of evidence that would rebut the implied presumption.

Id. at 1088 (Exhibit 2).

There is no question that this instruction is unconstitutional. Indeed, elsewhere, the state has conceded that this exact instruction is unconstitutional See e.g., Houston v. Dutton, 50 F.3d 381, 385-386 (6^th Cir. 1995); Workman v. Bell, 178 F.3d 759, 777 (6^th Cir. 1998). Ed Zagorski's challenge to this instruction, therefore, is clearly meritorious under the Supreme Court's clearly-established law ofSandstrom v. Montana, 442 U.S. 510 (1979) and Francis v. Franklin, 471 U.S. 307 (1985), both of which prohibit the very type of burden-shifting presumption employed here. And the error here was not harmless, as the unconstitutional presumption of malice "paved the way" for the jury to find all four essential elements of first-degree murder. Houston, 50 F.3d at 386.

On direct appeal, this Court emphasized that it had reviewed "the entire record" (State v. Zagorski, 701 S.W.2d at 809), but failed to explicitly address this clearly erroneous instruction. As a matter of fundamental justice, this Court should do so now and should conclude (as it must) that Zagorski was convicted and sentenced to death in violation of due process under Sandstrom and Francis. In so concluding, this Court should grant him a new trial and sentencing hearing, and likewise deny the state's motion to set an execution date, for executing Zagorski under these circumstances would violate the Constitution.

III. Governing Federal Law Establishes That, In Violation OF The Eighth And Fourteenth Amendments, The Jury Did Not Fully Consider Relevant Mitigating Circumstances

Consideration of the state's motion to set an execution date also requires due consideration of the governing Supreme Court law ofLockett v. Ohio, 438 U.S. 586 (1978) and Eddings v. Oklahoma, 455 U.S. 104 (1982) (and their progeny) and the fact that the jury received an inaccurate definition of "mitigating evidence" which prevented full consideration of mitigating evidence, in violation of the Eighth and Fourteenth Amendments. Given this Court's duty to insure justice, its supervisory authority over the Tennessee judicial system, and its statutory duty to reverse any death sentence which is "imposed in arbitrary fashion," (Tenn. Code Ann. § 39-13-206(c)(1), Tenn. Code Ann. § 39-2-24(c)(1)(1982)), this Court should deny the state's motion and instead grant Ed Zagorski a new sentencing hearing.

At the sentencing phase of trial, the jury was uncertain about the meaning of "mitigating evidence." The jurors therefore asked the judge: "[W]hat is the meaning of the word mitigating?" Tr. 1131. The judge responded as follows:

Mitigating would mean any circumstance which would have a tendency to lessen the aggravating, which have any tendency to-give a reason for the act. I cannot think of a better definition right now, except that it's opposed to aggravating and would have a tendency to lessen or tend — not 'to' necessarily, but tend to justify, and to take away any of the aggravation of the circumstance.

Tr. 1131-1132 (emphasis supplied).

Contrary to the trial judge's definition, under the Supreme Court's Eighth Amendment jurisprudence, "mitigating evidence" is defined quite expansively, in order that capital sentencing juries may consider as broadly as possible all reasons why the defendant ought not be sentenced to death. In the seminal case ofLockett v. Ohio, 438 U.S. 586 (1978), the Supreme Court defined "mitigating evidence" and held that capital sentencing juries must consider all such evidence when rendering sentence:

[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

Lockett v. Ohio, 438 U.S. at 604 (emphasis supplied). Mitigating factors thus include all "factors which may call for a less severe penalty." Lockett, 438 U.S. at 605 (emphasis supplied). They include any and all evidence which provides a reason for a sentence less than death, "including a defendant's prior criminal record, age, and mental or emotional state." Penry v. Lynaugh, 492 U.S. 302, 316 (1989). "Lockett recognizes that 'justice requires that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (emphasis supplied),quoting Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937).

Under the Eighth Amendment, "The jury must be allowed to consider all relevant mitigating evidence." Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990) (emphasis supplied); See Penry v. Lynaugh, 492 U.S. 302, 316 (1989). A state, therefore, cannot impose "any barrier to the sentencer's consideration of all mitigating evidence." Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct. 1860, 1865-1866 (1988). "Each juror must be permitted to consider and give effect to mitigating evidence." McKoy v. North Carolina, 494 U.S. 433, 442-443 (1990). Accordingly, any failure to allow consideration of mitigating evidence — whether by operation of a sentencing statute or jury instructions, or through a trial court's ruling excluding evidence — is unconstitutional. See Lockett, supra; Eddings v. Oklahoma, 455 U.S. 104 (1982) (trial court's exclusion of evidence);Skipper v. South Carolina, 476 U.S. 1 (1986) (trial court's exclusion of evidence); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821 (1987) (sentencing statute);Penry v. Lynaugh, 492 U.S. 302 (1989) (jury instructions);McKoy v. North Carolina, 494 U.S. 433 (1990) (jury instructions); Penry v. Johnson, 532 U.S. 782 (2001) (inadequate and misleading jury instructions about consideration of mitigating evidence)

Here, the trial judge's definition failed to fully inform the jury about the scope and meaning of mitigating evidence. Rather, the judge told the jury (in the disjunctive) that they could only consider evidence which "lessened aggravation" or "gave a reason" for the act, or tended "to justify" the act (Tr. 1131-1132). These confusing and inaccurate instructions prevented the jury from considering almost all of the mitigating evidence presented at trial.⁷⁶

76 Because the trial judge gave varying erroneous instructions concerning the meaning of "mitigating," one does not know which erroneous definition the jurors may have used when evaluating potentially mitigating evidence. Given the uncertainty of which definition the jurors may have employed, if any of the definitions is unconstitutional, error has occurred, because one cannot presume that the jurors did not rely upon an unconstitutional definition.See e.g., Yates v. Evatt, 500 U.S. 391, 401 n. 6 (1991) (where incorrect statement of the law provided to jury, error occurs even if contradictory instructions which might properly state the law are given to jury, because one cannot eliminate the possibility that the jury relied upon the unconstitutional instruction); Francis v. Franklin, 471 U.S. 307, 322 (1985)("Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.").

First, the jury instructions rendered the "aspects" of Ed Zagorski's character ( Lockett's first definition of mitigating evidence) irrelevant to the jury's life-or-death decision. Indeed, nothing about Ed Zagorski's character either "lessen" ed the aggravating circumstances found by the jury (heinousness, and felony murder), nor "gave a reason" for the act, nor "justified" the homicides. All mitigating evidence of Ed Zagorski's character thus could not be considered by the jury under this erroneous instruction. Similarly, even though Ed Zagorski had a minimal criminal record and no history of violent offenses, this non-deathworthy "record" ( Lockett's second definition of mitigation) likewise could not be considered by the jury, because it did not negate or lessen any aggravating circumstance, nor did it justify or give a reason for the homicides. The judge's inaccurate instruction thus also prevented the jury from considering Ed Zagorski's record as mitigating evidence.

In addition, vital circumstances of the homicide ( Lockett's third definition of mitigating evidence) were also rendered useless through the trial judge's definition of mitigation. Indeed, there were various mitigating aspects of the offense upon which the jury could have voted for life, including: (1) the victims were involved in illegal drug dealing, which led them to the situation in which they were killed; (2) the victims were highly intoxicated at the time of their deaths; and (3) the victims were carrying a gun.

All of these particular circumstances are mitigating within the meaning of Lockett, but the jury was essentially told that they could not impose a life sentence unless the victims' drug dealing, intoxication, and carrying of weapons "justified" their deaths, or "lessened" the aggravating circumstances. But it is clear that while the victims' deaths were not "justified" merely because they were drug dealers, a reasonable juror still could have imposed a life sentence because even though their deaths were not "justifiable," a life sentence — not the death penalty — was still the appropriate sanction for their deaths. Under the trial judge's instructions, the jury was unable to fully consider the mitigating circumstances of the offense itself.

The trial judge's inaccurate definition of "mitigating evidence," therefore, violated Lockett, Eddings, and their progeny, as it prevented the jurors from giving full effect to mitigating evidence of Ed Zagorski's background and character, and, importantly, the mitigating circumstances of the offense itself.

This Court is the final arbiter of Tennessee law and also has a statutory duty to determine whether, in this case, the "sentence of death was imposed in any arbitrary fashion." Tenn. Code Ann. § 39-2-24(c)(1)(1982); Tenn. Code Ann. § 39-13-206(c)(1). Exercising these supervisory and statutory authorities, this Court should therefore conclude that Ed Zagorski's death sentence violates the Eighth and Fourteenth Amendment and grant him relief from his death sentence and order a new sentencing hearing. As a result, the state's motion to set an execution date should be denied.

CONCLUSION

This Court should fully consider all the relevant facts and governing principles of federal law, and exercising its supervisory and statutory authority over the death sentence in this matter, this Court should conclude: (1) In violation of the Fifth and Fourteenth Amendments, Ed Zagorski was convicted and sentenced to death based upon unconstitutional statements which were not harmless as to guilt or sentencing; (2) In violation of the Fourteenth Amendment, Zagorski was convicted and sentenced to death based upon an unconstitutional presumption of malice; and (3) In violation of the Eighth and Fourteenth Amendments, he was sentenced to death by a jury that was precluded from fully considering all relevant, mitigating evidence. This Court should grant Zagorski relief from his conviction and death sentence and order a new trial and sentencing hearing. The Court should thus deny the state's motion to set an execution date.

Respectfully Submitted, Paul Bottei #17036 Assistant Federal Public Defender Office of the Federal Public Defender

810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047

CERTIFICATE OF SERVICE

I verify that I have served a copy of the foregoing upon Jennifer Smith, Office of the Attorney General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this 16^th day of August, 2010.

EXHIBITS TO RESPONSE TO MOTION TO SET EXECUTION DATE

Exhibit Exhibit Number Douglas v. Emery Douglas v. Emery Douglas v. Emery Douglas v. Emery The Tennessean Douglas v. Emery State v. Zagorski Psychiatric Effects Of Solitary Confinement Robertson County Times Robertson County Times

Motion To Suppress Transcript, Excerpts. . . . . . . . . . . . . . . . . . 1 Trial Transcript, Excerpts . . . . . . . . . . . . . . . . . . . . . . . . 2 Custodial Statement Of Edmund Zagorski . . . . . . . . . . . . . . . . . . 3 , M.D.Tenn. No. 81-3826 Apr. 15, 1983 (Agreed Order). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 , M.D.Tenn. No. 81-3826, Stipulations. . . . . . . . . . . 5 , M.D.Tenn. No. 81-3826, Anthony S. Kuharich, Report Of Inspection Of Robertson County Jail, May 10, 1983 . . . . . 6 , M.D.Tenn. No. 81-3826, Testimony Of Sheriff Ted Emery. . . . . . . . . . . . . . . . . . . . . . . . . 7 "Juveniles Occupy Dingy Drunk Tank At Robertson Jail," , 1982. . . . . . . . . . . . . . . . . . . . . . 8 , M.D.Tenn. No. 81-3826, Testimony Of Robertson County Lieutenant Elvis Wilson. . . . . . . . . . . . . . . 9 , Motion To Be Removed From Solitary Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 . . . . . . . . 11 Transcript Of Statement Of Ronnie Perry To Larry Wilks, Esq. And James Walton, Esq . . . . . . . . . . . . . . . . . . . . . . . . 12 June 18, 1983 Progress Notes, Jesse Holman Jones Hospital. . . . . . . . . 13 July 3, 1983, Jesse Holman Jones Hospital Emergency Room Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 "Heat Reaches 100 Degrees; Crops Damaged," , July 28, 1983. . . . . . . . . . . . . . . . . . . . . . . . 15 "State Crop Disaster Aid Is Sought By Alexander," , Sept. 8, 1983. . . . . . . . . . . . . . . . . . . . . . . . 16 Robertson County, Tennessee, July 1983, Recorded Temperatures . . . . . . . . . . . . . . . . . . . . . . . . 17 July 16, 1983, Jesse Holman Jones Hospital Emergency Room Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 July 18, 1983, Jesse Holman Jones Hospital Emergency Room Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 July 24, 1983, Jesse Holman Jones Hospital Emergency Room Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 September 5, 1983, Jesse Holman Jones Hospital Emergency Room Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 September 7, 1983, Jesse Holman Jones Hospital Emergency Room Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 September 19, 1983, Jesse Holman Jones Hospital Emergency Room Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Exhibit 1

taken from Mr. Zagorski by Sheriff Emery, Detective Perry, and the Assistant District Attorney, Dee Gay, at the jail.

THE COURT: I am familiar with that. I believe that was set forth in your motion.

MR. WILKS: Yes, sir. And the District Attorney has responded to our discovery request by letter and said that the length of this statement was too long to set out in writing. So we do not have a transcription of this statement to attach to our motion. As Your Honor knows, there was counsel present for the State; there was not counsel present for the defendant, even though on the same date counsel was appointed. We're not exactly sure which came first, whether the statement was taken and counsel appointed for the defendant later or not. But nevertheless, a statement was taken from the defendant.

At this time, Your Honor, I think, as the Court knows, the defendant had, while involved in a shootout with police in the State of Ohio, been wounded. He was ambulatory but, nevertheless, he was subjected to an interrogation at the jail. At this point in time, Your Honor, my discovery records do not reflect a waiver from the defendant as to this statement. The State may have that in its files, but as yet I cannot find a copy in mine that I have received by discovery from the State.

The State, Your Honor — and I would like to cite a all, Sheriff?

A. Since '72, some ten or twelve years.

Q. Did you have occasion to go to the State of Ohio to meet a person named Edmund George zagorski?

A. Yes, sir.

Q. When did you meet with Mr. Zagorski?

A. The first time was near the end of May. Then the second time was when I went to pick him up. I believe it was on the 27th, the day we talked to him at the hospital. We brought him back here the 31st.

Q. You did talk to him at the hospital on May the 27 th?

A. Yes, sir.

Q. Who was with you when you spoke with him?

A. Detective Stollard from Ohio — Ironton, and Perry.

Q. Ronnie Perry?

A. Ronnie Perry from my office, and I believe there was another officer from up there present in the room, but I don't recall his name.

Q. Was Mr. Zagorski advised of his constitutional rights according to the Miranda decision before you spoke with him?

A. Yes, that's the first thing we did.

Q. Did he fill out an admonition and waiver form?

A. Yes, sir. ask him any questions about anything?

A. The only one I recall asking at all was did he know a Myers, some Myers fellow that came up in the investigation. I just happened to think about it, and I just asked him if he knew of anybody by that name, and he replied that he didn't.

Q. That was it?

A. That was it.

Q. When did you arrive here in Robertson County from that trip?

A. As I recall, somewhere around nine or ten o'clock that night, the 31st of May.

Q. The night of the 31st?

A. Yes, sir.

Q. The next day, was there any meeting arranged with Mr. Zagorski and other people?

A. Yes. He was concerned over the money. At this point we contacted Dee Gay to meet with him.

Q. Dee Gay, the Assistant District Attorney?

A. Yes, sir, and myself and Ronnie Perry talked to him in my office.

Q. What time of day or night was this conversation or meeting?

A. As I recall, it was in the morning, nine or ten o'clock.

Q. When this meeting commenced, had Mr. Zagorski been appointed an attorney?

A. No, he came up later on a special arraignment.

Q. Who came up later?

A. Zagorski came up to the — he was brought up later for special arraignment and to appoint him attorneys.

Q. Later after the meeting?

A. Yes, sir.

Q. There was a meeting?

A. Yes.

Q. Just tell the Judge how the meeting got started.

A. The Assistant District Attorney, Dee Gay, asked Mr. Zagorski and myself and Ronnie Perry had he been advised of his rights and he said that he — Ed Zagorski replied that he had been advised of his rights and understood them. He said, you understand that you have the right to have an attorney present for questioning, and he said, yes, that he did. And he — Dee Gay asked him if he wanted to tell us about it, and Zagorski replied that we already had his statement. And Dee Gay told him at this time that he had no opportunity to discuss it with myself or Ronnie Perry about what we had talked to him about, and he was just there to give him an opportunity — if he wanted to tell him, that he wasn't familiar with the statement, which at that point we had nothing.

He said, well, he didn't feel that he needed to answer any questions about the case at that time, you know, that he would probably talk to an attorney later.

Q. Well, let me ask you; what were his words?

A. Okay, he advised us at this point that he would talk to us about his background. Dee Gay, as I recall, asked him would he just give us some information about his background.

Q. Was any discussion had between Mr. Gay or Mr. Zagorski about whether or not the murders were going to be talked about?

A. Dee Gay told him, you know, if you don't want to answer anything about that, we just want to get some general information from you. You can stop answering at any time; he told him this at that point again; that you can stop answering at any time; that we need to get some information about your background.

Q. Was it made clear, Sheriff Emery, to Mr. Zagorski that you weren't going to ask, or Mr. Gay wasn't going to ask any questions about the murders?

A. That's correct.

Q. Was that satisfactory to Mr. Zagorski?

A. Yes, sir.

Q. What did he say?

A. He said, fine, he would answer the questions; that he understood that he didn't have to answer anything without an attorney.

Q. Well, were questions asked about his background or his past?

A. It was asked about Jimmy Blackwell, if he knew him. He advised us that he had done dope deals with Jimmy Blackwell. At this point Mr. Zagorski appeared to be very angry with Mr. Blackwell, and Dee Gay was not aware of why. Mr. Zagorski had read the affidavit on the warrant.

Q. The arrest warrant?

A. The arrest warrant, which named Jimmy Blackwell as giving certain information. Mr. Zagorski made — said that he had done the dope deals with Blackwell before, and he had known him a pretty good while. We talked on about general information, where he had been. He went into some things about mercenaries.

Q. What did he say?

A. That he had been dropped off by plane, parachuted into Hickman County, and he was thinking about going to some type of mercenary school in the Columbia, Tennessee area; that he had heard there was one there.

Q. Did he tell you where he had come from?

A, He said that he had been a riverboat — a boat pilot in Louisiana, and he had been a mercenary since about 1980; that he came up here for some training, extra training.

Q. Did you ask him who he was a mercenary with?

A. Yes, and he said he didn't want to answer that, and we didn't question him any more about who it was. We asked him about Blackwell and some of the people that just came up casually in our investigation. This had been going on two or three weeks prior to picking him up. It evidently wasn't worthy of taking notes on. He either said he didn't know them and that was the end of it.

Q. How did you get to talking about drugs, Sheriff?

A. Okay, he was talking about the mercenaries, and he said the way mercenaries finance their operation is mostly through drugs, through the sale of drugs; that they bring them back from the country they're working in and sell them to help finance. And then he said there was other ways to finance them. He didn't elaborate on that, and we didn't question him on it. But somewhere during that point of the conversation he said something to the effect, I might as well make it easy on you.

Q. Before you say that, let me ask you about what you mentioned earlier in your testimony. You said that he apparently was mad at Jimmy Blackwell. How did that come out?

A. When we were talking about Blackwell, he blurted out, makes me mad that Jimmy would betray me over the knife case. That was in the affidavit.

Q. what's the knife case?

A. The knife case was this boot type knife, double-edged knife, the scabbard that the knife goes in.

Q. What did that have to do with anything?

A. It was in the affidavit that was found at the scene of . . .

Q. Where the bodies were found?

A. Bodies were found.

Q. Mr. Zagorski had read the affidavit?

A. Yes, sir.

Q. So what did he say about that?

A., What he blurted out at this point was that it made him mad that Jimmy would betray me over the knife case.

Q. Then where did the conversation lead?

A. Okay, he said that, I might as well make it easy on you, or something to that effect. At this point, Dee Gay stopped him.

Q. Why?

A. He stopped him and advised him that he didn't have to answer any of that without an attorney present.

Q. What did Mr. Zagorski say?

A. He continued to talk.

Q. What did he say?

A. He said, I might as well make it easy on you.

Q. On who?

A. Make it easy for us; that he would just go ahead and tell us, you know. charge here?

A. Yes, sir.

MR. WHITLEY: Your Honor, I'd like to make this rap sheet part of the record.

THE COURT: All right.

(Whereupon, Exhibit No. 2 was marked and filed.)

THE COURT: Anything else, General?

MR. WHITLEY: Your Honor, that's all of my direct.

CROSS-EXAMINATION BY MR. WILKS

Q. Now, Sheriff Emery, with regard to the June 1, 1983 statement from the defendant, I understood your direct testimony to be that you weren't going to ask him any questions about the homicide. Is that right?

A. Yes, sir.

Q. Now, this interrogation, it took place in your office?

A. Yes, sir.

Q. Was the defendant shackled?

A. I imagine — he might have had leg irons on, yes, sir.

Q. Did he also have the wrist or belly chains on at that time?

A. I don't recall if he had one or both on at that time.

Q. I believe you returned from Ohio on May the 31st. Is that right?

A. Yes, sir.

Q. About what time did you all return?

A. It was, I believe, nine or ten o'clock when we got in.

Q., At night?

A. Yes, sir.

Q. Nine or ten p.m. on May the 31st. At that time was the defendant placed in a special cell at the jail that you had prepared for him?

A. I don't recall if he was put in that. It might have not been finished hardly when we got back.

Q. Where would he have been put, if he was not put in the special cell?

A. One of the drunk tanks, more than likely, if we did not have that cell finished.

Q. So he was segregated from the rest of the population?

A. He was segregated, yes, sir.

Q. Now, I believe that you have relied on an execution and waiver from your May 27 or 28 interrogation of the

Q. Now, Sheriff, if you would, come down to approximately the middle of the page where it says, (Reading)

Emery: Okay, now that you know what your rights are, let's turn on the tape recorder. There. See what you want to answer.

Do you have that place with me?

A. Yes, sir.

Q. Mr. Zagorki's response was, (Reading)

I wasn't going to make no statements or answer any questions.

Is that correct?

A. Yes, sir.

Q. Next line, (Reading)

Mr. Emery: You don't want to answer any questions at all?

Mr. Zagorski: If you will (inaudible).

It's pretty serious (inaudible).

Mr. Emery: Yes, sir.

Mr. Zagorski: It's not that I'm trying to get — hard to get along with, but —

Mr. Perry: I know what you mean, Buddie.

I know what you mean.

There are several questions there that really aren't relevant to this inquiry. If you would turn to the second page, about a third of the way down where Mr. Emery asks — I believe you asked Mr. Zagorski a question, from where. Do you find that line?

A. What did you say now?

Q. On the second page, about a third of the way down.

A. Yeah.

Q. Mr. Zagorski responds, (Reading)

Well, I better not. There is other people involved and I better not answer any questions (inaudible).

A., Yes.

Q. That's correct, is it not?

A. Yes, sir.

Q. This is after he has executed a waiver. Is that correct?

A. Yes, sir.

Q. If you would, help me by reading the next thing that you said.

A. (Reading) Jimmy Blackwell and Salli picked you up?

Q. And Mr. Zagorski responded, (Reading) Who, Jimmy Blackwell? See, I knew there would be questions like that (inaudible). Well, like I said, I really should not talk about it.

Is that correct?

A. Yes, sir.

Q. Would you read the next thing that you said?

A. (Reading)

Well, I'm really not dealing in the homicide. I'm just asking you some questions. It's your right to remain silent.

Q. Mr. Zagorski responded, (Reading) Like I said, I guess I really should talk to a lawyer (inaudible).

Is that correct?

A. Yes, sir.

Q. Isn't it true that the questioning should have stopped at that time?

A. Well, at the front part of this — part of it there, what he said there, and they couldn't read in the tape, was the fact that, you know, we wanted just basically some information about his history; not anything doing with the murder, and he agreed to answer that. All these questions were dealing with how he got to Hickman County, nothing about the murder or anything after the date he got there; just how he got to Hickman County from Louisiana.

Q. So the same — you're saying the same thing occurred on June the 1st, that you and District Attorney Gay and Mr. Perry advised him, we're not going to ask any questions about the murder; we just want some background information?

A. Yes, we tried to find out — as you can see, he didn't answer anything about Blackwell much in there.

Q. But as I understand your direct testimony, you said that Mr. Zagorski stated to you and Mr. Gay and Mr. Perry on June the 1st that he didn't want to answer any questions without a lawyer being present?

A. Yes, sir.

Q. Nevertheless, the interrogation continued after that?

A. We asked him if he would answer questions about his background. We had nothing on him.

Q. But you continued to ask him questions. Is that correct?

A. Yes, sir.

Q. After he made that statement?

A. After he agreed that he would talk to us about those type questions.

Q. What I'm saying is, you continued to insist on asking him these sort of questions, even after he had asked for a lawyer. Is that correct?

A. No, we didn't insist on asking him anything. He agreed to that because he was apparently the type of character that, you know, well, I'll answer those questions or, you know, I just don't want to deal in this, and that's the type question we proceeded with.

Q. But I understood your testimony on direct to be that he said he didn't want to — at least on one occasion in your interview he said, I don't want to answer any questions about the murder without a lawyer being present. Is that right?

A. Yes, sir.

Q. Nevertheless — let me back up and ask you one other question. Isn't it also true that he said that he didn't want to answer any questions without a lawyer being present, just like he did on May the 27th when he said, I guess I should — I probably should talk to a lawyer.

A. No, not on the first; not any questions, no.

Q. You've said that the interrogation on June the 1st started about nine or ten o'clock. Is that right?

A. As I recall.

Q. How long did it go on?

A. Maybe an hour or less.

Q. What time did Mr. Zagorski come to the courthouse? Do you recall?

A. No, sir, I don't. I believe it was one o'clock, but I'm not sure.

Q. Were you and Mr. Gay and Mr. Perry all three present during the course of the conversation?

A. Yes, sir. his background and how he ended up in Hickman County, and he rambled a lot about mercenaries and boats and this type thing. It was a lot of that went on during the thing.

Q. Did he ever, during the course of your conversation with him on June the 1st, specifically refuse to answer any specific questions?

A. There was things he said, even after he started in on this, like who was with him, you know, after he told us this. He would say, I don't want to answer that. He wouldn't answer anything else about it.

Q. Would you continue to ask him questions after he had refused to respond to your question?

A. No, he never refused to respond to any particular question. He was told, like I said, three or four times that he had the right to stop at any time or not answer any question he didn't want to. When it was a question he didn't want to answer, he just flat told us he didn't want to answer it. Dee Gay asked him, if you're not involved in the murder, why don't you tell us who done it then? He said, I didn't say I wasn't involved in the murder.

Q. I thought you weren't going to ask him any questions about the murder?

A. This was — that's right, on the front. After the third time — when he started to talk about it — at the point he said, I want to make it easy on you — I'll just make it easy on you and tell you then, Dee Gay stopped him. He interrupted him and told him, you know, if you're going into the murder, you have the right to talk to your attorneys first. He said, I'll just go ahead and make it easy on you.

Q. Why didn't you all stop and execute a written waiver?

A. We already had one, you know, that he had signed that he had been read his rights and knew what his rights were, and he had been told numerous times he had the right to have an attorney there before he answered any questions; verbally, he was told numerous times.

Q. But you all three knew this was a murder case?

A. Yes, sir.

Q. You knew that the defendant didn't have an attorney appointed yet, according to the timing that you've given us?

A. Yes, sir.

Q. You knew that it had been since May the 27th or 28th since he had executed any kind of waiver, and you knew that during that conversation at Cabell-Huntington Hospital on the 27th that he had specifically asked for a lawyer. So why didn't you stop and get a written waiver on June the 1st?

A. Because we were satisfied with a clear conscious he knew what his rights were, and he was told the part about the attorney numerous times.

Q. Sheriff Emery, is it true that there was some

THE COURT: Were there other statements?

MR. WILKS: Yes, sir, there were two other possible statements, Your Honor. Your Honor, would you prefer to rule on each statement as it comes up or wait until the end and make one ruling?

THE COURT: I believe I'd rather wait.

MR. WILKS: Yes, sir. Your Honor, the next area of inquiry in our motion to suppress statements concerns July the 27th, 1983, and August the 1st, 1983, and possibly on some other occasions, but we're not sure. The defendant was interrogated by Detective Perry. Your Honor, these contacts occurred clearly after counsel had been appointed for the defendant. They took place without any notice being given to counsel for the defendant. They occurred at the jail. They occurred at a time the defendant was in solitary confinement in the jail in an eight by eight foot steel room. It occurred at a time when the heat in the jail, all over the jail, was almost unbearable, but it was particularly so where the defendant was kept because he was, in fact, segregated from the rest of the population, and had been for a significant period of time. There was little, if any, ventilation.

The Sheriff's Department had been kind enough to provide a small fan that blew through about an eight inch area where there were steel bars, and everywhere else surrounding the defendant was steel, solid steel. It was a time when the

A. Yes, sir, he had a bullet-proof vest on.

Q. Were these the reasons he was placed in this isolation cell in Robertson County?

A. Part of them, yes, sir.

Q. Did Judge Pellegrin, the Criminal Court Judge at that time, know that he was placed in an isolation cell?

A. Yes, sir, I believe he did.

Q. What occasioned you to talk to Mr. Zagorski on July the 27th of 1983?

A. I previously received two notes from Mr. Zagorski saying that he wanted either to see myself or the Sheriff.

Q. From whom did you receive the notes?

A. They were put in our — we've got a box downstairs that we get messages and notes, and they were put in that box.

Q. When did you receive the notes?

A. When did I receive them? I believe it was July 22nd.

Q. At the time you received the notes, had you-initiated any contact with Mr. Zagorski?

A. At the time I received them?

Q. Right.

A. No, sir.

Q. Had the Sheriff, to your knowledge?

A. No, sir.

Q. Had any law enforcement officer sent word to Mr. Zagorski that you wanted to talk to him?

A. No, sir.

Q. I've got two scraps of paper here with some writing on it. See if you can identify those.

A. Those are the notes received from Mr. Zagorski.

Q. The first one says what?

A. (Reading) I need to see the Sheriff or Ron Perry, Ed Z or E.D.Z.

Q. What does the next one say?

A. (Reading) I need to talk with Ron Perry or the Sheriff. It's got, E.D.Z. on it.

Q. Did you receive both of these notes at the same time?

A. Yes, sir, I got them out of the box at the same time.

Q. Is that the first time you were aware of them?

A. Yes, sir.

MR. WHITLEY: I'd like to make these a collective exhibit and hand them to Your Honor.

THE COURT: All right.

(Whereupon, Exhibit No. 3, collective, was marked and filed.)

Q. When you received these notes on July the 22nd, Mr. Perry, did you go and see Mr. Zagorski that day?

A. No, sir, not on that day, I didn't.

Q. You went to see him on July the 27th?

A. Yes, sir.

Q. Why did you wait from the 22nd until the 27th to see him?

A. I really hadn't got no good reason for it; just being busy.

Q. No particular reason?

A. No particular reason. .

Q. Did you have any idea what he wanted with you?

A. None whatsoever.

Q. What happened when you went to see him?

A. Well, I believe it was before the preliminary hearing in General Sessions Court. I was at the District Attorney's Office, and I got a phone call from the jailer-saying that Ed wanted to talk to me before we went to court.

Q. Ed Zagorski did?

A. Yes, sir. He said it was real important. So I went back down to the jail and went in the lower cell block into Ed's cell and asked him what he needed. He asked me, said, what's going to happen today? I said, well, we've got to show proof, and then it will probably be bound over to the Grand Jury. He said, are my lawyers going to be there? I said, yes. He said, well, I'll tell you what I'll do — if you'll let me pick the type execution and the day of execution, I'll confess to these murders. I told him, I said, look, man, you need to stop right here and go talk to your lawyers; don't be doing stuff like this right now. He said, well, he didn't need to talk to his lawyers; he knowed what he wanted to say. I said, well, I think you need to talk to them. He said, well, them men wasn't killed up here. I said, they wasn't?

Q. He said what?

A. He said, those two men weren't killed up here.

Q. Weren't killed up here?

A. I said, they wasn't? He said, no, they were killed down in Hickman County and Boiling Springs. That was about the extent of the conversation.

Q. Well, did you ask him any questions?

A. Not that I can remember.

Q. Did he provide any other information, other than the fact that the men weren't killed up here; they were killed in Boiling Springs?

A. Not that I can remember at that time.

Q. Did you have another occasion to talk to Mr. Zagorski?

A. Yes, sir, I did.

Q. When was that?

A. I believe it was on — I forgot that date.

Q. Mr. Wilks mentioned earlier the date of August the 1st. Does that help you?

A. Yeah, I believe that's correct, August the 1st.

Q. Tell the Judge how that came about?

A. Well, I was in the office and the jailer called me and told me that Ed was wanting to talk to me. He said it was pretty important again. I said, well, I'll be down in a few minutes. I went downstairs and they got him out. We went in the Lieutenant's office and sat down and started talking.

Q. What did he say?

A. He was wanting to talk about the murders again. He said that he wasn't the trigger man in the murders, but he did have something to do with them. He said that he just set them up; said he was hired by a man from — no, it was a man from Florida that was the trigger man, and all he done was drove them to the spot in Boiling Springs. He got out of the car, Porter and Dotson got out of the car, and they were shot.

Q. Did he say how they were brought up here?

A. He said they were put in plastic bags and carried up here.

Q. Did he say what his job was with regard to the murders?

A. Just set the murders up. He said that Dale Dotson's killing was a mistake. He said the person he was hired to kill was Jimmy Porter.

Q. Did he say why?

A. He said it was drug related. That was all he would say.

Q. Did he say how long it took for them to be killed?

A. About five seconds. That's what he said.

Q. Well, again, on this August 1st date, did you ask Mr. Zagorski any questions?

A. None that I can think of.

Q. The second time that you went down to see Mr. Zagorski, did he acknowledge that he had sent for you?

A. I did ask him a question. I said, was you wanting to see me? He said, yeah. He said, you're a hard man to get ahold of.

MR. WHITLEY: That's all I have on direct, Your Honor.

CROSS EXAMINATION BY MR. WILKS:

Q. Detective Perry, you were present when the defendant, Ed Zagorski, executed a waiver in West Virginia?

A. Uh-huh.

Q. When Ed Zagorski got ahold of you — or whatever occurred on July the 27th and August the 1st — and left you those notes, when you went in the cell or the office to talk to Ed Zagorski, were you still relying on that waiver executed?

A. Well, I wasn't really interrogating him or anything, but if I had been interrogating him, I would have relied on that waiver.

Q. After you asked Mr. Zagorski what can I do for you or whatever, did you ever at any time ask him any other question on July the 27th?

A. July the 27th?

Q. Yes, that's the first statement.

A. As far as asking him any questions, I can't recall that I did. The only thing I done on that day was told him that he really needed to talk to his lawyers before he made any kind of statements to me like that.

Q. It's my understanding — and you correct me if I'm wrong — isn't it true that he said that he wanted to be executed on Halloween night at midnight, and he would confess to these statements?

A. (Responded in the negative.)

Q. That's not correct?

A. I didn't hear it, if it is.

Q. Let me ask you again then: what were his exact words when he said something about if I could name my execution?

A. He told me, he said, you know, Ron, I'd confess to these murders if you all would do one thing for me; if you all would let me pick the type of execution and the date and time of execution. I told him, I said, you need to start talking to your lawyers, Ed; you don't need to be telling me stuff like that.

Q. He didn't say he wanted to be shot by firing squad at midnight on Halloween night?

A. No, not to me, he didn't.

Q. Now, let's go back in time for just a moment. You understand that Ed Zagorski had been incarcerated in the Robertson County jail since May the 31st?

A. Uh-huh.

Q. That he had been incarcerated in that eight by eight foot special cell since May the 31st or as soon thereafter as it was completed. Do you remember if it was completed when he first came there?

A. I don't think it was.

Q. Do you know how long it was before he would-have been moved into that cell?

A. It wouldn't have been long.

Q. A day or two, at most?

A. I can't say for sure, but I don't think it was long.

Q. Give or take a day from June the 1st, Ed Zagorski had been segregated from the rest of the population in the jail. Is that right?

A. Yes, sir. defendant as a high security risk. Is that correct?

A. Yes, sir.

Q. Isn't it true that no one but Ed Zagorski has ever been in that eight by eight foot cell at the jail?

A. It was built —

Q. Just for him?

A. It was built so we would have a security cell. We're presently in a Federal suit, and we didn't have any isolation cell; therefore, we cannot have disciplinary hearings or anything on any prisoners. We had started on it. It was already a cell isolated by separate doors, so we decided we'd just put the steel around it and make one, and we did need it, in particular, at that time.

Q. So he's the only man that's ever stayed in that cell?

A. No, we've had others in there since he's been gone.

Q. Since he's left?

A. — Yes, sir.

Q. And, basically, he was in solitary confinement, wasn't he?

A. Well, yes, he was the only one in there.

Q. He never received any sunshine, except the day that he came up here to the preliminary hearing while he was incarcerated?

A. Yes, sir.

Exhibit 2

that we took out of a jacket pocket at the hospital. He was wanting to know if we could get that back. I told him or Sheriff Emery told him that we would have to arrange a meeting between you or the D.A.'s office and him, and they could discuss the money. As far as we were concerned, it was going to be held as evidence.

Q. What occurred then when you got back to Robertson County?

A. We got back late that night on May 31st. The next morning, I arranged a meeting between General Gay, Mr. Zagorski, myself, and Sheriff Emery.

Q. What date would that have been?

A. That would have been June 1st.

Q. Where was that meeting held?

A. The meeting was held in Sheriff Emery's office at the Sheriff's Office.

Q. Who was present at that meeting?

A. Myself, General Gay, Sheriff Emery, Edmund Zagorski, and a guard on the door — I believe it was Herbert Dodd.

Q. Tell the Judge and the jury about what happened then.

A. On that day when the meeting started, General Gay asked Mr. Zagorski if he knew his rights and understood what his rights were. Mr. Zagorski replied that he had already had his rights read to him and he did understand what they were. General Gay asked him if he minded talking — General Gay explained the charges to him that we had against him, and did he mind if we asked him about the murders. Mr. Zagorski replied that he didn't really want to talk about the murders at that time. He'd kind of like to talk to a lawyer first. At that time General Gay asked Mr. Zagorski if he minded talking about his past. Mr. Zagorski said, no. He said back between 1978 and 1980 he —

Q. Stop right there. Was he given any advice before he went any further?

A. Yes, sir, he was told that he didn't have to talk to us at all. It was on his free will that he did.

Q. Was he advised that he had the right to talk to an attorney?

A. Yes, sir, he was.

Q. What was the substance of the conversation at that time?

A. Mr. Zagorski stated that between 1978 and 1980 he did a lot of boating and sailing off of Louisiana. In 1980 he began mercenary training. He said he came to Tennessee to attend a mercenary training school somewhere close to Columbia, Tennessee, but didn't say where it was. He said that he — he said he was planning on attending a mercenary school close to Columbia, but never did attend it. He was then asked if he knew Jimmy Blackwell. He said, yes, he did. He acted like he was kind of disappointed. He said, I thought Jimmy was one of my friends, but I don't guess he was. He should have kept silent about the knife and the knife case and other things he told.

Q. Let's stop right there just a second. When he was talking about the mercenary, did he give the name of any of his associates?

A. No, sir, he wouldn't give the name of any of his associates.

Q. Was he asked to?

A. Yes, sir.

Q. Did he talk about how his organization was financed?

A. Yes, sir, he was asked how a mercenary organization would finance theirselves, and he said that it was a lot of ways to do it, but the biggest way to do it was through drug transactions.

Q. Is that when he talked about Jimmy Blackwell?

A. Yes, sir.

Q. Please repeat again what he said.

A. He was asked if he knew Jimmy Blackwell, and he said, yes, he did. He said that he thought Jimmy was his friend, and that he thought Jimmy should have remained silent about the knife case and other information that he told us.

Q. At the time that you had talked with him down there at the Sheriff's Officer, had he read the arrest warrant?

A. Yes, sir, he had.

Q. What was the substance of the conversation after this was brought up?

A. At that time Mr. Zagorski paused and he said, well, I think I'll just make it easy on you all and tell you what I know about the murders. At that time he was stopped, asked him again if he knew what his rights were, and that he didn't have to talk to us until he talked to a lawyer, and that he could stop talking at any time if he was going to talk to us about the murders until he talked to a lawyer.

Q. Do you remember him making any other comments before he stated that?

A. No, I don't.

Q. Then what did he tell you?

A. He said he met Dale Dotson at Lakeland Trout Farm in Hickman County. He said he set up a drug transaction between himself and Dale Dotson.

Q. What was the substance of that particular arrangement?

A. Mr. Dotson was to buy two hundred pounds of marijuana from him for a hundred and fifty dollars a pound.

Q. He said two hundred pounds?

A. That's what he said.

Q. Okay.

A. He said on April 23rd he met Dale Dotson and another man, who was later identified to him as Jimmy Porter, at Spot, which is located just outside of Bucksnort. He said Mr. Dotson and Mr. Porter were driving a red Datsun pick-up truck with a camper topper on it, and he and another one of his mercenary friends had another car there. He said they left. He and his mercenary friend got in their car and Porter and Dotson followed them in the pick-up truck. He said they got on I-40, drove towards Nashville. When they got to Dickson, they picked up another car that had two more mercenary friends in it. They drove to Nashville, got on I-65 headed north towards Kentucky and stopped about eight miles south of the Kentucky line on I-65.

Q. Would that have been in Robertson County?

A. That would have been in Robertson County.

Q. What did he say happened at that point?

A. He said at that point everybody exited their vehicles and were standing on the side of the road, and one of his mercenary friends told him to take Porter and Dotson's pick-up truck and go to the Welcome Center and wait. He also said that one of his mercenary friends took his .308 rifle with suppressor and his web gear, and they went off into the woods as he was driving off.

Q. What did he say his job was?

A. He said he was to go to the Welcome Center and stand by there in case any of the F.B.I. or any police agency showed up, he was supposed to come back and take care of them, meaning kill them.

Q. He did say kill?

A. Yes, sir.

Q. What did he say happened next?

A. He said he stayed there somewhere between thirty and forty-five minutes, and then his mercenary friends showed up there. They gave him five thousand dollars, his web gear and his suppressor, and his rifle back, and told him to take the pick-up truck and leave. He said that he did that and drove to Ironton. Before he got to Ironton, he let one of his mercenary friends off, I believe it was in Lexington. I'm not sure on that.

Q. Did he say that he was given any other property, belonging to anybody else, any other weapons?

A. Yes, sir, he said he was given a .357 magnum Colt.

Q. Now, tell the jury what web gear is.

A. Web gear is just a military type belt, which would hold a canteen, ammo pouches, just stuff that you would use in the military.

Q. Would he ever reveal the names of his associates in this particular event?

A. No, sir, he wouldn't.

Q. What did he say that he did up in Ohio?

A. He said he met with James Rodney Bruce and was going to stay there for a little while. He said he spent approximately forty thousand dollars up there.

Q. He did say forty thousand dollars?

A. Yes, sir.

Q. Did he tell you what he bought up there?

A. He said he bought a lot of weapons, ammunition, horses, a truck, and two motorcycles; numerous things.

Q. Was he asked about the red pick-up truck that he drove up there and why he got it?

A. Yes, sir, he was. He was asked why he drove the red pick-up truck which Porter and Dotson occupied, instead of going off in his vehicle. He said that it was common in large drug transactions to exchange vehicles between the people that were making the transaction, and he didn't think nothing about it.

Q. Was he again asked to name his associates?

A. Yes, sir, he was. He was asked, if he wasn't involved in the murders, would he name his associates. He said, no, he couldn't name his associates. He also stated that he didn't say that he wasn't involved in the murders.

Q. Was there any talk about the money?

A. Yes, sir, there was. He asked General Gay if he could have his money back; that was his, that he had earned

Q. Detective Perry, did you have another occasion to talk to the defendant, Mr. Zagorski, after June 1st when you first talked to him?

A. Yes, sir, I did. I had an occasion to talk to Mr. Zagorski on June 27th in the morning. We were preparing for a preliminary hearing. I was in General Gay's office, and Mr. Zagorski got word to the jailers that he wanted to speak to myself or Sheriff Emery. The jailer, in turn, called me at General Gay's office, and I returned to the Sheriff's Office. I went into the maximum security cell or just outside of it where Mr. Zagorski was being held and asked him what he wanted.

Q. Did you talk with him then?

A. Yes, I did. I talked with him, and it was very brief; probably about three minutes. He said that he and two other men had been hired to kill Jimmy Porter, and that John Dale Dotson's death was a mistake.

Q. Did he tell you anything else about the murders?

A. Said the murders occurred in Boiling Springs, which is just outside of Bucksnort.

Q. Is that in Hickman County?

A. I believe it's in Humphries County.

Q. Did he talk with you any more about the murders at that time?

A. No, sir, at that time, he didn't.

Q. Did you have another occasion to talk with the defendant, Mr. Zagorski?

A. Yes, sir, I did.

Q. Tell the Judge and the jury about those circumstances and what happened.

A. I got word from the jailer again on another date. I believe it was July 1st. I'm not sure on the date.

Q. Was it sometime in August after the preliminary hearing?

A. Yeah, it was after the preliminary hearing. I went to Lieutenant Wilson's office downstairs. Mr. Zagorski was brought into Lieutenant Wilson's office, and we sat down and started talking. I asked him, I said, well, what do you need, Ed? He said, as I told you, myself and two other men were hired to murder Jimmy Porter. He said, one of the men is from Florida, but he wouldn't name the man. He said that he picked the two defendants up, and they drove to a place on the side of the road in Boiling Springs. He exited the vehicle that they were in. Then Jimmy Porter and Dale Dotson exited the vehicle, and within five seconds after they exited the car, they were shot to death. Said then their bodies were put in plastic bags and brought up here in Robertson County and dumped.

Q. Did you or any other law enforcement official in Robertson County, during the searches up here, find any bags?

A. None.

Q. How wide a search did you conduct?

A. We conducted a very thorough search of the crime scene, and probably five to six hundred yards around the crime scene in every direction.

Q. Did you find any bags from the Ohio authorities of this type, bloody bags?

A. No, sir.

Q. When you went up to Ohio, did you go through and check thoroughly the red Datsun pick-up truck?

A. Yes, sir, myself and Sheriff Emery did.

Q. Why did you do that?

A. To check for bloodstains.

Q. Tell the jury about your investigation into that.

A. When we went to inspect the red Datsun pick-up truck, I took several pictures of it. It had carpet in the back with padding under it. We inspected the carpet and did not find but one place that it was stained. We cut that stain from the carpet, cut the carpet out, and the padding also was stained, so we cut the carpet padding out, too. I sent both to the crime lab.

Q. Where exactly was this carpet?

A. It was in the bed of the truck at the back end of it. don't know — because maybe their activities or interest were in the marijuana area. But have you noticed throughout the course of this trial who initiated the marijuana talk? That man. Or have you noticed that the talk turns to marijuana around that man?

Don't forget this when you go back there to deliberate, that the law applies to everybody everywhere, no matter if it's on the street, no matter if it's on the church, at the church, at the store, the courthouse, country club, even the 113 mile marker in Robertson County. The law applies everywhere. First degree murder is first degree murder no matter where it is. Don't forget that.

When you go back there to deliberate, consider the different accounts of the murders that Mr. Zagorski gave to different people at different times. To Martha Beasley he said that he was there at the murders and that he knew who did it and that his job was to blow away any officers that came. You recall what he stated to Rodney Bruce. He summed it up in two simple words, zip, zip. And the three statements he made to Detective Perry about the incident. The first statement was made after Mr. Zagorski had read the arrest warrant and he explained why some of his belongings were found here in Robertson County.

You remember that first statement that he gave Detective Perry. He testified that he met the men down the Bucksnort area with another unidentified cohort of his. Mr. Porter and Mr. Dotson were in their red pick-up truck. They caravaned up to Dickson and met two more of Mr. Zagorski's unidentified cohorts. All three of them came up to Robertson County, and they just happened to stop eight miles south of the Kentucky state line, which is right around the 113 mile marker.

Mr. Zagorski told Detective Perry that he was ordered to go to a rest stop up in Kentucky and to blow away any officers that came. I don't know what good he could do in Kentucky blowing away officers up there, when Kentucky is at least eight miles north. But somehow somebody got his web gear, somebody got his .308 with a suppressor on it that really doesn't make much difference anyway, and they went in the woods in Robertson County with John Dale Dotson and Jimmy Porter.

After that time, you recall he told Detective Perry that his cohorts gave him five thousand dollars and told him to take that red pick-up truck, and gave him the .357 magnum. That's close to being the truth. That's close.

You recall he also told Detective Perry that there are different ways to finance a mercenary organization; primarily, the main way, was through drug deals. You recall what he said to Detective Perry about Jimmy Blackwell. He said he was mad at Jimmy Blackwell. He betrayed him about the knife case, that he should keep silent. One time he said, okay, I'll make it easy on you. Another time he told Detective Perry during the course of that interview something to the effect that, I didn't say that I wasn't involved in the murders.

Then you recall the substance of another statement that Detective Perry testified to, a conversation that he had on July 27th with Mr. Zagorski after Mr. Zagorski stated that he wanted to talk to him. Mr. Zagorski implicated himself in a murder for hire situation during that conversation. You recall that. He stated basically that he and two other men were involved in the murders and that he was hired to kill Mr. Porter. He stated that Mr. Dotson's death was a mistake and that he wasn't to have been killed. Murder for hire. He also testified that the murders occurred in Red Boiling Springs.

Detective Perry also testified to the substance of another conversation on August 1st where Mr. Zagorski further implicated himself in a murder for hire situation. Mr. Zagorski indicated that the murders occurred again in Boiling Springs, and after Mr. Dotson and Mr. Porter were killed, they were brought up here in Robertson County in plastic bags and dumped here. He further indicated to Detective Perry at that time that Mr. Porter and Dotson got out of their vehicle, and you recall he said they were killed within five seconds after the car stopped. Five seconds after the car stopped. unless we have met that burden. I'm not going to talk about that anymore.

He talked about some of the things that Mr. Gay said to you in his opening argument to you earlier this morning. He talked about Mr. Gay saying that the proof showed that they drove to Robertson County, that they walked into the woods, that there was no marijuana, and that the victims, Mr. Porter and Mr. Dotson, were executed by the defendant. Well, is that backed up by proof or is that backed up by theory or probability? Just ask yourselves that question. Mr. Walton asked you some questions earlier. I might ask you some questions later on myself.

But remember the, aside from all the other testimony that you've heard in this case, and I'm not just wanting to eliminate that simply because I don't mention it, but remember that Mr. Zagorski, when he got down here from Ohio after he had waived extradition to come back to Tennessee, told General Gay and Detective Perry and the Sheriff, Sheriff Emery, that yes, we met down in Hickman County, just like Marsha Dotson and Jimmy Blackwell said that they were supposed to — they overheard the conversation. We met down there in Hickman County. They, Dotson and Porter, were in Porter's pick-up truck. I was with another mercenary. We drove through Nashville, drove up toward the Kentucky line. Somewhere along the line we picked up another vehicle with mercenaries in it. That was out of Mr. Zagorski's very own lips. That's in view of all the hard, hard evidence that we have introduced here as exhibits.

Mr. Gay said they walked into the scene where they were murdered. All right. You heard the testimony of Detective Henderson wherein he said with a four-wheel drive truck on the May the 6th of 1983, the Sheriff's Office went back there and got mired up, had to have the four-wheel drive truck pulled out.

Now, you all have been living in the state of Tennessee for a long time, most of you; probably all of you. Last spring, reflecting on your own common knowledge and experience, was a very, very, very wet spring, extremely wet in the spring, looked like it was never going to stop raining. You remember that, I'm sure. Later on in the summer, it looked like we were never going to get any rain. It was an odd year.

At the time these people were murdered by Mr. Zagorski, we were in a wet spring. What did Mr. Baggett say, there's no way to get back to where the bodies were, unless you went through three fences, went through a locked gate, or went way down the road somewhere and crossed a gate. No, I didn't see any signs of tire tracks or anything at all. No evidence whatsoever that any kind of vehicle whatsoever got back there to dump two dead bodies here in Robertson County.

Ladies and gentlemen, when you retire to consider your verdict, you should consider each count separately. As to count number one and count number two, you will first determine whether the defendant is guilty of first degree murder. If you find the defendant not guilty of first degree murder as charged in count number one and count number two of the indictment, or if you have a reasonable doubt thereof, then your verdict must be "not guilty" as to first degree murder, and then you will proceed to determine his guilt or innocence of the lesser included offenses.

If you find the defendant not guilty of any of the lesser included offenses or if you have a reasonable doubt thereof, then your verdict must be "not guilty."

I will now proceed to explain to you what in law it takes to constitute the offenses charged in this indictment.

First degree murder. Any person who willfully, deliberately, maliciously, and with premeditation kills another person is guilty of murder in the first degree.

For you to find the defendant guilty of murder in the first degree, the State must have proven beyond a reasonable doubt:

1. That the defendant unlawfully killed the alleged victim;

2. That the killing was malicious; that is, that the defendant was of the state of mind to do the alleged wrongful act without legal justification or excuse. If it is shown beyond a reasonable doubt that the alleged victim was killed, the killing is presumed to be malicious in the absence of evidence that would rebut the implied presumption;

3. That the killing was willful; that is, that the defendant must have intended to take the life of the alleged victim;

4. That the killing was deliberate; that is, with cool purpose; and

5. That the killing was premeditated. This means that the intent to kill must have been formed prior to the act itself. Such intent or design to kill may be conceived and deliberately formed in an instant. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. It is sufficient that it preceded the act, however short the interval. The mental state of the accused at the time he allegedly instigated the act which resulted in the alleged death of the deceased must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation. Passion does not always reduce the crime below murder in the first degree, since a person may deliberate, may premeditate, and may intend to kill after premeditation and deliberation, although prompted and to a large extent controlled by passion at the time. If the (Whereupon, at 6:46 p.m. the jury retired to begin its deliberations.)

THE COURT: Court will be in recess pending deliberations of the jury.

(Whereupon, at 6:50 p.m. the jury returned to open court.)

THE FOREMAN: Your Honor, we were wondering if it would be possible that we get a good definition, explanation, of what would constitute a mitigating circumstance?

THE COURT: Mitigating circumstances are within your province, if there are any. You have heard the evidence of the case, and no additional evidence was produced at the sentence hearing, so you may consider all of the evidence that was presented in the entire case. The law sets out certain mitigating circumstances which have no particular applicability in this case, but you're not limited to those, so you can consider any mitigating circumstances that in your judgment would comply with the instructions given.

THE FOREMAN: I think, what we're trying to get at is just what is the meaning of the word mitigating?

THE COURT: Mitigating would mean any circumstance which would have a tendency to lessen the aggravation, which would have any tendency to — (Pause) — give a reason for the act. I cannot think of a better definition right now, except that it's opposed to aggravating and would have a tendency to lessen or tend — not "to", necessarily, but tend to justify, and to take away any of the aggravation of the circumstance.

THE FOREMAN: Thank you, Your Honor.

(Whereupon, at 6:52 p.m. the jury returned to the jury room to continue its deliberations.)

(Whereupon, at 8:52 p.m. the jury returned to open court to report its verdict.)

THE COURT: Have you reached a sentence?

THE FOREMAN: Yes, Your Honor, we have.

THE COURT: Is it unanimous?

THE FOREMAN: Yes, Your Honor, it is.

THE COURT: All right, would you read the sentence, please?

THE FOREMAN: Your Honor, do I have to read the whole page or just the sentence?

THE COURT: Just the part of the sentence.

THE FOREMAN: We, the jury, unanimously find that

Exhibit 3

STATEMENT

Date June 1, 1983

Interview with Edmund G. Zagorski Jr.

On June 1, 1983 Dee Gay, Sheriff Ted Emery and Ronnie Perry had a interview with Edmund G. Zagorski Jr. at the Robertson Co. Sheriffs Department concerning the murders of John D. Dotson and Jimmy Porter. This would be the second interview with Mr. Zagorski.

Dee started the interview by asking Mr. Zagorski if he knew what his rights were and if he understood his rights. Mr. Zagorski replyed that he had already had his rights read to him add that he did understand what they were.

Dee then ask Mr. Zagorski if he wanted to talk to him about the murders of Porter and Dotson. Zagorski said that he had rather talk to his lawer befor he made any coment about the murders. Dee told him that was fine.

Dee then ask him if he mined if he talked to him about his past. Mr. Zagorski said that he would talk to Dee about his past.

Dee explained the charges aganist Mr. Zagorski to him and the penalty for the charges if convicted. Mr. Zagorski replyed that he wasnt afraid to die, that he had served his purpose and that his job was done.

Zagorski then said, Ok yall got me pretty good so Im gona make it easy on yall. Ill tell you what I know about the murders.

Dee then explained to Zagorski that he didnt have to talk to us until he talked to his lawer and Zagorski replyed that he wanted to tell us what he new. Many times durring the following conversation Zagorski was told, or ask if he wanted to stop and talk to his lawer. Dee told Zagorski if he wanted to talk about the murders to start with the first time that he met Porter and Dotson. He said that he never saw Porter until the day that the deal was suposeto go down, but that he had met with Dotson on several different occasions at the Lakeland Trout From in Hickman Co. Tenn. He said that Blackwell had introduced Dale Dotson to him there. Zagorski also said that Blackwell was the one that set the dope deal up for him and that all he bid was contact his peopl and tell them when to come. He also said that Blackwell didnt have and monatary intrest in the deal. Zagorski said that on May 23, 1983 he met Porter and Dotson around 6:00pm. He said that Porter and Dotson were in Porters Red Dotsun pickup and that he and one of his mercinary freinds met them in Spott and that Porter and Dotson followed them in their truck. He said they picked up a tail car on I-40 just North of Bucksnort and a Backup car at the Dickson exit. They all drove up I-40 to Nashville and then got on I-65 and went North. They stoped just South of the state line on the North bound side of I-65 and everyone got out of their vehicles. He said that one of his freinds took his HK-91 rifle and his webb geer and told him to take Porters truck and go to the welcome center on the north side of the interstate and wait for hem. He also said that if there was any trouble he was to come back and take are of it. He said that he waited for about 30 minites and his friends came o the welcome center and met him. They gave him his rifle and webb geer back nd $5,000.00 dollars. They told him to take Porters truck and leave. He said e took the truck and drove to Lexington Ky. where he let one of his people ut then he drove to Ohio.

Zagorski was ask how much money he spent while he was in Ohio andhe said hat he had spent approximatley $40,000.00 dollars there. He said that he had bought 2 trucks,2 motercycles, 2 horses and a lot of guns and amunition.

Dee then said to Zagorski, if your not involved in the murders why dont you tell us who is. Zagorski replyed "I didnt say I didnt have anything to o with the murders." *********************************************************

THIS COMPLETED THIS INTERVIEW.

Exhibit 4

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

SAMUEL E. DOUGLAS, et al., vs. TED EMERY, et. al.

No. 81-3826

JUDGE WISEMAN

AGREED ORDER

Samuel E. Douglas, Ricky Clinard, Michael Dean and the class they represent, Ted Emery, P.R. West and Ricky Suter enter into this agreement disposing of some but not all of the issues in Mr. Douglas' individual claim against Messrs. Emery, West and Suter and in the intervenors' complaint in this cause.

This order is not intended to resolve any issues not specifically addressed by the order and reserves all remaining issues for further order or for trial.

The class of plaintiffs which is protected by the permanent injunction of Section 2 of this order is: all persons who are now or who in the future will be confined in the Robertson County Jail.

1) Mr. Douglas agrees to dismiss his claim for compensatory and punitive damages against the defendants Emery, West and Suter.

2) Defendants Emery, West, and Suter agree to the imposition of a permanent injunction, binding themselves, their employees, agents and successors in office:

a) Defendants are enjoined from conducting disciplinary hearings or imposing disciplinary sanctions pursuant to procedure not consistent with at least the minimal protections required byWolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L.Ed2d 935 (1974). This shall include but not be limited to: advance written notice of the claimed violation, at least 24 hours prior to the hearing; a written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action; the opportunity to call witnesses and to present documentary evidence in the inmate's defense at the hearing when doing so would not be unduly hazardous to institutional safety or correctional goals. Inmates should also have the opportunity to seek the aid of a fellow inmate to assist in the preparation and presentation of their cases. Hearings should be conducted by an impartial tribunal.

b) Defendants are enjoined from failing to provide each resident of the jail with a list of that conduct which is a violation of the rules and which could result in the imposition of disciplinary sanctions. This list should include the specific disciplinary sanctions which may be imposed for the specific conduct.

c) Defendants are enjoined from placing an inmate in disciplinary segregation in the drunk tank or elsewhere for any except the most severe misconduct.

d) Defendants are enjoined from placing an inmate in disciplinary or administrative segregation indefinitely.

e) Defendants are enjoined from placing an inmate in disciplinary or administrative segregation for more than ten days. This does not include inmates who are segregated at their own request.

f) Defendants are enjoined from punishing any inmate, either officially or unofficially, by refusing to provide him or her with medical treatment, by failing to provide him or her with the same food and in the same quantity as is provided other inmates, by corporal punishment, beating or use of physical restraints, by eliminating mail provileges, visits with attorneys or with other visitors, or with failing to provide the inmate with any personal items normally provided to other inmates.

g) Defendants are enjoined from failing to make a notary available to inmates at least once a day, five days per week, to notarize any documents or papers requested by the inmates.

h) Defendants are enjoined from refusing to allow an attorney to visit any inmate or from in any way interfering with the privacy or confidentiality of the visit.

i) Subject to the addition of at least one staff person on the evening shift, defendants are enjoined from failing to allow each inmate at least one hour of visiting per week with family and/or friends.

j) Subject to the addition of at least one staff person on the evening shift, defendants are enjoined from failing to allow each inmate at least one fifteen minute phone call per week. Unless and until such additional staff is added, defendants are enjoined from failing to provide each inmate at least one five minute phone call per week.

k) Defendants are enjoined from inspecting for contraband incoming mail from courts, attorneys, or public officials except when the mail is opened and inspected in the presence of the inmate.

l) Defendants are enjoined from failing to collect outgoing mail or failing to deliver incoming mail without unnecessary delay.

m) Defendants are enjoined from censoring inmate mail, both incoming and outgoing, except where there is probable cause to justify the action; in this context, censoring shall be defined as examining the verbal content of mail or any written communication or prohibiting objectionable verbal and written communication being received by the inmate or being placed in the mail to the person to whom it is addressed.

n) Defendants are enjoined from failing to develop and maintain written policy regarding mail censorship. They are further enjoined from promulgating or maintaining any regulation which does not further an important and substantial governmental interest unrelated to the suppression of expression (e.g. detecting escape plans which threaten security and/or the well being of the staff and/or inmates) or from promulgating or maintaining a regulation which is greater than necessary to protect the governmental interest involved.

o) Defendants are enjoined from failing to notify an inmate if a letter he or she wrote or a letter addressed to him or her is rejected and from failing to give the author a reasonable opportunity to protest the decision.

p) Defendants are enjoined from failing to provide postage for two free personal letters per week for inmates with less than $2.00 in their jail accounts. Defendants are further enjoined from failing to provide those inmates with less than $2.00 in their account with postage for all legal or official mail.

3) Defendants Emery, West, and Suter are given fifteen (15) days to file additional pleadings as necessary in this case.

ENTER this the ____ day of__________________, 1983.

THOMAS A. WISEMAN, JUDGE

Approved for Entry:

___________________________ SUSAN L. KAY Attorney for Plaintiffs

___________________________ ARTHUR E. MCCLELLAN Attorney for Defendants Emery, West and Suter

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing document has been delivered to William O'Bryan on this 13th day of April, 1983.

___________________________

Exhibit 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

SAMUEL E. DOUGLAS, ET. AL. v. TED EMERY, ET. AL.

No. 81-3826

JUDGE WISEMAN

DEFENDANTS EMERY, WEST AND SUTER'S FIRST SET OF STIPULATIONS

Sheriff Ted Emery, Chief Deputy P.R. West, and Jailer Ricky Suter stipulate to the following facts which may be used as evidence in the case of Douglas, et.al. v. Emery,et.al. No. 81-3826, as pertinent to both the original complaint and the intervener's complaint:

1. The Robertson County Jail is located in Springfield, Robertson County, Tennessee. (hereinafter referred to as the jail.)

2. The jail was constructed in 1967. It serves as the local detention and penal facility as well as the offices of the Sheriff's department.

3. The physical structure has remained essentially unchanged since 1967.

4. The jail is a two story structure. The first floor consists of an attorney interview room, a booking room, the central control area for the jail, the visiting area, several offices, one cell block and two drunk tanks. The second floor of the jail consists of the sheriff's offices, the jail kitchen, and a cell block.

5.) The first floor of the jail is underground on the front side of the jail. It is above ground only at the back of the jail.

6.) The two drunk tanks are identical. They each measure 12-1/2 feet by 8 feet. There is a continuous sheet of metal on three walls of the cell, used as bunks. There is no window or other access of natural light into the cell. The door to the cell is solid metal with only a small window in the door through which one can look into the cell.

7.) There is no shower in either of the drunk tanks. Each drunk tank has a toilet and sink. The toilet is directly below the sink.

8.) Persons incarcerated in the drunk tank must be taken out of their cell, and walked through the jail to the showers. They are permitted to shower once a day.

9.) In addition to holding inebriated persons, the drunk tanks also house juvenile boys and girls, and inmates being segregated from general population. Additionally, if there are more than two women incarcerated in the jail, they must be housed in the drunk tank.

10.) The drunk tanks are separated from each other by sight but not by sound.

11.) The cell blocks on the first and second floor are identical, each measuring 56-1/4 feet by 28-1/4 feet. The second floor cell block is, in fact, directly above the first floor cell block. Each cell block consists of 9 cells, 8 feet by 8 feet each, a central hall, a dayroom and a shower. The cells have four metal planks which serve as bunks, double bunked on each side of the cell, and a toilet and sink. The sink is directly on top of the toilet. In addition, there is a drain in the center of the floor.

12.) Around the entire cellblock is a walk.

13.) There are no solid walls within the cell block or between the cell block and the walk (with the exception of the women's cell). All divisions are made with barred walls or doors.

14.) The first cell on the right side of the cell block is different than the other cells in the block. There are only two bunks, double bunked, in each of these cells. In addition, each of these cells has a small metal table with two metal benches and a shower. On the first floor, this cell is surrounded by barred walls and doors, similar to every other cell, and for purposes of cell assignment, it is used interchangeably with the other cells. The cell on the second floor is the Women's Cell. It has solid metal walls on the side of the cell which abuts the hallway and on the side which abuts a male cell. One wall which abuts the outside walkway is totally barred. The other wall abutting the walkway is partially barred and partially solid metal.

15.) The women's cell is separated by sight but not by sound from the men's cells.

16.) The "day room" has two metal tables with metal benches. All of these are bolted to the floor. There is no other furniture in the day room. The day room is 8 feet by 24 feet.

17.) There is no natural light in the cell blocks.

18.) The doors to the individual cells within the cell block were, at one time, controlled by an electric door lock system. That system is now broken and totally inoperative. The doors to all the cells within the cell block are, therefore, kept open 24 hours per day. All residents of the cell block, with the exception of those in the women's cell, have 24 hour access to all the other cells in the cell block, with the exception of the women's cell. The cell designed identically to the women's cell in the first floor cell block is kept open 24 hours per day and is in all other respects, treated as a general population cell.

19.) There is only one door exit from each of the cell blocks. This door is operated by a manual door lock. There is no other means of exiting the cell block.

20.) The plumbing in the jail is old. Water is turned on and off by means of push buttons rather than twist faucets. It is very difficult and time consuming to obtain parts to repair it.

21.) The plumbing fixtures are frequently broken, causing water to back up in the cell and creating a problem of standing water in the cell.

22.) To the extent possible, male pretrial detainees are housed in the first floor cell block and male convicted prisoners are housed in the second floor cell block.

23.) When an individual is booked into the jail, the jailer determines whether the individual fits within one of seven classifications. These include: pretrial detainee, sentenced offender, juvenile, female, and inebriate. The individual is classified to a cell area according to this list. Within any given classification, however, cell placement is done on a random basis. Thus, for instance, a male pretrial detainee may share a cell with any other male pretrial detainee.

24.) There is likewise, no system for assigning cells for convicted prisoners.

25.) Women, both pretrial detainees and convicted prisoners, are housed in the second floor women's cell. There is room only for two women in that cell at any time. If there are more than two women in the jail, the additional women must be housed in a drunk tank.

26.) Juveniles are assigned to the Women's Cell if there are no incarcerated women. If there are incarcerated women, juveniles are placed in the drunk tank. If there are both juvenile boys and juvenile girls incarcerated at any one time, juvenile boys are assigned to one drunk tank and juvenile girls are assigned to the other. When there are women, juvenile boys and juvenile girls in the jail, there is no place in which to house drunks or other prisoners who need to be segregated from the general population for their own protection or for disciplinary purposes.

27.) If there are women and either juvenile boys or juvenile girls in the jail, there is no room to house drunks and other persons who need to be segregated.

28.) Persons who are being segregated, either for their own protection or for disciplinary purposes are single celled in the drunk tank.

29.) When juveniles and/or drunks are present, they have first priority to the drunk tank. Therefore, if both drunk tanks are needed for juveniles and/or drunks, the persons who have been segregated for disciplinary purposes or for their own protection must be returned to the general population.

30.) An inmate may be segregated for any one of four reasons: 1) at his or her own request and for his or her own protection ion; 2) because the jail staff feels the person should be segregated for his or her own protection; 3) as punishment for violation of a disciplinary rule, or 4) for administrative purposes.

31.) If there is an assault in a cell block, the person who was the victim of the assault may be put into segregation for his or her protection.

32.) If an inmate voluntarily goes into segregation for his or her own protection, he or she will be moved out of segregation when the drunk tank is needed for drunks, juveniles, or added women. A male may then be transferred to the other cell block. If he has problems in the second cell block, there is no place to send him. A female must go back to the women's cell.

33.) There are no on site visits by any medical professionals — doctors, nurses, paramedics or physicians' assistants. The only medical training which the jailers have is that each jailer has passed the Red Cross First Aid course. The lieutenant responsible for the jail is an emergency medical technician.

34.) The only means for an inmate to get medical attention is to complain to the jailer or to the lieutenant in charge of the jail. The jailer, or the lieutenant, then decides whether there is an emergency which requires immediate attention, whether the person should go to sick call or whether the inmate's complaint should be ignored.

35.) Sick call is a referral to a local doctor for medical attention. Inmates who have requested medical attention and who the jailer or lieutenant has determined need to be seen by the doctor are brought in a group to the doctor's office for sick call. Sick call occurs one time per week.

36.) Although the jail has standard first aid supplies, there is no other emergency medical equipment in the jail, e.g. defibrillator, oxygen masks.

37.) When a jailer determines that there is a medical emergency, he makes the decision whether to contact the nearest Sheriff's Department vehicle or whether to call for an ambulance. If the lieutenant is at the jail, he will make this decision rather than the jailer.

38.) There is no room in the jail designed for medical examinations or treatment.

39.) Medication is kept in the central control area of the jail. It is dispensed by the jailers.

40.) No medication is dispensed, even that brought in by the inmate on arrival, until one of the doctors on contract with the jail authorizes the dispensation of the medication.

41.) There are a total of six persons employed to run the jail. Five are jailers. There is never more than one jailer on duty at the jail at one time. There is also a lieutenant who is in charge of operation of the facility. He is usually on the premises during the day shift. On the evening and night shift, there is only one person — a jailer — who staffs the jail.

42.) The jailer has responsibility for booking people into the jail, releasing all persons who are scheduled to be released, handling medical problems, arranging telephone calls, supervising visitation, taking persons from the drunk tank to the shower, and in all respects, running the jail and supervising the inmates.

43.) The number of times which a jailer can walk through the cell blocks depends on the amount of time needed for all of these other duties.

44.) There is no prescribed number of times or specific times at which the jailer must make rounds of the cell blocks.

45.) The jailer is normally stationed at the central control area.

46.) There is no way you can see the cell blocks or drunk tanks from the central control area. There is no visual electronic surveillance equipment.

47.) In the central control area, there are speakers through which the person on duty can theoretically listen to the cell blocks. As a practical matter, it is virtually impossible to hear anything above the din of the radios and television. There is no speaker in the central control area through which the person on duty can hear the drunk tanks.

48.) If there is violence between inmates in a cell, the jailer or lieutenant would only know about it if he happened to be walking through the jail or if he could overhear the noise from the central control area or from any other place in which he happened to be carrying out his duties.

49.) If the jailer who is alone on duty hears a disruption or violence in the cell block, he is expected to investigate. If the situation is such that he cannot control it, he secures and locks off the cell block and returns to the central control area to call the Sheriff's patrol cars or the Springfield Police Department.

50.) The only means available for a jailer alone on duty to stop a disturbance or assault in a cell block is for the aggressor or aggressors to voluntarily agree to desist, for the jailer to enter and lock himself into the cell block and to physically attempt to stop the problem, or to lock off the cell block and call for help.

51.) None of the inmates receive any supervised or structured exercise, either indoors or outdoors.

52.) There is no facility for indoor exercise. There is currently no space for outdoor exercise.

53.) Pretrial detainees remain in the cell block 24 hours per day, unless they go to court, use the telephone, have a visit, or go to the doctor.

54.) People in the drunk tank spend 24 hours per day in their cell, except for their daily shower, unless they go to court, use the telephone, have a visitor, or go to the doctor.

55.) Women also spend 24 hours per day in their cell with the exceptions noted in ¶ 53.

56.) Convicted prisoners have the opportunity to work outside the jail. On March 29, 1983, 8 of 15 convicted persons worked outside the jail.

57.) There are no supervised or structured activities at all for pretrial detainees. There are no supervised or structured activities other than work for the convicted prisoners.

58.) Visitation is conducted Wednesday and Sunday, for three hours on each day.

59.) There are no contact visits or visits at times other than visiting hours except in emergency situations. The jail staff on duty determines whether there is an emergency.

60.) Visitation is conducted in a two sided visiting booth. The visitor sits in a stool in one room and the inmate sits in a stool in an adjoining room. There is a small glass plate between the rooms through which the inmates and visitor see each other.

61.) Two visits are conducted simultaneously. The two visitors and the two corresponding inmates sit approximately one foot from each other. There is no opportunity for privacy.

62.) Visits last between five and fifteen minutes, depending on the number of visitors waiting to see inmates. The jailer attempts to permit every visitor to see the inmate for whom he or she is waiting.

63.) There is no legal material provided by the jail or Sheriff's Department for the inmates of the jail, either pretrial detainees or convicted persons.

64.) If an inmate wishes to speak with his or her lawyer, s/he must ask the jailer to call the lawyer for him or her.

65.) Trustees are selected by the chief deputy and the sheriff and are usually contract prisoners from the Department of Correction

66.) Trustees are responsible for all the food preparation in the jail.

67.) There is no automatic or electric dishwasher in the jail. All eating and cooking implements must be washed by hand. This task is done by the trustees.

68.) The kitchen has never been inspected by any official from any local or state department of health.

69.) There is no automatic sprinkler system in the jail. There are no oxygen masks to be used in an emergency.

70.) In the event of a fire or other emergency which required evacuation, inmates in the first floor cell block would have to go through the manual lock door to the cell block and two other electric lock doors. Inmates in the second floor would have to go throught the manual lock door to the cell block and at least one other electric or manual lock door.

71.) If the one manual lock exit from the cell block is blocked for any reason during a disaster which requires evacuation, all persons in the cell block would be trapped.

72.) For persons to be evacuated from the women's cell during an emergency, someone would have to enter the cell block through the only exit and manually open the door to the women's cell.

73.) The staff of the jail is insufficient to evacuate the building as swiftly as necessary in an emergency. The jailer would have to contact either the Sheriff's patrol or the Springfield police department for additional manpower.

74.) The dispatcher who is on duty in the Sheriff's department has no correctional training and is not considered by the Sheriff's department to be part of the jail staff.

Approved for entry:

________________________ Arthur E. McClellan Attorney for Defendants Emery, West, and Suter________________________ Susan L. Kay Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing document has been delivered to William O'Bryan on this 13 day of April, 1983.

________________________

Exhibit 6

TO: Vanderbilt Legal Clinic, Nashville, Tennessee

FROM: Anthony S. Kuharich, Jail Consultant, South Holland, Illinois

SUBJECT: Inspection of Robertson County Jail, Springfield, Tennessee

DATE: May 10, 1983

STATEMENT OF PROBLEM

Inmates at the Robertson County Jail filed a class action complaint for declaratory and injunctive relief in the United States District Court for the Middle District of Tennessee, Nashville Division on April 13, 1983 against the Sheriff, Chief Deputy, Chief Jailer, and County Executive of Robertson County in their official capacities. The Plaintiffs claim their rights, secured under the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated. They contend they "are being and will continue to be subjected to illegal, unsafe, unconstitutional, and dehumanizing conditions" which "exist as a result of the willful and intentional acts, practises, policies, instructions and omissions of the defendants."

The Vanderbilt Legal Clinic is representing the Plaintiffs in this action and requested Consultant to inspect this jail facility and submit a timely and objective report of findings and recommendations.

METHOD AND SCOPE OF STUDY

Consultant conducted an on-site visitation of this jail on May 10, 1983 and made direct observations of its physical facility and operations. This was augmented by personal interviews with the following persons: Chief Deputy Sheriff Paul R. West; Chief Jailer Lieutenant Wilson; and Jailer William Roach.

The following reports, document, records, and forms were also examined and studied:

INTERVENORS' COMPLAINT-CLASS ACTION, Douglas, et. al. v. Ted Emery, et. al., No. 81-3826, Judge Wiseman, U. S. District Court, MD Tennessee, Nashville, Division, filed April 15, 1983.

DEFENDANTS EMERY, WEST and SUTER'S FIRST SET OF STIPULATIONS, Douglas, et. al. v. Ted Emery, et. al. No. 81-3326.

AGREED ORDER, Douglas, et. al. v. Ted Emery, et. al., No. 81-3826.

Inspection Report, Robertson County Jail, submitted by Tennessee Corrections Institute, Nashville, Tennessee, November 18, 1980.

Reinspection Report, Robertson County Jail, September 16, 1981, Tennessee Corrections Institute.

Inspection Report, Robertson County Jail, December 2, 1982, Tennessee Corrections Institute.

Jail Policy and Procedures Manual, Robertson County Jail, 1983.

Rules For Inmates, Robertson County Jail and Workhouse.

Robertson County Jail Admission Forms.

MINIMUM STANDARDS FOR LOVAL CORRECTIONAL FACILITIES,

Tennessee Corrections Institute, Nashville, 1982 (hereinafter referred to as Tennessee Standards)

STANDARDS for ADULT LOCAL DETENTION FACILITIES, American Correctional Association, Second Edition, April, 1981. (hereinafter referred to as ACA Standards)

FEDERAL STANDARDS FOR PRISONS AND JAILS, U. S. Department of Justice, Washington, D. C., December 16, 1980. (hereinafter referred to as Federal Standards)

PHYSICAL PLANT

The offices of the Robertson County Sheriff's Department and the county Jail are located in a two-story brick and concrete structure which was constructed in 1967.

The first floor of this building is underground on the front side of the jail. It is above ground only at the back of the facility.

The jail consists of an attorney interview room, a prisoner reception area, a control center, the visiting area, a cell block and two drunk tanks on the first floor, and a cell block and the jail kitchen on the second floor.

Cell Blocks

The cell blocks are identical in every respect. One is located above the other. Each has one (1) double-occupancy cell, eight (8) four-bunk cells, and a dayroom.

Each cell block has a semi-outside cell formation. There is a jailer inspection corridor behind the cells inside the outer wall of the building around each cell block. The rear of the cells have grille bars, allowing the jailer to visually supervise the inmates and their activities.

Each cell block has a dayroom and three (3) multiple-occupancy cells on the left side and six (6) multiple-occupancy cells on the right. They face and open into a 3'8" wide corridor which is located in the center and extends the entire length of the cell block. The only entrance door into each cell block opens into this corridor. This is also the only exit door from each cell block.

Cells

Eight (8) cells in each cell block on both floors have four (4) bunks each and 64 square feet of floor space (8' x 8'), which includes the areas occupied by the metal bunks and the combination toilet and wash basin fixture. The bunks and the toilet fixture take up approximately 33 square feet of floor space. When four (4) prisoners occupy a cell, they have about 31 square feet of floor space or 7.75 square feet per inmate when all are out of their bunks at the same time.

The first cell on the right side in each cell block on both floors has two (2) bunks and 64 square feet of floor space (8' x 8'), which includes the areas occupied by the metal bunks, the combination toilet and wash basin fixture, a small metal table with two metal benches, and a shower. In these cells two (2) inmates each have approximately 15 square feet of floor space when both are out of their bunks at the same time.

The double-occupancy cell on the second floor is used to house female prisoners.

Tennessee Standards require that multiple-occupancy cells provide a minimum of forty (40) square feet of clear floor space for each occupant in the sleeping area.

ACA Standards require that multiple-occupancy rooms provide a minimum floor area of fifty (50) square feet per occupant in the sleeping area.

Federal Standards require that multiple-occupancy rooms provide a minimum of sixty (60) square feet of floor space per inmate (excluding activity area).

Cell Door Lock System

The electric door lock system for the doors to the individual cells within the cell blocks is currently inoperative and, therefore, cell door are kept open 24 hours per day. All residents of the cell block, with the exception of the women's cell in the second floor cell block, have 24 hour access to all other cells and the dayroom in the cell block.

Dayrooms

Each cell block has a dayroom which has 192 square feet of floor space (24' x 8'). It contains two metal tables with attached benches, a combination toilet and wash basin fixture, and two showers. Due to the inoperative door locking system the inmates in a cell block have 24 hour access to the dayroon.

The dayrooms can be used for dining, writing, reading, and table games.

Tennessee Standards require a minimum of thirty-five (35) square feet of floor space per prisoner in a dayroom.

ACA and Federal Standards also require a minimum of thirty-five (35) square feet of flor space per prisoner in a dayroom.

Each dayroom in this facility, according to the standards, has sufficient space to accomodate five (5) prisoners at a time.

Drunk Tanks

Two drunk tanks are located adjacent to each other on the first floor. They are separated from each other by sight but not by sound. Each has 100 square feet of floor space (121/2' x 8'). On three walls of each tank is a continuous concrete bunk which is 24" wide and 12" above the floor. Each tank has a combination toilet and washbasin and a floor drain.

There is no natural light in these tanks. They have solid metal doors with small glass view panels for visual observation of the occupants by the staff.

They have no shower facilities. Inmates housed in these tanks are permitted to shower once a day. They are taken by the staff to shower facilities in other areas of the jail.

Due to poor jail design and inadequate inmate housing units, these drunk tanks may also house other than inebriated persons. They are used to house juvenile males and females, inmates in need of administrative segregation and disciplinary detention, and adult female prisoners if there are more than two (2) in the facility.

Plumbing

Due to the age of this jail, there are some plumbing problems. Valves are broken and leaking and need to be replaced. Some toilet fixtures are broken causing water to back up in the cells. The Chief Deputy Sheriff stated that all efforts are being made to obtain appropriate valves and replace broken toilets with modern stainless steel fixtures.

Air Circulation

This facility has no air conditioning. The staff admitted that there is no air circulation.

Tennessee, ACA, and Federal Standards require circulation of at least ten (10) cubic feet per minute of fresh or purified air for each person occupying the facility. The Chief Deputy Sheriff stated that this problem will be corrected with forced air ventilation.

Lighting

The two cell blocks and the two drunk tanks have no access to natural light.

There is an insufficient amount of artificial light in the cell blocks.

Tennessee, ACA, and Federal Standards state that all housing and activity areas shall provide for, at 2 minimum, lighting of at least thirty (30) footcandles, to be measured three (3) feet off the floor. These standards also require access to natural light in the housing and activity areas.

Medical Examination or Treatment Facility

There is no room in this jail designed for medical examination or treatment. A doctor does not visit the jail to conduct sick call. It is conducted at a local doctor's office once a week. If an inmate claims illness at any time, the jailer makes appropriate arrangements for the inmate to be taken to the doctor's office or to the local hospital.

Tennessee Standards make it mandatory that space or provisions shall be provided where a physician may conduct sick call, examine patients in privacy and render routine medical treatment.

This standard is supported by the following court decision:

Jones v. Wittenberg, 440 F. Supp. 60 (N.D. Ohio, 1977) — Required to have rooms and equipment for physical exams, treatment or medical emergencies and minor injuries and illness, quarters for inmates to remain safely as part of general population and adequate space for dental exams and treatment

Visiting

Two visits are conducted simultaneously. This arrangement does not allow for privacy. It is recommended that the dividers on the visitors' side and the inmates' side are three (3) feet wide and extend to the ceiling. It is further recommended that acoustical tile is installed in the appropriate areas on both the visitor and inmate sides to permit for more private conversation between visiting parties.

Program and Activity Space

This facility has no multi-purpose room for inmate activities such as religious services, educational programs, meetings, library services, group counseling, etc.

A multi-purpose room is required by Tennessee, ACA, and Federal Standards.

There are no indoor or outdoor physical exercise areas for the prisoners in this jail.

Tennessee, ACA, and Federal Standards require that adequate indoor and outdoor space is provided for inmate exercise.

Inmates in this jail spend all their time (24 hours per day) in their housing units — cells, dayrooms, or drunk tanks — without adequate exercise. For the most part they spend their time sleeping and watching television. A constructive recreational program which permits strenuous exercise helps to lower tensions and reduce disciplinary, physical, and mental health problems.

The following four Federal Court decisions from among many address this issue:

Campbell v. Cauthron, 623 F. 2nd 503 (8th Circuit 1980) Each inmate confined in his cell more than 16 hours per day-is to have one hour of out-of-cell exercise. Walking the corridor does not constitute exercise.

Campbell v. McGruder, 580 F. 2nd 521 (D.D. Cir. 1973)

Jail must provide prisoners recreation, including prisoners in maximum security.

Johnson v. Lark, 365 F. Supp. 289, 302 (E.D. MO 1973) Absence of outdoor exercise contributes to a finding of cruel and unusual punishment.

Rhem v. Malcolm, 371 F. Supp 594 (S.D. NY 1974) Daily exercise is essential to health.

Some sentenced prisoners work outside of the jail and only spend their non-working hours in their living units. On March 29, 1983, eight (8) of the fifteen (15) sentenced inmates worked outside of the jail.

This facility was originally designed for the maximum security confinement of a large number of prisoners supervised by a small staff with minimal contact between personnel and inmates. It was constructed at a time when emphasis was placed soley on security, custody and prisoner control. Space for correctional services and programs or physical exercise was not considered essential for the physical and mental well-being of the inmates.

This jail is a "human warehouse" where most prisoners languish in enforced idleness, boredom, and despair. Many inmates spend the greater portion of each 24 hour day lying on their bunks. They are required to spend all their time in their housing units. There is no communication with staff, and they have nothing constructive to do.

INMATE SAFETY

Each cell block has only one exit. This presents a serious problem concerning the safety of the inmates because even the most minimal fire could and does cause immediate danger to human life from smoke and toxic gases.

The State of Local Fire Prevention 3ureau should conduct an indepth inspection of this facility to ensure that it has an adequate fire detection and suppression system and an effective fire evacuation plan to implement in the event of a fire.

Tennessee and ACA Standards require that at least two separate means of exit from each cell block area are provided to ensure the safety of the prisoners and staff members.

FOOD SERVICE

Trustees are responsible for all food preparation and handling in this jail. She Sheriff's wife orders the food and prepares the menus.

It is recommended that the dietician at the local hospital is requested to periodically review the menus to ensure that they are nutritionally adequate and that the food served is sufficient as to quality and quantity.

The following court decision addresses this issue:

Mitchell v. Untreiner, 421 F. Supp. 886 (N.D. Fla. 1976)-There should be a trained dietician, nutritionist, or food service director to regularly review the menus, preparation and service.

All persons involved in food prepartion and handling must be medically examined.

The following are court decisions which address the issues relative to medical examinations of food handlers:

Ahrens v. Thomas, 434 F. Supp. 873, 903 (W.D. MO 1977) All individuals involved in preparation, handling, or service of food shall meet minimum public health standards for restaurant employees. The jail kitchen shall be inspected monthly by the health department.

Campbell v. McGruder, 416 F. Supp. 100, 105-06 (D. DC 1975) All food handlers must be examined at least once every 30 days.

Mitchell v. Untreiner, 421 F. Supp. 886, 900 (N.D. Fla. 1976) No one shall handle food in the kitchen without being medically screened and supervised by someone who is also medically screened.

Taylor v. Sterrett, 344 F. Supp. 411, 423 (N.D. TX 1972) Food handlers must be examined by a licensed physician

ADMINISTRATION

Sheriff Ted Emery is a constitutionally elected law enforcement officer who, at the same time, is legally responsible for the administration and operation of the Robertson County Jail.

The Sheriff appointed Lt. Wilson the Chief Jailer and delegated to him the requisite authority for the efficient operation and management of this facility. His responsibilities include coordination of security, programs, support functions and services, and proper staff deployment.

The goals of the administration and operation of a jail should be: 1. protection of society; 2. humane care of inmates; and 3. provision of services required to maintain the physical, social and emotional health of inmates.

The ultimate goal is to ensure that all who pass through the jail will leave no worse than when they entered, and perhaps better.

The poor design and physical limitations of this facility seriously hamper the administration in their attempts to achieve these goals.

PERSONNEL

The current jail staff consists of a Chief Jailer and five (5) Jailers. The Chief Jailer is on duty from 8:00 an to 4:00 pm Monday through Friday. There is one (1) Jailer on duty during each eight (8) hour shift per day and seven days per week.

This jail does not have sufficient staff. One Jailer cannot adequately respond to the needs of this facility and approximately thirty-five (35) inmates during any eight-hour shift.

Staffing levels are dependent upon a variety of factors. One important element is facility design and layout. It dictates the number of security posts and the number of persons required to man each post. Another is the size of the prisoner population as well as what is done to and for the inmates. In other words, the number and nature of the programs and services made available to them. New prisoners are booked, individuals are escorted to and from court hearings, inmates are released, attorney and family visits are scheduled, prisoners are transferred to and from other facilities, meals are served, inmates are taken to the doctor's office or hospital for medical services, telephone programs are conducted, etc.

Each staffing plan should provide full coverage of security posts and visual supervision of inmates. Back-up assistance should be immediately available if an emergency arises. Staff in inmate living areas should be able to prevent opportunities for any abuses anticipated in a jail population. Sufficient personnel should be available to supervise inmate programs and services. Jailers should be stationed near inmate living units to prevent inmate misbehavior and avoid disorders as well as respond quickly to emergencies. There should be frequent interpersonal communication between Jailers and inmates.

Tennessee, ACA, and Federal Standards require that jail officer posts are located in or immediately adjacent to inmate living areas to permit officers to hear and respond promptly to calls for help or emergency situations.

The following court decisions address this issue:

Parker v. Gladwell, No. C74-391 (N.D. Ohio 1976) One (1) guard must be physically present in cell area at all times.

Ahrens v. Thomas, 434 F. Supp. 573 (W.D. MO. 1977) Mandates twenty-four (24) hour supervision.

Hamilton v. Love, 328 F. Supp. 1182, 1196 (E.D. AR 1971) There should be one staff member patrolling on each cell floor in the immediate area of every detainee on a 24 hour basis.

To ensure the protection of the public and the safety of the staff and inmates and more effectively operate this jail, nine and a half (9.5) additional personnel must be employed. This facility should have the following positions:Posts Position Per Week Per Day Staff

No. of No. Days No. Shifts Total 1 Chief Jailer 5 1 1 1 Male Jailer — First Floor 7 3 4.5 1 Male Jailer — Second Floor7 3 4.5 1 Female Jailer 7 3 4.5 1 Counselor 5 1 1 Total Staff 15.5

This staff level is designed for adequate staff relief, proper visual supervision and surveillance of prisoners and their activities, programs and services. This personnel should only work in the jail and not be required to perform any functions or duties outside of the jail.

The following is a simple arithmetical formula used in the majority of jails to determine the number of jailers needed to man a 24-hour and 7-day per week post:

365 days is used as the base year. Since a jail officer must be on duty 365 days a year and is required to man each post each 24. hours or three (3) 8-hour shifts, the total man days required coverage is 1095 (365 x 3). A 40-hour week employee in this jail works 239 days a year. This figure is arrived at by subtracting 2 days per week or 104 days (the work week is 5 days) plus 10 vacation days and 12 sick leave days from the base figure of 1095. (104 + 10 + 12 = 126) (365 — 126 = 239) 1095 man days divided by 239 equals 4.5 which is the number of Jailers required to man a 24-hour and 7-day per week post and provide necessary coverage for staff on leave. In Robertson County the Jailers do not get any time off for working on holidays.

Role of the Jail Officer

The Jailer occupies one of the most sensitive and perhaps the most critical position in this facility. Male and female jailers must be employed to respond to the needs of both male and female inmates. They have the most direct and continuous contact with the inmates and the greatest impact on them. The line officer has the responsibility to prevent inmates from harming each other or themselves. He/she must develop the interpersonal skills required to adequately communicate with the prisoners. The Jailer must be people-oriented, aware of inmates' legitimate needs and rights, exercise a non-judicial attitude toward them, and respect them as human beings. American law and justice require no less than this.

When the jail officer works with prisoners as people, he/she will assist them to develop a more favorable attitude toward authority and a better ability to get along with others. His/her own respect for the law is the best example that he/she can give to prisoners. The jail officer must be properly equipped and motivated to create an atmosphere conducive to prisoner chage in the jail facility.

Today's jailer should be a sophisticated participant in the corrective process. He/she must be a professional who possesses knowledge, understanding, judgement, tolerance, and wide-ranging competence. His/her work goes on 24 hours a day and every day of the year.

The most important component in any jail is its security staff. Jail operations and management are no longer soley dependent upon steel bars and cages, locking devices and other hardware. It requires sufficient trained staff with personal and professional qualifications to properly supervise human beings in custody.

Jailers must be qualified to handle all aspects of inmate supervision including booking, security, sanitation, work assignments, discipline, mail delivery, laundry exchange, prisoner counts, key control, inmate visits, prisoner and cell searches, telephone programs and other activities, etc., and assist inmates toward self improvement.

The jailer is no longer viewed as an individual who merely guards prisoners. It should not be just a job. He/she is not simply a keeper of the keys and the bodies.

The following are some Federal Court decisions concerning inmate supervision by jail personnel:

Parker v. Gladwell, No. C74-391 (N.D. Ohio, 1976) Court required staff on duty in cell areas at all times.

Hamilton v. Covington, 445 F. Supp 195 (W.D. Ark. 1978) Due owed by Sheriff to provide adequate security in the jail. Liability may exist for deaths and injuries in unattended jail.

Stevens v. County of Duchess, 445 F. Supp. 89 (S.D. NY. 1977) Sheriff liable if prisoner-on-prisoner attack occurred under conditions of inadequate supervision in the jail.

Alberti v. Sheriff of Harris County, 406 F. Supp. 649 (S.D. Texas, 1975) Sufficient jail staff shall be hired to provide one jailer for every twenty (20) inmates.

Rhem v. Malcolm, 371 F. Supp. 594, 628 (S.D. NY. 1974) Where the lack of staff causes violation of rights to be free from mistreatment and to be protected from harm, court may order staff increase.

This facility also houses both adult and juvenile female inmates. They must be supervised by female jail officers. This jail must employ full time female jailers to not only supervise female prisoners but also serve as back-up officers for male staff and perform other jail duties. The following is a court decision which addresses this issue:

Hamilton v. Love, 328 F. Supp. 1182, 1196 (E.D. Ark. 1971) There should be one staff member patrolling on each cell floor in the immediate area of every detainee on a 24-hour basis. One female staff member must be on duty 24 hours a day.

Due to fiscal conditions, no one wants to spend money on a new jail, on jail renovation, or on additional jail staff. Consequently, many jails are in poor physical conditions, overcrowded, and understaffed. When these issues were presented to Federal Courts, they provided direct answers. The following three Federal Court decisions:

Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio, 1971) Hamilton V. Love, 328 F. Supp. 1195-97 (E.D. Ark. 1971) Lack of money and lack of staff are not adequate to condone a constitutional violation. Jailers can work only with what they have. But when what they are provided with necessarily results in constitutional violation, the court may order jail authorities to hire the staff necessary to remedy the violation and of course responsible public authorities to provide the necessary funds.

Jackson v. Bishop, 404 F. 2nd 571, 580 (CA8 1968) Humene considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations.

STAFF TRAINING

The Chief Jailer and the five Jail Officers have been certified by the Tennessee Correctional Institute. All jail staff received twenty (20) hours of in-service training and forty (40) hours of basic training conducted by the Tennessee Correctional Institute. They are also required to annually participate in an additional forty (40) hour in-service refresher training program conducted by the Institute.

The topics discussed in the Institute training programs are listed in the Tennessee Minimum Standards Manual and in this Consultant's opinion are appropriate in every respect.

The Chief Jailer has never attended the two-weeks Jail Management training program conducted by the National Institute of Corrections (NIC) in Boulder, Colorado. This course is offerred without any cost to the County including all traveling and per diem expenses. It is recommended that the Chief Jail immediately apply to NIC for participation in this training program.

The ultimate responsibility for the success or failure of jail administration and operation falls upon those who staff the facility. The primary objective of staff training and development are to develop knowledge, attitudes, and skills required for effective job performance and career advancement.

In a recent address, Chief Justice Warren Burger of the U. S. Supreme Court stated that the operations of a jail or correctional facility "is no place for amateurs. It calls for substantial professional training and the highest order of sensitivity, beginning at the guard level."

CLASSIFICATION

Classification is a procedure for determining the needs and requirements of those for whom confinement has been ordered and for assigning them to housing units and programs according to their needs and existing resources. It provides for more effective management of the different categories of inmates.

A prime requisite of efficient jail administration is knowledge of the inmate population. The persons admitted into a jail should be evaluated in terms of personal, social, medical, and criminal history. A routine interview to simply secure identifying data is inadequate. The classification system should be designed to: 1) limit the more damaging aspects of jail experience; and 2) provide data to aid in the management of individual needs.

Due to the physical limitations of this jail facility, the different categories of prisoners cannot be adequately separated. They are separated by sex, and juveniles are separated from adults. The pretrial detainees are supposed to be housed in the first floor cell block, while the sentenced are supposed to occupy the second floor cell block. However, this is not the case. Unfortunately, due to problems among pretrial detainees as well as difficulties among sentenced offenders and the lack of other living units in in this facility, sentenced and unsentenced are house together in both cell blocks.

The double-occupancy cell on the second floor is for the female offenders. It is used to house either sentenced or unsentenced females alone or together depending upon who is in custody at any given time.

The following are Federal Court decisions which address the issues of housing pretrial detainees and convicted persons:

Mitchell v. Untreiner, 421 F. Supp 886, 899 (N.D. 51. 1976). No pretrial detainees may be housed in the same cell with a convicted person.

Moore v. Janing, 427 F. Supp. 567, 571 (D. NE 1976). Housing of convicts and detainees together contributes to finding of unconstitutionality. Detainees may not be subjected to restrictions unrelated to securing appearance at trial and maintaining internal order and security.

The drunk tanks are used to house 1) inebriates; 2) adult females if there are more than two in the jail; 3) juvenile females if the female cell is occupied; 4) juvenile males if the female cell is occupied; 5) adult males in need of administrative segregation; and 6) adult males requiring disciplinary detention.

The housing of juveniles and females in the drunk tanks is dehumanizing and cruel and unusual punishment.

The following Federal Court decisions may have an impact on this issue:

Rhem v. Malcolm, 371 F. Supp. 594, 623, 625 (S.D. NY 1974) Detainees may not be confined under conditions more rigorous than a convicted prisoner. Detainees retain all rights except where necessary to assure their appearance at trial, and conditions must be least restrictive means to achieve that end.

Smith v. Sampson, 349 F. Supp 268, 271 (D NH 1972). Difference in state interest mandates detainees be treated better than convicts. Least restrictrive alternative principles applies to detainees.

This Consultant recommends that this jail employ a trained correctional counselor whose functions would be to (1) interview all persons who are in the jail for more than one day and evaluate them in terms of criminal, medical, and social history, (2) assist in the classification process and provide data to aid in the management of inmates in custody, and (3) provide follow-up casework services for inmates where indicated. Many inmates received in a jail have personal and family problems. A counselor could assist them with their problems and help to reduce their tensions, anxieties, and frustrations. They could improve inmate morale and behavior.

CONCLUSION

The Robertson County Jail is an obsolete, antiquated and inadequate detention/correction facility. It houses pretrial detainees. It also serves as a local correctional institution for persons sentenced by the local courts and for convicted offenders sentenced to the Tennessee Department of Corrections who are serving their sentences in this jail pursuant to a contract between the Robertson County Jail and the Corrections Department.

The inmate housing units consist of two cell blocks each with nine (9) multiple-occupancy cells and a dayroom and two drunk tanks. The cells and dayrooms do not have sufficient space to meet state and national standards. There are no cell blocks with any single cells which are essential in any jail for the housing of the majority of inmates to ensure the safety of staff and inmates. Faulty design does not permit the adequate separation of the different categories of prisoners, such as the sentenced from the unsentenced, felons from misdemeanants, youth offenders from older violators, violent from nonviolent, males from females, juveniles from adults, persons requiring administrative segregation or disciplinary detention from these in the general population, etc. Currently, the drunk tanks are used to house females, juveniles, and prisoners in need of protective custody or disciplinary detention. This is totally unacceptable practise. The jail administration cannot be faulted for this because they do not have a constitutional jail to adequately respond to the needs of the persons placed in their custody.

This facility has no multi-purpose rooms and no indoor or outdoor physical exercise areas. Consequently, inmates spend all their time in their cells or drunk tanks in idleness, boredom, and despair. Sleeping and watching television is their only activity. This is a "human warehouse" with very little concern for the physical and mental well-being of the inmates. There are no correctional programs or activities. It is anticipated that under existing dehumanizing conditions of confinement the prisoners released from this facility are much worse than when they entered.

There is an insufficient number of staff, and prisoners are left for extended periods without any visual supervision or surveillance by jail officers which may result in some prisoners physically and sexually abusing other inmates. There is little communication between staff and inmates. Addtional jail officers would permit inmates to have more visits and telephone calls. Hopefully other activities would be instituted to reduce the amount of idleness. A professional correctional counselor should be employed to assist prisoners with their personal problems.

Robertson County should immediately begin planning for the construction of a new local detention/correction facility which would meet the requirements of jail standards and court decisions.

An atmosphere of openness and cooperation with this Consultant was maintained throughout this on-site visitation, and no overt hostility or covert efforts to conceal information was detected at any point.

This report could not have been accomplished without the cooperation and assistance of all individuals interviewed and the reports and documents made available to the Consultant. This Consultant is grateful for all contributions to the successful completion of this effort.

The recommendations presented in this report are intended to be both comprehensive and pragmatic. They are consistent with accepted standards and guidelines relating to the operation and management oflocal jails, their physical facilities, programs and services.

In summary, the Robertson County Jail is a woefully inadequate facility, and its present operation is hampered by very serious understaffing, which results in conditions that are unsafe for staff and inmates, counter-productive as an element of the county's criminal justice system, and in violation of some inmates' rights.

PERSONAL RESUME

Anthony S. Kuharich, 17048 Wausau Avenue, South Holland, Illinois 60473; Phone No. 312/596-6541.

Date of Birth: January 15, 1913, South Bend, Indiana. Oldest of four children born to Martin and Theresa Kuharich nee: Alterman.

Marital History: Married Irene M. Mich, April 20, 1940, South Bend, Indiana. One son, Martin A., born March 11, 1949, Hammond, Indiana; graduated University of Notre Dame, 1971; married; two children.

Educational History: January, 1931 — Graduated, Central Senior High School, South Bend, Indiana.

June, 1935 — BA — Education — University of Notre Dame.

June, 1941 — MA — History — University of Notre Dame.

June, 1954 — MSIR — Social and Industrial Relations, Loyola University of Chicago, Illinois.

Educational Honors: June, 1961 — Honorary Doctor of Laws Degree (LLD)

Atlanta Law School, Atlanta, Georgia.

Present Employment: February, 1977 — Jail Consultant, National Institute of Corrections (U. S. Department of Justice Agency) Boulder, Colorado. (Part-time)

Prior Employment: January, 1976 — May, 1982; Adjunct Professor, Department of Criminal Justice, Loyola University of Chicago, Illinois (Part-time).

August 4, 1974 — February 12, 1977; Executive Assistant, Metropolitan Correctional Center, Chicago, Illinois, U. S. Bureau of Prisons. (Retired)

January, 1975 — April, 1978; Instructor, Corrections Program, Chicago State University, Chicago, Illinois. (Part-time)

January to July, 1974; Jail Consultant, American Correctional Association, College Park, Maryland.

March 2, 1970 — January 2, 1974; Chief, Bureau of Detention Standards and Services, Illinois Department of Corrections, Springfield, Illinois.

Sept. 6 to Dec. 19, 1973; Instructor, Criminology, MacMurray College, Jacksonville, Illinois (Part-time).

July 7, 1969 — February 28, 1970; Jail Administrator, Wayne County Jail, Detroit, Michigan. Resigned to accept employment in Illinois Department of Corrections.

Exhibit 7

A. An extension cord.

Q. There fees the extension [ILLEGIBLE TEXT]?

A. Across the outer walkway.

Q. The [ILLEGIBLE TEXT] you told us about?

A. Yes.

Q. Have you ever been in the cell black area during the summer?

A. Yes, sir.

Q. On the hot days, how high would you estimate that the temperature gets?

A. It would, I guess, be over 100; if it had been 100 outside, it would be that hot or hotter in there.

Q. If you were putting in an adjective or adverb to describe the heat in there for the inmates, how would you describe it?

A. It would be very hot.

Q. Make them fairly uncomfortable?

A. Yes, sir.

Q. Does the jail staff have any way to reduce the temperature once it gets that high?

A. Just through the ventilation system. What we have, the overhead vents that pull the air through — circulation system

Q. How effective is that?

A. Well, I don't know how effective it's going to be during, hot weather. We found they have been inoperative since the jail was built. There was some up there and the motors were Are you familiar with the [ILLEGIBLE TEXT] at the jail?

A. Yes.

Q. Do you ever experience problems with the plumbing?

A. Yes.

Q. Describe some of those problems.

A. Well, basically, the valves to the commode and washbasin is push button type, something you can't turn and leave open. These type valves you push and cut back off are rather expensive and hard to find. Some of the shower buttons run as high as two or three hundred dollars just for a valve, and it takes sometimes two or three months to obtain them. We have trouble with drainage then. They evidently were too small to begin with and the prisoners will throw articles in there and stop it up and it will flood from time to time.

Q. If the toilet gets stopped up, how long typically does' it take to repair?

A. We make repairs as quick as we can get someone down there right now. As I said, it happens from time to time. It's just a matter — as it stops up or something happens — to try to get someone in. If it's a problem with a shower, like parts are involved, sometimes it may take two or three months. would be an incident report or something.

Q. About the fans you testified that the [ILLEGIBLE TEXT] or inmates are allowed fans, personal fans?

A. Yes, sir.

Q. In the past even with the use of the personal fans, does the temperature still rise up in the hundred degree range in the summertime?

A. Yes, sir.

THE COURT: Wait just a minute, before we leave those wires running across the catwalk. I understood you to say that you thought it would constitute a safety hazard if outlets were provided inside the cells. A suggestion has been made that conduit PVC pipe with some plug outlets be run just outside the cells in the catwalk. Is that feasible or not?

THE WITNESS: Possibly could come from overhead, up and over and back down; it's possible they could.

MR. PINCKNEY, continuing:

Q. Plug into it?

A. Yes, sir, it could be.

Q. The ventilation system, again, you testified you discoverey a switch that can be used?

A. There was also the motors, it never was used or burned out when it was put in. We repaired that last fall. How much difference — that, I think, was the problem, one of the main reasons there was no air at all. The far. blowing would do no good because the air was not [ILLEGIBLE TEXT] through the jail itself And this changed the circulation of it considerably. As far as how much, I have no idea until hoc weather gets here.

Q. How did you discover that ventilation system?

A. We asked the electricians to check on this and they get up on the roof and we told the-where you could see where the vents were on the roof. And they went up and checked among some things and said it was inoperative since the jail was there probably.

Q. What problems had you to have the electrician come in?

A. The heat, the Grand Jury.

Q That kind.

A. Both kinds.

Q. Part of your testimony on cross-examination involved the named plaintiff in this case, Mr. Douglass.

Would you mind explaining to us his specific request for an attorney?

A. No, he didn't request an attorney. He requested the Tennessee Code. You're talking about the most recent request by Douglas?

A. Right.

Q He wanted access to the legal library, not an attorney.

Q He didn't ask to see Ms. Kay?

A. No.

Exhibit 8

Exhibit 9

A. Yes, ma'am.

Q. In the drunk tank, is the temperature monitored in the drunk tank also?

A. Well, you walk in to check it.

Q. Is there a thermostat for the drunk tank?

A. No, ma'am.

Q. So there's no way to control the temperature in there?

A. I believe that one is controlled by the one that's next to the control office or outside the control office that throws the heat in there. I believe that's correct.

Q. Are you sure about that?

A. Not sure, no.

Q. Have you ever tried to change the temperature in the drunk tank?

A. No, ma'am.

Q. Are there any electrical outlets in the drunk tank?

A. No, ma'am, not that I'm aware of.

Q. So there is no way for somebody in there to have a TV or radio?

A. That's correct; no, ma'am.

Q. What about lighting in the drunk tank?

A. There's just a lighting fixture at the top of it, square lighting fixture; it's somewhat dim.

Q. Would you say there's enough light in there to read?

A. To read?

Q. Without hurting your eyes.

A. It would probably hurt your eyes somewhat.

Q. Are you housing juveniles in the jail anymore?

A. For the most part, no, ma'am. It's very hard to.

Q. You say for the most part, what juveniles are you housing in the facility?

A. Recently, none. The most recent one was probably — I couldn't give you an exact time — it's been a pretty good while ago. He was waiting to be transferred further.

Q. Even recently you've had to hold juveniles there?

A. Ma'am, at this time, I believe it's our policy not to even house them anymore.

Q. Do you use the drunk tank also for punitive segregation of inmates?

A. No, ma'am.

Q. Where do you house inmates that are punitively being segregated?

A. I don't recall doing that to anybody, putting them in punitive segregation since I've been there.

Q. Do you have any way to effectively separate inmates that are more violent than inmates who are less violent?

A. What?

Q. More violent inmates than less violent inmates?

A. One floor to the other.

Q. But then they would be in with other non-violent people?

Exhibit 10

IN THE CRIMINAL COURT FOR ROBERTSON COUNTY, TENNESSEE, AT SPRINGFIELD

STATE OF TENNESSEE VS. EDMUND GEORGE ZAGORSKI

RULE NO. __________________

MOTION TO BE REMOVED FROM SOLITARY CONFINEMENT

COMES the Defendant, Edmund George Zagorski, by and through his attorneys and most respectfully moves the court that appropriate Order enter ordering the Sheriff of Robertson County to remove the Defendant from solitary confinement and that he be allowed to be incarcerated with the general population at the Robertson County Jail, or in the alternative that the Defendant be removed and incarcerated in the nearest sufficient jail in the State or in the alternative, to the State Penitentiary pursuant to State vs Grey 602 S.W. 2d 259, Tennessee Criminal Appeals, 1980, and in support thereof would state as follows:

I

That the Defendant has been incarcerated in solitary confinement in the Robertson County Jail since the 6th day of June, 1983. That his cell is totally and completely enclosed from floor to ceiling with sheets of steel, that the only door to Defendant's cell is heavy steel with only a small peep-hole through the door. That the cell that the Defendant is incarcerated in is approximately eight by eight feet in size and within the cell there are two steel bunk beds, a commode and wash basin, a shower stall and a steel desk. That there is only a small amount of walking space within the small cell to which the Defendant is confined. That the only time the Defendant has been removed from the above described cell since his incarceration has been when he is handcuffed and shackled, both hand and both feet, and this has only been when his attorneys have been present and the occasions when it was necessary for him to seek medical attention, or make an appearance in court. That his cell has no air conditioning or ventilation and he is unable to communicate verbally with the other prisoners or with anyone except the jailer who brings him his food. That there is no room for the Defendant to have any form of exercise or fresh air, no daylight and the only light in his cell is a small artificial light in the cell.

II

That since being incarcerated, the Defendant has experienced migraine headaches and has become so disturbed that he has acted irrationally and has struck the heavy steel surrounding his cell with his fist causing injuries to the Defendant. That said condition has caused the Defendant to be so mentally disturbed that it has been necessary that emergency medical treatment be given to him and he has been placed under heavy sedation. That the Defendant has been taken to the emergency room of Jesse Holman Jones Hospital on two occasions, once for treatment of excessive medication and once for treatment of electrical shock resulting from contact with an electrical cord.

III

That the conditions as set out above constitute severe, cruel, and inhuman treatment in that the Defendant is caged like a wild animal, all of which is in total violation of the Defendant's constitutional rights.

IV

That said incarceration of the Defendant as above set out is in violation of an agreed order entered in the U. S. District Court for the Middle District of Tennessee, Nashville Division, In the case ofSamuel E. Douglas, et al vs. Ted Emery, et al which in part reads as follows:

"Defendants are enjoined from placing an inmate in disciplinary or administrative segregation for more than ten days. This does not include inmates who are segregated at their own request . . ."

V

That the incarceration of the Defendant as above set out requires the invocation of Tennessee Code Annotated 41-4-121 et seq.

WHEREFORE, your Defendant most respectfully moves the Court that he be removed from solitary confinement and placed in the general population at the Robertson County Jail or in the alternative, that he be removed to the nearest sufficient jail in the state or in the alternative to the State Penitentiary, pursuant to State vs. Grey 602 S.W. 2d 259 (Tennessee Criminal Appeals, 1980) and that the Defendant be granted an expedited hearing upon this motion.

_____________________ James E. Walton

_____________________ Larry D Wilks Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion to Be Removed From Solitary Confinement has been delivered to the Honorable Dee Gay, Assistant District Attorney General, at his office located on Fifth Avenue, Springfield, Tennessee, on this the 20th day ofSept, 1983.

_____________________ Larry D. Wilks

Exhibit 11

Stuart Grassian, M.D. 401 Beacon Street Chestnut Hill, MA. 02467 Phone: 617-244-3315 Fax: 617-244-2792 PSYCHIATRIC EFFECTS OF SOLITARY CONFINEMENT

My name is Dr. Stuart Grassian. I am a Board Certified Psychiatrist and have been on the faculty of the Harvard Medical School since 1974. I have very substantial experience in evaluating the psychiatric effects of solitary confinement, and have been retained in class action suits concerning this issue in the states of Massachusetts, New York, Kentucky, and California, and have also evaluated and testified regarding the effects of such conditions in other lawsuits in Massachusetts, Texas, Georgia and Florida.

I have been on the teaching staff of Beth Israel Hospital continually since 1977, and have been from time to time on the faculty of major medical meetings, including the American Academy of Psychiatry and Law, and the American Psychiatric Association Institute on Hospital and Community Psychiatry. I have lectured on the subject of the psychiatric effects of solitary confinement in various settings, including Beth Israel Hospital/Harvard Medical School. I have published two articles on the subject of the psychological effects of solitary confinement, and am in the process of preparing a third article on this subject, based upon clinical data compiled as part of my involvement as a psychiatric expert inMadrid v. Gomez, a class action suit concerning conditions at Pelican Bay State Prison, California's "supermax" prison facility.

In addition to my involvement in these cases concerning the effects of solitary confinement, I have also been retained as an expert in other areas of civil litigation, especially involving the psychological effects of trauma and childhood sexual abuse. In the past several years, I have been involved in continuing research regarding the effects of childhood sexual abuse and the manner in which memory of such abuse is maintained over the years; one paper stemming from this research has been submitted for publication, and a revised version will be incorporated as a chapter of a book,Trauma and Memory, to be published by Harvard university Press. I have also lectured on these subjects at various academic conferences. I am Board subspecialty certified by the ABPN in Forensic Psychiatry.

The information which follows is based upon my experience, research, and testimony. All of it has appeared either in previously published material and/or in court testimony and opinions of various State and Federal courts.

I. Summary of Opinions.

In my opinion, solitary confinement — that is, confinement of a prisoner alone in a cell for all or nearly all of the day, with minimal environmental stimulation and minimal opportunity for social interaction — can cause severe psychiatric harm. This harm includes a specific syndrome which has been reported by many clinicians in a variety of settings, all of which have in common features of inadequate, noxious and/or restricted environmental and social stimulation. In more severe cases, this syndrome is associated with agitation, self-destructive behavior, and overt psychotic disorganization.

In addition, solitary confinement often results in severe exacerbation of a previously existing mental condition, or in the appearance of a mental illness where none had been observed before. Even among inmates who do not develop overt psychiatric illness as a result of confinement in solitary, such confinement almost inevitably imposes significant psychological pain during the period of isolated confinement and often significantly impairs the inmate's capacity to adapt successfully to the broader prison environment.

Moreover, although many of the acute symptoms suffered by inmates are likely to subside upon termination of solitary confinement, many — including some who did not become overtly psychiatrically ill during their confinement in solitary-will likely suffer permanent harm as a result of such confinement. This harm is most commonly manifested by a continued intolerance of social interaction, a handicap which often prevents the inmate from successfully readjusting to the broader social environment of general population in prison and, perhaps more significantly, often severely impairs the inmate's capacity to reintegrate into the broader community upon release from imprisonment.

In my experience, many inmates housed in such stringent conditions are extremely fearful of acknowledging the psychological harm or stress they are experiencing as a result of such confinement. This reluctance of inmates in solitary confinement is in substantial measure a response to the perception that such confinement is an overt attempt by authorities to "break them down" psychologically, and in my experience, tends to be more severe when the inmate experiences the stringencies of his confinement as being the product of an arbitrary exercise of power, rather than the fair result of an inherently reasonable process. Furthermore, in solitary confinement settings, mental health screening interviews are often conducted at the cell front, rather than in a private setting, and inmates are generally quite reluctant to disclose psychological distress in the context of such an interview, since such conversation would inevitably be heard by other inmates in adjacent cells, exposing them to possible stigma and humiliation in front of their fellow inmates.

Lastly, the adverse impact of punitively imposed solitary confinement will generally be far more severe than the effect of such confinement when it is imposed for administrative purposes, since by intent, punitive solitary confinement imposes stringencies and deprivations which are in excess of those which are minimally required to maintain an inmate in segregated confinement; such stringencies often include limitations on programming, occupational and educational opportunities, visitation, use of telephone, television and radio access, and access to reading materials, among others. Conversely, inmates housed in segregation for administrative reasons — such as for the protection of the inmate himself from possible harm by other inmates — will ofen retain access to these many of the same opportunities and privileges as provided to inmates housed in congregate housing.

Indeed, the insititutional policies which create different conditions in administrative segregation, as opposed to punitive segregation, reflect an important underlying reality — that "institutional security" actually is employed to mean two very different things. The narrower usage of the term reflects concerns about the safety of the individual inmate being housed, as well as the safety of those with whom he has contact. The broader use of the term, however, is fundamentally unbounded — or at least, has boundaries which are not really distinguishable from the the broad purposes of any system of criminal justice. The harsh stringencies which are employed in punitive segregation reflect institutional assumptions that the harshly painful deprivations assoicated with a sentence to punitive solitary confinement, will serve as a deterrence to other inmates who might be tempted to break institutional rules. This rationale for imposing pain on an offender — the rationale that the punishment of this offender by his society might deterother possible offenders — is simply a rationale forany system of criminal justice and punishment. A fifteen year sentence of punitive solitary confinement is an imposition of pain of staggering proportions. If, in response to one offense, both the prison institution and the broader society can each impose so heavy a burden of harm and pain upon the putative offender in order to deter other possible future offenders, then it seems to be an inescapable conclusion that this putative offender is, indeed being exposed to double jeopardy.

II. SOLITARY CONFINEMENT CAN CAUSE SEVERE PSYCHIATRIC HARM

A. Solitary Confinement Can Cause a Specific Psychiatric Syndrome.

During the course of my involvement as an expert. I have had the opportunity to evaluate the psychiatric effects of solitary confinement in well over 100 prisoners in various state and federal penitentiaries. I have observed that for many of the inmates so housed, incarceration in solitary caused either severe exacerbation or recurrence of preexisting illness, or caused the appearance of an acute mental illness in individuals who had previously been free of any such illness.

I became aware of the particular toxicity of solitary confinement when I first had the opportunity to evaluate prisoners in solitary confinement as a result of my involvement in a class action lawsuit in Massachusetts, Libby v. Hogan, which challenged conditions in solitary confinement at the maximum security State challenged conditions in solitary confinement at the maximum security State Penitentiary in Walpole, Massachusetts. The clinical observations I made in the course of my involvement in that lawsuit, coupled with my research into the medical literature concerning this issue, have formed the basis of two articles I have since published on this topic in peer-reviewed journals. These are: 1. Grassian, S.(1983),"Psychopathological Effects of Solitary Confinement". American Journal of Psychiatry:140, 1450-1454. 2. Grassian, S. and Friedman, N. (1986), "Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement". International Journal of Law and Psychiatry, 8, 49-65. These articles are included as Appendices E and F of this declaration. Moreover, my subsequent professional experience has included observations of similar phenomena in many other solitary confinement settings.

When I initially agreed to evaluate the Walpole prisoners, I had not yet reviewed the literature on the psychiatric effects of solitary confinement and, indeed, I was somewhat skeptical; I expected that inmates would feign illness and exaggerate whatever psychiatric symptomatology they suffered. I discovered, however, something very different. Contrary to my expectations, the prisoners appeared to be extremely defensive about the psychiatric problems they were suffering in SHU; they tended to rationalize away their symptoms, avoid talking about them, or deny or distort their existence, all in an apparent effort to minimize the significance of their reactions to isolation. Numerous interviews began with statements such as "solitary doesn't bother me" or "some of the guys can't take it-not me", or even with the mention of a symptom and a simultaneous denial of its significance: "As soon as I got in I started cutting my wrists. I figured it was the only way to get out of here."

As my interviews progressed, these facile accounts gave way to descriptions of experiences which were very worrisome. For example, one inmate was unable to describe the events of the several days surrounding his wrist-slashing, nor could he describe his thoughts or feelings at the time. Similarly, the prisoner who said he could "take it" eventually came to describe panic, fears of suffocation, and paranoid distortions which he suffered while in isolation. Moreover, the specific psychiatric symptoms reported were strikingly consistent among the inmates:

1. The Specific Psychiatric Syndrome Associated with Solitary Confinement.

a. Hyperresponsivity to External Stimuli

More than half the prisoners reported a progressive inability to tolerate ordinary stimuli. For example, "You get sensitive to noise — the plumbing system. Someone in the tier above me pushes the button on the faucet . . . its too loud, gets on your nerves. I can't stand it. I start to holler."

b. Perceptual Distortions. Illusions, and Hallucinations

Almost a third of the prisoners described hearing voices, often in whispers,

Almost a third of the prisoners described hearing voices, often in whispers, often saying frightening things to them. There were also reports of noises taking on increasing meaning and frightening significance. For example, "I hear noises, can't identify them — starts to sound like sticks beating men, but I'm pretty sure no one is being beaten . . . I'm not sure." These perceptual changes at times became more complex and personalized: "They come by with four trays; the first has big pancakes. I think I am going to get them. Then someone comes up and gives me tiny ones-they get real small, like silver dollars. I seem to see movements — real fast motions in front of me. Then seems like they are doing things behind your back — can't quite see them. Did someone just hit me? I dwell on it for hours."

c. Panic Attacks

Well over half the inmates interviewed described severe panic attacks while in SHU.

d. Difficulties with Thinking. Concentration .and Memory

Many reported symptoms of difficulty in concentration and memory; for example, "I can't concentrate, can't read . . . Your mind's narcotized. Sometimes can't grasp words in my mind that I know. Get stuck, have to think of another word. Memory's going. You feel like you are losing something you might not get back." In some cases this problem was far more severe, leading to acute psychotic, confusional states. One prisoner had slashed his wrists during such a state and his confusion and disorientation had actually been noted in his medical record.

e. Intrusive Obsessional Thoughts: Emergence of Primitive Aggressive Ruminations

Almost half the prisoners reported the emergence of primitive aggressive fantasies of revenge, torture, and mutilation of the prison guards. In each case, the fantasies were described as entirely unwelcome, frightening and uncontrollable. For example, "I try to sleep 16 hours a day, block out my thoughts — muscles tense-think of torturing and killing the guards — lasts a couple of hours. I can't stop it. Bothers me. Have to keep control. This makes me think I'm flipping my mind . . . I get panicky — thoughts come back — pictured throwing a guard in lime — eats away at his skin, his flesh — torture him — try to block it out, but I can't."

f. Overt Paranoia

Almost half the prisoners interviewed reported paranoid and persecutory fears. Some of these persecutory fears were short of overt psychotic disorganization. For example: "Sometimes get paranoid — think they meant something else. Like a remark about Italians. Dwell on it for hours. Get frantic. Like when they push buttons on the sink. Think they did it just to annoy me." In other cases this paranoia deteriorated into overt psychosis: "Spaced out. Hear singing, cases this paranoia deteriorated into overt psychosis: "Spaced out. Hear singing, people's voices, 'Cut your wrists and go to Bridgewater and the Celtics are playing tonight.' I doubt myself. is it real? . . . I suspect they are putting drugs in my food, they are putting drugs in my cell . . . The Reverend, the priest — even you — you're all in cahoots in the Scared Straight Program."

g. Problems With Impulse Control

Slightly less than half of the prisoners reported episodes of loss of impulse control with random violence: "I snap off the handle over absolutely nothing. Have torn up mail and pictures, throw things around. Try to control it. Know it only hurts myself." Several of these prisoners reported impulsive self-mutilation; "I cut my wrists many times in isolation. Now it seems crazy. But every time I did it, I wasn't thinking — lost control — cut myself without knowing what I was doing."

2. This Syndrome has the Characteristics of an Acute Organic Brain Syndrome — a Delirium.

Clearly, these symptoms were very dramatic, and they moreover appeared to form a discrete syndrome — that is, a constellation of symptoms occurring together and with a characteristic course over time, thus suggestive of a discreet illness. Moreover, this syndrome was strikingly distinct from the more common array of functional psychiatric illnesses — indeed, some of the symptoms described above are found in virtually none of these disorders: Acute dissociative, confusional psychoses are a rare phenomenon in psychiatry; random, impulsive violence in the context of such confusional state is even more unusual. Moreover, the type and extent of perceptual disturbances seen in this syndrome are exceedingly uncommon among the functional psychiatric illnesses. For example, loss of perceptual constancy (objects becoming larger and smaller, seeming to "melt" or change form, sounds becoming louder and softer, etc.) is very rare, and when found is far more commonly associated with neurologic illness (especially seizure disorders and brain tumors affecting sensory integration areas of the brain) then with primary psychiatric illness. (When seen in primary psychiatric illness, it is basically only seen in especially severe, insidious, early onset schizophrenia — the kind of schizophrenic illness which has always been thought to clinically "feel" like a fundamentally biological/neurologic disease.)

In addition, functional psychiatric illness very rarely presents with such severe and florid perceptual distortions, illusions, and hallucinations simultaneously affecting multiple perceptual modalities — auditory, visual, olfactory, tactile, kinesthetic. (In fact, in the more common psychotic illnesses such as schizophrenia and psychotic depression, auditory hallucinations are by far the most common type, visual hallucinations come a distant second, and hallucinations in all other modalities are actually very uncommon; moreover, combined modality hallucinations — other than the combination of auditory with visual — are exceedingly rare.)

Similarly, hyperresponsivity to external stimuli with a dysesthetic

Similarly, hyperresponsivity to external stimuli with a dysesthetic (subjectively painful) response to such stimuli, is likewise rare; in fact it is exceedingly rare, so rare that appearance of this symptom also would tend to suggest an organic — brain dysfunction — etiology. (This symptom is similar, for example, to the experience many people have during a febrile illness of finding any touching of their body exceedingly unpleasant or the inability of a patient with a headache to tolerate an even ordinary volume of sound, or the inability of some pregnant women to tolerate even ordinary smells without becoming nauseated.)

Thus, the fact that all of these quite unusual symptoms ran together in the same syndrome was itself a clear confirmation of the distinct nature of this syndrome. While this syndrome is strikingly atypical for the functional psychiatric illnesses, it is in fact quite characteristic of an acute organic brain syndrome — that is, delirium, a syndrome characterized by a decreased level of alertness, EEG abnormalities, and by the same perceptual and cognitive disturbances, fearfulness, paranoia, and the same agitation and random, impulsive and self-destructive behavior which I observed in the Walpole population.

Moreover, delirium is a syndrome which is known to result from the type of conditions — including restricted environmental stimulation — which are characteristic of solitary confinement; even the EEG abnormalities characteristic of delirium have been observed in individuals exposed to conditions of sensory deprivation. By now, the potentially catastrophic effects of restricted environmental stimulation have been the subject of a voluminous medical literature; annual international symposia are being held on the subject, and the issue has even found its way into the popular media. (This literature is summarized in the appendices to this letter.)

B. Psychiatric Disturbances Occurring in Other Settings of Restricted Environmental Stimulation

My involvement in class-action lawsuits in New York State, California and Kentucky has yielded observations of the effects of solitary confinement which are quite parallel to my observations at Walpole. (The findings at Pelican Bay State Prison, California, are discussed at Paragraphs 73-77 of this affidavit, and those at the Federal Correctional Institute at Lexington, Kentucky are found in paragraph 78.)

In addition, earlier published reports on the effects of solitary confinement describe findings which are quite similar to my observations at Walpole. In addition, a pattern of psychiatric disturbances similar to those I found at Walpole have been seen in a variety of other — non-prison — settings, all of which, however, share in common features of restricted environmental stimulation:

These latter have included observations of prisoners of war, of hostages, of patients with impairment of their sensory apparatus (for example, hearing or visually impaired patients), of patients confined in the intensive care unit, of patients undergoing long term immobilization in hospital (e.g. spinal traction patients), of observations of psychiatric difficulties suffered by explorers (for example, Arctic and observations of psychiatric difficulties suffered by explorers (for example, Arctic and Antarctic exploration by individuals and small groups) and of observations of difficulties encountered by pilots during solo jet flight.

In all of these situations, despite the multiple differences which exist between them, the very same syndrome emerges. The literature documenting this fact is well-known, rich and detailed. It is reviewed in the Appendices to this declaration.

C. The Historical Experience With Solitary Confinement: The Nineteenth Century Experience.

1. The Origin of the American Penitentiary and the Nineteenth Century German Experience.

Preindustrial societies often did not make any fundamental distinction between deviant behavior seen as the product of "criminal intent" as opposed to behavior seen as stemming from "mental illness." For such societies, deviant behavior — whatever its origins — was a social evil that was deeply feared and cruelly punished.

But in the early nineteenth century, a surge of great social optimism swept over America, and perhaps an overly optimistic faith in the possibility of rehabilitation of persons whose behavior was deviant. Not coincidentally, this spirit gave rise virtually simultaneously to two great social reform movements in the United States: the development of large mental hospitals and the construction of the first large penitentiaries.

Both of these institutions were founded upon the premise that psychological and social deviance was largely a result of the evils and stresses of "modern society", and both held a fundamental belief that healing would naturally occur if the deviant individual was removed from the evils of the larger society, and thus enabled to come to know his own true nature.

In the case of the mental hospital, this belief gave rise to the concept of a healing, pastoral, therapeutic community. But in the case of the penitentiary, an additional safeguard was obviously required; the inmates clearly had to be protected, not only from the evil influences of the broader society, but also from the evil influences of each other. The proper approach thus appeared to be to give each inmate the opportunity to live a life alone, like a penitent monk in his own monastic cell.

Thus, the earliest American penitentiaries were, generally, systems of rigid solitary confinement. Extravagant attention was paid to the design of these institutions, to ensure the absolute and total isolation of the offender from any "evil and corrupting influences." The Philadelphia Prison, completed in 1829, was particularly conscientious in this regard:

The arrangements . . . guaranteed that convicts would avoid all contamination and follow a path to reform. Inmates remained in contamination and follow a path to reform. Inmates remained in solitary cells for eating, sleeping and working. . . . No precaution against contamination was excessive. Officials placed a hood over the head of a new prisoner when marching him to his cell so he would not see or be seen by other inmates. . . . Thrown upon his own innate sentiments, with no evil example to lead him astray, . . . the criminal would start his rehabilitation. Then, after a period of total isolation, without companions, books, or tools, . . . (he) would return to the community cured of vice and idleness, to take his place as a responsible citizen. (Rothman, pp 86-87)

The American penitentiary, and the Philadelphia System, became world-famous; no important visitor to the United States neglected to tour its penitentiaries and to bring back their principles for emulation in Europe. Some such as de Tocqueville of France and Nicholas Julius from Prussia came specifically for that purpose (Rothman p. 91). de Tocqueville wrote of the utter, "perfect" desolation of the American penitentiary, of the "profound silence" within its "vast walls," likening it to the silence of death. (Rothman, p. 97)

2. Psychological Effects of Severe Isolation

The openness with which these institutions were held up to public scrutiny led in time to open concern about the psychological effects of such confinement. During a tour of the United States in 1842, Charles Dickens wrote with pathos of the Philadelphia Prison:

The system here is rigid, strict and hopeless solitary confinement. . . . Over the head and face of every prisoner who comes into this melancholy house, a black hood is drawn, and in this dark shroud, . . . he is led to the cell from which he never again comes forth, until his whole term of imprisonment had expired. He is a man buried alive . . . dead to everything but torturing anxieties and horrible despair. . . .

The first man I saw . . . answered . . . always with a strange kind of pause . . . he gazed about him and in the act of doing so fell into a strange stare as if he had forgotten something.

In another cell was a German . . . a more dejected, broken-hearted, wretched creature, it would be difficult to imagine.

There was a sailor. . . . Why does he stare at his hands and pick the flesh open, upon the fingers, and raise his eyes for an instant . . . to those bare walls . . . ? (quoted in Liederman, p. 66)

American concern about the effects of rigid solitary confinement began as early as the 1830's. Statistical comparisons began to be made between the Philadelphia system and its chief competitor — the Auburn system prevailing in New York State at Auburn and Sing-Sing penitentiaries. The latter system also utilized solitary confinement, but less rigidly; inmates left their cells to work together in workshops and exercise in a common courtyard, although here, too, absolute and strict silence was maintained at all times. Statistical comparisons began to generate evidence that "it was unnatural . . . to leave men in solitary, day after day, year after year; indeed, it was so unnatural that it bred insanity." (Rothman, p. 87). The Philadelphia Prison appeared to have a higher incidence, not only of insanity, but also of physical disease and death than its New York State counterparts.

Meanwhile, the American system had been emulated in many major European prisons, such as at Halle, Germany. Although the Americans had been the world leaders in instituting rigid solitary confinement in their penitentiary system, German clinicians eventually assumed the task of documenting its effects, ultimately leading to its demise.

Between 1854 and 1909, 37 articles appeared in German scientific journals on the subject of psychotic disturbances among prisoners, summarizing years of work and hundreds of cases. A major review of this literature was published in 1913; (Nitsche, 1913). A summary and synthesis of this rather large body of work appears as an appendix to this declaration.

But it should be noted that interest in the problem was not purely academic; psychotic disturbances among prisoners were of such frequency in these prisons that they attracted administrative as well as clinical concern, and great effort was made to explain this disturbing incidence. Thus, the literature covered a variety of issues, speculating for example, on the "moral degeneracy" of the prison population, some authors by comparing the psychopathology of those who committed "crimes of passion" with those who committed "crimes against property," or by detailing the incidence of the major diagnostic categories of the time (e.g. , "circular insanity," "alcoholic psychoses," epilepsy, general paresis, etc.) among the prison population.

However, multiple reports based on careful clinical observation suggested that a substantial majority of these prison psychoses were direct reactions to the conditions of imprisonment itself. Gradually a clinically distinguishable syndrome of acute reactive prison psychoses began to be defined. Different variables were considered in attempting to explain the etiology of these reactive prison psychoses, including, for example, long versus short duration of imprisonment, or imprisonment of those already convicted versus imprisonment while awaiting trial. However, the most consistent factor described, reported in over half the total literature, was solitary confinement.

D. The Twentieth Century Experience: Prisoners of War. "Brain Washing", and Experimental Research.

1. Prisoners of War and "Brainwashing".

Unfortunately, other than some anecdotal reports, there was little discussion of the psychological effects of solitary confinement in the medical literature during the first half of the twentieth century. Undoubtedly, this was in part a consequence of the disastrous earlier experience with such confinement. As statistical evidence accumulated during the nineteenth century that solitary confinement produced a very disturbing incidence of insanity, physical disease and death, the system had fallen into disrepute, and with this, it had changed from an open, optimistic experiment in social reform into a hidden, secretive means of punishment and control.

Its devastating psychological impact, however, did not change, a fact which became suddenly and very painfully evident in the 1950's as the American public began hearing the frightening and dramatic reports of "brainwashing" of American prisoners of war in Korea — reports that alterations in the sensory environment were being intentionally imposed upon these prisoners in a seemingly Orwellian attempt to profoundly disrupt their psychological equilibrium. (Biderman and Zimmer, 1961).

By the 1950's, reports had already appeared of major psychiatric disturbances among survivors of prolonged solitary confinement in war (e.g., Burney, 1952), but during the decade of the Korean War, major attention was riveted on the occurrence of these disturbances, not only in war, but in a variety of other settings as well.

In 1956, the Group for the Advancement of Psychiatry (GAP) held a symposium — "Factors Used to Increase the Susceptibility of Individuals to Forceful Indoctrination" — to study methods used by the Chinese and Russian Communists to "indoctrinate" and "break the will" of political prisoners and prisoners of war.

Dr. M. Meltzer, former Chief Medical Officer at Alcatraz Federal Penitentiary, contributed his observations of psychiatric disturbances among prisoners exposed to punitive solitary confinement at Alcatraz. These prisoners were rarely confined for periods beyond one week. (Meltzer, 1956) Despite this, Dr. Meltzer described acute psychotic breakdowns among prisoners so confined; his descriptions closely paralleled the observations at Walpole: "The motor effects ranged from occasional tense pacing, restlessness and sense of inner tension with noise making, yelling, banging and assaultiveness at one extreme, to a kind of regressed, dissociated, withdrawn hypnoid and reverie-like state at the other . . . (The) sense of self, the ego and the ego boundary phenomena are profoundly affected by the isolation." (Meltzer, p. 98)

In the same symposium, Dr. John Lilly of the National Institute of Mental Health noted that despite the importance of other factors which tended to "weaken personalities and make them more susceptible to [forced indoctrination]" — such as semi-starvation, physical pain and injury, and sleep deprivation — social and sensory isolation was still the central pathogenic factor in such confinement. (Meltzer, p. 89)

2. Experimental Research on Sensory Deprivation.

An experimental model was therefore designed to study the effect of restricted environmental stimulation (RES); this research, conducted during the 1950's and early 1960's, primarily at Harvard and McGill University Medical Centers, was in fact funded in large part by the United States Government — and especially by the Department of Defense and U.S. Central Intelligence Agency. This research is described in an appendix to this declaration. Its relevant conclusions can, however, be described relatively briefly:

In these studies (Brownfield, 1965; Solomon, et al., 1961), subjects were placed in a situation designed to maximally reduce perceptually informative external stimuli (e.g., light-proof, sound-proof rooms, cardboard tubes surrounding the arms and hands to reduce proprioceptive and tactile sensation, and so on). The research revealed that characteristic symptoms generally developed in such settings. These symptoms included perceptual distortions and illusions in multiple spheres, vivid fantasies, often accompanied by strikingly vivid hallucinations in multiple spheres, derealization experiences, and hyperresponsivity to external stimuli. What was also clear, however, was that while some subjects tolerated such experiences well, many did not, and a characteristic syndrome was observed, including not only the above symptoms, but also included cognitive impairment, massive free-floating anxiety, extreme motor restlessness, emergence of primitive aggressive fantasies which were often accompanied by fearful hallucinations, and with decreasing capacity to maintain an observing, reality-testing ego function. In some cases, an overt psychosis supervened with persecutory delusions and, in some cases, a marked dissociative, catatonic-like stupor (delirium) with mutism developed. EEG recordings confirmed the presence of abnormalities typical of stupor and delirium.

These findings clearly demonstrated that this experimental modeldid reproduce the findings in the non-experimental situations, including the findings among prisoners of War held in solitary confinement.

E. Factors Affecting Response to Sensory Restriction and Solitary Confinement.

Much of the subsequent research in this area attempted to delineate variables which might explain these differing outcomes. These variables can be divided into two categories: 1) differences among various conditions of perceptual deprivation, and 2) differences in preexisting psychological functioning among individuals experiencing such conditions:

1. Differing Conditions of Isolation.

One of the factors commonly cited in the literature as related to outcome is differences in the intensity and duration of the sensory deprivation experience; more severe sensory restriction, the presence of noxious stimulation, and longer duration of the sensory deprivation experience, have all been associated with an increased risk of adverse psychiatric consequences.

In my experience, while conditions experienced by inmates in various prison solitary confinement settings generally bear some similarities (e.g. a cell of roughly 50-80 square feet, approximately 22 1/2 hours/day locked in the cell, with about one hour/day 5-7 days/week of exercise yard), in other respects, the conditions are fairly variable. For example, some cells have barred doors, which allow better ventilation, sound transmission and visual connection with the outside environment than do mesh steel doors; solid steel doors are the most restrictive — especially when they are either hinged or slide shut with almost no air gap from the wall. Moreover, administrative conditions regarding the amount and circumstances of visitation, the availability of reading material, radio, and television, and so forth, are all factors which vary from institution to institution, and even from time to time within a given institution.

2. The Perceived Intent of the Isolation Experience

In addition to the factors described above, another critical factor in determining the effect of isolation, appears to be theperceived intent of the isolation. Experimental research has demonstrated that an individual who receives clues which cause him to experience the isolation situation as potentially threatening, is far more likely to develop adverse psychiatric reactions to the isolation experience; conversely, if the subject has reason to believe the situation is likely to be benign, he will be far more likely to tolerate or even enjoy it. Among the latter group of subjects who tolerated isolation well, many reported pleasant or, at least, nonthreatening, visual imagery, fantasy and hallucinatory experiences, often associated with a state of hypnotic reverie: "His mind may begin to wander, engage in daydreams, slip off into hypnogogic reveries with their attendant vivid pictorial images . . . he may be quietly having sexual or other pleasurable thoughts." (Wright Abbey, 1965, pg. 6.)

This finding is perhaps not surprising. It appears that sensory restriction produces perceptual disturbances and illusions, which are analogous to those produced by hallucinogenic drugs — and clearly, while there are some individuals who could be said to havevolunteered to undergo such hallucinatory, psychotic-like experiences, it must be almost uniformly terrifying to beforced involuntarily to undergo an experience similar to that induced by hallucinogenic drugs.

3. Individual Differences in Response.

Many studies have demonstrated that there is great variability among individuals in regard to their capacity to tolerate a given condition of sensory restriction. This variability helps to provide further insight into the nature of the toxic effect of such isolation conditions, and provides striking corroboration of the fact that such environmental stimulation, especially when of prolonged duration, is toxic to brain functioning, and causes symptoms characteristic of stupor and delirium.

Generally, individuals with mature, healthy personality functioning and with intact central nervous system functioning — and of at least average intelligence — have been found to have greater ability to tolerate such isolation situations, while individuals with primitive or psychopathic functioning, individuals with borderline cognitive capacities, impulse-ridden individuals and individuals whose internal cognitive/emotional life is chaotic or fearful, are especially at risk for severe psychopathologic reactions to such isolation. (Appendix C describes these studies in more detail.)

Moreover, there is clear evidence that in a situation of restricted environmental stimulation, preexisting central nervous system dysfunction is a major predisposing factor to the development of adverse psychiatric reactions and of overt delirium. For example, in one study of patients suffering visual deprivation following eye surgery (eye-patched patients), those patients with pre-existing central nervous system dysfunction were found to be at especially high risk to develop symptoms of delirium. (Ziskind et.al 1960). Moreover, the presence of a preexisting personality disorder or impairment of psychosocial functioning was associated with increased risk of incapacitating fearfulness, paranoia, agitation and irrational aggression towards staff (Klein Moses 1974). (A more extensive review of this literature is contained in Appendix A to this letter.)

In addition, individuals may at times be exposed to situations which cause impairment of central nervous system functioning. Such situations — especially if they impair the individual's state of alertness, for example, sleep deprivation, abnormal sleep-wake cycles, or the use of sedating medication — will substantially increase the individual's vulnerability to the development of delirium. Delirium among post-surgical patients, and the so-called "ICU Psychoses" are examples of this phenomenon. (Appendix A discusses this issue in more detail.) And one of the characteristic difficulties experienced by inmates in solitary confinement is, in fact, abnormal sleep-wake cycles and impaired sleep.

a. Findings at Pelican Bay State Prison.

These findings received further corroboration in my observations of inmates at Pelican Bay State Prison, California. In 1991-92, as part of my participation in Madrid v. Gomez — a class-action lawsuit challenging conditions at Pelican Bay State Prison, a new "supermax" facility in California — I evaluated 50 inmates housed in the Special Housing Unit (SHU) at the institution, and prepared a lengthy report to the Federal Court of my findings. (Much of the literature review and historical material in the present declaration is taken from my Madrid declaration.) Many of the inmates I evaluated there suffered severe psychiatric disturbances while housed in Pelican Bay SHU — either springing up de novo while so incarcerated, or representing a recurrence or severe exacerbation of preexisting illness. Of the 50 inmates I evaluated, at least 17 were actively psychotic and/or acutely suicidal and urgently in need of acute hospital treatment, and 23 others suffered serious psychopathological reactions to solitary confinement, including in several cases, periods of psychotic disorganization.

The clinical data at Pelican Bay also added striking corroboration that the severe and prolonged restriction of environmental stimulation in solitary confinement is toxic to brain functioning, by demonstrating that the most severe, florid psychiatric illnesses resulting from solitary confinement tend to be suffered by those individuals with preexisting brain dysfunction. As noted before, I have observed a high incidence of preexisting central nervous system dysfunction among inmates I have evaluated in solitary confinement settings. This was also the case at Pelican Bay, and statistical analysis of the Pelican Bay data quite dramatically demonstrated that inmates with such preexisting vulnerability were the most likely to develop overt confusional, agitated, hallucinatory psychoses as a result of SHU confinement.

b. Attention Deficit and Antisocial Personality Disorders

In addition, research regarding Attention Deficit Disorder and Antisocial Personality Disorder demonstrate that these conditions are similarly associated with a particular inability to tolerate restricted environmental stimulation. There is in fact increasing evidence that childhood impulsivity and Attention Deficit Hyperactivity Disorder bear some relationship to Antisocial Personality Disorder, that both are characterized by impulsivity and stimulation-seeking behavior, and that both involve biologically based abnormalities in central nervous system functioning. Moreover, the clinical literature demonstrates that individuals with Antisocial Personality Disorder are especially intolerant of restricted environmental stimulation. For example, Quay (1965) characterized the psychopathic individual as pathologically "stimulation seeking . . . impulsive . . . (and) unable to tolerate routine and boredom." (Appendix B contains a more detailed discussion.)

Given the exigencies of conducting clinical observations of inmates in solitary confinement, it is not surprising that little systematic attempt has been made to elucidate the underlying psychological characteristics of those most at risk for developing severe psychopathological reactions to such isolation. However, among the clinical reports on Ganser's Syndrome (a related condition) in nonprison populations are several studies of patients in psychiatric hospitals. These patients were, of course, available for extensive psychological assessment and observation, and these reports described the majority of these patients as suffering long-standing hysterical character disorders, having problems with severe impulsivity, childhood truancy, and antisocial behavior patterns. (Appendix B contains a more detailed discussion.)

Thus, the medical literature demonstrates that individuals whose internal emotional life is chaotic and impulse-ridden, and individuals with central nervous system dysfunction, may be especially prone to psychopathological reactions to restricted environmental stimulation. Yet among the prison population, it is quite likely that these are the very individuals who are especially prone to committing infractions that result in stricter incarceration, including severe isolation and solitary confinement.

c. Effects on Psychologically More Resilient Inmates:Baraldini v. Meese and Hameed v. Coughlin

In 1988, in the course of my involvement in Baraldini v. Meese. a class action challenging the confinement of a small group of women in a subterranean security housing unit at the Federal Penitentiary in Lexington, Kentucky, I had the opportunity to interview several women who were in confinement in this facility. These women had been convicted of having committed politically motivated crimes, were all highly educated, and had a history of relatively strong psychological functioning prior to their confinement. None of these women developed the florid confusional psychosis described earlier in this affidavit, yet each of them demonstrated significant psychopathological reactions to their prolonged confinement in a setting of severe environmental and social isolation. These included perceptual disturbances, free-floating anxiety and panic attacks. These inmates also, uniformly described severe difficulties in thinking, concentration and memory; for example, one inmate reported that she was able to perform tasks requiring some mental effort — such as reading or writing-only for about the first three hours of the morning after she awoke; by then, her mind had become so slowed down, so much "in a fog", that she was entirely unable to maintain any meaningful attention or expend any meaningful mental effort.

In addition, in 1993, I evaluated Bashir Hameed, an inmate who had also been incarcerated in the SHU at Shawangunk C.F. and who had brought suit-Hameed v. Coughlin. 89 CV 578 (NDNY) — concerning his incarceration there. As I described in my testimony in that case, Mr. Hameed is an individual who evidenced strong prior psychological adjustment, and no prior psychiatric history, yet became significantly ill as a result of his SHU confinement.

F. Long Term Effects of Solitary and Small Grouo Confinement.

Long-term studies of veterans of P.O.W. camps and of kidnapping and hostage situations have demonstrated that while many of the acute symptoms I outlined above tend to subside after release from confinement, there are also long-term effects which may persist for decades. These not only include persistent symptoms of posttraumatic stress (such as flashbacks, chronic hypervigilance, and a pervasive sense of hopelessness), but also lasting personality changes — especially including a continuing pattern of intolerance of social interaction, leaving the individual socially impoverished and withdrawn, subtly angry and fearful when forced into social interaction. (This literature is reviewed in Appendix D to this declaration.)

In addition, from time to time I have had the opportunity to evaluate individuals who had been incarcerated in solitary confinement several years previously; I have found the same pattern of personality change described above-these individuals had become strikingly socially impoverished and experienced intense irritation with social interaction, patterns dramatically different from their functioning prior to solitary confinement.

III Conclusions

The restriction of environmental stimulation and social isolation associated with confinement in solitary are strikingly toxic to mental functioning, producing a stuporous condition associated with perceptual and cognitive impairment and affective disturbances. In more severe cases, inmates so confined have developed florid delirium — a confusional psychoses with intense agitation, fearfulness, and disorganization. But even those inmates who are more psychologically resilient inevitably suffer severe psychological pain as a result of such confinement, especially when the confinement is prolonged, and especially when the individual experiences this confinement as being the product of an arbitrary exercise of power and intimidation. Moreover, the harm caused by such confinement may result in prolonged or permanent psychiatric disability, including impairments which may seriously reduce the inmate's capacity to reintegrate into the broader community upon release from prison.

Many of the prisoners who are housed in long-term solitary confinement are undoubtedly a danger to the community and to the Corrections Offices charged with their custody. But for many, they are a danger, not because they are coldly ruthless, but because they are volatile, impulse-ridden, and internally disorganized.

As noted earlier in this statement, modern societies made a fundamental moral division between socially deviant behavior which was seen as a product of evil intent, and that behavior seen as a product of illness. Yet this bifurcation has never been as simple as might at first glance appear. Socially deviant behavior can in fact be described along a spectrum of intent. At one end are those whose behavior is quite "instrumental" — ruthless, carefully planned and rational; at the other, are individuals whose socially deviant behavior is the product of unchecked emotional 'impulse, internal chaos, and often of psychiatric or neurologic illness.

It is a great irony that as one passes through the levels of incarceration-from the minimum to the maximum security institutions, and then to the solitary confinement sections of those institutions — one does not pass deeper and deeper into a subpopulation of the most ruthlessly calculating criminals. Instead, ironically and tragically, one comes full circle back to those who are emotionally fragile and, often, severely mentally ill. The laws and practices which have established and perpetuated this tragedy deeply offend any sense of common human decency. Stuart Grassian, M.D.

APPENDICES

A. Reports of Psychiatri c Disturbances in Conditions of Restricted Environmental Stimulation.

B. The Nineteenth Century German Experience with Solitary Confinement: Ganser's Syndrome.

C. Experimental Research on the Psychiatric Consequences of Profound Sensory Deprivation: Factors Influencing Vulnerability to Harm.

D. Reports of the Long-Term Effects of Solitary Confinement in Former Hostages and in Prisoners of War.

APPENDIX A REPORTS OF PSYCHIATRIC DISTURBANCES IN OTHER CONDITIONS OF RESTRICTED ENVIRONMENTAL STIMULATION

The psychopathologic syndrome which I have described in the body of this declaration is found in other settings besides isolation in civil prisons. Some of these settings involve small group, rather than solitary isolation, and the studies have demonstrated that isolated groups comprising two individuals may be the most pathogenic of all. These studies also suggest that those individuals with below average intelligence and poor psychosocial adjustment prior to isolation developed more severe psychiatric difficulties during isolation in some studies, such disturbances persisted in one year follow-up after reentry.

Aviation

Bennett (1961) described psychiatric disturbances among pilots of the British Royal Air Force who had been exposed in-flight to periods of restricted auditory and visual stimulation. All of the groups he described became significantly anxious-many suffering full-blown panic attacks-and many experienced unusual sensations which they were very reluctant to describe. The most severely disturbed groups refused to expose themselves further to the isolation conditions of these flights; at all levels of impairment, however, anxiety was common (both panic and free-floating anxiety). Pilots reported anxiety symptoms such as feeling "hot and tense and powerless" (Bennett, p. 162) and "nervous and afraid" (ibid, p. 164). Feelings of derealization, feelings of detachment from reality, and perceptual distortions were described. Some of these perceptual distortions were dangerous (e.g., having the impression that the aircraft was turning when it was not) and resulted in serious errors in judgment (e.g., making the aircraft spiral dangerously downward after attempting to "correct" for what was incorrectly perceived as a turning aircraft). Clark Graybiel (1957) described strikingly similar symptoms among United States Navy pilots exposed to periods of in-flight isolation. Among pilots who flew alone, at high altitude, (i.e., in a situation of monotonous visual and sensory stimulation) and flying with a minimum of pilot activity, over one third experienced frightening feelings of unreality and became severely anxious.

Small Group Confinement

Many studies-both anecdotal and experimental-have been made of individuals confined together in small groups; groups thus described have ranged in size from two to approximately sixty individuals, the larger groups include reports of men isolated on a Pacific island, submarine inhabitants, Antarctic explorers, etc. (see Zubek, 1969). The most consistent finding was of dramatically increased levels of hostility, interpersonal conflict and paranoia (Zubek, p. 377). Individuals exposed to such conditions also tend to become irrationally territorial, staking out "areas of exclusive or special use, [and] acting with hostility to trespasses by others." (Zubek, p. 380)

Confined groups comprising just two individuals may be the most pathogenic of all, associated with especially high rates of mutual paranoia and violent hostility. Admiral Byrd believed it to be extremely unsafe to staff an Antarctic base unit with just two men:

It doesn't take two men long to find each other out . . . the time comes . . . when even his [campmate's] unformed thoughts can be anticipated, his pet ideas become a meaningless drool, and the way he blows out a pressure lamp or drops his boots on the floor or eats his food becomes a rasping annoyance. . . . Men who have lived in the Canadian bush know well what happens to trappers paired off this way . . . During my first winter at Little America I walked for hours with a man who was on the verge of murder or suicide over imaginary persecutions by another man who had been his devoted friend. (Quoted in Zubek, 1969, p. 381).

Many men confined in Antarctic stations have experienced near psychotic states, creating a danger to all inhabitants of the work station (Zubek, 1969). The pathogenicity of such dyadic groups was confirmed in an experimental study involving volunteer sailors living and working together in dyadic pairs, socially isolated from the world for a period of ten days. Under such conditions, the sailors developed evidence of subjective distress, inability to concentrate, a breakdown of inner controls on behavior, hostility, and increasing schizoid withdrawal from social contact (Cole, J.D., 1967).

Polar Habitation

Psychiatric disturbances have been described in Arctic and Antarctic inhabitants (explorers, researchers and their support staff), spending varying periods in winter isolation. In these regions, winters last for up to nine months with weather conditions so cold (-100F) that leaving the confines of the indoors is dangerous. Typically, teams of work groups have fewer than 50 members who spend up to two years working in small quarters. Small group isolation conditions at these stations have been compared to life in prisons by at least one researcher: ". . . the isolation imposed by the harsh environment [of the Antarctic] is rarely experienced outside penal conditions" (Biersner Hogan, 1984, p. 491).

In a review of the literature on the psychological adjustment to Antarctic living, Rothblum (1990) described a staff wintering over at a British Antarctic station; those of the staff who adjusted best tended to be socially mature, intelligent, reserved and trusting individuals. Similarly, French, United States and Australian studies revealed that intelligence and previous social adjustment predicted a decreased risk for psychiatric disturbance among workers at Antarctic stations. On the other hand, lack of respect for authority and aggression were important markers for poor isolation adjustment (Mullin Connery, 1959).

Similarly, Wright, Chylinski, Sisler and Quarrington (1967) correlated outcome measures with psychological testing obtained prior to work station assignment. They found specifically that persons with antisocial and psychotic tendencies were poor risks for efficient functioning in conditions of isolation.

As a result of these disturbing findings among Antarctic workers, systematic efforts have been made to provide psychological screening of potential station employees and to ameliorate the isolation conditions prevailing in such stations (Cochrane Freeman, 1989). Despite these efforts, significant psychiatric disturbances have continued to be observed (Natini Shurley, 1974). The fact that these individuals were confined in small groups rather than alone was not found to prevent these disturbances; indeed, one of the central pathogenic factors cited in this literature has been the interpersonal tension and hostility generated by small group confinement (Biersner Hogan, 1984).

Strange Klein (1974) and Rothblum (1990) described a "winter-over syndrome" including progressively worsening depression, hostility, sleep disturbance, impaired cognitive functioning and paranoia during small group winter confinement in the Antarctic. Strikingly similar findings were reported by the United States Navy Medical Neuropsychiatric Research Unit, which found high incidence of sleep disturbance, depression, anxiety, aggression, somatic complaints, and a progressive impoverishment of social relationships as the winter progressed (Gunderson, 1963; Gunderson Nelson, 1963). Psychiatric problems worsened as the length of time in this confinement increased; in one study of a group of Japanese winter-stationed in the Antarctic periodic psychological testing revealed increasing levels of anxiety and depression as the winter progressed (Rothblum, 1990). Similar findings have been described among a group of Americans stationed in the Antarctic (Gunderson Nelson, 1963).

In a review of the literature on the psychological adjustment to Arctic life, Cochrane and Freeman (1989) describe a syndrome which parallels the Antarctic literature: sleep disturbances, apathy, irritability, cognitive, dysfunction, hallucinations, depression and anxiety were widely reported as a result of the small group isolation endured by inhabitants. They also reported "depression, irritability, easily provoked anger which may escalate into dramatic and florid acting out and, not surprisingly, a breakdown in relationships with other members of the group . . . insomnia, pallor, loss of interest, psychomotor retardation, paranoidal ideation, non-specific hallucinations of light flashes and sudden movements" (p. 887) Many individuals became intolerant of social contact, and fearful of reentering society. Even when Arctic workers were adequately preselected by psychological screening, trained and supported, sleep difficulties, apathy and irritability persisted.

Studies on reintegration into the home environment after Antarctic living even one year after reintegration, found persisting problems and symptoms, including sleep disturbances, cognitive slowing, emotional withdrawal, resentment of authority, indecisiveness and poor communication (Rothblum, 1990).

Biersner Hogan (1984) summarized the findings related to personality variables in the Arctic and Antarctic workers:

Individuals with high needs for novelty and new sensations . . . who are emotionally unstable, or who are unconcerned with social approval seem unsuited for . . . such environments. The opposite [traits are found in] those who adjust well (p. 495)

Explorers: Solo Voyages

Anecdotal reports of shipwrecked sailors and individuals accomplishing long solo sea voyages have generally described "disturbances in attention and in organization of thought labile and extreme affect hallucinations and delusions" . (Zubek, 1969, p. 7). Dramatic anecdotal reports have appeared from time to time. Some of these were summarized in a review article by Dr. Philip Solomon, one of the lead scientists in the Harvard Medical School/Boston City Hospital group:

"Christine Ritter in her very sensitive document A Woman in the Polar Night,' reported that at times she saw a monster . . . [and] experienced depersonalization to the extent that she thought she and her companions were dissolving in moonlight as though it were eating us up' . . . The Spitzbergen hunters use the term ran (strangeness) to describe these experiences. . . ."

Tales of the sea have provided many accounts of hallucinatory phenomena. John Slocum sailed alone around the world . . . [In the South Atlantic] he suddenly saw a man, who at first he thought to be a pirate, take over the tiller —

Walter Gibson, a soldier in the British Indian Army, was on a ship torpedoed in the Indian Ocean by the Japanese in World War II. . . . .[The shipwrecked survivors] reported that "all of us at various stages in that first week became a prey to hallucinations" . . . [As the weeks passed] the feeling of comradeship disappeared and the men began to find themselves "watching our fellows covertly and suspiciously." Murder, suicide and cannibalism followed as social controls dissolved.

Medical Conditions

1. Eye Patched Patients

Restricted environmental stimulation conditions also occur post-operatively and in certain medical conditions: in a study of 100 American patients with macular degeneration of the retina (Holroyd, Rabins, Finkelstein, Nicholson, Chase Wisniewski, 1992), a high percentage of such patients experienced disturbing visual hallucinations. Those patients who were relatively cognitively limited, those who were socially isolated and those with simultaneous sensory impairment in another modality (e.g.. hearing-impaired patients) fared worst. But other factors, including the presence of concomitant medical illness, did not appear to affect the incidence of hallucinations.

In an especially relevant study of eye patched patients, Klein Moses (1974) determined that psychologically well-adjusted patients (as assessed prior to surgery) tended not to develop visual hallucinations during the period when their eyes were patched, whereas those suffering preexisting personality disturbances did tend to develop such hallucinations. Among those patients who did develop hallucinations, almost half developed complex hallucinations involving human figures and with a content suggesting serious preoccupations with themes of depression and anxiety. Moreover, among those patients who had both preexisting personality disturbances and difficulty with their premorbid psychosocial adjustment, eye patching produced severe psychiatric symptomatology, including: paranoid thoughts about being poisoned, physically harmed or attacked; psychomotor agitation; interpersonal aggressiveness; inability to comply with staff directives; fearful visual hallucinations, and incapacitating anxiety. In this most disturbed group, symptoms had not remitted when observed one week after their eye patches were removed.

Other studies have also found patients to suffer from perceptual distortions, thinking disturbances and mood changes following the visual deprivation that is part of post-operative recovery in eye surgery (Ziskind, 1958; Ziskind, Jones, Filante Goldberg, 1960). Furthermore, Ziskind et. al., (1960) noted that: "In patients with . . . brain damage, there were also delirioid symptoms, e.g., confusion, disorientation, memory impairment, vivid hallucinations [and disorganized] hyperkinetic activity" (p. 894). Finally, in Jackson's (1969) extensive literature review of hospitalized eye patched patients, psychiatric disturbance was commonly found. These patients suffered from unusual emotional, cognitive and sensory-perceptual disturbances, similar to those previously described.

2. Poliomyelitis

Polio patients confined to tank-type respirators have become psychotic as a direct result of such confinement; moreover, they became more ill, with more florid hallucinations and delusions, at night when sensory input was diminished. The same florid hallucinatory, delusional psychosis has been found in other patients similarly confined in tank respirators (Liederman, et. al., 1958).

3. Cardiac Patients

Patients with decompensated heart disease are at times placed on very strict bed rest; some of these patients have developed acute confusional, paranoid, hallucinatory psychoses, especially at night during periods of decreased sensory input (Liederman, et. al., 1958).

Studies of post-operative open heart surgery patients who were bed confined-their visual stimulation restricted to looking up at a white-tiled hospital room ceiling-revealed a high rate of disordered thinking, visual and auditory hallucinations and disorientation (Egerton Kay, 1964; Kornfeld, Zimberg Maim, 1965; Lazarus Hagens, 1968; Wilson, 1972). There is an extremely disturbing incidence of psychosis following open heart surgery, ranging in various studies from 14 to 30 percent (Lee Ball, 1975). Upon recovery these patients described their post-operative environment as a major pathogenic factor in producing their psychiatric illness (Kornfeld et. al., 1965). Perceptual disturbances and emotional liability, as well as paranoia, depression and obsessive-compulsive reactions to the restrictive post-operative environment have been documented in other studies as well (Ellis, 1972; Goldstein, 1976; Lee Ball, 1975; Thomson, 1973).

4. Hearing Impaired Individuals

Another condition of restricted environmental stimulation leading to psychiatric disturbance involves the hearing impaired. Studies of the deaf (Altshuler, 1971; Houston Royse, 1954) consistently find significantly higher rates of paranoia in these individuals. High rates of paranoia have been reported in both the developmentally hearing impaired as well as those who became deaf in later life (Zimbardo, Andersen Kabat, 1981). Experimentally induced deafness in psychiatrically unimpaired adults also produced paranoia (Zimbardo, et. al., 1981).

5. Other Medical Patients

Disorientation and delusional psychoses have also been reported among immobilized orthopedic patients and in patients postsurgically bed-confined (Liederman, et. al., 1958). Nursing researchers (Downs, 1974) have studied this phenomenon and have concluded that frightening hallucinatory experiences "are probably far more widespread than has been reported" (Downs p. 434).

6. Occupational Situations

McFarland and Moore (1957) reported in the New England Journal of Medicine on a study of fifty long-distance truck drivers; of these, thirty experienced vivid visual hallucinations; some became disoriented, "as in a dream."

7. Animals

As noted in the body of this declaration, many prisoners confined in solitary report become intolerant of normal levels of environmental-especially social-stimulation. These reports receive experimental confirmation in laboratory research on animals. Such research demonstrates that sensory deprivation produces an intolerance to normal levels of environmental stimulation; animals exposed to sensory deprivation conditions became overly aroused — "hyperexcitable" — when exposed to normal levels of environmental stimulation, often resulting in severe behavioral disturbances (Riestin, 1961). Other studies have demonstrated that such animals often display diffuse, frenzied, random activity, and social withdrawal, and are prone to psychophysiologic illnesses (e.g.. peptic ulcers) when exposed to environmental stress (Zubek, 1969).

Barnes (1959) produced agitation in mice and rats after a few days of isolation, a report which corroborated previous studies with rats. Others (Matsumoto, Cai, Satoh, Ohta Watanabe, 1991) have also found that isolation induced aggressive behavior in mice (e.g., biting attacks). Further, social isolation has been demonstrated to produce profound and lasting psychological effects in primates. Washburn and Rumbaugh (1991) note that over 400 published investigations of the effects of social isolation on primates show such deleterious effects as self-mutilation and disturbances in perception and learning. They found than in adult rhesus monkeys even brief periods of social isolation produce compromised cognitive processing. McKinney, Suomi and Harlow (1971) produced symptoms of depression in rhesus monkeys by confining them for 30 days. They concluded that solitary "confinement produced greater destructive behavioral effects in less time and with fewer individual differences among subjects than did total social isolation, previously [demonstrated to be] the most powerful technique for producing psychopathological behavior among monkey subjects" (p. 1317). Induced depression through confinement has been reported in both young and mature monkeys (Harlow Suomi, 1974). Finally, isolation-produced fear in dogs has been clearly demonstrated (Thompson Melzack, 1956).

APPENDIX B THE NINETEENTH CENTURY GERMAN EXPERIENCE WITH SOLITARY-CONFINEMENT . . .

Between 1854 and 1909, thirty-seven articles appeared in the German medical literature on the subject of psychotic disturbances among prisoners, summarizing years of work and many hundreds of cases. A major review of this literature was published in 1912 (Nitsche, 1912) Solitary confinement was the single most important factor identified in the etiology of these psychotic illnesses.

Indeed, the first report on the subject of prison psychoses was that of Delbruck (1854), Chief Physician at the Prison at Halle, in which "the frequency of mental disturbances was at last so great that it attracted the attention of the authorities." (Nitsche, p. 1). Delbruck's report concluded that:

Prolonged absolute isolation has a very injurious effect on the body and mind and that it seems to predispose to hallucinations. . . . He advised the immediate termination of solitary confinement. (Nitsche, p. 2).

In 1863, Gutsch reported on 84 cases of "The Psychosis of Solitary Confinement" and described vivid hallucinations and persecutory delusions, apprehensiveness, psychomotor excitation, sudden onset of the syndrome, and rapid recovery upon termination of solitary confinement. Many of these individuals developed "suicidal and maniacal outbursts." (Nitsche, p. 8)

In 1871, in a report on 15 cases of acute reactive psychoses, some of which apparently occurred within hours of incarceration in solitary, Reich described, in addition to hallucinosis and persecutory delusions, severe anxiety leading to "motor Excitement . . . The patient becomes noisy, screams, runs aimlessly about, destroys and ruins everything that comes in his way." He also described an acute confusional state accompanying these symptoms, sudden cessation of symptoms, recovery, and subsequent amnesia for the events of the psychosis:

"The gaze is staring, vacant, indefinite . . . consciousness becomes more and more clouded . . . and later there is amnesia for all events during this time . . . He frequently awakens as from a dream. . . ." (Nitsche, pp. 32-33)

In a statistical summary, Knecht reported in 1881 on the diagnostic assessment of 186 inmates at the "insane department" of the prison at Waldheim, and concluded that over half the total were reactive manifestations to solitary confinement. The majority of these inmates fell insane within two years of confinement in solitary. (Nitsche, p. 17)

In 1884, Sommer reported on 111 cases describing an acute, reactive, hallucinatory, anxious, confusional state associated with solitary confinement, emphasizing the "excited outbursts" and "vicious assaults" of these patients. His patients' illness began with difficulty in concentration, and hyperresponsivity to minor "inexplicable" external stimuli. These "elementary disturbances of the sensorium (i.e., the five senses)" were seen as leading to "elementary hallucinations" which became more numerous, eventually including auditory, visual and olfactory hallucinations, and eventually becoming incorporated with fearful persecutory delusions. (Nitsche, pp. 12-16)

In 1889, Kirn described 129 cases of psychosis among the inmates at the county jail at Freiburg, concluding that in 50 of those cases, "solitary confinement can be definitely considered as the etiological factor, (and these) show a certain characteristic stamp" (Nitsche, p. 21) including persecutory delusions and hallucinations in multiple spheres (auditory, visual olfactory, tactile). He also noted that these symptoms often precipitated at night:

The patient is suddenly surprised at night by hallucinatory experiences which bring on an anxious excitement. These manifestations become constant from now on, in many cases occurring only at night, in others also in the daytime. Attentive patients not infrequently hear at first a humming and buzzing in their ears, unpleasant noises and inarticulate sounds which they cannot understand until finally they hear well differentiated sounds and distinct words and sentences. . . . The visual hallucinations are very vivid. (Nitsche, p. 24)

In 1888, Moeli contributed a description of Vorbereiden — "the symptom of approximate answers"^1a. Ten years later Ganser contributed to the literature the elucidation of asyndrome which included Moeli's symptom. (Ganser, 1898) As Arieti points out, Ganser's Syndrome became well-known — indeed, almost a codification of the whole body of literature on the prison psychoses. Ganser provided a comprehensive and well-elucidated synthesis of symptoms, most of which had been previously described elsewhere. The syndrome he described included, (in addition to Vorbereiden), vivid visual and auditory hallucinations, a distinct clouding of consciousness, sudden cessation of symptoms, "as from a dream" and "a more or less complete amnesia for the events during the period of clouded consciousness." Ganser's most original description was of "hysterical stigmata" within the syndrome, including conversion symptoms — especially, total analgesia. (Arieti, 1974, Vol. II, pp. 710-712)

1a Vorbereiden is a rather remarkable symptom of deranged and confused thought processes in which the individual's response to a question suggests that he grasped the gist of the question, and his answer is clearly relevant to the question, and is related to the obvious correct answer, yet still oddly manages to be incorrect. An example would be: Q: "How many colors are there in the flag of the United States? A: "Four." Q: "What are they?" A: "Yellow."

Some of the German authors failed to note whether the inmates they were describing were housed in solitary confinement and, unfortunately, Ganser was one of these, stating only that his were "prisoners awaiting trial." However, Langard, in 1901, also reporting on observations of accused prisoners awaiting trial, described an acute violent hallucinatory confusion with persecutory delusions, and specifically stated that this syndrome occurred exclusively among those who awaited trial in solitary confinement. (Nitsche, p. 32)

Also in 1901, Raecke similarly reported on prisoners awaiting trial and described the full syndrome of Ganser, includingVorbereiden; he specifically condemned solitary confinement as responsible for the syndrome (Nitsche, p. 34). He described his cases as beginning with apathy, progressing to "inability to concentrate, a feeling of incapacity to think," and even catatonic features, including negativism, stupor, and mutism. (Nitsche, pp. 33-35)

In another report written the same year, Skliar reported on 60 case histories of which he identified 21 as acute prison psychoses caused by solitary confinement. WhileVorbereiden was not noted, most of the other symptoms described by Ganser and Raecke were noted, including: massive anxiety, fearful auditory and visual hallucinations — in severe cases, hallucinations of smell, taste, and "general sensation" as well — persecutory delusions, senseless agitation and violence, confusion and disorientation. The psychosis developed rapidly — at times within hours of incarceration in solitary confinement. Catatonic symptomatology was also noted (Nitsche, pp. 35-36).

The German literature reported only on prisoners who suffered gross psychotic symptomatology, some of whom were observed in hospitals or "insane departments" of prisons; thus, these reports generally described only syndromal expressions that rose to the level of overt psychosis. The German reports do, however, powerfully demonstrate the existence of a particular, clinically distinguishable psychiatric syndrome associated with solitary confinement.These multiple reports described a syndrome which included:

1. Massive free-floating anxiety

2. "Disturbances of the Sensorium", including —

a. Hyperresponsivity to external stimuli

b. Vivid hallucinations in multiple spheres (including auditory, visual, olfactory, gustatory and tactile modalities); in some reports, these began as simple "elementary" hallucinations and progressed to complex, formed hallucinations.

3. Persecutory delusions, often incorporating coexistent complex hallucinations.

4. Acute confusional states. In some reports, these were seen as beginning with simple inattention and difficulty in concentration. In others, the onset was described as sudden. The confusional state and disorientation was in several reports described as resembling a dissociative, dream-like state, at times involving features of a catatonic stupor, including negativism and mutism, and upon recovery leaving a residual amnesia for the events of the confusional state. Ganser and others observed hysterical conversion symptoms during this confusional state.

5. Vorbereiden: An infrequent finding, mostly described in conjunction with a confusional, hallucinatory state.

6. Motor excitement, often associated with sudden, violent destructive outbursts.

7. Characteristic course of the illness:

a. Onset was described by some authors as sudden, by others as heralded by a progression beginning with sensory disturbances and/or inattention and difficulty in concentration.

b. In many cases, rapid subsidence of acute symptoms upon termination of solitary confinement.

The German reports were generally based upon prisoners who had been hospitalized because of their psychotic illness; in contrast, the population reported upon in the Walpole study was not preselected by overt psychiatric status; despite this, all of the major symptoms reported by the German clinicians were observed in the Walpole population, except for Vorbereiden and hysterical conversion symptoms. In addition, less severe forms of the isolation syndrome were observed in the Walpole population, including:

• Perceptual distortions and loss of perceptual constancy, in some cases without hallucinations.

• Ideas of reference and paranoid ideation short of overt delusions.

• Emergence of primitive aggressive fantasies which remained ego-dystonic and with realty-testing preserved.

• Disturbances of memory and attention short of overt dis-orientation and confusional state.

• Derealization experiences without massive dissociative regression.

Since Ganser's report has become the twentieth century's clearest memory of a much vaster body of literature, it is also of interest to review the literature describing observations of Ganser's Syndrome in non-prison populations. Several of these reports have been studies of patients in psychiatric hospitals suffering from this syndrome. Since these patients were hospitalized, it was possible to obtain more extensive evaluation and testing of their status. Several reports (Ingraham Moriarity, 1967; May, Voegele Padino, 1960; Tyndel, 1956; Weiner Braiman, 1955) described a majority of the patients studied as suffering long standing hysterical conversion symptoms. Impulsivity, childhood truancy, and antisocial behavior were also commonly described. These findings suggest also that antisocial behavior patterns and psychopathic personality disorder may bear a close relationship to primitive hysterical personality disorder, a relationship which has been described by other authors as well (e.g., Woodruff, Goodwin Gaze 1974).

APPENDIX C EXPERIMENTAL RESEARCH ON THE PSYCHIATRIC CONSEQUENCE OF PROFOUND SENSORY DEPRIVATION: FACTORS INFLUENCING VULNERABILITY TO PSYCHIATRIC HARM

As noted in the body of this declaration, laboratory research has demonstrated that experimentally-induced sensory deprivation has major psychological effects, and can precipitate severe psychiatric illness (see e.g. Brownfield, 1965; Solomon 1961). This research generally involves short periods of relatively marked perceptual deprivation generally of a few hours in duration. Much of the research in this area attempted to delineate factors, in addition to the duration and intensity of sensory restriction, which might account for these differing outcomes; the factors which have been elucidated include two which are especially relevant to this discussion, and may help to explain the particular malignancy of sensory deprivation in solitary confinement:

The Influence of Expectation

Orne and Scheibe (1964) suggested that a subject's reaction to participation in a sensory deprivation experiment could be profoundly manipulated by external cues imposed by the experimenter:

[These] dramatic effects could be a function of the demand characteristics of the experimental situation. . . . There is evidence that preparing a subject for probable hallucinations significantly affects the frequency of hallucinations. Such devices as "panic buttons" in experiments . . . are in a sense eloquent instructions. The use of such a device increases the subject's expectation that something intolerable may occur, and with it, the likelihood of a bad experience. (p. 4)

In their own experiment, Ome and Scheibe exposed two groups of subjects to identical conditions of sensory deprivation. The experimental group's introduction to the experiment included the presence of a medical "Emergency Tray," and instructions about a "Panic Button." As predicted, the experimental group became significantly more symptomatic in measures of cognitive impairment and restlessness, and also more symptomatic in every other measure — including perceptual aberrations, anxiety, and spatial disorientation.

In a related manner, prisoners in solitary confinement generally view such confinement as threatening and punitive, and often as a deliberate attempt to make them "crack up" or "break my spirit." In light of this, it is not surprising that the only major ill effect of solitary confinement (Walters, 1963) utilized prisoners whovolunteered to spend 4 days in solitary confinement.

Individual Differences in Response

Several authors have directed attention to the fact that within a given experimental format, massive differences in response can be observed among individual subjects. Often subjects who tolerated the experimental situation well reported pleasant, or at least non-threatening, visual imagery, fantasy, and hallucinatory experiences:

His mind may begin to wander, engage in daydreams, slip off into hypnagogic reveries with their attendant vivid pictorial images . . . he may be quietly having sexual and other pleasurable thoughts. (Wright Abbey, 1965, p. 6)

On the other hand:

Another subject in the same situation may deal with it in quite another manner. He may soon complain of all manner of things the bed is causing him a backache, his mind is a blank, . . . intense boredom, tenseness, depressive feelings or of having unpleasant thoughts or picture-like images that disturb him. (Goldberger, 1966, p. 777)

In response to these concerns about the incidence of psychopathological reactions to sensory deprivation, an important thrust of the experimentation in this area has been, by prescreening, to select as subjects only those persons demonstrating, by some measure, psychological strength and capacity to tolerate regression. The theoretical premise of such work has been, as Goldberger (1966) states:

In the sensory deprivation experiments, it is the ego's autonomy from the drives that is predominately involved . . . Differences in drive-discharge thresholds, phantasy, and daydream capacity, capacity for what Kris has termed "regression in the service of the ego" are other theoretically relevant structural dimensions accounting for differences in isolation behavior. (p. 778)

These ideas have been subjected to experimental verification, which has corroborated that same individuals tolerate such isolation better than others. For example, Wright and Abbey (1965) using the Rohrshach Test for prescreening, concluded that:

[The Rohrshach] manifestations of an individual's defense and control mechanisms . . . appears to be a reliable measure for predicting whether or not an individual will be effective in controlling the drive-dominated responses that might emerge during his period of reduced sensory stimulation. (Wright Abbey, 1965, p. 37)

Anecdotal reports in a similar vein appear from time to time in the literature. Freedman and Greenblatt (1960) mention one subject who became panicky during sensory deprivation and stated he had been diagnosed "borderline psychotic" (p. 1489). Curtis reports on a psychotic paranoid reaction in one subject who suffered delusions for several days afterwards, and severe anxiety and depression lasting several weeks; personality test prescreening had suggested "poor adjustment, hostility, lack of insight, and insecurity in interpersonal relationships" (Curtis Zuckerman, 1968, p. 256).

Grunebaum, Freeman, and Greenblatt (1960), prescreened 43 subjects and identified 7 as suffering "personality deviations." Two of these subjects, who were diagnosed as borderline, developed frightening, aggressive fantasies, paranoia, and difficulty in reality testing; one of them prematurely terminated the experiment. Two others were diagnosed as psychopathic; both forced the premature termination of the experiment by disruptive behavior.

Azima and Kramer (1956), using interview techniques and formal psychological test data, studied the effects of 2 to 6 days of sensory deprivation on hospitalized psychiatric patients. Among the previously non-psychotic patients they studied, two developed overt paranoid psychoses during the experiment, ultimately necessitating electroshock treatment. These particular individuals appeared to have been unable to tolerate the emergence of aggressive fantasies and images during the sensory deprivation experience.

Effects of Sensory Deprivation on Antisocial Personality Disorder:

Individuals with psychopathic personality disorder are probably among the least tolerant of sensory deprivation. Quay (1965) actually described the essential core of psychopathic pathology as a pathological inability to tolerate restricted environmental stimulation:

The psychopath is almost universally characterized as pathologically stimulus seeking and highly impulsive. . . . He is unable to tolerate routine and boredom. . . . (His) outbursts frequently appear to be motivated by little more than a need for thrill and excitement. . . . It is the impulsivity and lack of even minimal tolerance for sameness which appear to be the primary and distinctive features of the disorder. (p. 180)

He goes on to argue that psychopathic individuals may chronically exist in a state of relative stimulus deprivation:

Highly impulsive psychopathic behavior [may be seen] in terms of stimulation seeking pathology. Decreased reactivity and/or rapid adaptation [to environmental stimuli] . . . produce in these persons an affective state . . . close to that produced by sensory deprivation in the normal individual.

He argues that behavioral impulsivity in such individuals may be an effort at coping with this condition of relative sensory deprivation which they experience:

It may be possible to view much of the impulsivity of the psychopath, his need to create excitement and adventure, his thrill seeking behavior, and his inability to tolerate routine and boredom as a manifestation of an inordinate need for an increased or changing pattern of stimulation." (p. 181)

In a later study, directly comparing psychopathic inmates with non-psychopathic controls, Emmons Webb (1974) corroborated these findings; the psychopathic inmates scored significantly higher on measures of boredom susceptibility and of impulsivity. The authors concluded that psychopaths are pathologically stimulation seeking and incapable of tolerating isolation conditions.

In a large scale study of criminal offenders suffering from mental illness, Cota Hodgins (1990) noted that the prevalence rate of severe mental illness is higher among incarcerated offenders than among the general population; and that, compared with non-mentally ill inmates, the mentally ill inmates were more likely to be housed in solitary. (p. 271) Moreover many of these mentally ill inmates suffered from a combination of psychiatric disorders predisposing them to both psychotic breakdown and to extreme impulsivity (often including substance abuse). (p. 272). Such individuals tended to be highly impulsive, lacking in internal controls, and tended to engage in self-abusive and self-destructive behavior in the prison setting, and especially so when housed in solitary.

Many of the inmates placed in solitary confinement are thus likely to be among the least capable of tolerating the experience, and among the most likely to suffer behavioral deterioration as a consequence of such confinement.

APPENDIX D REPORTS OF THE LONG-TERM EFFECTS OF SOLITARY CONFINEMENT IN FORMER POLITICAL PRISONERS AND IN PRISONERS OF WAR: SOLITARY CONFINEMENT AS A MEANS OF "BRAIN WASHING" AND "INDOCTRINATING"

Although concerns about the psychiatric effects of solitary confinement among prisoners of war were raised in the medical literature at least as early as post World War II, this issue reached massive public exposure only after the fearful news of "brainwashing" among American prisoners of war in Korea. As is well known, the 1950's were an era of tremendous fear of Communism and of the attempts by Communist States to "indoctrinate" people into their ideology. As noted in the body of this declaration, in the 1950's the U.S. Department of Defense and Central Intelligence Agency sponsored a great deal of research on these issues; Hinkle and Wolff (1956) published results of extensive research done by them for the Department of Defense. The paper documented interrogation techniques of the Soviet KGB in regard to the incarceration of political prisoners, and the Chinese communists' imprisonment of American prisoners of war in Korea.

The report indicated that the KGB operated detention prisons, many of which were "modern . . . well built and spotlessly clean . . . (with) attached medical facilities and rooms for the care of sick detainees. An exercise yard is a standard facility. Incarceration in these prisons is almost universally in solitary confinement in a cell approximately 10' x 6' in size. An almost invariable feature of the management of any important suspect under detention is a period of total isolation in a detention cell." (p. 126)

This isolation was seen as a central feature of the imprisonment. "The effects upon prisoners of the regimen in the isolation cell are striking . . . A major aspect of this prison experience is isolation . . . (In the cells) his internal as well as external life is disrupted (and) . . . he develops a predictable group of symptoms, which might almost be called 'disease syndrome.'" This syndrome develops over time.

He becomes increasingly anxious and restless and his sleep is disturbed . . . The period of anxiety, hyperactivity, and apparent adjustment to the isolation routine usually continues from 1 to 3 weeks . . . The prisoner becomes increasingly dejected and dependent. He gradually gives up all spontaneous activity within his cell and ceases to care about personal appearance and actions. Finally, he sits and stares with a vacant expression, perhaps endlessly twisting a button on his coat. He allows himself to become dirty and disheveled . . . He goes through the motions of his prison routine automatically, as if he were in a daze . . . Ultimately, he seems to lose many of the restraints of ordinary behavior. He may soil himself; he weeps; he mutters. .'. It usually takes from 4 to 6 weeks to produce this phenomenon in a newly imprisoned man . . . His sleep is disturbed by nightmares. Ultimately he may reach a state of depression in which he ceases to care about his personal appearance and behavior and pays very little attention to his surroundings. In this state the prisoner may have illusory experiences. A distant sound in the corridor sounds like someone calling his name. The rattle of a footstep may be interpreted as a key in the lock opening the cell. Some prisoners may become delirious and have visual hallucinations.

Not all men who first experience total isolation react in precisely this manner. In some, the symptoms are less conspicuous. In others, dejection and other despondence earlier, or later. Still others, and especially those with preexisting personality disturbances, may become frankly psychotic. (p. 129)

The authors note that the procedures in the Chinese detention camps are somewhat more complex. Prisoners there underwent an initial period of isolation similar to that found in the Soviet prisons. (p. 153) In the second phase, however they were housed in extremely tight quarters within "group cells" comprising approximately eight prisoners. Under the tensions and hostilities created in this environment, brutality of prisoners against other prisoners was almost inevitable and was, according to the authors, apparently an intended result of this "group cell" confinement. (p. 159)

There are many long-term studies of American prisoners of war; unfortunately, the factor of solitary confinement has not generally been separated out in these studies. However, one relatively recent study of Korean POWs describe long-term effects including interpersonal withdrawal and suspiciousness, confusion, chronic depression and apathy towards environmental stimuli. Irritability, restlessness, cognitive impairment and psychosomatic ailments were extremely common in the group, most of whom had suffered periods of incarceration in solitary confinement at the hands of the Chinese. This report also included a case report of one individual exposed to harsh conditions of solitary confinement for more than 16 months; 30 years after release, he continued suffering sleep disturbances, nightmares, fearfulness, interpersonal suspicion and withdrawal, severe anxiety and severe depression. These former prisoners also had psychosomatic ailments including gastrointestinal disturbances, chronic headaches and obsessive ruminations. They tended to become confused and thus cognitively impaired and were emotionally volatile and explosive.

In a more recent study, Sutker et al. (1991) studied former prisoners of war in the Korean conflict, approximately 40 years after their release from confinement. Solitary confinement was cited as one of the severe stressors in this group. These former prisoners demonstrated persistent anxiety, psychosomatic ailments, suspiciousness, confusion, and depression. They tended to be estranged and detached from social interaction, suffered from obsessional ruminations, and tended to become confused and cognitively impaired, suffering memory and concentration difficulties which affected their cognitive performance on formal testing.

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Stuart Grassian, M.D. 401 Beacon Street Chestnut Hill, MA 02467 617-244-3315 Fax: 817-244-2792

Born: June 29, 1946 Married, 3 Children

MAJOR PROFESSIONAL ACTIVITIES

1963-1967 Harvard Club Scholar, Harvard University, Cambridge, MA

1967 B.A. Cum Laude, Harvard University, Cambridge, MA

1967-1969 NIMH Fellow in Sociology, Brandeis University, Waltham, MA

1969 M.A, Sociology, Brandeis University, Waltham, MA

1970 NSF Fellow in Psychiatry, Bellevue Hospital, NY

1973 M.D., New York University School of Medicine. NY

1973-1974 Intern (Medicine), New York University Medical Center, NY

1974-1977 Resident in Psychiatry, Beth Israel Hospital, Boston. MA

1977 Private practice in Psychiatry: Cambridge, MA (1977-1979), Chestnut Hill, MA (1979-), Stoneham. MA (1980-)

1977-1978 Clinical Director, Inpatient Service, Dorchester Mental Health Center, Boston, MA

1978-1980 Director, Inpatient Service, WestRosPark Mental Health Center, Boston, MA

1979-1983 Medical Staff, Lecturer, Glover Memorial Hospital, Needham, MA

1980-1994 Attending Psychiatrist, Adult Adolescent Inpatient Services, New England Memorial Hospital, Stoneham, MA 1980-1983 Director, Adult Adolescent Inpatient Services, Department of Psychiatry, New England Memorial Hospital, Stoneham, MA 1983-1994 Attending Psychiatrist, Addictions Treatment Unit, New England Memorial Hospital, Stoneham, MA

1987-1993 Supervising Psychiatrist, Outpatient Department, New England Memorial Hospital, Stoneharn, MA

1992-1994 Psychiatric Director, Partnership Recovery Center, Melrose — Wakefield Hospital, Melrose, MA (Day treatment program for Addiction rehabilitation)

CONSULTATIONS, AFFILIATIONS

1979 Massachusetts Correctional Legal Services. (Psychiatric Effects of Solitary Confinement, Psychiatric Effects of Strip Search Procedures)

1980 Massachusetts Civil Liberties Union. (Psychiatric Effects of Strip Search Procedures, Psychiatric Effects of Solitary Confinement)

1993 Massachusetts Department of Corrections, Stress Management Unit. (Occupational Stress among Correctional Staff)

1995 Consultation to Psychiatric Expert/Special Master Madrid v Gomez Federal District Court, Northern District CA #C-90-3094TEH. (Psychiatric Effects of Solitary Confinement)

1995 — Consultant to Massachusetts Professional Recovery Committee, and to Substance Abuse Rehabilitation Program of the Massachusetts Board of Registration in Nursing. (Addictive Disorders, Impaired professionals)

1997 Botech Corporation, Cambridge, MA. (Effects of Solitary Confinement)

1998 Psychiatric Expert in Compliance Monitoring: Eng v Coombe Federal District Court, Western District, NY, CIV #80-385-S. (Effects of Solitary Confinement)

MEDICAL LICENSURE

1974- Massachusetts License #37749

BOARD CERTIFICATION

1979 Board Certified in Psychiatry

1994 Diplomate Certificate in Addiction Psychiatry

1996 Diplomate Certificate in Forensic Psychiatry

PROFESSIONAL SOCIETY/COMMITTEE/STAFF MEMBERSHIPS

1974- Member, Massachusetts Psychiatric Society

COMMITTEE MEMBERSHIPS

Inpatient Psychiatry Committee (1961-1984)

Private Practice Committee (1992-1995)

Chair, Presidents Task Force on Managed Care (1993-1994)

Steering Committee, Managed Care Retreat (1993-1994)

1974- Member, American Psychiatric Association

1974-1977 Resident in Psychiatry, Beth Israel Hospital, Boston, MA

1977- Courtesy Staff, Beth Israel Hospital, Boston, MA Assistant in Psychiatry (1977-1991) Associate in Psychiatry (1991-present)

1980-1999 Active Staff, Boston Regional Medical Center, Stoneham, MA

COMMITTEE MEMBERSHIPS

Credentials Committee (1986-1990)

Chair, Bylaws Committee (1987-1990)

Medical Staff Executive Committee (1989-1992)

Chief of Staff (1990-1992)

Board of Trustees (1990-1992)

1992- Active/Courtesy Staff, Melrose-Wakefield Hospital, Melrose, MA

1993- Psychiatric Network of Massachusetts

COMMITTEE MEMBERSHIPS

Steering Committee (1993-1994)

Chairman, Board of Directors (1994-1995)

TEACHING APPOINTMENTS, PRESENTATION S

1967 Teaching Fellow, Harvard Graduate School of Education, Cambridge, MA

1967-1969 Teaching Fellow, Department of Sociology, Brandeis University, Waltham, MA

1973 Clinical Fellow in Psychiatry, New York University Medical Center, New York, NY

1974-1977 Clinical Fellow in Psychiatry, Harvard Medical School, Boston, MA

1975-1976 Consultant and Lecturer, Human Resources Institute, Brookline, MA

1977- Clinical Instructor, Department of Psychiatry, Harvard Medical School, Boston. MA

1978 Assistant Clinical Professor, Department of Psychiatry, Tufts University Medical Canter, Boston, MA

1987 Faculty, Third International Conference on Restricted Environmental Stimulation, New York, NY: "Effect of Rest In Solitary Confinement and Psychiatric Seclusion"

1987 Guest Lecturer, Suffolk University School of Law, Boston, MA: "Commitability and the Right to Refuse Treatment"

1988 Faculty. 32^nd Institute on Hospital and Community Psychiatry, Boston, MA

1990 Massachusetts Bar Association Symposium, Boston, MA: Drugs and Alcohol on Campus"

1992- Faculty, American Academy of Psychiatry and Law, Boston, MA: "Effects of Childhood Sexual Abuse"

1993 Faculty, Massachusetts Department of Corrections Stress Unit, Statewide Seminar, MA: "Stress Awareness for Managers"

1993 Massachusetts Continuing Legal Education Seminar. Boston, MA: "Psychiatric Effects of Physical and Sexual Assault'

1994 Massachusetts Academy of Trial Attorneys Seminar, Boston, MA: "Psychiatric Evaluation of Victims of Violent Crime"

TEACHING APPOINTMENTS PRESENTATIONS (continued)

1994 Beth Israel Hospital/Harvard Medical School, Boston. MA: "Psychiatric Consequences of Solitary Confinement; "Effects of Sensory Deprivation and Social Isolation in a Vulnerable Population"

1994 Massachusetts Medical Society, Committee on Managed Care, Waltham, MA: "Ethics of Managed Care'

1994 Prison Psychiatric Group, Albany, NY: "Criminality and Mental Illness. Revisited: Disorders of Volition". (Lecture sponsored by Pfizer Pharmaceuticals)

1995 Suffolk University Advanced Legal Studies, Boston, MA: "Sexual Abuse: Memory, Truth and Proof

1995 Massachusetts Association of Trial Attorneys Seminar, Boston, MA "Premises Liability/Negligent Security: Psychiatric Testimony and the Role of the Psychiatric Expert"

1996 New England Society for the Study of Dissociation, McLean Hospital, Belmont, MA: "Impact of Forensic Issues on Treating Victims of Violence"

1996 Harvard Medical School, Children's Hospital Family Violence Seminar, Boston, MA: "Trauma and Memory"

1996 Trauma and Memory: An International Research Conference, Durham, NH: "Factors Distinguishing True and False Memory of Childhood Sexual Abuse"

1996 Trauma and Memory: An International Research Conference, Durham, NH: "Memory of Sexual Abuse by a Parish Priest"

1997 Correctional Association of New York, NY: "Psychiatric Effects of Solitary Confinement on Prisoners"

1998 Massachusetts Board of Registration in Medicine and Northeastern University Conference, Substance Abuse and The Licensed Professional, Boston, MA: "Addictions and Compulsions: Disorders of Volition'

MEDIA, PUBLIC AFFAIRS PRESENTATION S

1988 NBC-TV, Today Show "Small Group Confinement of Female Political Prisoners at the Federal Penitentiary in Lexington, KY"

1990 NPR-TV, News Interview Program: 'Psychiatric Effects of Small Group Confinement"

1990 PBS-TV. Point of View "Through the Wire". Documentary regarding women confined for politically motivated crimes

1991 WBZ-TV. Boston. MA: Channel 4 Nightly News "Statute of Limitations on Cases of Childhood Sexual Abuse"

1992 Boston Globe, New York Times, etc.: 'Effects of Childhood Sexual Abuse by a Catholic Priest*

1992 Boston Globe, New York Times, San Francisco Chronicle, Los Angeles Times, etc.: "Psychiatric Effects of Solitary Confinement"

1993 New England Cable News, Newton, MA: Commentator regarding insanity defense in Kenneth Sequin trial

1993 Massachusetts House of Representatives. Judiciary Committee testimony: Proposed change in Statute of Limitations in cases of childhood sexual abuse

1993 CBS-TV. 60 Minutes "Pelican Bay — Psychiatric Effects of Solitary Confinement in California's High-Tech Maximum Security Prison"

1993 New England Cable News Newton. MA: News Night "False Memory and Recovered Memory of Childhood Sexual Abuse"

1993 WCVB-TV. Boston, MA: Chronicle "Sentencing of Father Porter — The Effect on the Victims'

1994 WHDH-TV. Boston. MA: Boston Common "False Memory Syndrome"

1994 FOX-TV, Boston, MA: At Issue "Psychiatric Effects of Solitary Confinement"

1996 New England Cable News. Newton. MA: News Night "The Insanity Defense"

1998 ABC-TV. Njghtline with Ted Koppel: primetime Live "Crime end Punishment"

1998 WBZ-TV. Boston. MA: Channel 4 Nightly News "Perpetrators of Sexual Abuse: Dangers to the Community"

1999 BC-TV. 20/20 "Effects of Solitary Confinement'

MAJOR INTERESTS IN FORENSIC PSYCHIATRY 1. Psychistric Effects of Solitary Confinement

Psychiatric expert in large number of cases including several large class action and other multiple plaintiff lawsuits in Federal and State Courts in California, Massachusetts. New York State and in Washington, D.C. Decisions in some of those cases, and my published findings, have been cited in Federal Appellate decisions, and have also generated significant national media interest.

2. Strip Search Procedured, Sexual and Physical Assault

Psychiatric expert in a number or cases in Federal and Massachusetts state courts. Testimony has been cited by the Federal Appeals Court in Cole Snow . Psychiatric expert in cases of rape, sexual and physical assault.

3. Addictive Disorder.

Testimony in a number of criminal and civil cases. My testimony in a highly publicized case, In re Cockrum , helped to establish that an individual who was otherwise highly competent, was still — by virtue of the effects of addictive illness — incompetent to act in his own behalf in appealing his murder conviction.

4. Childhood Sexual Abuse

Substantial experience in evaluating the effects of childhood sexual abuse, and the processing over time of memories of that abuse. Among other experiences, I have been a psychiatric expert in a number of high profile cases involving sexual abuse by clergy, including the case of Father James Porter-a priest accused of sexually abusing more than one hundred children.

6. Civil Rights Issues

Expert in a number of cases regarding racial and sexual harassment in employment and housing situations, Including cases brought by Civil Rights Division of the United States Department of Justice, and by Greater Boston Legal Services. RESEARCH INTERESTS PUBLICATIONS IN PSYCHIATRY LAW

"Psychopathological Effects of Solitary Confinement", Am J Psychiatry 140:11, 1983.

"Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement'. Intl J Law Psychiatry 8:49, 1986.

"Commitability, Competence and the Right to Refuse Treatment", Unpublished manuscript

Psychiatric Consequences of Strip Search Procedures. — In process.

"Psychiatric and Addictive Problems in Survivors of Childhood Sexual Abuse Perpetrated by Father Porter." Principal investigator, Beth Israel Hospital, Department of Psychiatry, Boston, MA.

"Recovery of Memory of Childhood Sexual Abuse and Creation of False Memories; Can These Processes be Distinguished?", in process.

Stuart Grassian, M.D. 401 Beacon Street Chestnut Hill, MA 02467 B17-244-3315 fax: 617.244-27K

List of cases over past five years in which Stuart Grassian, M.D. has testified in deposition or at trial.

Adams v Town of Waraham US District Court. MA, #94-11448-DPW.

Argueta v MBTA , Suffolk Superior Court, MA, 1994.

Brown v Croattl , Middlesex Superior Court, MA. #94-3965.

California v Scully , Superior Court, Sonoma County, Santa Rosa, CA, 3/97.

Clulla v Rlgney , Federal Court, Boston, MA 1998.

Charles — v Durkan , US District Court, Rome, GA #4:94-CV-01170HLM.

In re Cockrum Federal District Court , Eastern District, Texas 6:93-CV-230, 1994.

Commonwealth v Bloom , Norfolk S.S. Superior Court, Crim No. 102871. (trial)

Commonwealth v Early , Middlesex Superior Court, MA, 1994.

COUPS V Jaco Electronics. Inc., et al . US District Court, MA, #96-12207-REK, 1998.

Cox v HCHP , MA, #95-020-11303. 1998.

Demerritt Nina , Dept of Industrial Accidents, 3/96.

Doe, at al v Dynawatch , Inc., at al Suffolk Superior Court, CA. #93-0816.

Doa v Pittsfield Courtesy Bus Co Zarvis , Berkshire Superior Court, MA, #93-0361.

Dwver v DuBols et al , Suffolk Superior Court, #SUPC95*05162. Eng at al v Coombe et al Federal District Court, Western District. NY, CIV#80-385-S. 1997. Eres Noelle , Superior County, San Francisco, CA, 3/97.

Gagner ,

Hameed v Coughlin , Federal District Court, Albany, NY, 1994

Kelly v Marcantonio , Federal District Court. Providence, Rl. 12/96.

Kino v Holiday Inn , Suffolk Superior Court, MA, 1994.

Klrbv v Khalavl , Middlesex Superior Court, MA, MICV92-0529Q,1995.

Leacock v Dubois , CIV 93-12236-Z.

Lea v Coughlin 93 CIV 8417 (SS), 6/96.

Madrid v Gomez , Federal District Court, Northern District, CA, #C-90-3094TEH, 1996.

McClary v Coughlin , US District Court, Western District, NY, 90CV501A, 10/97. (trial)

McNemar v Commonwealth of Mass. et al . Suffolk S.S. Superior Court, MA C.A.93-7103G, 11/97. (trial)

People v Heath Sponser Greene County Superior Court, NY, 5/97.

People v Ng , Orange County Superior Court, #94ZF0195.

Parrl v Coughlin US District Court, Western District. NY, 1996.

Smith v O'Connell , Federal District Court, Providence, Rl, 12/96.

Staziak v Petrolane Gas Service , Commonwealth of Mass., DIA #4637392, 1994.

Torres v DuBois , Suffolk Superior Court, MA, CIV #94-0270-E.

US v Peer , US District Court, Rutland, VT. 5.94-CV-316.

Valentin v Murphy , Federal District Court, CT, 1999.

Zimmerman v Direct USDC, D. Mass., 97-CV-12610GAO.

Exhibit 12

Larry This was at the Preliminary Hearing was that the same time?

Perry That was after. That was after the Preliminary Hearing.

Larry I've never had such a hard time keeping up with dates.

Jim They're all running together.

Perry The day of the Preliminary Hearing he just more or less just. . he. .I believe that was the day he was talking about if he could set a date and way of execution.

Larry Yea. He was wanting to see the District Attorney. He was wanting to see Dee that day. He kept trying to tell Joe and I it's alright, he just wanted to talk to Dee and get this thing over with. He was just tired of being in jail for one thing.

Perry I'm sure he is. I mean you take a man that's used to being out in the woods and how he lived out in the woods . . . how he lived out in the woods, what, three or four weeks? Lived out in the woods up there. You take a man that's used to being outside and was going and coming as he pleased. I know if they put me back there I'd go nuts.

Jim Let's see. He's told you essentially two different stories. One about the road up here and two friends of his took them out in the woods and he went up to the rest station?

Perry Some mercenary friends. He didn't say two and he didn't say five.

Jim Oh, he said mercenary friends.

Perry Mercenary friends.

Jim And then the other story was that down at Boiling Springs and when they got out of the truck, his friends shot, he wasn't the' trigger man, and that they were hired to kill them. Did he say why they were hired to kill them?

Perry (Inaudible)

Jim GD

Larry He hadn't ever given you the name of anybody else that you know of that helped him do any of this?

Perry I even asked him about Blackwell. I asked him if Jimmy Blackwell was in on this. And he looked at me and smiled and said, "I wished he was".

Exhibit 13

Exhibit 14

Exhibit 15

Exhibit 16

Exhibit 17

Exhibit 18

Exhibit 19

Exhibit 20

Exhibit 21

Exhibit 22

Exhibit 23