The New York Times by Benjamin Weiser - April 11, 2012
When Kadeem John, an 18-year-old inmate at Rikers Island, was beaten severely by another prisoner in 2010, the attack was captured by a digital surveillance camera, correction officials have said. But when Mr. John’s lawyers sued New York City and sought to review evidence in the case, they were unable to view the recording, they say, because it had been destroyed. The city’s failure to preserve the recording has sparked an intense legal dispute, with a federal judge in Manhattan, Robert P. Patterson Jr., agreeing recently to impose sanctions on the city that could complicate its ability to defend against the lawsuit. Surveillance cameras are becoming increasingly common in New York’s jails — correction officials said they planned to have 2,800 by the end of 2013 — and the recordings may emerge as critical evidence in lawsuits. In court last month, for example, lawyers for the city told Judge Patterson that the actual recording was unnecessary because a supervisor who had viewed it could testify about what it showed. Mr. John’s lawyer, Adam R. Pulver, disagreed. “A videotape is unique,” he said. “It’s irreplaceable. It’s neutral. A jury should be entitled to see what the video showed.” The city, which is contesting liability in the case, has said in filings that the recording “was destroyed in accordance” with a “record retention schedule” because officials did not expect litigation. “There is no evidence, as we understand it, of staff complicity in the inmate fight involving Mr. John,” said Sharman Stein, a correction spokeswoman. But Mr. John’s lawyers contend that he was beaten by other inmates who effectively ran his unit for teenagers at the Robert N. Davoren Complex on Rikers Island. They say the assault fit a pattern cited by law enforcement authorities in which favored prisoners receive tacit approval to keep order by beating and threatening other inmates. Mr. Pulver said the lawsuit alleged that officers “stood by and allowed” the beating to happen. “We cannot say for sure whether the video would support that or not,” he added in court, “but that’s because we’ve not seen the video.” Mr. John was jailed in June 2010. The suit says he learned about an “inmate enforcer” on his unit who led a team of prisoners and controlled access to telephones, seating arrangements in a dayroom and the distribution of cigarettes. The inmate’s “domination was blatant and apparent” to the staff, the suit charges. On June 26, Mr. John, who had earlier refused an order made by the inmate, was punched in the head from behind, and then in his face and lower back, the suit says, while being escorted with other prisoners, and no officer intervened. He was moved into a dayroom “where he remained, in plain view of corrections officers, bleeding internally and slipping in and out of consciousness, for a significant period of time,” the suit adds. He suffered kidney damage and bleeding in the brain, Mr. Pulver said. The next month, the Legal Aid Society, which is representing Mr. John along with the law firm Emery Celli Brinckerhoff & Abady, wrote to a correction official requesting an investigation. She responded that one would be undertaken, filings show. A year later, in July 2011, Jonathan Chasan, a Legal Aid lawyer, asked whether any video existed of the incident. The official replied that no recordings had been preserved. In February, the lawyers received documents from the city that described the recording and how it was used, and stated that it no longer existed. The documents showed that three days after the assault, a supervisor viewed the recording, identified the assailant and prepared a report of the incident. Another report shows that officials did not fully investigate until more than a year after the attack. By then, the recording was gone. There was no request to preserve it, the report says, and the surveillance system stored recordings for only 60 days. Judge Patterson granted the plaintiff’s requests that the city be barred from offering testimony about what was on the recording, and that it be made clear to the jury that a recording had existed and would have supported the plaintiff’s version of events. In the hearing, a lawyer for the city, Diep Nguyen, argued that a sanction was inappropriate. “Even though you destroyed the tape after notice of the assault?” the judge asked. “Unfortunately, the order to preserve the tape did not trickle down,” Ms. Nguyen said.