Taking It to the Max

The attorney for the plaintiff wore a khaki jumpsuit and leg irons. Most of the witnesses were merely disembodied voices in the air. The audience, made up chiefly of agents from the U.S. Marshal's office, looked bored.

But David Merritt pressed on anyway, trying to show that the nation's most restrictive supermax penitentiary wasn't safe at all--not for him.

Merritt, an inmate at the Bureau of Prisons' Administrative Maximum (ADX) complex in Florence, the toughest pen in the entire federal system, has been waging battle with the BOP over alleged assaults by guards and other inmates for years ("Maximum Insecurity," November 29, 1995). Complaints by prisoners over inhumane treatment aren't uncommon, but Merritt's case has progressed further than most. His two-day hearing in a federal courtroom in Denver last week offered rare glimpses into the inner workings of ADX, where prisoners are kept isolated in their cells for an average of 22 hours a day.

Acting as his own attorney, shuffling reams of documents and interviewing other inmates by phone, Merritt attempted to show that he'd been "roughed up" and beaten by guards, disciplined as a result of falsified infractions and branded as a government informant--which, some of his witnesses said, amounted to a death sentence, despite the supposedly airtight security and limited contact ADX prisoners have with one another.

Being labeled a snitch "means numerous problems on a person," explained fellow ADX inmate Kevin Booth, chuckling over the speakerphone. "Everybody knows this. If [other inmates] get their hands on you, they're going to kill you."

"What would happen if I was placed in general population?" asked Merritt, who's been fighting for protective-custody status since 1987.

"For you, it would be very, very, very, very dangerous," Booth replied.
Now in his eleventh year of a 23-year sentence for bank robbery and related charges, Merritt arrived at ADX last fall in the midst of a hunger strike protesting alleged racial and religious discrimination (Merritt is black and Jewish) at the Marion federal penitentiary in Illinois. His troubles in the system date back to a 1985 escape from a county jail in Georgia; after his capture, he testified against the jailers who aided his escape. His cooperation earned him a letter of commendation from the FBI and an additional eight years on his sentence--and continued retaliation from BOP guards, he claims, who have spread rumors that he's an ex-cop and a "check-in rat" who has sought protective custody after snitching on other inmates.

Merritt claims to have been the target of dozens of assaults at various federal prisons, including a 1994 incident at Marion in which two Aryan Brotherhood prisoners used wire clippers to cut through recreation cages to get to him. But last week's hearing, a request for a preliminary injunction to keep Merritt in isolation pending a possible trial of his lawsuit, was supposed to address conditions at ADX only; Magistrate Judge Richard Borchers sustained numerous objections by Assistant U.S. Attorney Martha Paluch to Merritt's efforts to introduce evidence concerning his decade-long history with the BOP.

"If you can't show the court something is going on at ADX, you're going to get nowhere with this injunction," Judge Borchers warned.

Yet goings-on at ADX aren't easy to decipher. Merritt's case was originally slated to be aired in a small courtroom within the prison. When a Westword reporter inquired about the proceeding, an ADX spokesman replied, "We're not sure this is a public hearing." Paluch's office then asked that the hearing be moved to Denver, citing "public interest" in the case. So Merritt was brought in shackles and under heavy guard to the federal courthouse downtown while his key witnesses remained in Florence.

Still, several of the inmates who testified by phone said that they had heard guards call Merritt a snitch, that inmates had managed to smuggle a note about Merritt being "an ex-cop out of Chicago" from one wing to another--apparently in a newspaper carried by a guard--and that supposedly secure, electronically controlled cell doors had been known to open by mistake or deliberately, exposing prisoners to possible attack. Inmate Booth even insisted that he'd witnessed, through the narrow window in his double-doored cell, one incident of Merritt being "thrown into walls" by guards.

For the most part, though, the inmates' testimony was short on specifics. One refused to testify, saying he'd just been indicted in connection with a recent disturbance Merritt wanted to ask him about. Another said he'd been struck by a guard for agreeing to testify. "I'm traumatized right now," Shawn Robinson said. "I've been threatened."

On cross-examination, federal attorney Paluch pointed out that both Booth and Robinson have launched their own lawsuits against the BOP and have been "sanctioned" in the past for lying to corrections officials. She also elicited bland denials from ADX guards that the prison staff was waging any kind of campaign against Merritt or that he'd ever been assaulted at ADX.

When Merritt asked former ADX corrections officer Elizabeth Haas why he was placed in a cell next to an inmate who cursed him, pounded on the wall in the middle of the night and threatened to cut off his head, Haas said she "was not aware of a problem."

"Inmates pound on the walls all the time," Haas testified. "That's just a normal thing that happens inside. There was hostility between the both of them...but there's hostility every day."

Witnesses who managed to appear in person included Martin Hochberg, honorary chairman of the International Coalition for Jewish Prisoner Services, and Yollette Merritt, David's sister. Both said they'd appealed to various BOP officials on his behalf, to no avail. Paluch suggested that the bulk of their information about the situation came from Merritt himself, but Yollette was quick to describe how she had visited her brother shortly after past attacks at various prisons and had seen his condition herself.

"I've never had anyone yet deny that this is going on," she said. "It's the nature of the system. David Merritt will come home dead if the situation continues. That's my absolute conviction."

But wasn't it true, Paluch asked, that the Merritts were planning to parlay their "war on the BOP" into book and movie deals? Yollette denied it, and her brother angrily objected. "Attack me; don't go after my family," he snapped.

After two days, several witnesses were still waiting to be called, and Judge Borchers ruled that the hearing would have to be continued at a later date. Amid the claims and counterclaims--Merritt seeking to demonstrate that the ADX staff was, at best, indifferent to his personal safety; government witnesses suggesting that Merritt was simply a troublemaker seeking to manipulate the prison system--one fact stood undisputed: In the bowels of a supermax, as in any other penitentiary, prisoners and their keepers aren't terribly fond of each other.

For several hours, corrections officer Bradley Anderson calmly fended off Merritt's accusations that Anderson had assaulted him and "enlisted" other inmates to harm him. Finally, asked what would happen if the cell doors in Merritt's area somehow all opened at once, Anderson managed a wan smile.

If that happened, he told Merritt, "you'd be a lot safer than I would.