A jailhouse video vividly illustrates the tension between the Office of the Independent Monitor and the Denver Department of Public Safety outlined in a recent special report about the in-custody death of Michael Marshall.
The OIM considers the video, which we've embedded in this post, evidence that a deputy blatantly lied when he accused an inmate who wanted to issue a complaint against him of taking part in an attack with a pencil. In the video, the inmate is only seen putting the writing utensil on a desk.
The Department of Public Safety thinks it's possible the deputy misperceived what happened and didn't deserve punishment the OIM thought was justified.
Independent Monitor Nicholas Mitchell labeled the mater "A Case of Concern" in his office's 2017 Annual Report. That compilation is accessible below along with an Offense in Custody document in which the deputy in question, Konstantin Vesselovskii, shares his (very different) side of the story.
On June 7, 2017, according to the OIM version of events, an inmate at Denver's main jail asked a deputy (identified by the Offense in Custody document as Vesselovskii) to borrow a pencil so he could file a grievance. According to the inmate, Vesselovskii had used "foul language," demonstrated "child-like actions such as throwing papers" and ordered prisoners to stay away from his desk.
The deputy is also said to have told another jailee to "get out of his face" and expressed his frustration by throwing bedding in a nearby housing pod.
After the grievance was filed, the report continues, Deputy Vesselovskii "retaliated" by having the inmate handcuffed and taken back to the housing unit. He then claimed in a report of his own that "with a sudden forward motion of the arm," the inmate "threw a pencil" that made an "impact" on either his shoulder or chest. The deputy's account added that after "finishing his attack," the inmate "ignored the deputy's orders to return to his desk."
A sergeant who reviewed video of the exchange subsequently raised concerns that the footage "does not support the charges" against the inmate, and the monitor concurs, noting that "in fact, the video shows the inmate walking to the deputy's desk and returning the pencil by placing it gently on a ledge in front of the desk. The pencil is never thrown, it never strikes the deputy, and there was no 'attack.'"
In the video, the inmate can be seen picking up the pencil and returning it to the deputy's desk on the middle-right of the screen beginning at around the twenty-second mark.
During an Internal Affairs Bureau investigation over what happened, Deputy Vesselovskii reiterated that he had been attacked and that he believed the pencil had struck him in the chest or shoulder, the monitor states. But at what's called a "contemplation of discipline meeting" held months later, he said "that at the time, he perceived that he was attacked. ... He now recognized that his perceptions had not been entirely accurate."
The Office of the Independent Monitor determined it was "'more likely than not' that the deputy knowingly misrepresented the inmate's behavior, falsely accusing the inmate of an attack in retaliation for the inmate's grievance against him." Nonetheless, Deputy Vesselovskii wasn't found guilty of either Misleading and Inaccurate Statements or Commission of a Deceptive Act — offenses that could have netted a ten- to thirty-day suspension or dismissal, respectively. Instead, he was dinged for failing to accurately report what took place and was given a written reprimand, as well as being required to visit an external police psychologist to talk about anger management.
Clearly, the inmate's actions in the video are miles away from an attack. But in a response to "A Case of Concern" provided to Westword, Department of Public Safety Deputy Director Jess Vigil suggests that Mitchell is out on a limb all by himself over the pencil matter and plenty more.
"The OIM criticizes our office because we did not find a higher level of misconduct with higher penalties in a few cases where deputies made mistakes in filling out reports," Vigil writes about the report as a whole. "Several reviewers, including the supervisors of the deputies involved, the sheriff department’s conduct review office, a representative of the city attorney’s office and staff members of the executive director’s office reviewed the investigations of the involved deputies and no one agreed with how the OIM viewed the evidence."
Vigil adds: "Unlike others who make recommendations, the Department of Public Safety has an obligation to impose only that discipline that can stand up on appeal. We made disciplinary decisions in each of these cases that were based on the evidence and that we in good faith believed would withstand scrutiny on appeal. To do less than that compromises the integrity of the disciplinary process."
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When it comes to "A Case of Concern," Mitchell "criticizes the Department of Public Safety for not terminating Deputy Vessselovski [sic] or imposing a significant suspension without pay," Vigil continues. Even so, "we disagree with the OIM’s contention that the deputy lied or intentionally misled what he wrote in his report. No one who reviewed the investigation agreed with the OIM’s contention. The deputy was performing another task when the inmate approached and tossed the pencil onto his desk, and it’s conceivable that the deputy misperceived the incident and thought the pencil was thrown at him."
Furthermore, Vigil maintains that "when he was shown the video, the deputy didn’t lie about the incident and acknowledged that he had misperceived the matter. The deputy was in fact disciplined for writing an inaccurate report; however, we could not prove that he lied or that he knowingly, intentionally or willfully wrote a misleading report. It would have been wrong and unjust to fire him or suspend him without pay given these facts. In his report, the OIM expresses the view that the deputy’s report was written in retaliation and ultimately resulted in the inmate’s removal from the pod. This is not supported by the evidence, given that the inmate’s failure to listen to the deputy’s order to return to the desk after the pencil was tossed would have in itself justified his removal from the pod."
Whose retelling most closely matches what happens in the video? Watch it again and judge for yourself. Then consider how things might have been different if the Internal Affairs Bureau was under civilian control — another of the monitor's recent suggestions, and one that Vigil has previously said the Denver Sheriff Department is open to examining.
Click to read the June 7, 2017 Offense in Custody Staff Report and the 2017 Office of the Independent Monitor annual report. "A Case of Concern" can be found starting on page 61.