HARD TIME

part 2 of 2
If Hilton had named Gray as his attacker, says DOC legal counsel Brad Rockwell, Gray would have been slam-dunked into solitary to await a disciplinary hearing. But since Hilton had not yet named his assailant, Gray stayed where he was.

On July 20 Gray was given another cellie, a tryout that lasted no more than half a day. Upon learning that his cellmate was none other than Marvin Gray, the man demanded other accommodations.

Prison officials then began looking for another suitable cellmate for Gray. Leaving Gray by himself apparently wasn’t given a great deal of consideration.

Prison officials didn’t want to leave him in a single cell, Rockwell explains, because single cells are awarded on the basis of good behavior. “And you wouldn’t want to reward a sexual predator.”

James Mervin says prison officials began exploring the possibility of moving him in with Gray the same day Hilton reported being raped. Mervin claims his answer was an emphatic “no.” Despite Gray’s claim of “friendship,” Mervin says he and Gray had never been buddies. The reason for that was simple, Mervin says: While he was in Shadow Mountain, Gray made unwanted sexual advances towards him. When he refused, Mervin says, Gray walloped him in the jaw.

Despite Mervin’s protestations, however, staffers continued to make plans to bunk him and Gray together. Captain Larry Nutter, a correctional supervisor, later admitted in a written statement that he knew Gray had a history as a sexual predator. However, Nutter wrote, “[I] felt that moving Gray in with another large weightlifter would reduce the potential for another sex assault.” Nutter apparently missed the fact that the other “large weightlifter” weighed 120 pounds less than Gray.

The same day Nutter made his decision, Mervin was told to pack up for a move to Unit 2. Mervin had no complaints–the last he’d heard, Gray was living in Unit 5. It wasn’t until he was unpacking, Mervin says, that he learned that Gray had been relocated–and was to be his new roommate. But he says he decided not to complain, in part because of the convict code and in part because he didn’t want to bring unwanted attention to himself.

The first couple days in the cell were strained. Mervin was wary. “[Gray is] a deranged individual,” Mervin says. “I knew he was a snap case. He’d go off on the drop of a hat.” Tentative peace reigned until “lights out” on the evening of July 24.

The trouble started, says Mervin’s attorney, David Lane, with a bizarre soliloquy by Gray. Gray reportedly stressed to Mervin the importance of having emotional bonds while in prison, especially since both he and Mervin were lifers. And part of that relationship, he said, was physical bonding.

Mervin says he tried to be tactful in fending off Gray. “I told him, `That’s just not me,'” Mervin says. “Basically, I said I didn’t think it was right. I didn’t want to escalate it. I just wanted to get through the night.” Each time Gray would get agitated, Mervin would calm him down. It worked for a while. “But then he seen I was taking him on a merry-go-round,” Mervin says.

The war of words lasted until 3 or 4 a.m., by Mervin’s reckoning. When he finally heard Gray lay down in the bottom bunk, Mervin was relieved. He stretched out and tried to think of a way to get moved out of the cell without ratting on Gray or making himself out to be a coward. “I figured I’d start a fight [with Gray] in the pod,” Mervin says. “I would get a hell of a whipping, but we’d get split up.”

As he turned over the plan in his mind, he says, a “claw” reached into the upper bunk where he lay. Gray pulled Mervin from the bunk by his throat and slammed the back of his head into the wall.

“I’d run across big people before,” Mervin recalls, “and they were clumsy and slow. But [Gray] was quick on his feet, like a cat.”

When Gray began to choke him, Mervin says, “it scared me. I couldn’t breathe no more. I was scared to death that night. I thought I was going to die.

“I wish I could have just kept fighting and kept fighting until he died,” Mervin adds, his eyes reddening at the thought. “But no way he’s going to die.”

After the assault, Mervin says he crawled back into his bunk, unable to sleep and unable to stop the whirring thoughts in his brain. If word got out about what happened, he knew, “there would be rumors that he turned me out” (convict argot for becoming a homosexual). The other inmates would try to make him their “punk,” he says, and he’d be looked down upon.

“I’d always been a stand-up person,” Mervin says. “And you don’t go raping stand-up people. You rape punks. Right then and there, I decided I didn’t care about the convict code.”

Hours later, when Mervin was safely out of his cell, he asked to meet with a guard. He requested that they speak in a storeroom. He said he couldn’t risk being seen with a “cop.”

Mervin met with Lieutenant Sam Scrivner. At first, Scrivner wrote in a follow-up report, Mervin could not speak. “Then tears came to his eyes, his face became red, and he said he’d been sexually assaulted.” Mervin denied being raped, but said he’d been made to do “other things.”

“He displayed a very genuine fear for his life,” Scrivner wrote.
Mervin told Scrivner’s supervisor, Barney Bauer, much the same story. “Mervin,” Bauer wrote in a report of the incident, “was very upset, shaking, and seemed genuinely afraid.” Again Mervin stopped short of admitting he’d been raped. But he begged the guards not to make him bunk with Gray.

Because Gray had now been identified as a predator, he was placed in solitary–“the hole” to inmates–just thirty minutes after Bauer’s interview with Mervin.

The net closed even tighter the following day, when Gary Hilton was returned to Limon from the Arapahoe County courts. “I was told that Gray assaulted Mervin the night before,” Hilton wrote in an affidavit. “At once I went to the prison staff and told them everything.” The staff tape-recorded Hilton’s statement. Gray was scheduled for an August 10 disciplinary hearing.

Before the hearing, however, Gray committed an act that either demonstrates innocence or remarkable audacity. He asked Mervin and Hilton to write letters explaining that they’d had no problems with him while they celled together. Whether through truthfulness or fear, both men complied with his request.

In a handwritten note dated August 9, 1993, Hilton said he’d known Gray since 1989 and that he’d experienced no problems at any of the facilities where they’d been. He closed the note with a slap at the DOC: “I [would appreciate it if] the administration would quit using me as an escape goat,” he wrote.

Mervin’s note to the hearing officers was short and to the point: “I have had no problems with Marvin Gray,” he wrote.

Despite the victims’ recantations, Gray was found guilty of rape and assault. As a result, he was sent to the Colorado State Penitentiary (CSP), where he is now locked up, alone, for 23 hours a day.

Gray denied the charges against him at the time of the hearing and continues to deny them today. The only reason he’s being held in solitary at CSP, he says, is because the inmates and guards are afraid of his size and strength.

“It’s hard to understand what slime-ass snake pits these places are,” Gray says. “I’ve been here for over two years. And for what? Because I weigh 280 pounds.”

Gray insists that he’s never been lonely enough in prison to have sex with a man. “I don’t trip in that direction,” he says. “I don’t mess with any kind of homosexuals or fags. I have too much pride in myself as a man to do that.

“I don’t see anything sexy about looking at a hairy ass,” adds Gray. “It doesn’t do nothin’ for me.”

In the long run, Gray says, “The DOC will learn I’m telling the truth.” And the DOC is probably already sorry it believed James Mervin.

In the months following his rape, Mervin went on a weightlifting binge. It was the best way he knew of to dispense with the rage. But even his manic workouts, he says, “couldn’t take away that black feeling in my gut.” So Mervin began to file grievances against the prison system.

At first Mervin’s complaints weren’t taken seriously. They weren’t, prison officials told him, “grievable offenses.”

On October 12, 1993, however, Mervin did something guaranteed to get the attention of the prison hierarchy. Acting pro se, he filed suit against six Limon officials, including warden Bob Furlong, claiming they’d knowingly placed his life in danger.

Mervin was geared for a fight, and he got one. The prison staff closed ranks and began to deny virtually everything Mervin claimed had happened. A month after Mervin filed his suit, Sergeant Ken Sokol wrote in a memo that “upon reflection of incidents pertaining to Mr. Mervin’s lawsuit, I’m able to recollect the following: when he first learned that Gray was to come to Limon, he became very excited. He said they’d been friends, they used to lift weights together, and that he’d look forward to lifting with him again.” When Gray was in need of a cellmate, Sokol continued, Gray asked the sergeant if Mervin could move in with him. Mervin, Sokol said, told him there’d be no problems because the two were friends.

One by one, throughout the fall and winter of 1993, staffers lined up to claim that Mervin had specifically requested to be bunked with Gray. Although DOC records show that a guard who’d been a witness in Gray’s 1987 rape hearing was among the staffers who helped engineer Mervin’s move to Gray’s cell, prison officials and staffers named in the lawsuit have consistently denied that they knew–or should have known–that Gray had an institutional rape on his prison record. In a court document written by the assistant attorney general handling the state’s case, Limon officials claimed that Gray’s 1987 rape conviction was sitting in an archive in Colorado Springs or Canon City–and therefore unavailable to them.

Mervin says the staffer who gave him the most trouble after he filed the lawsuit was Lieutenant Scrivner, one of the first persons to whom Mervin had reported the rape. Although Mervin didn’t name Scrivner in the suit, he says the officer took his legal action personally and began harassing him about the rape in front of other inmates.

Months later Mervin filed a grievance with the prison system alleging that Scrivner was harassing him. The case was assigned to grievance officer Frank Ruybalid to investigate. Ruybalid, an outside attorney who contracts with the DOC and says that “99 out of 100” of prisoner grievances are unfounded, spoke with Mervin and Scrivner and interviewed four inmates and three officers. And in a letter to Furlong and DOC chief Ari Zavaras, he wrote that he believed Mervin’s claims were valid.

“Lt. Scrivner openly ridiculed Mervin about the lawsuit and its sensitive subject matter in front of other inmates, resulting in greater emotional distress to an inmate whose state of mind was understandably fragile as the result of a traumatic incident,” Ruybalid wrote.

Particularly egregious in Ruybalid’s mind was the fact that Scrivner allegedly told Mervin, in front of other inmates, “You weren’t so tough last year when you came to me crying that Marvin Gray turned you out.” If true, Scrivner’s words would have branded Mervin as a snitch.

Ruybalid added in his report that Scrivner needed to be disciplined. He also recommended that the lieutenant take anger-control classes. But Ruybalid’s response didn’t go down well at DOC. When unidentified officials complained that Ruybalid’s investigation was inadequate, another investigator, this one a DOC employee, was assigned. Three more inmates and seven more officers were questioned.

The new investigator found an inmate who reported that Mervin was “always looking to get guards in trouble” and had once called a sergeant a “fucking punk.” His report did not recommend any disciplinary action against Scrivner.

On May 30, 1995, Scrivner met with Zavaras to learn the outcome of the case. In Zavaras’s written summary of the meeting, the corrections boss noted that Scrivner had admitted making remarks to Mervin about a “skeleton in [Mervin’s] closet” and to chiding Mervin for his “sniveling.”

Zavaras put a letter of corrective action in Scrivner’s file and closed the meeting. That was the extent of Scrivner’s punishment.

Mervin, however, made his own kind of justice. He added Scrivner’s name to the lawsuit.

Pro se lawsuits from inmates aren’t particularly well thought of in federal court. What probably saved Mervin’s suit from the court wastebasket was that after filing he went looking for a “street lawyer” to help him. He found one in David Lane, a prominent Denver defense attorney.

Hilton wasn’t so lucky. He filed suit against prison officials in July 1994, almost a year after his rape. He did not get an outside attorney. The case was dismissed in February of this year. “The facts show no deliberate indifference on the part of the defendants,” U.S. District Judge Daniel Sparr wrote in his opinion. “The court finds no evidence demonstrating that the defendants were aware that inmate Gray posed a possible threat to the plaintiff before the assault.”

Hilton has since filed an appeal.
As Mervin’s suit has ground on, nobody in the state prison system has stepped forward to take ultimate responsibility for moving Gray and Mervin into the same cell. DOC officials continue to insist that Mervin asked to bunk with Gray, but to Lane, that’s a moot point. The staff knew about Gray’s predilections, he says, and whether through indifference, incompetence or outright malice, they failed to protect Mervin from a known rapist.

One of the oddest exchanges in the suit’s long discovery process occurred when Lane was taking a deposition from Warden Furlong. The two men were discussing the importance of inmate size in making cell assignments. Lane was trying to get Furlong to say that disparities in size–such as those between Mervin and Gray–should be a factor in determining living arrangements. Furlong then reached across the conference table, pulled a small knife from his pocket and held it in Lane’s face. A knife, Furlong informed Lane, would go far in eliminating size differences.

Lane later wrote a motion requesting that Furlong not be allowed to personally testify in court because of the danger he posed to others. (Furlong declined to be interviewed for this story.) Lane then sent a copy of the motion to Mervin, where it made the rounds. Furlong, Lane contends, was soon tagged “Switchblade Bob” by the inmates. Lane and Mervin claim that the clever man who thought up the epithet (along with several inmates Furlong spotted laughing at the name-calling) were thrown into the hole for their disrespect.

Unless Mervin’s suit is settled out of court, Lane expects it to go to trial sometime next year. Colorado Assistant Attorney General William Higgins, who has been assigned to defend the state in the case, says he’s less certain. Higgins notes that he recently filed the state’s second motion to dismiss the case (the first was denied by a U.S. magistrate).

For the prisoners involved, life remains as bumpy and uncertain as the lawsuit itself. Hilton, says Lane, is again under close observation at a prison other than Limon. Hilton has reportedly tried but failed to commit suicide. He could not be reached for comment.

Gray was eventually acquitted in the murder of Daniel Green, after a number of the prisoners in the holding cell refused to testify against him. Today he remains under 23-hour lockdown at CSP and says he’s bored. The prison, he says, “might as well be Gilligan’s Island.” Gray isn’t allowed to work with weights anymore and says he keeps in shape by doing sit-ups, pull-ups and push-ups.

Mervin is still in Limon, where he doesn’t lift weights much anymore, either. He doesn’t have the heart for it, he says. He says he keeps to himself and tries to avoid contact with other inmates. And he continues to fear for his life. “I think eventually someone will get me,” he says.

Winning a lawsuit wouldn’t mean much to a lifer like Mervin. Though it may provide money for an appeal of the burglary conviction that labeled him a habitual criminal, his chances of parole are slim at best.

“I just want them to give me some respect and leave me alone,” Mervin says. “I feel like the officers violated me after this happened. And they violate me every day. I hope someday I’ll forget this, but I’ll be here all my life.

“I just want my dignity back.”
end of part 2