The Justice administration has fired a top official in the corrections system and the lead attorney in the Department of Homeland Security after a federal magistrate judge blasted the handling of potential evidence in a class action lawsuit over conditions at Southern Regional Jail.
Brad Douglas, the former interim corrections commissioner and recently executive officer for the jails system, and Phil Sword, chief counsel for the homeland security agency “have been terminated,” said Brian Abraham, chief of staff for the Governor’s Office.
State officials say they have also located evidence that was considered lost or destroyed. That apparently refers to five years worth of inmate grievances that were required to be preserved.
“The grievances requested have been located in electronic and paper form,” Abraham told MetroNews. “That’s going to be turned over.”
Asked why it wasn’t turned over earlier, Abraham responded, “It’s inexplicable. They’re there.”
A federal magistrate judge wrote this week that it defies logic that lost evidence from email accounts, cell phones, text messages, Criminal Investigation Division reports and other electronic and paper data would be anything but intentional. The judge concluded by saying he would forward his findings to a federal prosecutor for a possible investigation.
The missing grievances, which were required to be retained, were a particular mystery.
“This information should have been maintained in the office of the superintendent at the (Southern Regional Jail), yet not a single witness could explain to the court why anything predating 2022 is no longer there,” the federal magistrate judge wrote.
HOPPY KERCHEVAL: Federal judge blasts WV corrections officials for destroying, losing evidence
The lawsuit filed in September 2022 is a class action against Southern Regional Jail, the West Virginia Division of Corrections and every county commission that pays Southern Regional to house inmates.
Allegations in the suit include inmates sleeping on mats soaked in toilet water, some being forced to sleep on concrete floors, poor air quality because of black mold and denial of nutritious food, running water or a toilet.
The most recent battle in federal court has been over whether state officials improperly disposed of records that could have been evidence in the case. Douglas and Sword were among the state figures who testified at a long hearing a month ago about a range of evidence that was purged or missing.
Judge: ‘Intentional’
U.S. Magistrate Judge Omar Aboulhosn scrutinized the loss of evidence this week in a filing that recommends a default judgment in the case.
The judge wrote that “The Court is not convinced that there was some species of ineptitude that infected every individual in the chain of command regarding evidence preservation.”
And the judge concluded that “the failure to preserve the evidence that was destroyed in this case was intentionally done and not simply an oversight by the witnesses.”
The judge’s filing included summaries of testimony by Douglas and Sword.
The judge wrote that Douglas admitted that no steps were taken to preserve evidence evidence at Southern Regional Jail, including emails and documents. Douglas admitted that nobody, including himself, followed the process for litigation holds for discovery or information in the summer of 2022 because “they didn’t think of it.”
Sword, who is also an assistant attorney general, testified that he provided the corrections and homeland security agencies with document preservation letters, but did not have any meetings with agency leaders about preservation of evidence.
Aboulhosn took special note of Sword’s testimony in a footnote.
“Perhaps the most infuriating testimony came from Philip Sword, assistant attorney general, who stated his involvement with the preservation letters was limited to forwarding them to respective agencies, but incredibly, he insisted the failure to preserve electronic evidence was the plaintiffs’ counsel’s fault because they had not provided the hard drives to store this information despite stating that they would pay for them.
“His testimony was even more galling in response to questions from the bench that notwithstanding clear litigation holds that he received and hand firsthand knowledge of, and the requirement under law, that this evidence was to be preserved, Mr. Sword insisted that the (state agency) reliance on the plaintiffs’ counsel’s pledge to purchase hard drives essentially allowed them to wash their hands of any responsibility for preserving this evidence, even though the state could have purchased the hard drives itself.”
Governor: ‘They have to be terminated’
Gov. Jim Justice, in a briefing earlier today, said state workers should lose their jobs or even be subject to criminal charges if they were responsible for destroying a range of potential evidence in a federal lawsuit over conditions at the Southern Regional Jail.
But administration officials two weeks in a row have now said they do not believe the destruction represents intentional acts.
Justice said his administration strives for transparency.
“Everybody knows, I expect everybody to be transparent,” Justice said in response to a question by reporter Bob Aaron of WCHS Television. “I expect everybody to be honest. I expect everybody to be an absolute open book. Whatever you want to look at, I think that we ought to be able to show anyone anything that is within our capabilities or reason to be able to do so.”
He continued, “Here’s the net of the whole thing. When people are directed to not destroy something or whatever it may be or supply something and then they just don’t, at the end of the day I think it would be a very, very, very long and difficult day for those folks. If they’ve done what it is alleged that they did do then they have to be terminated.”
Aboulhosn described a systemic failure to save electronic and written materials, writing “the intentional decisions to not preserve evidence, and to allow evidence to be destroyed was not done by lowlevel employees of the WVDCR but was perpetrated by the highest persons in the chain of command.
“That these Defendants would ask this Court to believe that entire file cabinets of evidence disappeared without a trace is an ask too far. To do so, the Court would have to disregard all logic and reason to take these Defendants at their word.”
Administration: No intentional
Abraham, the administration’s chief of staff, last week said in a news briefing that the deletion of email records from departing corrections employees was not intentional.
This week, Homeland Security Secretary Mark Sorsaia again said the loss of several kinds of records that might have been evidence was not intentional.
“I can tell the public categorically,” Sorsaia said, “we have no evidence — and I’ll say it again, at this time we have no evidence — that any individual or individuals intentionally destroyed evidence or took affirmative action to make sure that evidence was hidden from disclosure.
“The federal magistrate made a comment in his opinion that he felt that our failure to provide evidence in a timely manner was so egregious that he had to conclude it was an intentional act to withhold evidence and I will tell you in all due respect to the magistrate we disagree with that contention.”
MetroNews followed up by asking the administration officials to characterize what did happen if the records were not destroyed intentionally.
The governor again said the workers who were responsible should be held accountable.
“If people have done a derelict job, they need replaced. If people have done a purposeful, purposeful job to where they’ve done something knowingly — that they’ve done something that is wrong, such as destroying evidence or whatever like that when they know that it’s dead wrong then they need to go to jail. That’s how I see it, and that’s all there is to it.
“They need to be either terminated for doing a derelict job or they need to go to jail. Because if they’re doing something that’s breaking the law then I have no sympathy.”
Sorsaia, a longtime Putnam County prosecutor, said he agreed — but he said there were complications in state government.
“I’ve learned how large state government is. We have an IT department that’s in one side of the bureaucracy in state government and then we have Homeland Security and all the different agencies. We were unaware that the IT department had a policy that when an employee ceased working for the state — they left their job or went on — the IT department had a policy that after, I believe, five months they deleted their emails from the system.
“It was just a policy that was created by the IT department that if I leave office today and I hand my cell phone back that in five months my emails will be deleted. Well, we got requests for discovery and we were requested to provide emails in that discovery. I’m not just talking about a couple of emails; it could be thousands to even a hundred thousand emails; that’s the volume that we’re talking about.”
So, the state is being taken to task in part because the email accounts of six corrections officials who departed in 2022 were purged.
“That just happened. It was not in any way, some conspiracy to destroy evidence. It was just one agency not understanding how another agency was handling their electronic data. That is what we’re working on now. We’re coordinating efforts. We’re discussing this to make sure this kind of thing doesn’t happen again.”
Sorsaia concluded, “Why would any individual in the Department of Corrections or Homeland Security have a personal interest to destroy or hide evidence in a controversy that deals with the State of West Virginia vs. a private party. It just doesn’t make sense.”