DA, Pitkin sheriff at odds over video release | PostIndependent.com

DA, Pitkin sheriff at odds over video release

Jason Auslander
The Aspen Times
Water covers the Pitkin County Jail common room after the incident involving sprinkler damage.
Provided

Pitkin County Sheriff Joe DiSalvo said he believes a video of a jail inmate fighting with deputies last week should be released to the public.

But despite an open records request for the video made more than a week ago by The Aspen Times, DiSalvo said Thursday he will continue to hold on to it until District Attorney Sherry Caloia clarifies why she thinks it should remain under wraps.

“Out of respect for the district attorney, I’m going to give her the opportunity to state her case to the public why the video should be released,” DiSalvo said. “At this point, she and I disagree whether it should be released.”

Caloia said Thursday that she’s bound by professional rules of conduct that forbid her from making “extra-judicial statements” about a case, and that releasing records prior to trial or a plea constitute such statements. In addition, releasing the video would try Garrett in the “court of public opinion” and possibly taint the jury pool.

“My common sense tells me that if a person viewed the video and saw the damage done to the jail, they would be pissed off,” Caloia said. “The guy’s entitled to a fair trial.”

The dispute centers on the actions of Benjamin Garrett, 32, who was arrested Aug. 24 for possession of methamphetamine, as well as those of law enforcement personnel who had the unenviable task of trying to control him after he allegedly caused a massive flood at the Pitkin County Jail in the early morning hours of Aug. 25.

A video camera in Garrett’s holding cell captured footage of Garrett prying a large piece of metal that housed a lighting fixture from the ceiling of the cell and smashing it against cell windows and the door. DiSalvo allowed a reporter to view the video earlier this week.

Not long after Garrett removes the large, square piece of metal housing, he enters the cell’s bathroom, which doesn’t have a camera, then re-enters the cell. Soon after that, dark brown water begins to flow and spray into the cell. Police reports about the incident say he used the metal housing to destroy a sprinkler head in the cell.

After about 20 minutes of water continually flowing into the cell, deputies enter to try and deal with him and the water. Almost as soon as the cell door opens, Garrett raises his hands to the first deputy’s throat and tries to choke him.

Another deputy then bum rushes Garrett, driving him into the bathroom and out of sight of the camera. Deputy Marcin Debski, who was choked, then tried to separate Garrett from the other deputy, but could not because of the small space, according to Debski’s report on the incident.

“I was worried (the other deputy) was in danger of sustaining serious bodily injuries, so I struck Garrett in the face multiple times trying to subdue him,” Debski wrote in his report. “After multiple strikes, Garrett stopped actively fighting and began covering his face, at which point I stopped hitting him.”

After that, the water-logged officers dragged Garrett into the main cell area in view of the camera, piled on top of him and attempted to handcuff him while he continued to fight them.

The water leaked into the jail’s basement and damaged computer servers that control 911 and law enforcement communications, as well as law enforcement records management system, according to reports. The damage forced the permanent relocation of the 911 dispatch center, which was already scheduled to move in another month, and likely will run into the tens of thousands of dollars, officials have said.

DiSalvo said his deputies did nothing wrong.

“Some people may look at it and wonder if the deputies acted appropriately,” he said. “But that’s the chance you take when you’re being transparent.”

Steve Zansberg, a First Amendment lawyer who works with the Colorado Press Association, wrote a letter to DiSalvo Wednesday stating that the video should be released. The rules of professional conduct Caloia is worried about do not apply to this situation because releasing a record is not an extra-judicial statement, he said.

Further, DiSalvo is not a lawyer, so Caloia cannot be sanctioned for something he releases, Zansberg wrote in the letter.

Caloia on Thursday allowed that she doesn’t know for sure if she would be sanctioned under those rules if DiSalvo releases the video.

“I’m worried about it,” she said.

Caloia also said Thursday that DiSalvo shouldn’t have released his deputies’ reports about the incident until after the case has gone through the court system. In fact, no police report should ever be released until the case is closed, she said.

“There is no difference (between the police reports and the video),” Caloia said.

A letter written Thursday by Aspen prosecutor Andrea Bryan to DiSalvo also says the case is still under investigation and that the evidence-gathering process could be “tainted by public outrage or any other inflammatory information.”

DiSalvo, however, said Thursday his detectives were telling him they are nearly finished with the investigation.

More than a year ago, DiSalvo released a video of former Snowmass Village Town Councilman Chris Jacobson tearing up a holding cell at the jail after he was arrested for drunken driving.

“I was not sanctioned for that video,” Caloia said, though she pointed out that Jacobson took a plea deal in the case and it never went to trial.

DiSalvo pointed to the release of the Jacobson video as proof that releasing the video of Garrett from last week is allowed. Also, Pitkin County Attorney John Ely, DiSalvo’s legal counsel, said he is legally allowed to release the video, DiSalvo said.

“If I had done something wrong with Jacobson, I think I would have heard about it,” he said.

jauslander@aspentimes.com


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