City DA won’t charge jail deputies in death
Denver District Attorney Mitch Morrissey decided he would not prosecute jail deputies in the death of inmate Michael Marshall, relying heavily on a medical examiner’s report that said multiple factors caused his death.
Marshall choked on his own vomit while being restrained facedown on the floor by sheriff’s deputies. However, Dr. Meredith A. Frank, the assistant medical examiner who performed Marshall’s autopsy, said the inmate also had chronic lung and heart disease and was agitated during a psychotic episode.
“Because of these uncertainties, Dr. Frank would testify in court that in her opinion it is probable, but not certain, that aspiration contributed to Mr. Marshall’s collapse at the detention center,” Morrissey wrote Thursday in a decision statement on the case.
The doctor also could not testify as to what caused Marshall to choke.
“When asked if the physical restraint by the deputies could have caused Mr. Marshall to aspirate, Dr. Frank said it was possible,” Morrissey wrote. “Similarly, when asked if Mr. Marshall’s own physical exertion against the deputies could have caused him to aspirate, Dr. Frank said it was possible.”
Within minutes of Morrissey’s announcement, the city released footage of Marshall’s death to his family and their attorneys. The family had been demanding to see the video since the incident happened Nov. 11.
After watching the footage, Marshall’s family and their supporters declared outrage over Morrissey’s decision and called on the U.S. Department of Justice to investigate the city’s safety department.
“My uncle didn’t do anything,” said his niece, Natalia Marshall. “He didn’t try to hurt anybody. For them to forcefully restrain him and murder him because he was trespassing is beyond my
thoughts.”
Marshall was arrested Nov. 7 on a trespassing charge and was being held on $100 bail.
He died nine days later after his family took him off life support.
Marshall, a schizophrenic, had been behaving erratically and was aggressive toward another inmate, Morrissey’s statement said. Marshall had refused his medication for at least two days.
Deputies moved Marshall to a sallyport, a secure entryway into a housing unit.
There, a deputy asked him to sit on a bench, and Marshall complied. But after 1½ minutes, he got up and tried to push past the deputy, Morrissey’s statement said.
That’s when sheriff’s deputy Bret Garegnani first put hands on Marshall to control him. Marshall resisted, and deputies Smajo Civic and Thanarat Phuvapaisalkij helped Garegnani take Marshall to the floor, the DA said.
Deputies did not use punches, kicks, strikes, chokeholds or Tasers during the incident. They did use nunchucks on Marshall’s ankles, leg chains and handcuffs.
“The maneuvers placing Mr. Marshall on the bench and on the floor were not aggressive or violent,” Morrissey wrote.
With deputies holding him, Marshall continued to struggle, growled and bared his teeth, the statement said.
After struggling for more than two minutes, Marshall went limp. Deputies called for a medical emergency.
When nurses arrived, Marshall was breathing, had a pulse and was resisting, Morrissey’s statement said.
It was during this time that Marshall vomited.
A nurse asked deputies to turn Marshall onto his side and to keep pressure off his back. They complied, Morrissey wrote.
Marshall was put in a restraint chair, and a spit hood was pulled over his head before deputies wheeled him into a hallway. But nurses then realized he was not breathing and deputies unbuckled his restraints and pulled him out of the chair.
A deputy performed CPR for 20 minutes.
Darold Killmer and Mari Newman, attorneys for the Marshall family, provided The Denver Post with a portion of the video footage. City officials have said the video will be released publicly Friday morning.
In the footage, Marshall appears to be limp and unresponsive as he is rolled into the hallway and CPR is started.
The attorneys said they determined that Marshall was nonviolent.
“I’m very angry,” Killmer said. “From what I saw, it’s very hard to imagine a more aggressive and overzealous response. Michael Marshall had done nothing wrong.”
The five deputies involved in the incident continue working but have been given assignments that do not involve contact with inmates, according to a news release from Mayor Michael Hancock’s office.
Now that the criminal investigation has ended, Sheriff Patrick Firman will conduct an internal administrative review to determine whether deputies followed department policies and procedures. He promised it would be swift and responsible.
Marshall’s death has generated community frustration.
For some, the case is similar to that of Marvin Booker, a homeless man who died in 2010 after being restrained by deputies. No deputies involved in Booker’s death were prosecuted, but the family received a $6 million settlement after a jury ruled in their favor in a federal civil trial.
Several people went on a hunger strike in protest of the city’s handling of the Marshall investigation and the refusal to release the video sooner.
“This strike should be over,” said the Rev. Terrence Hughes. “But I can’t eat because I’m sick to my stomach because of what the Denver district attorney is still refusing to do.
“He’s saying black lives don’t matter. He’s saying mental health doesn’t matter. He’s saying homelessness doesn’t matter.”
Morrissey wrote that he sympathized with the Marshall family and offered them condolences.
“Sadly, this situation is an example of how difficult it is for society as a whole, including deputies in a jail, to handle the complex issues presented by those suffering from severe mental illness,” he said in the statement.
But the remedy, he said, does not lie with criminal prosecution.
“To those calling for criminal charges in order to effect a change regarding use of force tactics or policies, I want to emphasize that criminal charges are appropriately used only to respond to criminal acts that can be proven beyond a reasonable doubt,” Morrissey said. “Absent that certainty of proof, criminal charges are not appropriate and are not justice.”