RACINE — No criminal charges will be brought against anyone who worked in the Racine County Jail following the death of an inmate on June 1, Racine County District Attorney Patricia Hanson said Thursday.
The decision comes more than seven months after Malcolm James’ death. The Kenosha County Sheriff’s Department concluded its investigation in August.
James, 27, stopped breathing as officers attempted to confine him to a emergency restraint chair, designed to keep inmates from hurting themselves or others, and while officers pressed his torso forward in minutes-long attempts to remove Taser barbs from his back.
The conclusion of Dr. Jessica Lelinski, the Milwaukee County assistant medical examiner who performed the autopsy, is that James died of asphyxia because his breathing was restricted by officers.
Racine County law enforcement leaders dispute that conclusion. They blame James’ pre-exis ting health conditions.
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James had been taken to the detention center during a mental health crisis in which he was placed on suicide watch and had been restrained multiple times over the course of several days.
Crystal Kristiansen, a nurse contracted by the Racine County Jail, had her security revoked soon after James’ death, an action that essentially terminated her employment.
Five correctional officers — Cristian Brindis, Josue Davalos, Justin Gaudes, Jonathan Koski, Michael Saulys — and one sergeant, Justin Brands, of the Racine County Sheriff’s Office remain on paid administrative leave.
At least one civil lawsuit is reportedly being filed. Advocates and an attorney for James’ family, Kevin O’Connor, are calling for investigations from either or both the Wisconsin Department of Justice and the U.S. Department of Justice. The state DOJ did not reply to a request for comment by press time.
The mental health crisis James was experiencing played no role in his actual cause of death, experts have ruled.
The level of blame carried by the county’s employees and policies for the death remains disputed.
How did he die?
Lelinski concluded James’ death was the result of him being placed in a position by law enforcement officers — known as the “flex forward” position — for too long a time period, cutting off his breathing.
According to Hanson’s report, the deputies struggled for several minutes to remove Taser prongs from James’ back, apparently unaware that James had fallen unconscious as he was being bent forward.
James had been placed in an ERC after resisting jail guards several times after his May 28 arrest.
A report released Thursday by Hanson described how correctional officers employed the Flex Forward technique prior to his death: One correctional officer “controlled Mr. James’ head by placing the palm of one hand over the other, in a V-shape, and applied downward pressure on the back of Mr. James’ neck … other corrections officers used downward pressure to control Mr. James’ shoulders and arms.”
At first, James resisted officers’ attempts to remove the prongs from his back, leading them to stop the attempt. Soon after, when they tried again, he was bent forward for nearly 3 minutes, seemed to stop resisting and never awoke.
James was not moving for most of those 3 minutes, according to reviews of the video, but officers did not realize this was because he had fallen unconscious.
According to O’Connor, who watched body-camera videos that are not yet publicly available, one of the officers incorrectly told James: “Malcolm, this is only going to take about 10 seconds.”
“How does someone who is complying end up dead? What jury would not find fault in that?” said Bishop Tavis Grant, national field director with the Chicago-based Rainbow PUSH Coalition, during a news conference organized by James’ family and Racine Women for Racial Justice Thursday morning.
“They held his head forward and let him suffocate to death,” O’Connor said.
James’ supporters believe that the attempts to save his life were lackluster thereafter. No one in the jail attempted CPR.
Kristiansen, upon being called into the room with the ERC, allegedly did not know where life-saving equipment was and unsuccessfully attempted using smelling salts to awaken James.
Kelly Scroggins-Powell of the Racine Women for Racial Justice criticized Racine County for not having a full-time medical employee serving the jail, instead contracting out the work.
“This nurse had no clue what she was doing,” O’Connor said. He added that the guards had a tool that can be used to more easily remove Taser prongs, but did not attempt to use the tool — instead attempting to remove the prongs with their hands — for more than a minute while James was bent over.
According to the state’s account, Kristiansen arrived in the room about 31 seconds after officers realized James was unconscious, which was nearly 2 minutes after video allegedly shows James stopped moving. Another 3½ minutes passed between the nurse entering the room and 911 finally being called.
As 911 was being called, a correctional officer suggested to Kristiansen that they should try using an automated external defibrillator, to which Kristiansen replied that “she does not know where they are located,” according to the DA’s report.
It was not until a correctional officer returned to the room with the AED that handcuffs were removed from James, he was taken out of the chair and laid down on the floor. When the AED was placed on James, the unit said “no shock required.”
CPR did not begin until medical responders arrive, nearly 7 minutes after the nurse entered the room.
“Officers should have been trying to save his life,” Grant said. “This district attorney must be held accountable.”
Health problems blamed
Before making a charging decision, Hanson brought in two experts whose testimony differed from the conclusions of the medical examiner.
Consulting outside sources is a rare move for any prosecutor, whose charging decisions don’t usually involve bringing in outside input beyond the reports presented to them by law enforcement.
“I’ve never seen the prosecutor hire the defense witness for them,” O’Connor said.
The DA wrote that her office decided to seek experts after meeting with Lelinski, who performed the autopsy, “to seek additional specific opinions as to pulmonary function under the circumstances of this case.” Specifically, the DA sought experts with knowledge of restraint chairs and their “impact on pulmonary function.”
Grant and Clyde McLemore, founder of the Black Lives Matter chapter in Lake County, Illinois, allege Hanson did this intentionally to cast doubt and avoid charging or even bringing in a grand jury. Grant said the experts were brought in “to support her desired outcome.”
The Racine County Sheriff’s Office cast doubt on the medical examiner’s conclusion of asphyxia, writing in a release that the medical examiner’s conclusion was not based on “physical signs” but solely a “review of the video,” taken from body cameras of the officers who put James into the restraint chair.
Hanson wrote: “No signs of asphyxia were noted, such as petechial hemorrhages or congestion of the face and neck. In speaking with (Lelinski), the State learned that it is not unusual for there to be no physical signs of asphyxia. (Lelinski) advised that asphyxia is a diagnosis of exclusion when nothing else is seen, or a diagnosis of the circumstances surrounding a death.”
The experts brought in by Hanson concluded that James’ death was not asphyxia. They are:
- Dr. Tom Neuman, of the University of California-San Diego Medical Center
- Dr. Darrell Ross, head of the department of sociology, anthropology and criminal justice at Valdosta (Ga.) State University
“Given what appears to be the sequence of events in this case, asphyxiation is essentially impossible,” Neuman wrote, asserting that his death was more likely “a cardiac incident” due to James allegedly having been a sufferer of “significant heart disease, obesity, hypertensive cardiovascular disease and an enlarged heart.” James was 6-foot-3 and weighed 335 pounds; his mother, Sherry James, described her son as “a gentle giant.”
According to a report from Medical News Today: “If the brain does not get enough oxygen, it can cause a person to lose consciousness in seconds. If a person does not receive any oxygen within a few minutes, irreversible brain damage or death may occur.” These symptoms can be more severe for people such as James who have heart problems.
According to an RCSO news release, Ross concluded that “through Mr. James’ threatening, self-injurious, and dangerous behaviors, he created the need for the officers to provide him with close supervision. It was clear that Mr. James needed to be controlled, relocated for his safety and seen by medical staff. It would have been inappropriate and cruel to not intervene (italics added by RCSO). The use of force by correction officers was appropriate and reasonable to protect Mr. James.”
Why no charges?
Hanson wrote in her decision: “The correctional officers were not trained medical experts. They were not made aware that there was any respiratory distress from Mr. James … Until 2 minutes before he was unresponsive, he was continuing to resist their efforts to render medical assistance for the prongs.”
The DA also repeatedly noted that James had been resistive and vulgar toward officers throughout his time in the jail.
“Nothing about the way Mr. James acted or spoke (moments before his death) was different than how he had responded to the staff in the days prior to his death,” Hanson wrote, noting there were several times that jail staff reported James appeared unwilling to respond to them during his time in jail. “The correctional officers could not have known if Mr. James was having trouble breathing because of his position (Flex Forward). The correctional officers could also not have known of Mr. James’ heart disease and what impact that might have had on the situation.”
Hanson wrote in her decision: “Under the circumstances of the situation under review here, there was also no evidence that the correctional officers knew (italics added by Hanson) they were creating a risk of death to Mr. James.” She added that the ERC “had been a tool that had successfully worked on multiple occasions to calm Mr. James and interrupt his self-harm” during his time in the jail.
Hanson concluded: “One doctor (Lelinski) says asphyxia based on no other cause of death and a review of the circumstances … One doctor (Neuman) says asphyxia is impossible in such a short window to have caused death and that Mr. James had to have suffered a cardiac arrest. The existence of these two expert opinions creates a reasonable doubt as to whether or not the correctional officers should have known there was any risk of great bodily harm to Mr. James.”
Rainbow PUSH’s Grant connected James’ death to the high-profile death of Daunte Wright, the 20-year-old who was shot and killed by Kim Potter, who was a Brooklyn Center (Minn.) police officer when Potter accidentally grabbed her firearm instead of her Taser. In both cases, law enforcement officers accidentally killed someone, but only Potter was charged; she was found guilty of manslaughter last month and faces up to 15 years in prison.
“These officers shouldn’t be on paid leave. They should be charged,” Grant said. “This office (the Racine County District Attorney’s Office) refuses to file charges. And it’s egregious on its face to believe there’s something not criminal in this case.”
Of the nurse being effectively fired and no other known repercussions for those involved, Scroggins-Powell said: “If she’s not a scapegoat, I don’t know who else she could be … How is the nurse fired? And the officers keep their jobs?”
Grant said in conclusion: “We want charges. This is criminal behavior.”