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Alaska state attorneys' advice to prisons: Don't document facts of deaths

State lawyers squelched information about deaths in Alaska prisons when light offered the best hope for preventing future deaths.

The appalling report on the Alaska Department of Corrections released by Gov. Bill Walker last month contains just a few sentences of criticism for the lawyers representing the department, who work in the Criminal Division at the Department of Law. But those words are damning.

The report says, "Law's overarching tendency is to protect the state against liability. For example, according to interviewees, Law expressed concerns that documenting all the facts around an inmate death might make it easier for the state to be found financially liable for the death."

Until the prison suicide of serial killer Israel Keyes started to force the lid off Corrections' failures, the department had no policy requiring death investigations. Officers filed incident reports. Investigations were ad hoc. Corrections turned to its attorneys at the Department of Law to find out what to do, case by case.

A state attorney who advised Corrections then is still its lawyer, Assistant Attorney General John Bodick. In a telephone interview last week, he wouldn't say what he told the department to do about death investigations before the new policy was in place, citing attorney-client privilege.

The result of that no-policy policy is that we'll never know why dozens of prisoners died. Dean Williams, a special assistant who co-authored the governor's report, said he and investigator Joe Hanlon couldn't find enough facts about earlier deaths to analyze the causes. They had never been written up.

But so many prisoners were dying that in the few months Williams and Hanlon were working on the report, new cases fell in their laps. Looking in real time, they found some of the horrifying incidents we've been reading about in the past few weeks.

Lawyers are supposed to protect their clients from potential lawsuits. But when that goal conflicts with informing families and the public how prisoners died, good public policy and basic humanity demand the facts be gathered and released. Williams pointed out that without investigating deaths, the department hid problems even from itself.

Who knows how many lives would have been saved if light had been shed on Corrections years ago?

Keyes killed a series of victims chosen randomly until he got caught for the kidnapping and murder of 18-year-old barista Samantha Koenig. In 2012, while spending his days being questioned about his other victims, Keyes killed himself one night at the Anchorage jail, taking with him the knowledge of what happened to disappeared victims whose fate now will never be known.

News outlets filed requests for information on how Keyes died, but attorney Bodick refused, saying that he personally had conducted the only investigation and that the information he found was thus attorney-client confidential.

Bodick told the Associated Press in 2013 that secrecy was protecting the state from any potential lawsuit by Keyes' family. But he also added that even after the two-year window to sue was over, he still didn't expect to release the information because of the survivors' right to privacy and because families of other dead prisoners might sue in similar circumstances.

The facts did come out, however, after the Department of Corrections fired a guard for Keyes' death and that firing went to an arbitrator. The arbitrator's report, uncovered by Michelle Theriault Boots of Alaska Dispatch News in July 2014, made clear that the guard had been a scapegoat. Keyes had been able to commit suicide because higher-ups, who were never named, removed him from a mental health unit designed for suicide prevention.

Corrections finally adopted a death investigation policy in 2014 that dictates gathering, preserving and analyzing all relevant evidence. Bodick said he now advises Corrections to follow that policy. He said he wasn't sure there was a policy previously, and that he didn't know if the lack of an investigation policy had been used to hide misconduct. Williams refused to name the attorneys involved, but said in an interview that they had defended the previous practice to him.

Apparently, discouraging investigations broke no ethics rules. I asked Bob Bundy, a former U.S. attorney and longtime member of both the Alaska Bar Association's Ethics Committee and Rules of Professional Conduct Committee. Bundy said the rules governing lawyers give state attorneys no obligation to recommend proper prison death investigations.

"Legal ethics and morality are not always exactly the same," Bundy said. "They talk to slightly different issues."

We might never have known about bad policies and misconduct in the prisons without the dogged determination of reporters and the Alaska Correctional Officers Association. Then-Gov. Sean Parnell's administration put up a stone wall to inquiries about what was happening in the jails. Theriault Boots's requests for information were denied or met with demands for huge fees for the state to comply with its open record laws.

Similar to the sex and power abuses uncovered last year at the Alaska National Guard, the problems at the Department of Corrections grew and multiplied in the dark.

But the moral issues here are bigger than bad management. A family should be taken care of financially if a loved one wrongfully dies in jail. Cover-ups serve government employees, not the public. The public wants government misconduct resolved and victims compensated.

When I asked Gov. Walker about this Wednesday, he pointed out that he has apologized and demanded complete transparency at Corrections. He took a hit, fired the department's commissioner, and now wants to look ahead.

Attorney General Craig Richards declined to comment, but released a statement saying the Department of Law, "has begun an internal review."

We have government lawyers who defend hiding the truth from the public -- for whom they work. The Department of Law should work to represent the values of Alaskans, not just win cases. Good lawyers believe in justice.

Charles Wohlforth's column appears three times weekly in Alaska Dispatch News. He is an author and host of radio shows on Alaska Public Media. Follow him on Facebook or email cwohlforth@alaskadispatch.com.

?The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@alaskadispatch.com.

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