A new report into the death of Kenneth Johnson, a 60-year-old Black man, in the Newport prison delivers another scathing review of the actions, or lack of them, by the Vermont Department of Corrections and contracted medical staff.
The 38-page document outlines instances where Johnson, while stating that he couldn’t breathe in the infirmary of the Northern State Correctional Facility, was threatened with being placed in the “hole,” or disciplinary segregation in a holding cell, if he didn’t “knock it off.”
Tristram Coffin, of the Burlington-based law firm of Downs Rachlin Martin and the former U.S. attorney for Vermont, conducted the latest investigation at the request of Mike Smith, Vermont’s health and human services secretary. Johnson died on Dec. 7, 2019.
“The conclusion is inescapable that more could have and should have been done to care for Mr. Johnson,” Coffin said Monday during a press conference held over video conferencing.
“It just is not sufficient,” Coffin said, “that an inmate complains persistently and credibly of not being able to breathe for a period of some hours, consistently does not see a doctor, does not go to the hospital, and then later on dies.
“That is just not, as a policy matter, how Vermont should be conducting its business.”
Coffin said he couldn’t determine conclusively that Johnson’s race played a role in how he was treated.
“It’s hard to say whether that resulted in having differential treatment,” Coffin said, “but it’s also hard to say that that wasn’t the case.”
Coffin and Timothy Doherty, a former federal prosecutor now in private practice with Downs Rachlin Martin, were joined at the press conference by Smith and James Baker, interim corrections commissioner.
Baker, speaking about what role Johnson’s race played in how he was cared for, repeated comments he had made when questioned in the past.
“Can’t say it did, can’t say it didn’t,” Baker said. “But for Jim Baker, the commissioner of corrections, that lingers in the back of my mind every time I talk about the Johnson case.”
The report also said it is impossible to determine whether racial bias was a factor.
“Nevertheless, the fact is that Mr. Johnson — a person of color — was under the supervision and care of an almost entirely white staff, a number of whom apparently disbelieved his persistent and credible claims that he could not breathe and failed to respond to those claims in a manner that ensured his safety,” the report says.
The report added that, given those circumstances, it is “reasonable to conclude that implicit bias likely played a role in shaping staff’s reaction to Mr. Johnson’s medical crisis.”
The report released Monday, though more detailed, provides the same blistering take as prior reports about how the Vermont Department of Corrections and its contracted health care provider, Virginia-based Centurion Managed Care, acted at the time of Johnson’s death.
Other probes
In July, the Vermont Defender General’s Prisoners’ Rights Office released a summary of its investigation into Johnson’s death. It found that Johnson died of an undiagnosed cancerous tumor in his throat, and his pleas that he couldn’t breathe went ignored by corrections and medical staff.
Also, according to the document, Johnson was at times threatened by those expected to care for him. In the hours before his death, the document stated, he told a corrections staffer that he couldn’t breathe and got a response telling him to “knock it off.”
The summary report from the Defender General’s Office also stated, “DOC is complicit in covering up its contractor’s gross failure to provide lifesaving medical care.”
Coffin, speaking Monday, said he didn’t find any evidence that corrections staff members are complicit in a cover-up. “We did not find anything like that,” he said.
Vermont Defender General Matthew Valerio, reached after the press conference, said the report from Coffin and the law firm appeared very similar to the one from his office.
As for the Defender General’s report regarding the complicity of DOC in a cover-up, Valerio said his office had questioned whether the documents they reviewed were complete.
“There is nothing about this report that leads me to change my opinion,” he said.
Disability Rights Vermont also looked into Johnson’s death; its report has not yet been made public, but officials with the organization have said their report also had strong words about the care Johnson received in prison, using terms such as “abuse” and “neglect.”
The reports by Disability Rights Vermont and by the Defender General’s Office led the state to call on Coffin and the law firm to conduct the outside review.
A separate probe into Johnson’s death, conducted by Vermont State Police, has been forwarded to Orleans County State’s Attorney Jennifer Barrett, “though the state police will continue to follow up on any new information as needed to help further the investigation,” Adam Silverman, a state police spokesperson, said in an email Monday.
Barrett, the state’s attorney, said in an email later Monday afternoon, “This case is still under investigation. I have reviewed portions of the case; however, no decision regarding prosecution can be made until the investigation is complete.”
Johnson had been jailed at the Northern State Correctional Center in Newport since September 2017, awaiting trial on sex assault and human trafficking charges. He had pleaded not guilty.
In July, Baker announced that the state would not renew its contract with Centurion Managed Care of Virginia. Instead, the state contracted with Kansas-based VitalCore Health Strategies.
Baker has said Johnson’s death was not the reason for changing health care providers, though he added it did confirm that the move was the right one.
The report released Monday included information gathered by the investigators from video footage recorded inside the prison, interviews with corrections staff working the night of Johnson’s death, and other records.
Notably, the investigation did not include interviews with Centurion medical staff working in the facility at the time.
“This is a disturbing report,” Smith said of the report. “There’s plenty of blame to go around — from DOC, to the medical provider Centurion, to outside medical providers.”
Smith said he found it “unfortunate” and “disconcerting” that Centurion refused to cooperate with the investigation.
“I don’t control Centurion, but I do control DOC,” the secretary said, “and without question DOC could have and should have done more to prevent this tragedy.”
Centurion did not immediately provide a response to a request for comment by late Monday afternoon.
How independent?
While Smith and Baker have termed Monday’s report “independent,” conducted from outside state government, questions were raised during the press conference about how independent the investigation truly was, particularly when Baker referred to Coffin as “my old friend.”
Also, Coffin and Doherty provided a “draft” of the report to state officials before publicly releasing it and made some changes based on recommendations from those state officials, Coffin said during the press conference.
“There really were no substantive changes; they wanted some policies spelled out in different ways,” he said. “We thought about it and wrote our report.”
Baker said anyone who questions the objectively of the report should read the document. “It’s pretty critical of the Department of Corrections,” he said.
Among the report’s recommendations: The corrections department should implement implicit bias training, clarify policies on the use of holding cells, and improve procedures involving medical observations of inmates.
Baker, who took his post after Johnson’s death, said work is underway to put those recommendations into effect, and pledged to continue to “change the culture” in the corrections department.
He said he couldn’t comment at this time whether any disciplinary action has been taken against any corrections staff members in the case, but did say, “There is an ongoing personnel investigation looking at the conduct of staff.”
Three 10-25s
Monday’s report takes a deeper look than others into the final moments of Johnson’s life — from the evening of Dec. 6, 2019, to the early morning hours of Dec. 7, 2019.
During that time, according to the report, there were three “10-25s” regarding Johnson. That term, Coffin said, is a code for an “urgent” response to an “urgent” situation.
The first one came in at about 10:30 p.m. on the night of Dec. 6. Numerous witnesses reported that Johnson complained about not being able to breathe, the report stated, and he was given a nebulizer, a device to help him.
“It appeared he continued to be in distress,” Coffin said, “perhaps feeling a little better, but they left him.”
Then, there was another 10-25 at about 12:40 a.m. on Dec. 7, according to the report. At that point, Coffin said, a corrections officer found Johnson on the floor of the bathroom next to the infirmary.
“He was in significant distress at that point,” Coffin said. Johnson continued to say he couldn’t breathe and wanted to go to the hospital. Instead, Johnson was escorted back to the prison’s infirmary.
After being put back in bed, at some point Johnson was alone with Robert Weight, a supervisor at the facility. In a video, Wright could be seen talking with Johnson and then gesturing toward Johnson and then down the hall.
“From Supervisor Wright’s gestures and body language, as well as other evidence,” the report stated, “it is likely that Supervisor Wright is telling Mr. Johnson to remain in his bed or he will be placed in a holding cell.”
According to a report Wright filed about that second 10-25, “I informed inmate Johnson to knock it off or he would be moved to holding, per the provider, and I returned to normal duties.”
In an interview, Wright told investigators he didn’t know if Johnson’s claims about not being able to breathe were “legitimate” because Johnson talked fine.
Wright added that it was a nurse who first told Johnson he would be placed in a holding cell if he didn’t remain in bed.
Asked if Johnson should have been placed on a “higher, more stringent observation level” after the second 10-25, when Johnson was found on the bathroom floor, Wright replied that he “lacked the authority” to change an inmate observation level for medical reasons.
The third 10-25 took place around 2:15 a.m. on Dec. 7, after another inmate in the infirmary reported he no longer heard the “raspy” sounds Johnson had been making while breathing.
“The nurse checks him; he appears to be unresponsive,” Coffin said, and an ambulance is called. “CPR is initiated, but there’s no further indication that Mr. Johnson is responsive, or has any pulse or respiration at that point in time.”
Coffin said Johnson was pronounced dead at North Country Hospital in Newport.
“Despite these interactions with Mr. Johnson, prior to his death, no doctor saw him,” Coffin said. “There was no evaluation in an emergency department despite access to one relatively nearby.”
Read the story on VTDigger here: Report on death of Black inmate who pleaded for help rips corrections, health care provider.