Indifference fueled $10 million jail-neglect payout

SAN JOSE — Santa Clara County jail staff and deputies stalled medical help for a mentally ill man who severely injured himself while being transported in jail custody three years ago, according to newly released two internal reports.

The release of a previously confidential county counsel memo and a civilian auditor’s report is the latest salvo in county supervisors’ unprecedented probes into Sheriff Laurie Smith, whose office runs the jail. The documents also show an internal investigation into the incident was dropped for no clear reason.

That played a significant factor in the county agreeing to a $10 million settlement with the family of Andrew Hogan, who was permanently disabled by the injuries he suffered.

The reports, scheduled for discussion by the county Board of Supervisors on Tuesday, offer new details in a case that has been heavily cited by supervisors Joe Simitian and Otto Lee in an Aug. 17 referral that called for external local, state and federal investigations into the county’s broader jail operations.

Released at the request of the two supervisors, the memo from the County Counsel’s Office justifies the high-figure settlement by saying that the county’s lawyers expected  a civil jury would find the jail at fault.

“The County breached its duty to safely transport Hogan from Elmwood to the Main Jail. At the Main Jail, staff did not adequately monitor Hogan and delayed his medical care and transport,” the counsel memo states. “It is our opinion that the County will very likely be found liable for Hogan’s severe injuries.”

The sheriff’s office did not immediately respond to a request for comment Monday.

The counsel memo was written a month before the county formally settled with Hogan’s family in March 2020, and was released in accordance with the referral by Simitian and Lee. The supervisors also ordered that the civilian auditor for the sheriff’s office, the Office of County Law Enforcement Monitoring, review the case.

Simitian and Lee’s referral also cited ongoing indictments accusing Smith’s commanders of illegally brokering concealed-gun permits for political favors, and a pending claim blaming jail staff for Juan Martin Nunez’s paralysis after a 2019 fall in an Elmwood jail cell. On Aug. 31, Simitian and Supervisor Susan Ellenberg spearheaded a symbolic no-confidence vote in Smith.

On Aug. 25, 2018, Hogan was taken from the Elmwood men’s jail in Milpitas to the Main Jail in San Jose for psychiatric care after was he seen banging his head against a cell wall. He was transported in the back of a van, shackled but unrestrained, and during the five-mile drive he repeatedly hit his head against the walls of the van.

The deputies in the van radioed to the Main Jail, but jail staff did not have anyone give care to Hogan. According to the two reports just released, after a nurse called for an ambulance response for a major head injury, a supervisor briefly peered inside the van and advised waiting for a hazmat-suited team to help Hogan because of the blood inside.

Until then, Hogan “could do all the damage he wants,” the unnamed supervisor said, according to an audio recording cited in both documents. Hogan pleaded for help as jail staff stood “casually” and Hogan lapsed into unconsciousness.

When a San Jose Fire Department rescue team arrived, the jail-hazmat team was not assembled, causing further delays.

The auditor report authored by Michael Gennaco had findings in line with the county counsel, but noted that he has no independent information about Hogan’s case from the sheriff’s office. A stalemate continues between Gennaco and Smith’s office, with both sides alleging the other is responsible for stymieing a records and information pact. In the meantime, Gennaco wrote that his firm will turn to obtaining subpoenas of the sheriff’s office to conduct its work.

Smith, in a news conference and remarks to the board last month, responded to the supervisors’ scrutiny by redirecting blame at them, saying their failures in providing a safety net for mentally ill people has resulted in them ending up in the criminal-legal system and getting treatment in a jail setting ill suited to provide comprehensive psychiatric care.

She has been backed by Paula Canny, the attorney who represented Hogan’s family and the family of Michael Tyree, a mentally ill man who in 2015 was beaten to death by three jail deputies who were later convicted of murder. Both Smith and Canny also protested the release of records about Hogan’s injuries, and the county has acknowledged that Hogan’s family has not consented to any releases.

Canny again defended the sheriff’s Monday, noting that jail policies were changed after Hogan’s injuries to require transportation of certain mentally ill inmates to be by ambulance or a dedicated sheriff’s sedan. She continue to assert that the board was weaponizing her client’s case to disparage Smith.

“They don’t really want to address the issue,” Canny said. “It’s total Machiavellian bulls***.”

Simitian has said the sheriff’s objections amount to diverting attention to avoid accountability.

“The shortcomings of the system cannot be an excuse for behavior that is inhumane and unprofessional, or a failure to hold the responsible parties accountable,” Simitian said Monday.

Gennaco echoed that sentiment in his report, and wrote “there was an abject failure” to keep Hogan safe now that he was already in custody.

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