A prison officer whom Chautauqua County District Attorney David Foley recently prosecuted entered a guilty plea and got probation. Foley defended the outcome:

Photo by: Marc Fader

A prison officer whom Chautauqua County District Attorney David Foley recently prosecuted entered a guilty plea and got probation. Foley defended the outcome: “That conviction is gonna go with him for the rest of his life.”

The May/June issue of City Limits features the results of a four-month investigation into staff sexual abuse of female inmates in New York prisons. Click here to read what we found.

About three months after an inmate at Albion Correctional Facility alleged that Correctional Officer Donald L. violently raped her, the officer found himself on the wrong side of the law. Sitting at his own arraignment hearing in the Orleans County Courthouse in October 2007, he entered a guilty plea on charges of third-degree rape and official misconduct, exposing himself to the possibility of up to four years in prison for the first charge alone.

At Donald’s January 2008 sentencing hearing, his attorney called for mercy—specifically, for the former officer to be sentenced to weekends in jail,. “I submit respectfully, and not only because of Donald, but because of his fiancé, their young child and the fact that they look to him for their support, I would respectfully ask the Court to consider that,” Buffalo attorney Joseph M. LaTona said.

Judge James P. Munch quickly agreed, giving Donald 60 days of weekends in jail and 10 years of probation. The judge said the rape wasn’t violent and the inmate wanted it. “There was no force used here,” he said. “And Mr. LaTona is absolutely right: There is only so much empathy you can have for an inmate who wanted to have relations with you.”

In a recent survey of correctional facilities across the nation, the federal Bureau of Justice Statistics found that three New York State prisons ranked among the top 11 participating facilities in the rate of inmate reports of staff sexual abuse. The outcome of Donald’s case illustrates what critics say is a major obstacle to reducing staff sexual abuse in New York State: the tepid response of the criminal justice system.

The New York State Department of Correctional Services, or DOCS, which operates 67 state correctional facilities where some 56,000 inmates are currently incarcerated, doesn’t refer all potential cases of sexual abuse to its own inspectors. (DOCS Commissioner Brian Fischer said in a recent statement to City Limits: “It is our department’s firm commitment that all of our employees and offenders are always reminded that it is a fundamental right of all incarcerated persons to be free of the threat of physical violence and abuse of any type, including sexual abuse. This is a standard we will uphold in all of our facilities without exception.”)

But even when DOCS pursues criminal charges in connection with substantiated incidents of sexual contact, the punishment that could be meted out to prison staff may be mitigated or overruled by other parties. Critics say that prosecutors impose lenient charges and negotiate sweetheart plea deals; juries exonerate the suspects despite solid evidence; and judges show undue mercy.

“The DA did not prosecute this as a rape in the first degree, which it should have been. The State Police, every time they looked at the case, they went into a coma,” says Terrence Kindlon, the attorney for Donald’s victim. (Donald declined, through a relative, to comment for this story. Brenyah’s attorneys did not respond to requests for comment.)

”Your oath is to do justice”

A New York State Police investigator maintains that he and his agency—who are responsible for arresting prison employees everywhere except New York City—take sexual abuse seriously. Citing a recent arrest, he said another was imminent. “We are working various cases with current and past officers,” says investigator Mike Notto. “We still arrest numerous officers.”

Two New York State district attorneys with jurisdiction over women’s prisons say they take the crimes seriously, too, and work hard to secure convictions and appropriate sentences. “I’m sure we have a 90 percent conviction rate,” says Joe Cardone, Orleans County’s district attorney.

Besides, a district attorney’s job isn’t to get a stiff sentence, Cardone says. “Your oath is not to convict someone. Your oath is to do justice,” he says.

Plea bargains—a staple of the criminal justice system—are often paths to justice, Cardone says, especially when he can’t prove a case beyond a reasonable doubt.

An officer whom Chautauqua County District Attorney David Foley recently prosecuted entered a guilty plea and got probation, Foley said. Foley defended the outcome for that former Lakeview Shock Incarceration Facility officer—whose name and specific charges he says he didn’t recall. “That conviction is gonna go with him for the rest of his life,” he says. “Because of the conviction, we were able to terminate his job.”

Juries pass judgment

But players in the criminal justice system do sometimes undermine others’ efforts to enforce the law. Police investigators sometimes second-guess DOCS inspector general investigators, disregarding their substantiation of sexual contact. For instance, police did not arrest twelve of the 38 DOCS employees referred for prosecution in substantiated incidents of sexual contact between 2005 and 2009.

And many convicted officers are able to strike highly favorable plea bargains, like Donald’s.

“The reason these cases are so hard to prosecute is because DOCS is the biggest employer,” in some of the counties where prisons are located, says Dori Lewis, one of two New York City Legal Aid Society attorneys who are suing DOCS officials on behalf of 15 alleged sexual abuse victims. The jurors, she says, may have friends and relatives who are correctional officers. “Deep down, they’re basically thinking that if the officer did it, then he did it because she wanted it,” Lewis says.

Cardone and Foley agree that juries can be very tough audiences. Some refuse to listen to the judge’s instructions, Cardone says. “Despite the judge telling them what the law is, and despite there being clear evidence that they should have convicted on, they ignore that and do what they think is justice,” he says. “That’s not what they’re supposed to do.”

Juries are often reluctant to convict officers, even in the face of the inspector general’s evidence. Corrections Officer Frederick B. walked free after his October 2003 trial, despite evidence that the inmate he allegedly sexually abused had seen him naked. But after Frederick testified that the inmate may have learned about his anatomy coincidentally, through his conversations with fellow officers, the jury acquitted him. The verdict enabled him to return to his job, only to be arrested again in September in connection with charges he sexually abused another inmate.

When he flew into Rochester to visit his client, Kindlon encountered the attitude that he believes many jurors have. At the airport car rental counter, a woman asked him why he was going to Albion. When he told her he had a client there who had been forcibly raped, the woman said the inmate deserved it. “When a person in a cop uniform or law enforcement uniform gets before a jury, they get a tremendous amount of sympathy that they don’t deserve,” he says. “You run into this attitude: ‘Well, it probably serves her right.’ “