DA: No criminal charges in Denver jail death

The Denver District Attorney announced Thursday that no criminal charges will be filed in the death of an inmate at Denver’s downtown detention facility.

That decision came despite the Denver Office of the Medical Examiner finding the death of Michael Marshall was caused by complications of positional asphyxia, to include aspiration pneumonia, due to being physically restrained by law enforcement during an acute psychotic episode.  The Coroner labeled the manner of death homicide.

“They made it very clear that, by using their medical term, homicide does not mean that anything criminal occurred,” said District Attorney Mitch Morrissey.  He added that there is a difference between homicide and criminal homicide.

Morrissey also said Mr. Marshall suffered a heart attack.

When asked what the video tape showed, Morrissey said, “What I saw was a man that was in psychotic state, acute psychotic state, highly agitated walking up and down the hall.  He’s dragging a blanket behind him.  At some point, he knocks something down.”

Morrissey told Denver7 that there is a critical piece of video that people should pay attention to.

“There’s a point where he tried to get past the sheriff deputy, out of the sally port and through an open door where he can’t go.  The sheriff stops him, puts him up against the wall and directs him to sit on the bench.  When he does that, (the deputy) lets his hand off.  If you watch very closely, Mr. Marshall starts to slide down the wall and before he fell, the sheriff grabs him and moves him over and sits him on the bench.”

Morrissey said he believes that a jury watching that part of the video would be convinced, or would at least have a question about whether Marshall was having a heart attack when he started that involuntary movement down that wall.”

The DA said, “Those of you who think this video is some kind of smoking gun… are going to be disappointed because an awful lot of what occurs on the video, you can’t really see because of the positioning in the sally port.”

When asked if the deputies used excessive force, the DA replied, “I saw nothing to indicate excessive force.  Again, there was no tasing, no striking and no choking.”

He said six deputies were holding different parts of Mr. Marshall’s body “so no one has to exert more force than necessary.”

Morrissey said when Marshall began to resist, “they used appropriate force to restrain him and then when he started to have more symptoms of a heart attack, they made sure they did everything they could to get his heart beating again and to make sure he was breathing.”

He said Marshall was alive when he left the jail.

The DA told Denver 7 that Marshall’s cause of death had to do with his condition – weak heart, weak lungs, exertion, the heart attack and (pulmonary) aspiration, where the contents of his stomach ended up in his lungs.

Morrissey said in his report that he has, "thoroughly reviewed the video recordings of the incident, the statements of the deputy sheriffs, the nurses involved and the Autopsy Report. In addition, follow-up discussions have been conducted with Dr. Meredith Frank who performed the autopsy."

"I sympathize with Mr. Marshall’s family and express my condolences for their loss," Morrissey said. "Sadly, this situation is an example of how difficult it is for society as a whole, including deputies in a jail, to handle the complex issues presented by those suffering from severe mental illness."

"Based on the evidence in this investigation, I conclude that the physical force exerted against Mr. Marshall by the deputy sheriffs was for the lawful purpose of maintaining order in the jail as allowed by Colorado’s statute, and was applied by the deputies as part of their responsibility to provide safety and security," Morrissey said. "There is no evidence suggesting any force was used for the purpose of harming Mr. Marshall."

Marshall's family has been asking to see the video of what happened in the jail. The Denver Mayor's office said the video was shared with the family Thursday and will be released to the public on Friday.

Morrissey's report detailed

Marshall was arrested on Nov. 7, 2015. Morrissey said Marshall refused to take his mental illness medicine for at least two days and on Nov. 11, "he was observed behaving in a strange and erratic manner."

"When sheriff deputies saw him approach another inmate aggressively, they intervened," Morrissey. "It appeared to the deputies that Mr. Marshall was disoriented, so he was taken into the sally port area attached to the 4D pod in order to keep him away from other inmates. A nurse was called to obtain help for him."

While the nurse was on the phone talking to a doctor for a medicine authorization, "Mr. Marshall, who appeared to be upset, abruptly got up from the bench and tried to push past Deputy Garegnani to go through the door into the hallway."

Morrissey says Marshall resisted and was moved to a bench, then to the floor on his stomach.

"The maneuvers placing Mr. Marshall on the bench and on the floor were not aggressive or violent. It is important to note that there were no punches, kicks, strikes of any kind, or any impact force used to control Mr. Marshall throughout this incident. No choke holds or carotid restraints were used. Tasers were not used. The physical force used by the deputy sheriffs during this incident was applied by holding Mr. Marshall and by preventing him from getting up. One deputy said he pressed his knee on the back of Mr. Marshall’s thigh. Another said that at one point he placed his knee just above Marshall’s buttocks to control him. Pressure was applied by deputies’ hands to the back of Mr. Marshall’s shoulders or scapula areas. One deputy controlled his head movements but Mr. Marshall was still able to move his head from side to side. OPN devices (nunchucks) were used on Mr. Marshall’s ankles. To minimize the risk of injury to everyone, including the nurses and Mr. Marshall, five deputies were involved in applying some degree of physical force to control Mr. Marshall.4 Each deputy’s task was to control a body part such as a left leg, right arm, etc. One of the deputies described that the strategy behind this control tactic is that it minimizes the level of force needed to safely control a combative inmate and also minimizes the risk of anyone sustaining an injury."

Morrissey's report goes on to the say that Marshall:

"struggled to prevent the deputies from handcuffing him. However, even after his hands were successfully handcuffed behind his back, he continued to struggle. The deputies described that he raised his buttocks and “used his core” in an effort to rise up and he pressed his forehead against the floor in an effort to raise his shoulders.5 Mr. Marshall was making growling noises, showing his teeth. One deputy tried to control his head to prevent him from banging his head on the floor and to ensure that he did not bite. The deputies described Mr. Marshall as surprisingly strong. He was instructed numerous times to calm down and to stop resisting. He was told that the more he struggled, the more force the deputies would need to use to control him. Because he was moving his legs and kicking his feet, a leg chain was placed on his lower legs. OPNs were used on his ankles in an effort to cause Mr. Marshall to stop struggling."

Morrissey's report says Marshall struggled on the floor for over two minutes before he "went limp."

Deputies said they didn't know if Marshall "had lost consciousness or if he was faking."

A deputy did a "chest rub" on Marshall and got no response, so they called a medical emergency.

The first nurse to arrive said Marshall was breathing and his vital signs were stable.

"The deputies stated that Mr. Marshall resumed struggling after the nurses arrived," Morrissey's report said. "Nurse Allison confirms seeing Mr. Marshall 'wiggling' or 'squirming' against the deputies. He also made 'grunting' sounds, like he was catching his breath after struggling."

Two nurses said Marshall vomited, but was still breathing.

However, because a nurse detected sounds of “bronchospasms” in Marshall's lungs, Morrissey's report said the nurse advised the deputies to keep pressure off of his back.

"She said the deputies listened to her and nobody had hands on his back," Morrissey's report said. "She also advised that Mr. Marshall needed to be put into a chair so she could listen to his lungs better and so he could breathe easier."

Marshall was put in what Morrissey called a "breathable spit hood" and placed in a restraint chair.

When the nurse checked on him, he was no longer breathing. The nurse said she head two and a half heart beats, then it stopped.

"The spit hood was removed and ammonia packets were placed to his nostrils. Mr. Marshall did not react," Morrissey's report said. "Mr. Marshall’s pupils did not react when a light was shined into his eyes. Nurse Allison gave orders to get him out of the chair and to begin emergency CPR efforts to revive him."

Paramedics arrived and tried to insert a breathing tube into Marshall's throat but were unsuccessful.

After 20 minutes of CPR, a paramedic got a pulse and Marshall was taken to Denver Health Medical center.

Marshall was in a coma for nine days. He died Nov. 20.

Autopsy

Morrissey said a senior member of his staff interviewed the Asst. Medical Examiner who did the autopsy, Dr. Meredith A Frank.

Dr Frank said there were several factors that contributed to Marshall's death: Chronic heart disease, Chronic lung disease, Agitation during acute psychotic episode, Being restrained in a prone position making it more difficult to breathe and Aspiration causing Mr. Marshall’s airway to be compromised.

"Dr. Frank emphasized that physical exertion by Mr. Marshall played a major role in causing his heart failure during this incident," Morrissey said. "Dr. Frank cannot state with certainty what triggered Mr. Marshall’s heart failure during the incident. However, her opinion is that it is likely that Mr. Marshall’s physical exertion against the deputies coupled with his weakened heart and lung health, were major factors in causing his heart to fail during the incident."

Conclusion

Morrissey cited Colorado's statue that authorizes the deputies to use "reasonable and appropriate physical force” in order to maintain order and discipline in the detention center.

To prove criminal charges in this case a jury would have to be convinced beyond a reasonable doubt: (1) that the force used was unlawful, i.e., that the force was used for an improper purpose or was "unreasonable” or “inappropriate” in contravention of C.R.S. 18-1-703(1)(b); and, (2) that injury or death was caused by the unlawful force.

Morrissey went on to say:

Based on the evidence in this investigation, I conclude that the physical force exerted against Mr. Marshall by the deputy sheriffs was for the lawful purpose of maintaining order in the jail as allowed by Colorado’s statute, and was applied by the deputies as part of their responsibility to provide safety and security. There is no evidence suggesting any force was used for the purpose of harming Mr. Marshall.

Morrissey finished by saying:

My conclusion is that, despite the unintended and unfortunate result, the evidence would not convince a jury beyond a reasonable doubt that the force applied to Mr. Marshall was either “unreasonable” or “inappropriate.”

Family speaks out

At a press conference Thursday afternoon, Marshall’s family attorney Darold Killmer, said he was angry after reviewing video provided by the family that shows the moment deputies are trying to resuscitate Marshall, who laid on a gurney in a Denver jail hallway.

“Mr. Marshall had done nothing to threaten anyone, to take a swing at anyone, to attempt to escape, to do anything wrong. Nevertheless, 5 or 6 Denver deputies went hands on, took him to the ground and within a matter of minutes, killed him,” Killmer said. “It’s an outrage that a District Attorney, or anybody, could believe this is a reasonably response to no emergency whatsoever – and Michael Marshall is dead because of it.”

Unsatisfied with the response by Morrissey, Killmer called for the federal government to intervene in this case.

“Denver will not police itself. It’s clear Denver cannot be trusted to take care of its own business. It never has, it never will. We call for a federal intervention… somebody has to police the police in Denver.”

Rodney Marshall, Michael Marshall’s brother, said during the press conference he found it “unbelievable” that no charges were filed against any of the deputies involved in the case.

“Watching that tape… they committed murder, it’s obvious,” he said, before walking back to the crowd that had gathered at the conference. 

Crying, Michael Marshall’s nice, Natalia Marshall said it was beyond her thoughts that deputies would toss “his lifeless body around because he was trespassing.”

“He was 112 pounds, 5-foot, 4 [inches tall]… that officer had to be at least 300 pounds; that officer was three times his size, and on top of that, that was five more that [sic] was involved.”

The full video of the moments leading up to Marshall's death will be released by the family on Friday, Killmer said.