Fatal shootings at state pen raise questions about force
As two convicts in prison-issue brown slugged it out, dozens of inmates braced for the warning shot that ordinarily ends fights in the Big Yard.
But, for the second time in a year, there was no warning. The shot from the penitentiary tower was fatal.
The inmate deaths last year in January and November are the first such shootings at the penitentiary in 30 years. Both were ruled justified, according to the state Department of Corrections (DOC), because the officers believed they were stopping inmates from killing each other.
But inmates and their attorneys fear the shootings are a sign that the prison is more willing to wield lethal force, and they have requested federal intervention. The FBI in Seattle agreed last week to begin a review.
State corrections officials, meanwhile, say they are rattled by the shootings and are reviewing policies to prevent more bloodshed.
"There's no way we're cavalier about this," said Lynne DeLano, a senior DOC official leading the internal review. "It's not standard procedure to have two use-of-lethal-force incidents in a year. It's kind of shook us up."
The November shooting of inmate Gregory Garner has generated the most concern. As with the earlier January fight, no weapons were involved and no officers endangered. Independent corrections experts, including former DOC Secretary Chase Riveland, question the need to shoot in such circumstances.
"A little fight between two guys wouldn't normally (justify use of lethal force), unless there's a weapon involved, there's destruction of property, or an escape attempt," said Riveland.
Neither officer who fired the fatal shots was disciplined. But inmates appear to have been so unnerved by the shootings that there have been no fights in the yard since November. Sitting 15 feet from where Garner was shot, inmate Donald Gilbrech told investigators, "They murdered that inmate."
Those familiar with the state's prison system also question whether it is capable of changing its practices.
"Many prisons are managed without the degree of lethal response we've seen at the penitentiary this past year," said Pat Arthur, an attorney with Columbia Legal Services' Institutions Project who has monitored the Walla Walla prison since 1982.
Prison policies, which don't require warning shots, aren't likely to change without a federal investigation, she said.
Cellmate knocked out
The pen's rough-cut granite walls, erected in 1886, are older than the state itself. For most of its history, the prison has been overcrowded. The prison today houses more than 2,200 inmates, 423 over capacity, with many living in claustrophobic four-man cells built for two bunks.
Appearing last month at a legislative hearing to press for a $140 million expansion of his prison, Superintendent Dick Morgan linked the overcrowding to the first fatal shooting.
A lingering feud between cellmates over the spotty hygiene of 21-year-old Abdul Ali erupted near the yard. Ali knocked his cellmate unconscious and began kicking at his head "like a soccer ball" when tower officer Richard Tate fired.
Tate was quickly cleared by DOC and the Walla Walla County Prosecutor. The death of Ali provoked no calls for reform, and Tate was praised by supervisors for saving an inmate's life.
Whether that incident influenced the judgment of David Pooler, the tower officer involved in the second shooting, is unclear. Pooler declined to talk to The Seattle Times.
He was among the tower officers chatting over walkie-talkies as about 100 inmates wandered into the yard Nov. 16 for morning recreation.
The yard is a stark, 4-acre grass and dirt field broken by pull-up bars, a softball diamond and metal tables. Guard towers anchor each corner, with shooting slits cut into a chain-link covering.
The AR-15 assault rifles in the towers are the only weapons protecting unarmed ground staffers in the yard and breezeways. Tower officers get eight hours of lethal-force training a year, recording their target practice in a book labeled, "Train to Live — Fight the Way You Train."
Video cameras usually tape activity in the yard, but a lieutenant said he forgot to hit the record button that morning. DOC officials say the critical lapse was simply human error.
No warning shots
Christopher Shelley, 19, had arrived at the penitentiary earlier in 2002 from Monroe Corrections Center to serve a nine-year sentence for raping a 12-year-old Mercer Island girl.
Just in off the "chain bus" from Monroe was 41-year-old Gregory "Tex" Garner, serving a 49-year sentence for shooting at Snohomish County sheriff's deputies. Garner began telling inmates that Shelley had engaged in homosexual activity at Monroe, according to investigative reports.
Shelley confronted Garner in a corner of the yard: "Hey Tex! Were you the one who called me a punk?"
"You are a punk!" said Garner.
Shelley, weighing less than 130 pounds, threw the first punch. The officer in Tower 6 directly above them bellowed, "Fight in the yard! Break it up!" Two officers below sprinted toward the fighters as inmates hit the dirt.
Officers typically break up yard fights, which used to happen three to five times per week, before they get serious. Although warning shots are not required, inmates have come to expect them. The officers are trained to fire warning shots if time permits and to try to fire them to the north, away from the city of Walla Walla.
A few months before Shelley and Garner squared off, a warning shot halted a knife fight. Ten warning shots stopped a near-riot with 45 inmates in 2000.
As Shelley pulled him to the ground, Garner got in three or four punches, then appeared to stop, and look up at Tower 6, according to three inmates playing pinochle 15 feet away. The two ground officers were just seconds away.
While inmates say it was a harmless scuffle, Pooler, in Tower 7 across the yard, said he thought Shelley's life was in danger. Less than a minute into the fight, he took a bead from 115 yards away and shot Garner in the upper back. He died within an hour.
"I sure hope he was saved," Pooler said into his open radio, according to investigative reports.
Just a scratch
Walla Walla Police Detective Mike Boettcher was in the Big Yard within an hour. Because of the lack of videotape, the Methodist minister-turned-cop spent the next month interviewing nearly 100 inmates and prison staff members.
The only officer in position to fully corroborate Pooler's story was Timber Burton in Tower 6. Burton said he, too, believed Shelley's life was in danger, yet he never fired a warning shot and wasn't aiming his gun when Pooler fired.
Boettcher grilled Burton. If it was such a bad fight, why was it that Pooler — 347 feet from the fight, rather than Burton 114 feet away — fired the shot? Why did Burton's story of the fighters' positions not match the entry wound's angle?
Then Boettcher showed Burton photographs of Shelley taken just after the fight. The inmate that Garner supposedly was beating to death walked away with a scratch on his face. Burton began to sob: "I want to know we didn't shoot an innocent man, a man who didn't deserve it," he said in a taped interview.
Boettcher found dozens of inmates who said it was a "bad shoot." One of the pinochle-playing inmates, Ryan Graham, told the detective, "It seems like guards are doing more damage than inmates."
Walla Walla County Prosecutor Jim Nagle reviewed Boettcher's 500-page report before declining to press charges late last month. To prove a manslaughter charge, Nagle said, he'd need to convince jurors that Pooler wasn't acting to prevent a death or serious injury.
Boettcher's investigation found 56 witnesses who described the fight as little more than a "wrestling match." But all were inmates and make lousy trial witnesses, Nagle said. "When a crime is committed in hell, you don't get any angels as witnesses."
Boettcher is now working two new assault cases at the pen, and he says he has a new fear as he walks among inmates. "I'd just hate to see a tower officer hesitate to use lethal force when necessary or justified," said Boettcher. "I hope they're not thinking, 'Oh no, I don't want to be interviewed. I don't want people digging through my life.' "
Feds called in
Arthur, the Columbia Legal Services attorney, said she began getting calls from anxious inmates after both shootings, and last month asked the U.S. Department of Justice's Civil Rights Division to intervene. A Justice Department spokeswoman said the agency is considering Arthur's request.
The last time the Justice Department investigated the pen was in 1979, when an inmate reported he was raped by baton-wielding officers, and others said they were beaten after riots. That investigation resulted in five years of federal oversight, and a court order to ease overcrowding.
Meanwhile, the FBI in Seattle has begun collecting documents from investigations of the deaths of inmates Ali and Garner.
Changes considered
Following Nagle's decision not to prosecute Pooler, the DOC began a review of its training and the use of lethal force. To encourage the use of warning shots, the department is considering a new device for the yard that amplifies the sound of a simulated gunshot.
An automated videotaping system for the yard also might be needed, according to the DOC's DeLano.
Also under consideration is a different type of gun scope to give tower officers a wider view. It's possible Pooler may have waited had he seen the two ground officers closing in on the fight, according to Morgan, the prison's superintendent.
But in acknowledging the facts of Garner's death, "the result was, had (Pooler) not shot, nobody would have died," said Morgan, who has spent all but four of his 27 years with DOC at the penitentiary. "While that bothers me a great deal, I don't want that to be blamed on the officer. He did what I've asked him to do."
More than 300 miles from DOC's headquarters in Olympia, the superintendent traditionally is given wide latitude in running the state's most decrepit prison, and the DOC internal review of the shootings is not focusing on Morgan's leadership.
Morgan keeps a picture above his desk showing him, with helmet and tear-gas grenade launcher, helping quell one of the many riots that triggered the last federal investigation at the penitentiary.
Lest inmates or staff miss the picture's point, he mounted the grenade's O-ring with the photo. "Never again," said Morgan. "Never again will we abdicate who runs this prison."
Morgan took over the prison a month before the first shooting. But he said the timing is coincidental. "I'd never advocate violence to reduce violence."
Jonathan Martin: 206-464-2605 or jonathanmartin@seattletimes.com