A top investigator for the state prison system acknowledged that he did not preserve possibly crucial evidence - including video footage and clothing wet with pepper spray - in his investigation of an inmate's death after a violent encounter with correctional officers at a Western Maryland prison nearly two years ago, a court filing shows.
The new details surfaced during a recent deposition of Lt. Joseph Mercer II, who led the state prison system's internal investigation into the inmate's death in April 2004, by an attorney for the family of the inmate, Ifeanyi A. Iko.
The attorney, Gary C. Adler, is using Mercer's testimony to argue in court papers that the investigator should be added as a defendant in the civil lawsuit that the inmate's family is pursuing against the state prison system, alleging that Mercer "destroyed evidence and willfully impeded the investigation."
The $28 million lawsuit against the state alleges that correctional officers used "unreasonable and illegal" force in their handling of Iko. The 51-year-old Nigerian immigrant died shortly after correctional officers subdued him in his cell at the Western Correctional Institution in Cresaptown.
Officers emptied three cans of pepper spray into Iko's cell, placed a "spit mask" on his face and, after moving him to another cell, leaned on his body at one point to restrain him, according to court documents and other records. Prison officials later found him motionless, the documents show.
The state medical examiner's office ruled Iko's death a homicide, saying it was caused by "chemical irritation of the airways by pepper spray," the placement of the mask over Iko's face and the way he was restrained.
A two-day grand jury inquiry in Allegany County cleared the officers of any criminal wrongdoing in 2004, but Iko's death remains under review by the FBI.
Mercer still works as an investigator with the Internal Investigative Unit within the Maryland Department of Public Safety and Correctional Services, a spokeswoman for the state agency said yesterday. The unit investigates crimes committed by inmates and other internal matters within the state prison system.
"The department stands behind the work of Lt. Mercer," said Karen V. Poe, a public safety department spokeswoman. "He has been an outstanding investigator for IIU for eight years. His deposition in this case does not tell the entire story of this investigation. Lt. Mercer worked closely with the Maryland State Police, the Allegany County Sheriff's office, and the Office of the Chief Medical Examiner."
Attorneys for the prison system have maintained that the correctional officers involved in handling Iko on the day of his death did not use excessive force on the inmate or act with "deliberate indifference" to his medical needs.
As part of the civil lawsuit filed by Iko's family, Adler deposed Mercer in October. Adler said yesterday that he included only the relevant portions of the transcribed interview as part of his court motion, filed Tuesday, that seeks to add Mercer as a defendant. At least 100 pages of Mercer's deposition were omitted from the court filing.
Adler declined to comment on the lawsuit.
In the 40 pages that were included, Mercer concedes that he did not have any training as a crime scene technician, and that he did not invite any technicians to collect evidence in the prison areas where Iko had been on the day he died.
Mercer also said he did not inspect the first cell where Iko had been detained - where correctional officers had doused him with pepper spray - because it had been cleaned by the time he returned from the local hospital where Iko had been transported.
The "spit mask" that officers had placed on Iko after they pulled him out of his cell was not saved, Mercer said, because he did not think it had any evidentiary value - a judgment that he continues to maintain, he said.
Mercer said he gave the medical examiner's office a chance to examine the mask and then discarded it at the medical examiner's office in a biohazard trash bag. He did not notice any blood or mucus on the spit mask, but also said he did not order any tests on the mask.
Mercer also did not save the jumpsuit that Iko had been wearing when he died for the same reason, his deposition shows.
He said that pepper spray dissipates in the air, so there was "nothing to be gained" from storing the mask and Iko's clothing that was exposed to pepper spray as evidence. If he had stored the items in plastic, Mercer said, they would have been affected by mildew. And if he had stored them in a paper bag, any spray would have dissipated, he said.
There is an indication in the deposition that Mercer asked the medical examiner about keeping the mask, but subsequent pages were omitted, and Adler declined yesterday to provide The Sun with a full copy of the deposition.