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S3E09: Secondary Trauma and the Edna Mahan Correctional Facility, with Oliver Barry RLAW'13 and Shauna Friedman RLAW'17
17 Plays3 years ago
Please note that this episode discusses sexual assault and abuse.
Co-Dean Kim Mutcherson talks with Oliver Barry RLAW'13 and Shauna Friedman RLAW'17, who discuss the challenges they faced working with victims of the abuses at the Edna Mahan Correctional Facility.
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally-known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Margaret McCarthy
Series Producer: Nate Nakao
Editor: Nate Nakao
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Transcript
Introduction and Content Warning
00:00:00
Speaker
Thank you for tuning in to The Power of Attorney. Before you continue listening, please be aware that this episode contains discussions of sexual assault and abuse.
Class Action Lawsuit on Sexual Harassment
00:00:11
Speaker
People couldn't necessarily bring it on an individual basis is this ambient harassment theory that we had brought for every single individual in
00:00:22
Speaker
the facility starting from 2014 to present and that is just the sense that this hostile culture, this sexually hostile culture was just so pervasive that you couldn't escape it. It was there 24-7 and if one person had come to me or come to Oliver and said, you know, I'm being sexually harassed in prison,
Meet the Hosts and Guests
00:00:42
Speaker
Yes, I'd want to do something, but as a practical matter, you know, filing fees, expert fees, it's not feasible to bring it for one person, which is what the class action really is able to achieve for that. My name is Kim Mutterson, and I am the co-dean of Rutgers Law School on the Camden campus, and this is the power of attorney.
00:01:07
Speaker
Today, I have two guests, both of whom are graduates of Rutgers Law School in Camden. The first is Oliver Berry, who's a 2013 grad of the law school, and the second is Shana Friedman, who is a 2017 grad of the law school, both of whom are very generously donating their time to work with some students on a really amazing and difficult project.
00:01:35
Speaker
which we're going to talk about, but first I want to welcome both of you to the podcast and thank both of you for taking the time to talk to me today.
Motivations for Becoming Lawyers
00:01:43
Speaker
Good afternoon and thank you very much for having us.
00:01:46
Speaker
Thank you for inviting us on. Yes, definitely my pleasure. So the way I always like to start these conversations with folks is to ask people to share their origin story. We all have, for whatever reason, decided to become lawyers. And I think it's always really fascinating to hear how people came to that decision and what that walk was like.
00:02:08
Speaker
particularly at Rutgers where we get such a wide range of folks who come to us for law degrees. So how about we start with Shana, what's your origin story? You had all these different things that you could have done with your life and you decided to become a lawyer. Why? So my origin story is actually pretty significant and related to the end of Mahon case.
00:02:28
Speaker
And that my undergrad, I majored in criminal justice. I have a bachelor's, I master's degree in criminal justice. And what I wanted to do is I always wanted to work with juveniles and I wanted to kind of be in the rehabilitation of, you know, with juveniles.
00:02:45
Speaker
And when I was in my master's program, I just really, I was poor. I needed a job. So I got a job as a paralegal with my now boss, David Cedar from Cedar Law Firm. And I started getting into civil litigation, just doing paralegal work. Nothing really related to the sex abuse or enema on civil rights case, but more like personal injury, environmental type cases.
00:03:13
Speaker
So as I started to get more and more into the paralegal practice, I said, you know, I don't really want to do that criminal justice stuff anymore. I want to go to law school. So I applied. I started going to law school at night. I worked during the day as a paralegal, took night classes from 6 o'clock to 10 o'clock to get it done in three years through summers. And I gratefully received a job offer at the firm that I've been with since I was a paralegal and happily here ever since.
00:03:42
Speaker
I love that. And I'm always deeply impressed by our folks who graduate from the evening program. I cannot imagine going to law school, working full time, and then going to law school at night. So that's just wonderful to hear. Let me ask you this. So you have this interest in criminal justice work. You ultimately ended up becoming a paralegal and then becoming a lawyer.
00:04:07
Speaker
What was it that you sort of imagined that you wanted to do with that law degree, right? What was it that the JD was going to give to you that you felt was more useful or more powerful than the undergrad and the masters?
00:04:20
Speaker
So I loved, really it was just from my job experience and working as a paralegal with Cedar Law Firm. I really, really enjoyed it and it was something I never even considered and I thought I was pretty good at it. So in talking to my boss, we had agreed, you know, I'll go to law school and then he would offer me a job.
00:04:39
Speaker
when I graduated and obviously I would need the JD to do that because I wasn't happy with being a paralegal my whole life. I think some paralegals know more than some lawyers in some aspects of things and I think paralegals are a very, very, very important part of any practice and I'm grateful that I've had that experience but I knew that I wanted to ultimately be in a courtroom
00:05:02
Speaker
and not on the sidelines. Got it.
Edna Mahan Correctional Facility Case
00:05:05
Speaker
Thank you. So Oliver, what about you? What's your origin story? Why did you decide that that law was the direction that you wanted to go in? I think I have a far less interesting and probably far more common in this field story is I was following in mommy and daddy's footsteps.
00:05:27
Speaker
No, it's a little facetious, but both of my parents are attorneys, both of them litigators. I initially didn't have a ton of direction when I was an undergrad. I got to a point when I really started to think about what I wanted to do and was my major a field I really wanted to go into. Was it just interesting?
00:05:50
Speaker
I had some sense of what being a lawyer was like, and it seemed comfortable. And I felt it was something that fit my personality. And as I say, it just sounds like an incredibly stupid and casual way to make a momentous life decision. But I was lucky enough that I really did end up enjoying it. But that's really, in a nutshell, how I
00:06:19
Speaker
ended up being a lawyer. I just ended up following in the family business. Got it. That works too, right? Some people run from it, some people run to it. So you ran to it. I totally respect that.
00:06:36
Speaker
So what brought us here today is something that you already referenced a little bit, Shauna, which is the settlement work that's going on at the, and I'm gonna say it in multiple different ways during the course of this podcast, because why not? So depending upon who you are, it's either the Edna Mann Correctional Facility or it's the Edna Mahan Correctional Facility, or there are some other ways as well. But the bottom line is that there was
00:07:06
Speaker
an absolutely awful report that came out about things that were happening at this correctional facility, which is a women's correctional facility in New Jersey.
00:07:18
Speaker
And as a consequence of that, there were several changes that are happening at the facility. So Shauna, do you want to start us off just by sort of talking about basically what happened here and how lawyers got involved?
00:07:37
Speaker
Sure, and I appreciate that opportunity, but I'm actually gonna kick that ball to Oliver because I think he single-handedly was more directly involved in getting this off the ground. So I think it'd be more appropriate to let him take the lead on this if that's okay. Absolutely, thank you. Sure. Boy, I don't even know really where to begin this tale, but I guess I'll begin it where I came in and then try and take it
00:08:07
Speaker
point she's involved, but Edna Mahan is New Jersey's sole women's state prison. So whether you're in Bergen County or Cape May County, that's once you've been sentenced to state penitentiary, that's where you're housed. And back some years ago,
00:08:32
Speaker
You know, I have to check my notes because it's been a bit of a whirlwind. But I want to say it was 2015-2016, a client of Barry Corrado, our friend, who was inside and reported a guard sexually abusing her.
00:08:51
Speaker
you know, the, the attorney who, you know, our office, our paralegal reach out to the prosecutor's office, um, reported immediately. And, and it was one of those things. And I think it's important to point out that, um, there's no single Genesis to anything. Um, certainly that one person speaking out, you know, reaching out to someone they trust it was important to certainly, you know, uh,
00:09:16
Speaker
As a practical matter, does it probably carry a little more weight if a lawyer is reporting something than someone on the inside? Probably, but who knows? But it's also worth noting that the Hunter County Prosecutor's Office took that report deadly serious. And that isn't always the case when it's a law enforcement officer of some sort being accused of something.
00:09:40
Speaker
maybe on a little cynical, and I think that's been changing a lot in recent years, but I think credit where credit is due, the 100 and county, the prosecutor and their office, their detectives, the AP really conducted themselves with the utmost zeal and professionalism handling that investigation and taking it, conducting it the same way they would in any other investigation. But what came of that,
00:10:07
Speaker
initially was not just an indictment of that first person. And not just, you know, a number of other victims that our client identified to us and them of that guy. But it reminds me of I don't know if anyone's here's ever watched the wire when they have the board with the strings between the names and the pictures, it just spider webbed out from there. And there were
00:10:34
Speaker
just, you know, one interview led to another guard who was, you know, doing, you know, abusing inmates, led to other victims, other witnesses. And I have to check, but there were seven or eight indictments over the course of a few years. And then, you know, of course, the client tells us, hey, you should talk to this other person that this happened to, you know, they want to talk to you. And
00:11:01
Speaker
Um, much in the same way. Um, I'm sure as Shona's firm was contacted, it got involved. It sort of.
00:11:09
Speaker
went into something just from the civil litigation perspective where you had one client, two clients, to a dozen clients, to something like two dozen total or just this sprawling, I'm not even sure what to call it, but certainly beyond anything that I had ever imagined when we first had gotten that call. What I think you referenced earlier in the report was sort of in the middle of the civil case because the civil lawsuits were filed
00:11:36
Speaker
you know, pretty early on, as was the criminal charges. The federal government, the DOJ got involved and essentially issued a report after their investigation, more or less substantiating that there had been sort of an open atmosphere of corrections officers and correctional employees doing this for a long time and really
00:12:02
Speaker
kind of excoriating the administration. And ultimately, you know, that plus the civil lawsuits, plus the, you know, there were journalists bringing attention to it. Ultimately, what it led to was injunctive relief in the civil case, institutional body cameras, a consent decree with the federal government were there.
00:12:28
Speaker
implementing a lot of changes, the appointment of a monitor who's going to oversee those changes. But none of timing, luck, but for a few lucky turns, I don't know that it would have resolved or worked out that way as quickly or as, and it wasn't that quick or that smooth, but these things can go on for 10 years, 15 years sometimes.
00:12:58
Speaker
So to some extent, you know, Sean and her firm, you know, the attorneys from Stark & Stark, the prosecutors and the just incredible work they've done, the feds, journalists. I don't think there was one, you know, there were a lot of moving pieces over the last, you know, five or six years that ultimately led to these
00:13:26
Speaker
policy, an agreement by the state to change policy and procedure, as well as obviously a monetary settlement for victims who come forward and people now having a chance to come forward at the prison.
Impact of the Me Too Movement
00:13:40
Speaker
Yeah, and I just wanted to add one more thing to the timing comment you made, because we are right now still in the midst of the Me Too culture. And I think it made a lot of women brave enough to come forward and say, I don't have to keep this a secret. I don't have to keep this private. This is wrong. What is happening to me? And I know I'm not the only one out there. And I think that's a hugely important thing, and not only this case and a lot of cases.
00:14:10
Speaker
My firm does a lot of work in the clergy sex abuse cases as well, and it's the same sort of bravery that I see that really gets this all triggered from the very beginning. It's that one person speaking up, and then someone else saying, well, if she spoke up, then I should be brave enough to do the same thing. And that's how this accountability really takes the forefront, is just from one brave voice snowballing from there.
00:14:39
Speaker
Yeah, thank you both so much for sharing that. I mean, there's so much in there and I want to unpack some bits and pieces of it. So, I mean, one thing that I think is worth thinking about or talking about a little bit is the vulnerability of
00:14:56
Speaker
these women, right? So they're incarcerated. My guess would be that there had been probably some complaints before this that hadn't been dealt with. So I wonder if one of you could talk a little bit about
00:15:15
Speaker
what are some of the unique pieces about this kind of abuse happening in a prison setting that makes it even more difficult for people to come forward or even more difficult for people to, Oliver, one of the things that you said was that it was great how the prosecutor's office just took this as exactly what it should be, right? Which is somebody has alleged that they have been
00:15:40
Speaker
assaulted that a crime has taken place, let's figure out what's going on there and be responsive to it. And unfortunately, not all prosecutors would have acted in that way. So just sort of talking through a little bit how it's potentially more difficult if you're somebody who is in prison to be able to find relief or even have somebody who's willing to listen to you talk about what's happening to you in that prison setting.
00:16:08
Speaker
I think that's very important, and I'll start Oliver if you don't mind, but I think it boils down to really just two words, and that's a power imbalance. It is a pure power imbalance between an inmate and any corrections officer. You know, you have some situations where
00:16:26
Speaker
a jury, you know, hearing the facts might say, well, maybe that was consensual. And when you strip away all of the facts of it, it can never be consensual under the law. It's a per se violation for a corrections officer to have any sexual contact with an inmate
00:16:42
Speaker
because of that pure power imbalance. And if you think about it, when you're in prison, you're there because your freedom has been taken from you. You made a mistake and you're paying your debt to society and your freedom has been taken to you. When you throw a corrections officer into that
00:17:00
Speaker
Who has the power to say okay? Well you need feminine products Can you perform the sexual act for me or you're not going to get you know your basic needs?
Legal Challenges Against Government Entities
00:17:09
Speaker
That is a huge problem, and that's not a problem that you know you see on the outside, so it is a very unique situation between the inmates and
00:17:19
Speaker
and the corrections officers when it comes to this abuse. And I saw, and I know Oliver saw, a lot of people who would say, all right, well, I'm going to report you. And the response a corrections officer will give is, who are they going to believe? A corrections officer or an inmate? And that was very, very true, which is, again, I think goes back to the point about the prosecutor's office.
00:17:40
Speaker
to their credit taking this very seriously and not brushing it off as, oh, that's just an inmate reporting some allegations about a corrections officer. I'm just thinking about one of the stories, Sean, I know you and I heard when we were doing the interviews, the video statements of
00:17:59
Speaker
One of the plaintiffs had, by her description, started out in her mind as just a normal consensual relationship. But then this guy would come around, tell her to strip naked, tell her to be doing stuff. And you can't do more in that. She tried to kill herself to get away from him because it's one thing to say, well, it's not the same.
00:18:28
Speaker
You saw it and it was...
00:18:31
Speaker
Right. And you have these people where, you know, they're completely isolated from society. So you do have a corrections officer who might be showing you a little special attention and it might feel good in the beginning. And he might start bringing you in special gifts paraphernalia that you're not supposed to have. And you might be thinking, wow, like this is really nice. You know, I'm not going to get this any other way. But then again, the power imbalance comes into play and they expect a favor for for those things.
00:19:01
Speaker
And you are not, the inmate is not in a position to ever say no, because they're there 24 seven, there's no escape. And when you report that you can't say, Oh, well, this corrections offer was bringing me in medication. So you're really in a position where you have no options. So again, for me, it all boils down to the pure power imbalance that makes it such a unique
00:19:28
Speaker
And that's before you even get to how difficult legally and practically it is to bring claims against government entities under the state. I don't know to what extent this is interesting to anyone without a law degree, but there are significant limitations in a number of ways with 42 U.S.C. 1983 or other constitutional litigation that
Ambient Harassment and Class Action Suit Benefits
00:19:55
Speaker
Can you just explain to folks that 1983 is basically a statute that creates a sort of... 1983 is a federal statute. It's actually part of the series of Ku Klux Klan acts in the Reconstruction, post-Reconstruction era that give individuals the right to bring a claim, in that instance in federal court, that there's a state law analog, the New Jersey Civil Rights Act that lets you bring in state court.
00:20:26
Speaker
for a government entity or a government actor or employee who violates someone's constitutional rights. So there's a couple of problems. One, at least theoretically, this would get way too granular and I have some disputes with it, but
00:20:48
Speaker
Under the State Civil Rights Act, and certainly under the federal civil rights statute, you can't bring a direct entity claim against a state. If you bring a claim for something that's beyond just sort of bad conduct, but like malicious or criminal, such as this stuff, against an individual,
00:21:11
Speaker
they don't have to indemnify him or defend him. They can just hang the schmuck out the dry. And I've had that happen a lot. When someone finally goes beyond the, pushes the envelope too far that he gets caught, whether it's beating a guy, whether it's the kind of abuse at issue here, where it's out in the open now and it's either malicious or criminal, they don't have to defend him or indemnify him.
00:21:41
Speaker
the state put this corrections office in a position to be empowered to do that. So, and that's before you get to the issue of qualified immunity, which, you know, everyone who's listened to a podcast, watch the news has heard a lot about in the last year or two, but it is so, so much harder to bring a claim against a public entity anywhere, particularly in the state of New Jersey than it is against a private actor. So,
00:22:10
Speaker
on top of everything Shauna said about all of the real world difficulties inherent in this kind of situation, it's so much harder to bring a civil claim. And that's on top of the cost, meaning as a practical matter, it shuts the door on a lot of people from having access to redress in the courts. It's tough.
00:22:39
Speaker
Just to emphasize on that, you know, I think I keep alluding to an Oliver had spoke about a couple situations of, you know, these cases that we've dealt with involving pure sexual abuse, where there was actual forceful or, you know, non consensual physical act performed, but also encompassed in the settlement that we
Legal Team Collaboration and Strategies
00:23:00
Speaker
we achieved for everybody. And to go to the point where Oliver said, you know, people couldn't necessarily bring it on an individual basis is this ambient harassment theory.
00:23:11
Speaker
that we had brought for every single individual in the facility, starting from 2014 to present. And that is just the sense that this hostile culture, this sexually hostile culture was just so pervasive that you couldn't escape it. It was there 24-7. And if one person had come to me or come to Oliver and said, you know, I'm being sexually harassed in prison,
00:23:36
Speaker
Yes, I'd want to do something. But as a practical matter, you know, filing fees, expert fees, it's not feasible to bring it for one person, which is what the class action really is able to achieve for that. Yeah. Now, that's not to say you couldn't bring for the more severe stuff, case individually, but, but, you know, harassment, and candidly, and this may just be an opinion thing, you know,
00:24:06
Speaker
I'm not sure some of these cases, but for all of the things we talked about, all the dominoes kind of falling, we necessarily would have been able to take or would have taken if things were a little bit different. But at the point that there were
00:24:25
Speaker
the point that you've substantiated this much, you know, and some of it just incredibly graphic and awful, you know, it's a little easier lift to accept a few more of the cases that are sort of similar dealing with the same place in time frames and kind of stuff.
00:24:41
Speaker
You know, in my heart of hearts, if you asked me, well, but, you know, remove the DOJ report, remove the prosecutor being involved, remove, you know, some of the worst ones, do you think all of it would have shaken out the same way? I don't, maybe, but maybe not. Yeah. That's, that's, I mean, that piece of it is part of what's so, um, heartbreaking, right? About this, this set of circumstances. And again, you said it earlier, Oliver, you said, you know, that there was luck.
00:25:12
Speaker
involved here, which is kind of horrifying, right? To think that it had to be this very specific set of circumstances, even though we know that there was incredible abuse that was happening and that people knew about it, right? I mean, it wasn't some huge secret. There were definitely people who knew that there were awful, awful things happening.
00:25:30
Speaker
In fact, Shawna and I are part of the workup and the discovery stuff. And we got lots of useful information through the discovery process, but a lot of what we got that was the most useful was sort of outside the box, open requests, public record searches. There were a lot of old lawsuits, but they were a lot more limited. One person, one act, one, you know,
00:25:56
Speaker
And a couple of them, actually one I'm thinking of, that I'll let Shauna speak to, she's a little more familiar, called Hagenmiller, which was I think from like 1999, around then. And yeah, really some of the worst kind of abuse in that case, as you saw in any of the cases we handled, a guard, Stuart Sellers, criminally convicted of
00:26:19
Speaker
sexually assaulting a number of inmates. That was filed in federal court, not state court, and ultimately ended up getting dismissed on qualified immunity and the Third Circuit upheld it. But yet another reason we decided to come up with a new way to do these cases, but yeah, that was 20 years ago.
Settlement Details and Survivor Compensation
00:26:39
Speaker
Yeah, and that's another thing. I mean, the more, you know, Oliver and I have talked to a lot of people, we were, I think, we have a whole team that were working on the cases, but he and I were really on the ground at the prisons talking to, you know, the clients and the inmates. And some people had stories going back to the 80s, you know, and it blows your mind that it had, you know, could go on for this long.
00:27:02
Speaker
And it's wonderful what the work the prosecutors office did, the work the DOJ did, the work that we were able to do, but we're in 2021 right now. So that's all great, but going back that far really just blows your mind that how could this go on for so long? Shana, wait, you've just blown my mind. You had a team of people at your firm helping you with this? Stop it.
00:27:26
Speaker
Shauna is underplaying her contributions. She really, really was essential in getting all these cases over the finish line.
00:27:40
Speaker
Thank you, Oliver. As soon as I took the bar in 2017, this case is put on my desk. So I've been working on this since the day after I took the bar. I still remember meeting you for the first time when it was still in Mercer County. I think that was before your son was born? It was. It was before my son was thought of, actually. Well, me too.
00:28:06
Speaker
That was the other thing. Over the course of the case, Sean and I, as well as one of the other attorneys, because a lot of it has been in the COVID era of the last two years, have frequently had our sort of council meetings and court appearances interrupted by screaming babies or toddlers. I know that mine are teenagers, but they interrupt as well.
00:28:27
Speaker
I want to talk a little bit about strategy because you've both sort of referenced that a little bit. There were other lawsuits that were smaller in scope or that got kicked on qualified immunity or whatever it is. So when this case starts coming together and you're seeing all of these women and you're getting all of this information,
Rutgers Law School's Involvement
00:28:51
Speaker
how do you sit down as a team of lawyers and say, all right, we're going to go forward with this and we need to figure out how to be successful in a way that maybe some previous folks were not. So what does that look like? Well, a fun fact is we were actually competing class actions. So we weren't always playing on the same team, even though we were both for plaintiff.
00:29:17
Speaker
our firms weren't necessary playing nice in the playgrounds in the very, very, very beginning of the case. Which is kind of the way it works a lot of the time you you know, look, even amongst plaintiffs counsel, especially in this kind of litigation, it can be
00:29:35
Speaker
You know, adversarial, that doesn't mean you don't be professional. But I mean, I guess just in terms of the legal theory, well, that was something I think one of our attorneys had shared with another attorney working with Shauna's firm, and it was to use the law against discrimination as the vehicle for redress.
00:29:55
Speaker
And that was something that our firm had toyed with before, but just not had an opportunity to present itself quite this way.
Handling Client Trauma as Lawyers
00:30:05
Speaker
And there was, you know, some precedent for it. I think there was another state with a similar law had a Michigan had done so or had had a
00:30:14
Speaker
Courts had held that prisons were places of public accommodation under that law. It hadn't been decided by New Jersey courts, but at least one federal district court had said, well, it's a pretty broad scope law, remedial in nature. We think probably the New Jersey Supreme Court would apply it. But there was never really a question, even when it was like one or two cases, that that was how we were going to do it. Because no qualified immunity, because
00:30:43
Speaker
same way as if it's in a pure employment context, you sue the employer, you know, they're responsible for the environment, not the individual wrongdoers, you don't have this problem of them just hanging a guy out to dry, if you end up proving it. And because you have to show independent negligence,
00:30:59
Speaker
and or that they had an ineffective, well, a little granular. The two ways you can show and try to jump in if I'm making a lie out of myself and talking too much like a lawyer. You can show independent negligence, you can show that it was a supervisor who used his sort of authority to commit the wrong.
00:31:18
Speaker
But in this context, if you look at the test for what a supervisor is who can control the environment, that's every corrections officer to every inmate. So they're out there has to be that they had then to escape liability show that either they weren't negligent or that they had effective reporting and preventative policies in place. So part of your prima facie claim, you now get to bring in the evidence of 25 years of awful stuff that we dug up.
00:31:47
Speaker
So that was the it came from some pretty brutal defeats and scars I still wear on my back.
00:31:55
Speaker
A federal judge who is still sitting so I will not name them made comments to me that after my closing in that other case that basically said, made me sort of go home and just kind of cover myself with a blanket and cry myself to sleep, you know, holding the TV remote like a bottle of scotch. You know, there was sort of a consensus that was the legal theory we're going to go with from the start.
00:32:20
Speaker
So the torts professor in me actually wants to dig a little deeper, right? Because I want folks, particularly folks who are currently students or who are thinking about going to law school to sort of understand sort of the intricacies here, right? I mean, so one thing you always talk about in tort law is the distinction between
00:32:40
Speaker
criminal law and tort law, right? So you can have indictments, you can have people who go to prison, you can have people who are convicted, but that doesn't get you necessarily anything in a civil suit, right? So a civil suit is a whole different kettle of fish. And there's a difference between suing for negligence because of a failure to have proper procedures and policies in place versus suing for the actual
00:33:09
Speaker
behavior, which can seem really counterintuitive, I think, often from people who aren't lawyers. So maybe Shauna, maybe can you just explain to people how that works, how we draw
Future Impact on Correctional Systems
00:33:23
Speaker
those distinctions in order to be able to find liability in a set of circumstances where you might otherwise not be able to do so?
00:33:31
Speaker
Sure. And just a fun fact, Dean, you were actually my Torts professor, my first year. So this brings me back to my first year at Torts. But sure, so I think you're right. I think it is very difficult, even at the highest level, to differentiate between criminal versus civil liability. Criminal liability, obviously,
00:33:56
Speaker
Oliver and I don't do that piece of it. That's the prosecutor. They're going after obviously criminal violations. What we're doing in a civil lawsuit is going after, when we go after an entity, is going after their policies, procedures, failure to train, negligent hiring. In this case, there was a failure to
00:34:20
Speaker
failure to follow up on reports of sexual abuse. There's an internal department in Edna Mahon. I just said it a different way, I think a third time. But there is an internal department called SID. That's the Special Investigations Division. And that is where inmates are allowed to make complaints. And a lot of those complaints, I want to say, I'm making this percentage up. This is just based on what I've reviewed. But 95% of them went unanswered.
00:34:48
Speaker
So that is that's negligent. That's not, you know, that's not a mistake or an accident here or there where someone overlooks something that is pure negligence.
00:34:59
Speaker
maybe gross negligence, we can argue about that. But these complaints just went completely unanswered. And civilly, they have a duty. So they have a duty to properly train their officers. They have a duty to do due diligence in who they're hiring. They have a duty to supervise these officers. And they have a duty to follow up on credible allegations of sexual abuse. And they failed in all four of those departments and some.
00:35:27
Speaker
So that is, as far as the civil liability, that's where we really tried to nail the hammer down on, you know, holding them liable under New Jersey law. Yeah. So maybe, maybe I jumped the gun before about, so for the LAD claim, Sean and my firm used its framework. It is about the initially the abuse suffered by a particular plaintiff.
00:35:56
Speaker
And it functions in much the same way as you'd think of a sexual harassment in the workplace case where the first thing you got to show is some bad conduct happened, and it was either bad enough or frequent enough, and it was based on a protected characteristic, and this plays steps to the sexual harassment reviews, that it changes the environment to make it toxic.
Conclusion and Gratitude
00:36:20
Speaker
So, assuming the particular facts
00:36:25
Speaker
varying degrees of horror as we've taken a kind of coin or comparing them because it's it's a tough thing but it's something you do have to do is to kind of compare and contrast these different stories once you have that and it's not a big lift then to make the case that's
00:36:42
Speaker
a toxic environment. That's your LED claim, that's your hostile environment claim. But then, even though it's not a negligence claim, it's a statutory cause of action, Sean was just saying is, then to show liability to make the state responsible for it, then you get back into, because it's one of the ways you can, under the case law, hold an entity responsible for a hostile environment employee creates.
00:37:07
Speaker
Negligence. So everything she was talking about then went into, okay, this bad stuff happened on your watch. Here's why you're responsible for it. And everything she said were some of the things we were able to kind of dig up, partly from the state's own discovery, partly from just public record searches. Right. So there's a monetary settlement, which is, I've heard different numbers. I've heard 18 and I've heard 21.
00:37:36
Speaker
So it's actually total all encompassing of the individual cases and the class cases and fees, I think 20.8 and change. So just shy of 21 million total.
00:37:51
Speaker
Okay. And then that money is ultimately going to be doled out to women who are survivors of abuse in this facility. So once you get that settlement and you get that dollar figure, can you walk people through what it then looks like to figure out
00:38:15
Speaker
who gets what and how that process plays itself out.
00:38:21
Speaker
Sure. I mean, some of it is for the individual claimants who already brought cases and litigated them. And those are whatever they settled for. Those were individually negotiated. So they get a gross number, and that is what it is. So I think, Dean, what you're asking is for the class action portion of it, right? Yep. You want to take that part? Sure. So we spent hours during a mediation with a retired magistrate judge
00:38:49
Speaker
Coming up with the system because it is very complex when you have this amount of money trying to give it to a class of close to 3,000 women and we want as many women as possible to you know receive their just compensation, so
00:39:05
Speaker
What we did is we came up with a tearing structure. And anyone who's not familiar with the tearing structure, it can sound very confusing, but actually it does make pretty good sense once you understand the basics of it. And what a tearing structure is, is basically there's three levels of compensation for you to make a claim.
00:39:24
Speaker
Tier one is the threshold level. And the only requirement for making a claim under tier one is that you had to be an inmate in the prison since 2014 for at least one day from 2014 to present. Also, you couldn't have brought a prior lawsuit. So if you brought a prior lawsuit, that brings you out outside of the class. But if you were there for one day, then you are included in what we call the ambient harassment
00:39:52
Speaker
the angry and harassment here, which means you were just part of, you were forced to be in that environment that you couldn't escape for 24 seven of the sexually hostile environment that permeated throughout the entire prison. And that even without individual damages, that's still a civil rights violation.
00:40:12
Speaker
Right. You don't have to have any proofs. You don't have to submit anything showing that you actually were a direct victim of this. We assume that you were a direct victim of it just by happenstance of you being there for more than one day. And then there is a calculation based on how long you were there to know what that dollar amount is to you.
00:40:31
Speaker
So that's tier one. If you were a direct victim of abuse and you want to make a claim for tier two or three, then you can submit for that. Tier two is what I like to refer to as the non-touching abuse. So if a corrections officer viewed you naked in the shower or if he watched you getting changed, if he said sexually charged things to you or made sexually suggestive comments to you,
00:40:59
Speaker
That would be a tier two type of case. That one you do have to submit a certification or affidavit and the clinic at Rutgers Law School is very generously helping a lot of the women do that. And I think it's been a very, very successful workshop for them in talking to these women and helping them put that together.
00:41:20
Speaker
We purposely set it up so that was also a low threshold of proof so that these women didn't have to go above and beyond of what the normal rules of evidence would be to prove a claim. It's just put a certification together saying this is what happened.
00:41:37
Speaker
Maybe they have a letter that they wrote to a loved one about it. Maybe they did make a report to SID, that Special Investigations Division that went unanswered. Maybe they filed a grievance. If they have something like that, they have the option of submitting it with their certification, but it is not an absolute requirement. And we did that on purpose. Because again, we wanted to make this as easy and as accessible as possible for as many women as possible.
00:42:06
Speaker
The final tier is tier three and that is what I refer to as the touching abuse, anything where you were directly touched. It could be a groping, it could be a forceful rape, it could be what we refer to as maybe you think it started off consensually but it actually wasn't because we know that that's a per se
00:42:29
Speaker
violation, it can't be consensual, anything where there was a physical touching directly to you of a sexual nature that qualifies in tier three. And it's the same requirements in tier two in that you have to put the certification together.
00:42:44
Speaker
The only difference is that additional proof is required. So you have to have a grievance. It could be a letter. It could be a medical record where you told a therapist. It can be really anything you can think of.
00:43:00
Speaker
Again, we wanted to make it as easy as possible and not pin them down that you have to have X, Y, Z. They can really get creative with it, with their proofs. And I think we've had really good feedback on that setup so far. Okay. So as you said, you said we're being generous, but I feel like you all are being generous and allowing our students to participate and to be helpful.
00:43:25
Speaker
with women who have to put these documents together, basically. But one of the things that we talk about a lot in law school and out in the world now is the impact on advocates.
00:43:44
Speaker
lawyers or whomever who are working with folks who have experienced significant trauma. How do you do that work when you're doing these interviews and you're hearing these incredibly painful and difficult stories? How can you do that work in a way that is respectful of the trauma?
00:44:05
Speaker
that these women have gone through, but also so that when you go home at night, you can deal with the stories that you've been hearing. I would love to hear one or both of you sort of talk about the difficulty of that piece of the work, which I think is something we don't talk about enough as lawyers, right? That you're not just running into court and making arguments, but that you're forming relationships with people and that those relationships can bring their own difficulties.
00:44:34
Speaker
So I'll throw that out to either one or both of you. Do you want to start off? I think we both have strong opinions about that. But that is a very important and good question. And I agree with you. I think it is one that is overlooked. But I'll let Oliver start that one. So how do you do this work without it impacting and sort of damaging you to?
00:44:58
Speaker
I think what we refer to it as before in the workshop is secondary trauma because we're not directly experiencing it. We can in no way, shape or form understand it, but we're listening to it and it does run through your mind.
00:45:16
Speaker
over and over and over again. But Oliver, I'm sorry. I stepped on you there. No, no. Tell you what, as soon as I figure out the answer to that question, you will be the first to know because I hate it. I like Shauna, though, though, different path. This has become a practice area for me, not just in the correctional context, but in other contexts. I hate it. That doesn't mean it's not worth doing, but but
00:45:47
Speaker
It's messy and it's hard and it's damaging and it's complicated.
00:45:53
Speaker
It's complicated hearing these stories. Candidly, it's a difficult population to help. I've had clients who are pretty damaged themselves, whether they're struggling with mental health or addiction issues, who at times have been fine, have been super thankful and supportive, and at other times have just been so harassing or terrible or nasty that it makes you question why you're even bothering to help this person. I know that sounds bad.
00:46:18
Speaker
If you want to do this kind of work, that's something you have to realize. You're going to be dealing with a lot of secondary trauma. You're going to have to work through it, and you're going to have to understand that the people you're trying to help are not always easy people to help.
00:46:33
Speaker
Yeah, and I think specifically for this population, you have to remember, they're coming to you about a very specific trauma that they experienced while they were incarcerated. But many, many, many of them experienced a lot of trauma before they even walked through that door. So this is not something new to them. Wall shapes and sizes. And it's unfortunately not something new to them. So they have layers and layers and layers of trauma.
00:46:59
Speaker
And it's not necessarily something that you can help fix. You know, you're there to help or seek compensation for a very, very small sliver of that. And I think personally, you know, after talking to these people, you really just have to know who your audience is and who you have to let them do a lot of the talking.
00:47:22
Speaker
I mean, for me, I think everyone has their own style when it comes to interviewing and counseling and things like that. But for me, what I've found especially in talking to women and survivors of sexual abuse is I like to open the floor to them and I say, you don't know me, I'm a stranger. So you might not be comfortable sharing every single detail during this first interview and that's okay.
00:47:45
Speaker
And I'll tell them, you know, eventually I will unfortunately need every nitty gritty detail, but we don't have to do that right here right now. I want you to tell me whatever you feel comfortable telling me. And a lot of time they're happy to have an ear to listen to them and they will tell you everything. But sometimes, you know, I have some clients who say, can I write it to you because I just don't want to say it. Can I write it to you? And I say, yes, that's okay. So you really have to just let them take the lead and let
00:48:13
Speaker
you know, go at whatever pace they're comfortable with, because this really is such a intense conversation to have. And if it's intense for us, and we didn't directly experience it, you have to think from their perspective, how hard it is. Yeah, if it twists you this much up, just kind of hearing it, how much right must be affecting them. I agree with everything Shauna said, you got to put your own spin on it, your own personality, because people
00:48:41
Speaker
people get when you're being authentic or you. But yeah, you want to jump in by like, yeah, I don't
00:48:49
Speaker
With the added caveat, I usually start with something about understanding how awkward or difficult it must be talking to a man about this. And you don't need to give me the details. I was going to say that too. I think one of the reasons, for good or for worse, that I was directly involved from the beginning of this is because a lot of the clients wanted to talk to me and not an older male attorney. And for whatever that's worth, I think there's
00:49:19
Speaker
It makes some sense. There's a man that's been abusing them there, maybe a man that's not believing them. Sometimes there is comfort in talking to a female about what they experience, especially when it comes to sexual abuse because there's a lot of discomfort in the details that they have to convey about it. Absolutely.
00:49:44
Speaker
So let me let me ask you a final question, which is, do you have a sense or do you have thoughts about what the impact of this will be not just for, you know, the women who are receiving
00:50:03
Speaker
who are being compensated for the harm that happened to them. But should we hope or anticipate that this will have an impact on how New Jersey Department of Corrections deals with abuse within their facilities? How other prison systems deal with abuse within their facilities? Do you think that we'll get better procedures and practices going forward that there will be more effort to protect these vulnerable populations? Or do you think that this is going to end up being
00:50:32
Speaker
you know, just a drop in the bucket. And there will be somebody 20 years from now who says they've known about this for 20 years, and it's still going on. That's a loaded question. For as long as men and women have walked the earth, there have been those who do bad things to other people. And, you know, the line about power corrupting
00:50:58
Speaker
certainly stands true. I can't say this couldn't happen again. But the more you shine a light on stuff or the more you make it uncomfortable and expensive for an entity to let it happen on their watch, you stand a little bit better chance of maybe it not. At the end of the day, we'll take that.
00:51:25
Speaker
Yeah, I mean, I think all we can say is I hope so. But unfortunately, even after we originally reached the settlement, it wasn't finally approved until a couple of weeks ago. But we reached the settlement in March of 2021. And even around that time, maybe it wasn't sexual abuse that was in the news headlines. There's physical abuse allegations now in the news headlines. So you attack one thing at the prison that's not correcting everything there.
00:51:53
Speaker
And I think it's a start, but I think there's a lot of work to be done to actually make it a safe and what it's supposed to be a rehabilitative environment for these women.
00:52:05
Speaker
Yeah, I definitely feel like we're in this very interesting space right now where we're talking about criminal justice reform and police violence and some of those issues. And maybe even a little bit more about what's happening within jails and prisons themselves, which I think has been a result of COVID, right? This idea that we've got all these people who are locked up, we've got a pandemic going on. And so there's definitely something incredibly powerful about shining a light
00:52:32
Speaker
on all of it, but also I think the point that you made Oliver is such an important one, which is letting the people in charge know that this will hit your pocketbooks, right? And that sometimes that's gonna be the thing. You would hope that the thing that would fix it is just that people are good people and have a strong sense of morals and ethics, but unfortunately sometimes it's the money that has to kick in.
00:53:00
Speaker
So I just want to thank both of you, one, for having this conversation with me, but two, for being graduates of our law school who are using your law degrees in these incredibly powerful and world shifting ways.
00:53:20
Speaker
because every little drop in the bucket is what ultimately gets us to a full bucket. So totally appreciate the work that you're doing. It's incredibly powerful. And I'm excited to see what you do next and the changes that you're able to make going forward. So thank you so much. And I appreciate this opportunity to talk to you. Thank you very much. Happy to be here. Thank you very much. It was a real honor.
00:53:50
Speaker
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