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Iko case evidence was not retained

THE BALTIMORE SUN

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.

The pepper-spraying and removal of Iko from the first cell were videotaped by correctional officers using a hand-held camera. He was transferred to a "special observation" cell in another housing unit. Six video cameras in fixed positions in the housing tier also captured footage of his removal from the first cell, according to Mercer's deposition.

He said he reviewed footage from those cameras and found that the footage was "consistent with the hand-held video." Because of the similarity of the footage, Mercer said, he decided that the footage from the fixed cameras did not need to be preserved; video from the hand-held camera was saved, he said.

Adler alleged in Tuesday's court filing that Mercer failed to contact the Maryland State Police, which is a state requirement in cases where an inmate dies inside a prison. The lawsuit alleges that Iko was dead - although handled as if he were alive - when taken by ambulance from the prison.

The first contact that Mercer had with outside authorities was on May 26, 2004, nearly one month after Iko's death, the investigator said.

The next day, the state medical examiner's office announced that Iko's death had been ruled a homicide.

There were other new disclosures in Adler's court filing. For instance, the filing states that Mercer arrived at the deposition with the original photographs he had taken shortly after Iko's death. Those photos showed that Iko's "underwear was soaked with an orange substance that is clearly pepper spray," Adler wrote.

"Contrary to this obvious fact, Lt. Mercer stated in his report that [Iko's] underwear was urine-soaked," he wrote.

Adler wrote that Mercer failed to notify Iko's family after his death. The family first learned that Iko had died from a Sun reporter, about two weeks after his death.

In response to questions raised about potential bias of IIU investigators, state lawmakers last year gave the Maryland State Police the primary responsibility of investigating inmate homicides in state prisons. IIU investigators previously had that responsibility.

Iko, who had lived in Prince George's County, had been in state prison since 1991, when he began serving a three-year sentence for a drug-distribution charge.

The next year, Iko received an additional 20-year sentence for stabbing and biting a correctional officer in an Eastern Shore prison. That officer was later fired for his role in abusing another inmate at the same prison.

gus.sentementes@baltsun.com

Sun reporter Greg Garland contributed to this article.

For earlier articles about the death of Ifeanyi A. Iko, go to baltimoresun.com/inmatedeath

Timeline

Ifeanyi A. Iko died April 30, 2004, shortly after a violent confrontation with correctional officers at Western Correctional Institution.

In May 2004, the state medical examiner ruled the death a homicide.

An Allegany County grand jury cleared the officers of criminal wrongdoing in July 2004.

In November 2004, Iko's family filed a federal lawsuit alleging violations of his civil rights.

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