Open Letter

| September 20, 2007

To:
Heather Gough
Deputy County Counsel
County of Humboldt
825 Fifth Street
Eureka, Calif. 95501

Dear Ms. Gough:

Thanks much for your response to our Public Records Act request for documents pertaining to the arrest and booking of Martin Frederick Cotton II on Aug. 9. Thank you, too, for providing some of the material we requested.

We were disappointed, though, with your decision not to comply with the remainder of our request. Specifically, you declined to release the video taken of Mr. Cotton in his cell in the Humboldt County Jail, in which he reportedly can be seen banging his head against a wall. Also, you have declined to release the "booking request" filled out by the Eureka Police Department officers who took Mr. Cotton into custody and/or booked him.

In your letter, you cite Government Code §6254(f), the investigation and security exemption of the Public Records Act. Your assertion seems to be that because Mr. Cotton's subsequent death in the jail is currently under investigation, the county has the legal right not to disclose what otherwise would be public documents. Though we have spoken to attorneys who have their doubts, we concede that this may be the case. However, given the public's legitimate interest in this matter, we respectfully ask you to reconsider.

The key point is that the exemption you claim is strictly voluntary. It doesn't require you to withhold documents that would help the public understand what, exactly, transpired in the hours leading up to Mr. Cotton's unusual and still-unexplained death in custody. So far as we understand, nothing is barring the county from releasing these documents. The county has simply chosen not to do so, of its own free will. And we would like to humbly suggest that the decision is not in the county's best interest. To put it plainly, if you voluntarily decline to provide key information to the public on this important matter, the public will rightly blame county government for keeping it in the dark.

This at a time when public trust in county government is already low. I believe that you are fairly new to the office, but I'm sure you've heard tell of Tamara Falor, the former head of your department. In February of this year, the Board of Supervisors voted 3-2 to pay Ms. Falor $300,000 to make her go away, just months before her contract with the county was set to expire. No one on the board explained the reasons for this vote. Presumably, the intent was to reach a settlement before Ms. Falor brought a lawsuit against the county. But what grievance did she have? Was it justifiable? If not, why the large settlement? If so, what problems have been swept under the rug, and when can we expect them to surface again?

So if some citizens suspect that a similar dynamic is at play in the Cotton matter, it's not as if they have no precedent to point to. And if the argument is that releasing the documents would somehow compromise the investigation into Mr. Cotton's death, that argument simply is not plausible. Again, the documents in question are a video of Mr. Cotton in his cell and a booking sheet filled out by the EPD. The question at this point, following the coroner's release of Mr. Cotton's cause of death last week, is how Mr. Cotton received the injury to his head that killed him. Was it from someone he had been fighting with at the Rescue Mission before the police arrived? Was it from the police, who struggled with the LSD-intoxicated Cotton for some time before subduing him? Did Mr. Cotton inflict it upon himself, either before he got into a fight at the Rescue Misson or after he was booked into jail? I challenge you to explain how release of the documents we have requested would impair investigators' ability to answer these questions.

At the same time, release of the documents would go a long way toward increasing public understanding of this tragic incident, and about the roles taken at each step by the public agencies involved. The surveillance videotape of Cotton in his cell is self-explanatory — did the man injure himself? But the booking records — blank copies of which you sent us in response to our request — would also be immensely useful in understanding the incident. The forms require officers to physically assess the person they are booking into jail, so that jail staff may classify the suspect properly. For example, they ask the arresting officer if the suspect had been involved in violent incidents prior to arrest. They ask if a "less lethal" weapon had been used in the arrest. They ask if the suspect has any injuries or obvious illnesses. How did the Eureka Police Department answer those questions, in Cotton's case? Did they properly book the suspect? The public deserves to know the answers to these questions — which, after all, are asked of officers who act in the public's name. But if the county maintains its stance on this matter, it is more than likely that the public will never know the answers. And the county should be prepared to accept the blame for that.

If the county still doubts that there are big upsides to releasing these records — and to adopting a more transparent stance generally — we would beg you to take a look at what Eureka Police Chief Garr Nielsen has been accomplishing in the past few months. All by himself, and against the advice of some, he has created a certain tentative sense of trust in what had been, beyond a doubt, the least trusted agency anywhere in the county.

How has he accomplished this? He has made a few institutional changes, true. This week, the news is that he will ask an outside agency — the state Department of Justice — to investigate all EPD-related deaths and other departmental black eyes, rather than rely on in-county police as has been the case in the past, and as continues to be the case for other local jurisdictions. This is a brave step — there's nothing in it for Nielsen except the gratitude of local citizens who feel somewhat queasy at the thought of local police investigating each other. But mostly, Nielsen has inspired trust by simply speaking the truth as best he can to the public.

Nielsen has called upon the county to release the videotape of Cotton in his cell. Now, knowing the way county-think operates, there's a fair-to-middling chance that this was interpreted as a slap at the Sheriff's Office, the agency that runs the jail. If you have a guy dead of a subdural hematoma and a video of him banging his head on the wall, you've got an alibi for your own officers. Blame it on the jail! Why weren't they checking on him more often? Didn't they know what was going on?So the thinking would go.

Personally, we believe that Nielsen's comment was innocent of such crafty political subtext. We believe that Nielsen is what he appears to be. Call us dupes if you wish, but you can't buy that kind of reputation. And that's a lesson that county government could stand to learn.

Sincerely,
Hank Sims

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