This is Part 4 of KyCIR’s “Trouble Behind Bars” series. Read Parts 1, 2, 3.
WILLIAMSTOWN, Ky.—Derrick Rose spent a fair amount of his adult life in the back of police cruisers, in criminal courtrooms or in custody. He was a persistent thorn in the side of law-enforcement in northern Kentucky, picking up a new charge about every six months as an adult for a variety of minor misdeeds.
He didn’t kill anyone, didn’t ever seriously injure anyone. But in the end, as the 25-year-old Rose hanged from a blue bed sheet attached to a ceiling vent in cell D5 at the Grant County Detention Center, it was the criminal-justice system that had wronged him.
A Kentucky State Police investigation concluded that there was “no indication of foul play” in connection with Rose’s death on Sept. 20, 2010. But an inquiry by the Kentucky Center for Investigative Reporting into the circumstances surrounding Rose’s death found the following missteps:
The court system contrived and imposed a sentence that illegally banished Rose from a three-county area, a punishment meted out barely four months after a Kentucky Court of Appeals decision referred to a probation order including banishment as “invalid” and “void.”
The corrections system ignored Rose’s alleged threat of self harm when he was jailed for violating the banishment order, and then placed him alone in a maximum-security cell with the bed sheet.
And employees at the jail failed to properly watch over Rose in isolation, thus violating its own rules requiring a cell check every 30 minutes. After about an hour had elapsed with no observation, a deputy found Rose hanging from the ceiling.
Court and corrections officials involved in the events leading to Rose’s death case either refused to discuss their decisions with KyCIR or else denied wrongdoing.
But this much is clear: Rose’s banishment and the jail’s missteps set in motion the events that led to his death.
David Harris, a University of Pittsburgh School of Law professor and nationally recognized criminal-justice expert, was harshly critical of the handling of Rose’s case.
“It’s a cascade of failures, it really is,” Harris said after reviewing documents and the facts of the case. “It simply isn’t right.”
Prior to his last arrest, Derrick Rose had tried to repair his broken-down car so he could comply with the court’s directive and leave Carrollton, according to his brother, Chris, and other family members. But the repairs didn’t get done in time, and Rose was taken into custody for violating the court order.
“He didn’t understand why he was back there (in jail), because he was just trying to get his car fixed and get out of town,” said his mother, Kathy Richards, who spoke to Rose by telephone shortly after his arrest.
Kentucky law prohibiting banishment in cases like Rose’s appears clear and has been for nearly a half-century. In December 1965, the state Court of Appeals held that it is “beyond the power of a court to inflict banishment as an alternative to imprisonment.” A Kentucky Supreme Court decision just last May reaffirmed that position.
Yet, the little-discussed practice persists as a tool used by police, prosecutors and judges to rid their jurisdictions of characters they deem unsavory -- and troublesome.
A recent KyCIR investigation detailed the journey of Adam Horine, a mentally ill man banished from Carroll County by police who took him out of jail in violation of a court order and put him on a bus to Florida with a one-way ticket and a few dollars in his pocket.
Horine’s case provoked a furor across the state, and the two Carrollton police officials allegedly behind his expulsion have been indicted. But Horine at least survived his travail.
Derrick Rose did not.
The docket in Grant Circuit Judge Stephen Bates’ court moved quickly on June 30, 2010. Derrick Rose, in handcuffs and dressed in a black-and-white-striped jail jumpsuit, had been there before and knew the routine. His latest charges: stealing a laptop computer, trespassing and punching a woman in the face for betraying his girlfriend.
The crimes, all misdemeanors, carried the possibility of up to a year in jail. Rose didn’t want to be incarcerated for another lengthy stretch. Agreeing to get out and stay out of town -- banishment -- had more appeal.
Under this deal, proposed by Commonwealth’s Attorney James Crawford and defense lawyer Edward Bourne, Rose would serve no more than 90 days in jail, then leave the area for the next two years.
Bates rattled off the charges and Rose’s rights with machine-gun speed and efficiency; he’d done this drill thousands of times during his 25 years on the bench. The entire proceeding lasted barely five minutes, including a snide dig by Bates at the state’s “feel-good parole board that wants to let everybody out of jail.”
The last of the 10 conditions in Rose’s plea agreement was mentioned only in passing during the five-minute hearing, but it would have by far the most profound impact. Condition # 10 was this:
“Defendant shall not be in Carroll, Grant or Owen counties during the term of his conditional discharge.”
Nobody -- not the long-time judge, not the veteran prosecutor, not the seasoned defense attorney -- and certainly not Rose -- seized on that point, discussed it, questioned it, objected to it.
Rose quickly agreed to the offer. Bates just as quickly accepted it. The deal was done.
But it shouldn’t have been, according to state court rulings and in the opinion of Harris and other legal authorities.
Less than five months earlier, thestate Court of Appeals had ruled on the case of Lakinda Sharee Butler, who had been banished from Fayette County for two years as part of a probated sentence after pleading guilty to possessing marijuana. Butler later returned to support a friend at a court hearing, was arrested and ordered to serve a year in jail.
The banishment was wrong, the appellate court held, citing the 1965 ruling. The 2010 Court of Appeals ruling also referred to the probation including banishment as “invalid” and “void.”
Ten weeks after agreeing to the illegal plea deal, Rose had served his time and walked out of the Grant County Detention Center. His next move should have been to get out of town, fast.
His mother and stepfather had already moved Rose’s personal belongings to Cabot, Arkansas, where they lived.
They thought he might be able to turn his life around there.
Rose never completed high school. His first arrest as an adult came at age 18. He toiled at various jobs when he wasn’t locked up. He acknowledged drug and alcohol problems. And his rap sheet, rife with mostly minor offenses, grew and grew.
His family believed this time might be different. But then his car broke down.
Carrollton police picked Rose up on the evening of Sept. 16, 2010, after an officer said he saw Rose while attempting to serve a warrant at a local residence. Rose’s mere presence in town was a violation of the banishment order.
He was transferred to the Grant County jail a day later and deputies there placed him in solitary confinement. Richards said that when Rose called her from jail, he was upset about being incarcerated again.
“I said, ‘Derrick, it’s Friday afternoon, we can’t do anything, I’ll look at it Monday, we’ll sort it out on Monday,’” Richards recalled.
State police records offer contradictory accounts of why Rose was in solitary. At least one jail deputy said he requested it. But another, Edward Hirst, said Rose was “wanting to know why he was in ‘Max,’” or maximum security, and why he had been arrested.
Rose was “agitated but otherwise fine” when Hirst spoke with him at 9:30 a.m. on Sept. 18, 2010, according to the records. After that check, another inmate later told state police, Rose was kicking his cell door, as if trying to “get someone’s attention.”
Deputies are supposed to observe inmates in solitary confinement every 30 minutes, according to jail protocol. But the cell next check did not occur at 10 a.m. as required. An incident involving another inmate delayed the scheduled watch tour. So it was not until about an hour after Rose was last observed that Hirst found him suspended from the ceiling.
The sheet was knotted in front of him, with a foot of excess cloth draped across his chest. His body was still warm, but he had no pulse and was not breathing. Two days later, at a local hospital, the petty criminal’s life ended with premature death.
His family members don’t think Rose really wanted to die, but rather that he was frustrated over being in jail again and was crying out for help.
“He wasn’t wanting to commit suicide, I can tell you that,” said his brother, Chris Rose, a utility-company superintendent in neighboring Carroll County. “He was wanting attention, he was wanting to get out of jail.”
The state police investigation into his death didn’t uncover any evidence that Rose appeared suicidal, and he left no note. Deputy Hirst told state police he never heard Rose speak of wanting to kill himself.
Moreover, the jail’s own inquiry found “no violation of Grant County Detention Center rules and regulations or operational procedures,” even though it acknowledged that Rose was not checked in a timely manner. “All deputies performed their duties in a responsible and professional manner,” jail officials concluded.
( Read the jail's investigation)
But the U.S. Justice Department reached a very different bottom line about the circumstances surrounding Rose’s death.
In 2005, the department had issued a scathing report identifying an array of constitutional violations at the jail, including “deliberate indifference” to inmates’ serious medical and mental-health needs. None of those instances had involved fatalities, however. Now, DOJ had found what it decided were new -- and fatal -- examples of that neglect.
In a Feb. 6, 2013, letter to Grant County, the department blamed “serious breakdowns in jail medical care” for Rose’s death and that of Carl Lewis, another inmate who committed suicide earlier in 2010.
Without identifying Rose by name, the department’s letter stated that “in September 2010, a new prisoner arrived and told staff that he was going to kill himself.” The jail’s response, according to the letter, “essentially consisted of putting the prisoner in a segregation cell. The jail staff left the prisoner with a sheet, and the prisoner hung himself.”
The Justice Department refused repeated requests from KyCIR to discuss the letter or to provide documents supporting it.
Steve Kellam, who was Grant County’s elected jailer when Rose died, refused a request from KyCIR to discuss the jail’s investigation or circumstances surrounding Rose’s death. Kellam initially said he was declining “out of respect for” Rose’s family. Told that family members were willing to have the facts of the case aired, Kellam responded:
“I want no part of your agenda. Negative comments and issues that were dealt with in the past are just that, the past.”
The defense attorney and the judge involved in Rose’s banishment also were unwilling to talk about it.
Bourne, who represented Rose and who signed off on the banishment deal, initially told KyCIR that he opposes the extrajudicial practice. “I don’t think it should be done. Period,” he said.
Bourne, a criminal defense attorney for more than 20 years, currently represents Horine, the mentally ill man banished to Florida by Carrollton police. And Bourne acknowledged that he’ll likely file a lawsuit over Horine’s banishment.
Asked about the apparent contradiction in his approach to the two cases, Bourne refused to discuss them, citing attorney-client privilege. He also was unwilling to talk about his handling of Rose’s case “in any way, shape or form.”
Judge Bates -- who is now retired -- said he had no interest in “talking about any of this.”
When Crawford, the commonwealth’s attorney who prosecuted Rose, was asked by KyCIR about banishment in general, he distanced himself from it, saying, “I don’t know that I’ve ever seen it actually done. If it has been done in recent years, I have no recollection of it.”
Reminded of the facts of Rose’s case, Crawford aggressively defended his handling of it.
“I didn’t force the man (Rose) out of the county,” Crawford insisted. “It was a negotiated condition.” Crawford also contended that Rose’s guilty plea and jail sentence were “clearly legal.”
In addition to the two Court of Appeals rulings holding that banishment clearly is illegal, a decision last May by the Kentucky Supreme Court also rejected banishment.
That case involved a juvenile who had avoided prosecution by agreeing to move to Oklahoma to live with his father. About five months later, he rejoined his mother in Kentucky, and the charge against him was renewed.
The justices voted unanimously to reverse the judgment in the case, noting that among other legal missteps, the lower court had ordered “the literal banishment of the child from Kentucky.” The supreme court added: “Banishment is not a legal disposition under Kentucky law, even as a condition of probation or alternative to imprisonment for adults.”
Two veteran Kentucky defense attorneys who reviewed the disposition of Rose’s case at KyCIR’s request agreed with Professor Harris that it constituted illegal banishment.
“Prohibiting someone from entering three entire counties constitutes banishment by any definition,” said Dan Goyette, a former prosecutor and the longtime head of the Louisville Metro Public Defender’s office. “I don’t know how else it could be interpreted.”
( Listen to R.G. Dunlop's radio feature on 89.3 WFPL News)
Kentucky Public Advocate Edward Monahan agreed, saying: “Kentucky case law is clear, banishment is not a legal condition to place on a defendant.”
Harris, the University of Pittsburgh law professor, said courts “should not be in the business of imposing unconstitutional penalties even if the defendant for one reason or another would accept those.”
In Rose’s case, Harris said, the banishment condition was “flat-out unconstitutional and should never have happened in the first place. If it’s not right for the court to impose it, whether it’s agreed upon or not.”
Harris also asked rhetorically: “Could the defendant, as a way of cementing the plea agreement, accept 20 lashes? No, you can’t do that. We don’t do that anymore. Can the defendant say, ‘I’ll accept a certain amount of time with the thumb screws?’ No, we don’t do that. That’s beyond the pale. It’s simply wrong. And it puts the law on the wrong side of common sense.”
Richards said she and her family did not contest Rose’s banishment because they could not find a lawyer who would file suit.
She said she takes some comfort in the fact that her son’s donated organs saved at least two lives and improved several others. But she and other family members still harbor anger and frustration, because they think Rose’s banishment was wrong, because they think the jail was negligent and because no one was held accountable.
“Could they have saved him? Absolutely,” Chris Rose said.
That is why it is “really important” that the circumstances surrounding his death be explored, even now, Richards said. “If it saves one life in the future, then it is all worth it.”
Reporter R.G. Dunlop can be reached at rdunlop@kycir.org or (502) 814.6533.
