CHARLESTON — While admitting mistakes were made, Gov. Jim Justice and the head of the department that oversees the Division of Corrections and Rehabilitation said there was no intentional destruction of evidence in a federal class action lawsuit over regional jail conditions.
Justice and Secretary Mark Sorsaia of the Department of Homeland Security, answered questions Wednesday during the governor’s weekly administration briefing at the Capitol about an order issued Monday by U.S. Magistrate Judge Omar Aboulhosn that accused officials with the Division of Corrections and Rehabilitation of intentionally destroying evidence in a lawsuit filed last year by inmates of the Southern Region Jail near Beckley.
“I expect everybody to be transparent. I expect everyone to be honest. I expect everyone to be absolutely an open book,” Justice said. “I think we ought to be able to show everyone anything that is within our capabilities within reason to be able to do so.”
“We have an obligation to be transparent, fair, and follow the rules as the people of West Virginia would expect us to do so,” said Sorsaia, a former prosecuting attorney in Putnam County whom Justice appointed as DHS Secretary in July following the retirement of previous secretary Jeff Sandy.
In his 39-page order, Aboulhosn found in favor of attorneys representing inmates at the Southern Regional Jail asking for a default judgment against the Corrections Division and multiple county commissions in Southern West Virginia. The order was the result of an evidentiary hearing last month when current and former corrections officials admitted to not following federal rules of the preservation of evidence. As a result, emails and other electronically stored data were deleted and unable to be turned over in discovery.
“…The failure to preserve the evidence that was destroyed in this case was intentionally done and not simply an oversight by the witnesses,” Aboulhosn wrote. “The court does not make that statement flippantly but after much thought and reflection of the disturbing testimony that took place that day.
“The intentional decisions to not preserve evidence, and to allow evidence to be destroyed was not done by low-level employees of the WVDCR but was perpetrated by the highest persons in the chain of command…,” Aboulhosn continued.
Sorsaia denied Wednesday that the Corrections Division purposely or intentionally destroyed any emails or documents being sought in the class action lawsuit, though he did admit processes for holding on to emails and other electronically stored documents by the Corrections Division and the state Office of Technology were not followed.
Sorsaia said there was a dispute as to whether the DCR adequately responded to discovery requests. He admitted to administrative problems where individual state employees failed to do so. Those state employees were not identified, but Sorsaia said the employees were disciplined and the situation rectified.
“We have no evidence that any individual or individuals intentionally destroyed evidence or took affirmative action to make sure that evidence was hidden from disclosure,” Sorsaia said. “I will tell you with all due respect to the magistrate that we disagree with (his) contention. We will agree that there were some mistakes in that process.”
“When people are directed to not destroy something or whatever it may be or supply something and then they just don’t, at the end of the day I think it would be a very, very, very long and difficult day for those folks,” Justice said. “If they have done what is alleged that they did do, then they have to be terminated. That’s all there is to it. And the courts will have to deal with it however they choose to deal with it.”
The class action lawsuit was filed on Sept. 21, 2022, by Michael Rose and Edward Harmon, two inmates at the Southern Regional Jail. The Corrections Division is accused by Rose and Harmon of alleged inhuman living conditions at the jail, overcrowding, lack of maintenance, unsanitary conditions and serving spoiled food, among other issues. The two inmates are seeking a ruling ordering the state to correct the conditions at the jail.
More than a dozen inmates have died at the Southern Region Jail while in custody at the facility over the last two years, according to multiple media reports.
Sorsaia said he was unaware until this situation that the Office of Technology had a policy to delete emails of former employees off of state servers after a certain period of time, though DCR Commissioner Brad Douglas admitted during testimony that he never met with the Office of Technology about preserving emails or phone and text message data.
“It was just one agency not understanding how another agency handles their data,” Sorsaia said. “Why would any individual in the (Division) of Corrections or Homeland Security take a personal interest to destroy or hide evidence in a controversy that deals with the State of West Virginia versus a private party? It just doesn’t make sense.”