The Denver Sheriff Department mishandled the investigation into the 2015 death of jail inmate Michael Marshall, and public safety officials made such flawed disciplinary decisions that it failed to hold accountable the deputies and sergeants involved, according to a new report by Denver’s police watchdog.

The scathing, 73-page report from independent monitor Nick Mitchell raises questions about the department’s ability to investigate itself and whether it is taking proper steps to reform, and it provides insight into why the city likely was willing to pay $4.6 million to the Marshall family before a lawsuit had been filed.

The report also paints a picture of safety officials so out of touch with the gravity of the incident that the first deputy to wrestle and pin Marshall to the floor was nominated for a life-saving award even though Marshall had died, according to a copy obtained by The Denver Post.

In the Nov. 11, 2015, incident, Deputy Bret Garegnani performed CPR on Marshall after the inmate lost consciousness, but the former safety director gave Garegnani a 16-day suspension for continuing to apply pressure on Marshall’s upper body even after nurses asked him to ease up for fear Marshall could aspirate on vomit.

Garegnani’s sergeant wrote in a nomination form for the department’s Life Saving Award, “Deputy Garegnani is ultimately responsible for prolonging the life of Michael Marshall, which allowed for those valuable moments that the Marshall family ultimately had with Michael and will forever be grateful to Deputy Garegnani,” according to a footnote in the monitor’s report.

The report includes eight recommendations for change, including putting the sheriff’s internal affairs bureau under civilian control, additional training on handling inmates suffering from excited delirium and safety department guidelines for incidents where medical and security concerns conflict with each other.

In a response, the safety department disagreed with Mitchell’s overall assessment, although its managers conceded to some recommendations.

“Neither the IAB investigation or the disciplinary decisions that followed were mishandled,” wrote Jess Vigil, deputy safety director.

Marshall’s death came during Sheriff Patrick Firman’s first month on the job and as the city had launched an in-depth department reform after the city paid millions in legal payments in a series of excessive force cases. The death led to protests that even interrupted the city’s annual Martin Luther King Jr. Day march.

Marshall was in a jail on a $100 bond after he had been arrested for trespassing and disturbing the peace. Marshall suffered from paranoid schizophrenia and was in the middle of a psychotic episode when he was killed.

Marshall’s death was ruled a homicide by the coroner, who said he died after asphyxiating on vomit while being restrained. Deputies pinned Marshall face down on the floor and applied pressure to his body for more than 10 minutes even after he had gone limp and had vomited, according to previous reports. While Marshall was being restrained, a jail nurse asked deputies to relieve pressure on him, but they did not.

The district attorney declined to file criminal charges in the case. Garegnani was given a 16-day suspension, and Capt. James Johnson and Deputy Carlos Hernandez were suspended 10 days. A Career Service Authority hearing officer overturned all three suspensions.

In November, Denver’s City Council agreed to pay a $4.6 million settlement to Marshall’s family, and the city agreed to changes at the sheriff’s department when it comes to providing mental health services.

In the months after Marshall’s death, the internal affairs bureau twice tried to close the investigation before it was completed, Mitchell’s report said. At one point, investigators tried to close the case even though they failed to interview deputies and nurses involved. Both times, the independent monitor’s office asked investigators to continue.

“The attempt by IAB to cut short its investigation into Mr. Marshall’s death — the only death in custody following a use of force during the prior five years — raised troubling questions about IAB’s willingness to conduct a thorough and impartial investigation of this serious case, as DSD policy required,” the report said.

Mitchell also took the safety department’s leaders to task for declining to discipline three sergeants who failed to adequately supervise deputies as they restrained Marshall. Sergeants Keri Adcock, Tracy Moore and Michael Newtown did not provide guidance to deputies or question deputies’ decision to restrain Marshall for a such a long period, the monitor’s report said.

“Had any of the supervisors asked these questions, they could have determined that Mr. Marshall should be taken out of the prone position as soon as possible,” the report said.

Also, the department was inconsistent in its punishment when it suspended a captain but not the sergeants, the report said.

Mitchell questioned why one sheriff’s deputy involved in Marshall’s death was allowed to enroll in the Denver Police Department’s training academy while a criminal investigation and internal excessive force investigation were pending. Typically, police applicants are not hired while criminal investigations are pending, and the safety department should have put Deputy Thanarat Phuvapaisalkij’s application on hold, the report said.

Because Phuvapaisalkij left the sheriff’s department, a disciplinary review of his use of force in the Marshall case was never completed.

Nine days before the Marshall episode, deputies were issued a training bulletin on how to respond to inmates who are experiencing excited delirium, a condition where people act agitated or violent, incoherent and immune to pain. The bulletin also listed signs of excited delirium including grunting, confusion, partial clothing, exhibiting super strength and escalated violent behavior — all symptoms Marshall exhibited.

During interviews after the death, deputies could not recall details on their training. Although no medical professional diagnosed Marshall as having experienced excited delirium, the monitor’s office concluded that likely was the case and that the deputies did not follow their training.

“The incident was not handled quickly, the use of force was not ended as soon as possible, Mr. Marshall was not moved to a recovery position on his side once restrained and he instead was left in a prone position, face-down for prolonged period of time,” the report said.

And once the Marshall case was closed, the department never performed any review to learn from it, the monitor’s report said. In fact, consultants hired to recommend reforms in 2015 said the department should create a “use of force review board” to do just that. But the department only began taking steps to do so in the weeks before Mitchell was set to release his report.

In its response, the safety department argued against many of Mitchell’s findings. Vigil, the deputy director, reminded Mitchell the process is set up to use his input and suggested that Mitchell simply was frustrated by the procedure.

“The process recognizes this, and avenues are available to you to raise your concerns,” Vigil wrote. “You did just that in this investigation and ultimately you certified the investigation as ‘thorough and complete.’ You alleged that the investigation was flawed. Yet certifying the investigation as ‘thorough and complete’ belies that claim.”

Still, the safety department also said it would consider some of Mitchell’s recommendations, including placing the sheriff’s internal affairs bureau under civilian oversight, and that it was open to developing a formal protocol to identify, providing more training on excited delirium and to create protocol for learning from incidents.

Warning: Graphic images from incident that led to death of inmate Michael Marshall





