Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 1 of 14 PageID #: 190

NEW YORK S TATE

Unified Court System

OFFICE OF COURT A DMINISTRATION
LAWRENCE K. MARKS

JOHN W. M cCONNel l

CHIEF AOMltliSTRATlVE JUDGE

October 24, 2016

COUNSEl

Honorable Cheryl L. Pollak

U.S. District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
ByECF
and facsimile: (7 18) 613-2365
Re:

U.S. v. Ana Rosie Espinal

II-CR-53 7 (JMA) (CLP)

Dear Magistrate Judge Pollak:

We submit this letter in response to the attached three subpoenas ad testificandum
served I by Steve Zissou, attorney fo r defendant Ana Rosie Esp inal, upon three New York
state jurists - Justice Robin S. Garson, Judge Cheryl J. Gonza les, and Ju stice Betty J.
Williams -- seeking to compel their testimony on October 27, 20 16, at a preliminary
revocation hearing concerning defendant' s alleged violation of probation. Although the
subpoenas contained no explanation of the testimony sought, we have since been
informed by Mr. Zissou by telephone that he wishes to examine the judges about a threepage report ("Report;" Exh. "A"), which they authored, in their capacity as members of
the Women in Prison Comm ittee (" WIP") for the Nationa l Association of Women
Judges, concerning a June 3, 2016 visit to the Metropolitan Detention Center ("MDC").2
As set forth more fully below, there is no factual or legal basis to compel the testimony of
these judges at the revocation hearing on this or any other subject.

***
I This Office acce pled se rvice via e-mai l as a cO Ul1esy on Oclober 20, 20 16.
, The June 20 16 report refl ects th at it was subm ined by Judges Ga rson, Go nzales, and Wi ll ia ms, along with Judge
Brenda P. Murray, a federal Admi nistrati ve Law Judge, who also is a member of WIP. The June report also refers
to a visillO MDC on March 20, 20 15 by the WIP, and th e Committee' s related repon of th at date, consisting of fou r
pages. The March 20, 20 15 report was submitt ed by Jud ges Gonza les and Williams, as well as Judge Murray. The
report, however, does not state that it was submitted by Judge Garson, although she attended th e visit. For full
d isclosure purposes, a copy of that March report is attached (co llect ive ly with Exh. " A" ), which report also was
provided by Mr. Zissou .

COUNSEL'S OFFICE 2 5 BEA V ER STREET . N EW Y OR K. NE W YORK 10004 Tel: 2124 2B-2 150 FAX: 2 1242 8 - 2 155

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 2 of 14 PageID #: 191

The principles governing considerations of judicial testimony at legal proceedings

are well established. In general, the spectacle of judicial officers submitting to
examination and cross-examination on matters at hearing or trial is disfavored: ajudicial
officer may testify only where ( 1) the judge possesses factual knowledge of the matter,
(2) that knowledge is highly pertinent to the fact-finder's task, and (3) the judicial officer
is the only possible source of testimony on the relevant factual information. See United
States v. Roth, 332 F.Supp.2d 565, 568 (S .D.N.Y. 2004), affd. U.S. v. St. John, 267
Fed.Appx. 17 (2d Cir. 2008), cert. denied, 129 S.Ct. 442 (2008); Watkins v. City of New
York. et aI., 2015 WL 4865139 *2 (S.D.N.Y. 2015) (applying Roth standard, finding
testimony from judges "disfavored," and prohibiting deposition testimony of judges
where alternative sources for information existed). Moreover, there is a strong public
interest in protecting courts and judges from the unreasonable interference with the
performance of their duties and the functioning of the courts . See United States v.
Ianniello, 740 F.Supp. 171 , 189 (S.D.N.Y. 1990), rev ' d on other grounds sub nom.
United States v. Salerno, 937 F.2d 797 (2d Cir. 1991), rev ' d 505 U.S. 317 (1992); see
also, Pisani v. Westchester County Healthcare Corp., 2007 WL 107757 (S.D.N.Y.)
(examination of high-level governmental official requires showing that no alternative
source for information exists, and that examination will cause no significant interference
with performance of governmental duties); Marisol A. v. Giuliani, 1998 WL 132810 *2
(S.D.N.Y.) (same); State of New York v. Oneida Indian Nation, 2001 WL 1708804 *3 -4
(N.D.N.Y.) ("unique and personal" knowledge available from no other source); Adler v.
Pataki, 2001 WL 1708801 *2 (N.D .N.Y.) ("particularized first-hand knowledge"
unavailable elsewhere) .
These principles strongly recommend against the judicial testimony sought here.
As a preliminary matter, the defendant has not suggested that Justice Garson, Judge
Gonzales, or Justice Williams possess any evidence relevant to the primary matters at
issue at Ms. Espinal ' s revocation hearing - whether she in fact violated her probation
and, if so, whether that violation merits a return to custody . Instead, it appears that the
defendant wishes to have these Judges examined for a collateral issue: the general
suitability of the MDC as a forum for incarceration 3 To the extent that this issue is
deemed appropriate for examination by this Court, we respectfu lly submit that there are
ample suitable alternative sources for such inquiry, including MDC personnel, Bureau of
Prisons personnel, and professionals in the field of detention facilities and conditions.
Use of judicial officers for this role has the unseemly appearance of seeking to add a
judicial imprimatur to the factual narrative presented by the defendant. Though doubtless
unintended, this adverse appearance is enhanced by the fact that defendant has chosen to
subpoena all three judges, broadly and indiscriminately. Moreover, to the extent that the
J

It shou ld be noted that the U.S. Attorney's Office advised thi s Court that even in th e event there is a finding of

gu ilt on the violation of probation, that Office ledoes not and will not seek a sentence of incarceration based on these
alleged vio lations." See ECF Document 32, filed Oc tobe r 12, 20 16, lette r lTom A.U.S.A Kristin Mace, page 2.

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 3 of 14 PageID #: 192

defendant wishes to rely upon the facts set forth in the June 2016 Rep0l1, that Report
speaks for itself: further examination into the judges' authorial impressions are
duplicative and unnecessary.
We recognize, of course, that Justice Garson, Judge Gonzalez, and Justice
Williams were not acting in their judicial capacity in authoring the Report. Indeed, it is a
fortunate fact that judges, like all lawyers, frequently vo lunteer their time and energy on
matters of professional interest. However, in the absence of a compelling demonstration
of need, those voluntaristic activities should not subject them to the threat of deposition,
hearing, or trial appearances as third-party fact witnesses to persons seeking - explicitly
or implicitly - to benefit from the judicial title. No such demonstration has been made in
the instant case. We respectfully request that the subpoenas directed at these three judges
be deemed without force and effect.
Very truly yo urs,

Shawn Kerby
Assistant Deputy Counsel

cc:

Honorable Robin S. Garson

Honorable Cheryl J. Gonzales
Honorable Betty J. Williams
Steve Zissou, Esq.
via email: stevezissoul@verizon.net
A.U.S.A. Kristin Mace
Via email: kri stin.ma ce(illusclo j.Q.ov

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 4 of 14 PageID #: 193

AD 89 (Rev. 08/09) Subpoena to Testify at a Ikarlllg or Trialm" Cnmll1<l1 Case

UNITED STATES .DISTRICT COURT

for the
Eastern District of New York
United States of America

v.
ANA ROSIE ESPINAL

Case No. 11 CR 537 (JMA) (CLP)

Defelldant

SUBPOENA TO TESTIFY AT A HEARING OR TRIAL IN A CRIMINAL CASE

To:

Han. Robin S. Garson, Civil Court of the City of New York, Kings County
141 Livingston Street
Brooklyn, NY 11201

YOU ARE COMMANDED to appear in the United States district court at the time, date, and place shown
below to testifY in this criminal case. When you arrive. you must remain at the court until the judge or a court officer
allows you to leave.
1PJaceOfA-ppearance: -225-Cad~a~PI;-~a East .~ - ---.-.

Brooklyn, NY 11201

L __ .________ . ___________ ..... _

Courtroom 13B - South

, Date and Time:
I

J ____ _ _ _

~.4_~

__

~.~"

10/27/2016 10:00 am

You must also bring with you the following documents. electronically stored infonnation, or objects (blank {(not
applicable) :

(SEAL)

Date:

'leT

1.~ 2016
CLERK OF COURT

The name, address, e-mail. and telephone number of the attorney representing (name o/party)

---------

------ -

_____ .~ . who requests this subpoena, are:

Steve Zissou, Esq.

42-40 Bell Boulevard, Suite 302
Bayside, NY 11361
718.541.0716
stevezissou@stevezissouesq.com

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 5 of 14 PageID #: 194

AU 89 (Rev. 08/09) Subpoena to Testil) at u Ilcuring or Tnal in u Criminal CaSe!

UNITED STATES DISTRICT COURT

for the
Eastern District of New York
United States of America
v.
ANA ROSIE ESPINAL

Case No. 11 CR 537 (JMA) (CLP)

Defel1dant

SUBPOENA TO TESTIFY AT A HEARING OR TRIAL IN A CRIMINAL CASE

To:

Judge Cheryl J. Gonzales,

Housing Court. Civil Court of the City of New York
141 Livingston Street
Brooklyn, NY 11201

YOU ARE COMMANDED to appear in the United States district court at the time. date, and place shown
below to testify in this criminal case. When you arrive. you must remain at the court until the judge or a court officer
allows you to leave.
- - - - - , - _ . -------.--.. -..------.----.-.-.---------- ....

Place of Appearance: 225 Cadman Plaza East

Brooklyn. NY 11201

-TCourtroom No.-:- ~o~~;~~~ 13B - ~ou;~"-"'"

' - - - _..._---

;:'. Date and, Time:

.........

_--------_..

10/27/2016 10:00 am
----.------------------..

... ----_

-.-.~

You must also bring with you the following documents. electronically stored information. or objects (blClnk {(nul
applicable):

(SEAL)

Date:

OCT 19 2016

F---'~

'.,'

r-,

.. ,

T{~' ;'

......

p .:' ..
'

:~ . . T ~'~. -:~?
~

, { l'

1..

CLERK OF COURT

-~ --j";;{:;;;,;~fr;s(:PI'O'

The name, address. e-mail, and telephone number of the attorney representing (name ~rparlyj
_ _ _ .____ . _______ .
,who requests this subpoena. are:
Steve Zissou, Esq.
42-40 Bell Boulevard. Suite 302
Bayside, NY 11361
718.541.0716
stevezissou@stevezissouesq.com

O;"/,- --

......

t .....

~--~

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 6 of 14 PageID #: 195

AO 89 (Rev 08/09) Subpoena to Testify at a lIearing or TrUll in U Criminal Case

UNITED STATES DISTRICT COURT

for the
Eastern District of New York
United States of America

v.
Case No. 11 CR 537 (JMA) (CLP)

ANA ROSIE ESPINAL

f)e./imdanl

SUBPOENA TO TESTIFY AT A HEARING OR TRIAL IN A CRIMINAL CASE

To:

Judge Betty Williams.

Supreme Court of the State of New York.
320 Jay Street
Brooklyn NY 11201

YOU ARE COMMANDED to appear in the United States district court at the time, date, and place shown
below to testify in this criminal casco When you arrive, you must remain at the court until the judge or a court officer
allows you to leave.

r---------.. . . . ...........- .. ---.-----......... -

IPlace of Appearance:
.

L_ .

225 Cadman Plaza East

Brooklyn. NY 11201

. . . . . . . . .____._____.___ . . _.. . . . . . . . .

Courtroom No.:

tn:----.. . ;.

Courtroom 13B - South

__

--"-~.-

. _,,__ I Date an~ :J~l~:

--------.. -- . .,

.~0/27/2016 10:0g_~~ _______ _._l

You must also bring with you the following documents, electronically stored information. or objects (blank i/not
applicable) :

(SEAL)

f)f)f
.........
,. ....Tr~
\.. .

OC1 19 ,016

I"

y."
4.

~;1FP

~_.J'

.;

tt.....-/

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Date:

CLERK OF COURT
- ......

----~~

The name. address, e-mail, and telephone number of the attorney representing (name oJparty)
. who requests this subpoena. are:
Steve Zissou, Esq.
42-40 Bell Boulevard. Suite 302
Bayside, NY 11361
718.541.0716
stevezissou@stevezissouesq.com

--_ .. _ .. _-_._-------

~n(lturrO'(Clerk or D 'PtI~l' Clerk

_ _~~~_~osi~~~inC!~

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 7 of 14 PageID #: 196

EXHIBIT "A"

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 8 of 14 PageID #: 197

National Association of Women Judges (NAWJ) Women in Prison Committee (WIP)

Second Visit to
BOP's Metropolitan Detention Center (MDC), Brooklyn, New York,
June 3, 2016
The federal women's prison at Danbury, Connecticut, closed in December 2013. BOP
''temporarily'' re-Iocated the Danbury women to the Metropolitan Detention Center (MDC)
located in Brooklyn, New York. The MDe consists of two buildings, eight and nine stories high.
The women are held in a housing unit on an upper floor.
Judge Cheryl J. Gonzales, Chair of the New York Chapter of the NA WJ's WIP, Judge Robin S.
Garson, and NAWJ WIP Co-Chairs, Judge Brenda P. Murray and Judge Betty J. Williams, visited
MDe on March 20, 2015, and again on June 3, 2016.
We arrived at 3:00 p.m. and departed at 4:45 pm. We spent approximately forty-five minutes
with Warden H. Quay, who has held this position since December 2015, and who was formerly the
warden at Danbury from 2012 to 2015, numerous MOe staffers, and Alix McLearen, BOP's
Administrator, Female Offenders Branch, and Hugh Hurwitz, Deputy Assistant Director,
Information, Policy, & Public Affairs. The remainder of the time was spent visiting the women.
Alix McLearen informed us that since our 2015 visit, she and Dr. Michelle Gantt, the MDC's
Education Supervisor, formed a Task Force that developed a training film for staff dealing with
incarcerated women.
Moe holds III women who have been sentenced, and should be housed at Danbury.
Twenty-four women are part of the original group transferred from Danbury to MDC, and the
others are women who were sentenced after the Danbury closing in December 2013, and who
would have been incarcerated at Danbury. There are about 50 additional women in pre-trial
status. According to Warden Quay, only three women are more distant from home at MDC than
they would be at Danbury. However, one judge was told that women were transferred to MDC
from facilities that were closer to home, and one woman represented that as a consequence she had
not seen her two children or her 84-year-old mother in a year. Some women questioned whether a
transfer back to Danbury will occur because they heard '~a head count had to be maintained at
MDC." A couple of women questioned why they could not re-Iocate to Hazleton, WV, which
would be closer to home.
MDC appears to have one or more pregnant inmates, but we did not get an exact number.
The facility has a total of 1,800 residents. We were told that some male prisoners have been at
MDC for three years because of court appearances, and 300 males are there permanently, similar
to trustee status, to service the building. It appeared that those males are allowed to move outside
the building.
Danbury: BOP stated that Danbury will re-open in October 2016; BOP has not decided whether
Danbury will have a Residential Drug Treatment Program (RDTP) a highly recommended
program previously offered at Danbury. The Judges expressed concern and dismay: (1) when
1

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 9 of 14 PageID #: 198

advised by BOP staff that the RDTP and other programs that were previously offered to the
Danbury women may not be available, as well as job opportunities; and (2) BOP staffwas unable
to confirm whether or not programs would be in place for the reopening in October 2016.
BOP is considering the Judges request for a visit to the Danbury facility.
Food: Women complained that food is sometimes spoiled and moldy. In 2015, we were advised
that food is delivered cooked, and reheated.
Information from the women: The women we talked with were almost universally less hopeful
for change about the conditions of confinement at MDC. Unlike 2015, when there seemed to be
some energy in the group, the impression was that these women had all but given up hope that
things would get better. The lethargy was almost palpable.
Several women emphasized that the fresh air and sunshine they need, are non-existent. One
woman said the air was bad and that granules fell from the ceiling so that she is constantly cleaning
off her bed which is a top bunk. Several women said the place had been fixed up for our visit to
look better than it did regularly. A couple of women said the air conditioning had been off the
previous weekend. One woman said a microwave, which they did not have before, was brought
to the unit the day before our visit, and the women thought it was done because of our visit.
None of the women expressed any interest or knowledge about the programs that the MDC
Brooklyn brochure, "Female Program Overview," said were being offered. Most of the women
said they had never heard of them.
The brochure lists seven employment opportunities, yet one woman said she had begged for any
type of employment and had received nothing.
Medical: Warden Quay admitted medical service is a problem and did not defend it. BOP claims
it cannot find physicians willing to work in a New York prison. There are two contract doctors
and two doctors on staff for women. Just like last time, the women complained about not being
able to see doctors. Specifically, several women complained about the lack of gynecology care,
and that after initial provision of health care there was minimal follow-up. In 2015, a
gynecologist visited once a week.
Physical plant: The physical plant is the same as we viewed in 2015. 161 women are held in two
separate large rooms. Each room has rows of bunk beds on one side of the room, toilets and
showers on the other side of the room, and fixed tables in the middle. There are no windows so
there is no fresh air or sunlight. The women are in the room 24/7, with no opportunity for outside
exercise.
There is a separate room available for exercise. It contains a couple of stationary bikes and maybe
one other piece of equipment. One outside wall has an open area near the top of the wall that
allows light and air to enter. We were told in 2015 that the wall was sealed because men in the
adjacent building could see the women. It turns out the wall is not cinder block but metal sheets
painted the color of the other walls. We asked why the steel sheets could not be removed to allow
2

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 10 of 14 PageID #: 199

the women a view, maybe some sun, and fresh air. The room could be opened at times when the
men, presumably using comparable space in the opposite building, were not present. We were
told that it would mean the room would not be available to the women all day.
Programs to treat trauma and drugs: The brochure we received lists 12 staff led programs, one
of which is a non-residential drug abuse program. There was mention of new programs:
psychology, drug abuse, and trauma, but we did not get a lot of specifics about them.
Advance Core Chief Psychologist, Dr. Siegel (recently created new position), advised the group
that a 14 question Psychology Services Inmate Questionnaire (PSIQ), is completed when the
women and men enter the system followed by a "screened interview." The PSIQ and interview
determine the treatment plan for the women. Dr. Siegel described a new trauma 12-week
program, Seeking Safety. The program is offered three times a year to twelve to fourteen women.
According to Mr. Siegel, 70% of the women do not complete the program. One woman
acknowledged not completing the program while speaking with the Judges.
Summary
We concluded that in March 2015, conditions for women at MDC since December 2013 were
unconscionable and they remain so in June 2016. The absence of fresh, clean air, the complete
absence of sunlight, and the absence of ANY outdoor time and activities are immediate issues
which BOP has failed to address in any meaningful fashion. As noted in our prior report, these
conditions violate the ABA Standards on Treatment of Prisoners and the UN Standard Minimum
Rules for the Treatment of Prisoners. 1 The few activities arranged for families do not address
these major deficiencies. MDC Brooklyn is a temporary detention facility and is an inappropriate
facility to house women or any person long term.
Judge Robin S. Garson, Judge Cheryl J. Gonzales, Judge Brenda P. Murray, and Judge Betty J.
Williams
NAWJ, Women in Prison Committee
June 2016

ABA Standards on Treatment of Prisoners, Standard 23-3.1 (a) (3d ed. 2011), available at
www.americanbar.orglpublications/criminal justice section archive/crimjust standards treatme
ntprisoners.html. UN Standard Minimum Rules for the Treatment of Prisoners, adopted by the
I

First UN Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva
in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31
July 1957 and 2076 (LXII) of 13 May 1977, available at www.ohchr.org/EN/Professionallnterest/
Pages/TreatmentOfPrisoners.aspx.

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 11 of 14 PageID #: 200

National Association of Women Judges (NAWJ) Women in Prison Committee (WIP)

Visit to
BOP's Metropolitan Detention Center (MDC), Brooklyn, New York,
March 20, 2015
Since December 2013, when the federal women's prison at Danbury closed for renovation, BOP
has "temporarily" placed women prisoners, who were previously assigned, and would have been
assigned to the women's prison in Danbury, Connecticut (Danbury), at MDC in Brooklyn, New
York. The MOC consists of two buildings, eight and nine stories high. The women are held in a
housing unit on an upper floor.
On March 20,2015, Judge Cheryl J. Gonzales, Chair of the New York Chapter ofNAWJ's WIP,
Judge Robin S. Garson, and NAWJ WIP Co-Chairs, Judge Brenda P. Murray and Judge Betty J.
Williams, visited MOC. Judge Marcy L. Kahn was unable to attend because jury deliberations
carried over from the day before.
We arrived at 3:00 p.m. and spent approximately forty-five minutes with Warden Kimberly AskCarlson and her staff:
Kenneth Bork, Staff Attorney,
Michael Dellamarco, Executive Assistant,
Kimo Elvaheb, Food Service Administrator,
Dr. Michelle Gantt, Education Supervisor,
DeWayne Hendrix, Associate Warden,
Dr. Stephen Maynard, Recreation Supervisor,
Patricia Rodman, Associate Warden,
Wanda Velez, Unit Manager, and Alix McLearen, BOP's Administrator, Female Offenders
Branch
MDC's stated purpose is to provide women with quality service and it strives to continue to
establish programs and activities for incarcerated women in areas such as health, education,
parenting, employment, mental health, substance abuse, and trauma treatment. We were each
given a five-page handout listing a number of Staff Led Programs (18), EducationlRecreation
Community Partnerships (6), Volunteer Based Programs (7), Leisure Time Activities (18),
Employment Opportunities (6), Available Equipment (5), Special Events (10), Pre-trial Classes
and Programs (5), Adult Continuing Education (ACE) Classes (29), Visitation, Special Housing
Programs/Services (4), and Initiatives (3).
At the time of our visit, MDC held 117 women who should have been at Danbury, including two
women serving life sentences, and 57 women held pre-trial. We were escorted to an upper floor
and the two large, barrack style rooms where the women spend all their time. We were advised
that the Danbury women (tan pants and tops) and the pre-trial women (chocolate brown tops and
pants) had been confined separately, but recently the two groups were combined so that the two
rooms held approximately the same number of women. There are computers on the hallway wall
and we were told the women can email at almost any time to pre-approved email addresses.

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 12 of 14 PageID #: 201

In each of the two large rooms, there are several sections of rows of metal bunk beds facing each
other with walking space between the rows. Each row appeared to be about six or so bunk beds
deep. In the middle of each room, out a couple of feet from the bunk beds, are some
permanently affIXed picnic style tables and chairs where the women eat all their meals. Beyond
that, on the opposite wall, is a single row of showers and toilets behind a partial wall. The
women cannot move between the two rooms. We visited both rooms, and, with the Warden and
staff present, were allowed to speak with the women. Some women did not move from their
beds, but many came over and sat on or at the tables and wanted to speak with us. Most of the
women were placid individuals who seemed to accept their fate. Almost every single woman,
even those with families nearby, wants to be in a location where they can go outside and get
fresh air and experience sunshine, wind, and rain.
Some of us talked with two women at length. One, a 53 year old woman serving two life
sentences on drug-related charges, described compliments she has received regarding her
behavior during her period of incarceration and her efforts to get relief for her situation. Her
conviction occurred in 1994 and she has served 21 years. Sister Megan Rice (Sister Rice), an
84-year old Roman Catholic nun thought the visit was a farce. She said the place had been
spruced up for our visit and that the conditions are inhumane. Her complaints were a mixture of
criticisms of the criminal justice system and specifics. Sister Rice wondered whether there are
any studies of the physical impact of depriving human beings of fresh air and sunshine for
prolonged periods. She said there is a small, narrow window up high in one wall that she goes to
if the sun is shining, just to see and experience it for a bit. Sister Rice deplores the demeaning
way some of the officers speak to the women. She stated that the showers only produced
scalding hot water for months, but two plumbers arrived to fIX the problem a few days before our
visit. No other woman complained about hot water. In Sister Rice's view, the authorities and
staff lack creativity in dealing with issues.
In an email on January 29, 2015, BOP Director Samuels indicated that "outdoor recreation is
provided." In fact, there is no outside space. There is a room that has three pieces of exercise
equipment and approximately ten feet up near the ceiling on one wall there is about 18 inches of
open space, and near the floor at the bottom of the same wall there is an approximately 6 inch
open space.
A gynecologist visits once a week. Emergencies are treated at local hospitals. There are two
pregnant inmates. One soon to deliver is Canadian. As a non-citizen, she is ineligible for MINT
or the Washington State program because she is considered a flight risk. We were assured that
neither woman will be shackled during childbirth.
The MDe website indicates that MDC has visiting hours seven days a week. But this time is
apportioned among the various units. We believe Warden Ask-Carlson indicated that the MOC
women are allowed visitors on Thursday evenings and maybe during a time period on one
weekend day. We saw the visiting room and there were some books for children in the waiting
area.
After spending about an hour talking with the women, we reconvened with the Warden AskCarlson and her staff and were allowed to ask questions.

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 13 of 14 PageID #: 202

Findings
1.
BOP needs to establish a finn deadline for reopening Danbury and, in the interim,
remedy the conditions that exist at MDC that clearly fall below the ABA Standards on
Treatment of Prisoners and the UN Standard Minimum Rules for the Treatment of
Prisoners.
ABA Standards on Treatment of Prisoners specify that:
The physical plant of a correctional facility should:
. (iii) include appropriate housing, laundry, health care, food service, visitation,
recreation, education, and program space;
(v) not deprive prisoners or staff of natural light, of light sufficient to permit
reading throughout prisoners' housing areas, or of reasonable darkness during the
sleeping hours; [and]
(vii) allow unrestricted access for prisoners to potable drinking water and to
adequate, clean, reasonably private, and functioning toilets and washbasins[.] I
UN Standard Minimum Rules for the Treatment of Prisoners specify that:
Accommodation
11. In all places where prisoners are required to live or work,
( a ) The windows shall be large enough to enable the prisoners to read or work by
natural light, and shall be so constructed that they can allow the entrance of fresh
air whether or not there is artificial ventilation[.]
Exercise and sport
21. (1) Every prisoner who is not employed in outdoor work shall have at least
one hour of suitable exercise in the open air daily if the weather permits. 2

2.

Visiting hours should be expanded to encourage family visits.

3. The staff appeared to be dedicated professionals, but there is only so much they can
do with the physical plant. Warden Ask-Carlson and her staff are trying to make
something good happen with planned programs emphasizing family reunification. Many
of the Special Events listed in the brochure are for March and April 2015.
ABA Standards on Treatment of Prisoners, Standard 23-3.1(a) (3d ed. 2011), available at
www.americanbar.org/publications/criminal.Justice_section_archive/crimjust_standards_treatmentprisoners.htm
I.

2 UN Standard Minimum Rules for the Treatment of Prisoners, adopted by the First UN Congress on the Prevention
of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social
Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, available at
www.ohchr.org/EN/Professionallnterest/ Pages!TreatmentOfPrisoners.aspx.

Case 1:11-cr-00537-JMA-CLP Document 44 Filed 10/24/16 Page 14 of 14 PageID #: 203

4. Reasonable responses were given to the women's complaints about food and medical
care.

s.

MDC will check on the possibility of allowing the women to use the roof to be able to
spend some time outside.

6. Warden Ask-Carlson will not allow officers to treat women in a demeaning

manner. She will hold a general meeting and explain to the women that pre-trial and the
Danbury women are receiving the same treatment.
7.

I think it is fair to say that the women appreciated our visit.

Thanks to Judge Gonzales for arranging the visit.

Report submitted by: Judge Cheryl J. Gonzales, Civil Court, Housing Part, New York,
New York; Judge Brenda P. Murray, Federal Administrative Law Judge; and Judge Betty
Williams, Supreme Court of the State of New York.