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Counties want Utah Supreme Court to rule on lawsuit seeking inmate releases

Court battle continues as Washington County Jail says autopsy will probe whether inmate who died had virus

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SALT LAKE CITY — Utah’s county jails don’t want out of a lawsuit seeking the release of more inmates amid the threat of COVID-19 — at least not yet. They want the Utah Supreme Court to analyze the case and rule in their favor.

Civil rights groups who waged the legal battle say they are now content with the precautions sheriffs have detailed in court filings. They have asked the Utah Supreme Court to dismiss the counties from their lawsuit as they train their eye on the state’s prison system.

But the jails are resisting what Salt Lake County calls “a last-minute attempt to deflect from the petition’s legal and factual deficiencies.” Granting their request would allow the groups to sidestep analysis by the court, District Attorney Sim Gill argued in court papers filed Friday.

The ACLU of Utah, the Disability Law Center and the Utah Association of Criminal Defense Lawyers filed the petition with the state’s high court in April, part of a national effort to shrink incarcerated populations seen as vulnerable to the virus due to their cramped quarters.

The latest skirmish comes as jailers in rural Hurricane, Washington County, confirm the state medical examiner will screen an inmate who died there Monday to determine if he had COVID-19.

Crews tried to revive Russell Dwain McGonigle, 67, who was found unresponsive at the Purgatory Correctional Facility, said Washington County Chief Deputy Jake Schultz. McGonigle, who had several health conditions and was being held in a special medical cell, was scheduled to see a doctor later that day.

“The night before he passed away, he complained of respiratory issues, but he had ongoing respiratory issues,” Schultz said. “For him, that’s not an unfamiliar symptom. That’s something that he deals with.”

Magistrate Judge Paul Kohler found McGonigle, who faced a federal charge of possessing child pornography, had violated the terms of his release ahead of trial by possessing adult pornography and by committing an act of voyeurism at his nursing home, an allegation his attorney Adam Bridge denied.

In March, Kohler ordered McGonigle remain in custody “until other living arrangements can be made,” court records show. By then, Bridge said, the nursing home had evicted his client.

“I couldn’t find anywhere for him to live,” Bridge said. “It was a very sad situation. He lived on Social Security benefits, low-income housing in Washington County is very limited, and he was charged with a sex offense,” Bridge said.

More than a week earlier, a man booked into the same jail on minor offenses late on May 7 tested positive for COVID-19 after revealing he had been in contact with someone who had the virus, an admission he failed to make at intake and revealed only once in the jail, Schultz said. The inmate was then placed in a negative-pressure cell as his test was pending, and was released the next day on a judge’s order to quarantine at home in Las Vegas.

No other inmates or employees at the jail have tested positive, Schultz said.

The Salt Lake County Jail, the only other to confirm cases among inmates, has reported 17 inmates with COVID-19 to date, with only two remaining at the jail as of last week. As of late April, 18 employees had tested positive.

Gill, who is defending the county in court, said its efforts to head off virus risks were numerous and successful, but the groups sued before they had all the information, causing needless alarm for inmates, first responders and jail employees.

The advocates, however, said they took legal action in part because jailers refused to give information about sanitation measures, rates of confirmed cases and tests among Utah’s incarcerated.

Gill pushed back on the allegation in the Friday court filing.

“In fact, the only interruption in the free flow of COVID-19-related information from Salt Lake County and its jail resulted from this litigation,” he wrote.

Gill, along with Frank Mylar, the attorney representing 21 remaining counties, said they want the case tossed with prejudice, meaning it can’t be filed again at a later date.

Mylar said his clients spent time and money fighting the case and “want a decision that will provide much needed clarity of the law going forward,” plus a chance to recoup costs of defending themselves.

The advocacy groups sought the release of those behind bars who don’t pose a public safety risk, including older inmates, those with existing health problems and others whose sentences were set to expire within six months. The organizations also want the appointment of a “special master” — a point person to oversee the releases.

In court papers, lawyers with the Utah Attorney General’s Office said the correctional system has taken steps to prevent the virus from entering the prison or spreading, like temperature checks for each employee, suspensions of visitation and volunteer work, and immediate isolation of any inmate who shows symptoms. The prison noted it has allowed more than 80 inmates to go home because they were within three months of their release date.

But the groups say that’s not enough. While the state has lodged petitions for release to the Board of Pardons and Parole on behalf of certain inmates, it has not disclosed exactly how many have left the prison’s facilities in Draper and Gunnison, they allege. And the existing process to secure compassionate release is slow and difficult for those who don’t have a lawyer.

“Until a significant number more prisoners are released sufficient to allow for meaningful social distancing, those thousands of prisoners are still being exposed to an unacceptable and unnecessary risk,” the coalition said.

To date, no inmates at the prison have tested positive for COVID-19; 54 have been tested, and 10 tests were pending Tuesday, according to the prison’s website.