Now that video footage has been released that shows as many as 10 deputies and hospital staffers at Virginia’s Central State Hospital piling on top of a shackled Irvo Otieno allegedly causing his death, defense attorneys are scrambling to argue that their clients, who are charged with second-degree murder, weren’t responsible because their participation in the incident was minimal.
From the Associated Press:
During bond hearings and through statements, lawyers sought to distinguish their clients from the mass of bodies involved in holding Otieno to the floor for over 10 minutes.
One said in court that his client only worked to secure leg irons on Otieno, while another said his client put his body weight on the man for just a short period of time and then tried to position Otieno on his side so he would not have trouble breathing.
Some defense attorneys also said their clients were only trying to restrain Otieno and there was no evidence of an intent to kill the 28-year-old Black man as deputies sought to have him admitted to Central State Hospital on March 6.
“At no time did he realize that Mr. Otieno … was in any danger whatsoever,” said attorney Caleb Kershner, who represents one of the seven Henrico County deputies who have been charged, along with three hospital employees.
Suffice it to say, Otieno’s family members and their attorneys aren’t buying it. Otieno didn’t just die out of nowhere, after all, so it’s going to be a hard sell if you want people to believe anyone involved had no idea the victim “was in any danger whatsoever.”
In fact, attorney Mark Krudys, one of the lawyers representing the family, reportedly quoted defense attorneys during a Tuesday press conference, He said they literally described Otieno as being in obvious need of medical attention.
“Despite that, they piled on him,” Krudys said. “Ten individuals.”
Krudys and civil attorney Ben Crump both argued the defense team was making “excuses” for their clients and trying to paint a picture of Otieno as being combative and noncompliant.
They are trying to say … ‘Well, he was struggling. Well, he was still resisting.’ No, he wasn’t. He was trying to breathe,” Crump said. (Also, how much can one possibly resist when they’re handcuffed and their legs are shackled?)
Meanwhile, Otieno’s family said his mistreatment at the hands of police started long before they got to the hospital.
More from AP:
Otieno’s family has said he was brutally mistreated not only at the hospital where he died but also while in law enforcement custody beforehand.
Otieno, whose family said he had long-running mental health struggles, was initially taken to a Richmond-area hospital by police for psychiatric care March 3. But after authorities said he became combative, he was criminally charged and transferred to the jail. His family says he was denied access to needed medication during his time there.
It almost sounds like cops took Otieno to the hospital for mental health care, and then arrested him once he started showing signs of needing mental health care.
Still, Steve Benjamin, a Richmond criminal defense attorney who serves as special counsel to the Virginia Senate Judiciary Committee and is not involved with Otieno’s case, is not convinced that the video proves in any way that second-degree murder charges are appropriate, mainly because the footage released to the public doesn’t include audio.
“We don’t know if those who were observing were saying to the deputies, ‘Get off him, he can’t breathe.’ We don’t know if he was saying he couldn’t breathe or if he was threatening violence to those who were trying to restrain him. We simply have no idea,” Benjamin said. (Again, he was shackled from head to toe. Even if he was threatening violence, what violence could he have possibly committed?)
“Our reaction to that video is human and natural,” Benjamin continued. “But it doesn’t go very far in answering the question of—was there a criminal offense committed here?”
As AP noted: “In Virginia case law, second-degree murder is generally defined as the malicious killing of another, meaning the conduct must be so likely to cause death or serious injury that it demonstrates utter and callous disregard for life.”
So, Benjamin might have a point when he says the video doesn’t prove malicious intent. On the other hand, a dozen people piled on top of one struggling man for nearly 11 minutes until he had completely stopped moving does seem like the kind of thing that would “likely cause death or serious injury.” It’s almost like arguing that Derek Chauvin had no idea pressing his knee into George Floyd’s neck for nine minutes might cause him to choke to death.
Of course, defense attorneys are also arguing that Otieno might not have died by asphyxiation as Dinwiddie Commonwealth’s Attorney Ann Cabell Baskervill stated in court, despite the fact that a final autopsy report has yet to be released. Instead, some defense lawyers are suggesting that Otieno might have died as a result of injections administered at the hospital.
Anyway, all 10 defendants were ultimately granted bond and have pre-trial hearings set for late April or May. According to Henrico County Commonwealth’s Attorney Shannon Taylor, a separate investigation into the events preceding Otieno’s death at both the hospital and the jail is still ongoing.
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