From: ghost_of_morphy@theghostishere.com   
      
   Appeal loss could spark prison suits, lawyer says   
      
      
      
   ACLU should not have handled inmate rights case, attorney tells court   
   By Clay Harden   
   charden@clarionledger.com   
      
   NEW ORLEANS — A loss in a 5th Circuit Court of Appeals case argued   
   here Wednesday could open Mississippi to a flood of prison lawsuits, a   
   lawyer says.   
      
   Jackson lawyer Hunt Cole, representing the state, told a three-judge   
   federal panel that the American Civil Liberties Union should not have   
   handled the case that led to the state being found in violation of the   
   constitutional rights of death row inmates.   
      
   Cole is handling the state's appeal of a decision in May by U.S.   
   Magistrate Jerry Davis that found that conditions like the rantings of   
   psychotic inmates, mosquitoes and excessive heat constitute cruel and   
   unusual punishment.   
      
   Cole told judges Harold DeMoss, James Dennis and Edward Prado that a   
   mechanism for prisoner appeals is included in Gates v. Collier, a   
   prison lawsuit first brought in 1971.   
      
   "Gates provides an orderly way to address complaints of prisoners, who   
   are all bound by Gates as a part of its class," said Cole, who spent   
   13 of his 20 minutes on the argument. "If Gates doesn't mean anything,   
   then we will have lawsuits coming from everywhere."   
      
   Margaret Winter, attorney for the ACLU's Prison Project, dismissed   
   Cole's argument as frivolous.   
      
   "The state wanted to argue against (Gates case attorney Ron Welch),   
   the same person they always face in court," Winter said. "Our case was   
   attached to Gates by the courts."   
      
   Winter said MDOC got busy seeking American Correctional Association   
   certification of its prisons when it became apparent it would face the   
   ACLU in court.   
      
   "They had gone years without doing so," Winter said. "Then on the day   
   of the trial in May, they came up with a way to fix the toilets, which   
   expose inmates to the human excrement of others.   
      
   "It was a solution that had been tried before and does not work. So   
   they are not fixed now."   
      
   Cole said MDOC had plans to get ACA accreditation before the ACLU case   
   called Willie Russell v. Robert Johnson.   
      
   "That is an 18-month to two-year process and it's not that the ACLU   
   started anything," Cole said. "ACA approval was spelled out in Gates   
   as a solution to the suit.   
      
   "When we were seeking ACA approval, the ACLU comes in and wants to   
   impose more standards."   
      
   Cole said the state was not ready for a November 2002 death row   
   inspection by ACA when ACLU experts found the prison in poor condition   
   in August 2002.   
      
   But, Winter said, Davis discerned that conditions were "horrendous" on   
   Unit 32-C even after ACA approval.   
      
   "(Davis) had the benefit of seeing the actions of the state, hearing   
   the contradictions in testimony and their attitude," Winter said.   
      
   Winter said one state expert told Davis that the malfunctioning   
   toilets "would bother someone middle class, but not many of the   
   inmates on death row."   
      
   "In fact, the State Department of Health had been citing the state for   
   11 years to fix the toilets as a serious health violation and nothing   
   has been done to fix it," Winter said. "It is a violation no one   
   should have to suffer."   
      
   Cole said the state has done many of the 11 improvements mandated by   
   Davis, but that some create security risks or are too expensive.   
      
   Giving inmates tennis shoes to exercise in and allowing daily showers   
   in the summer when the heat index in cells can surpass 100 degrees are   
   two steps MDOC deems as risky.   
      
   Inmates can use the shoes to attack guards or each other and moving   
   inmates for daily showers would increase risk of personal conflict,   
   MDOC officials have said.   
      
   "Davis was sensitive to security issues and would have worked with   
   MDOC," said Winter, who termed Davis' recommendations for improvements   
   as minimal. "Instead, they went to the Fifth Circuit to get a stay."   
      
   The three-judge panel could take up to nine months to decide to   
   overturn or affirm Davis' decision.   
      
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