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U.S. judge denies V.I. gov’t attempts to block disclosure of jail video

A U.S. federal judge ruled that the public has a right to see what goes on inside the St. Thomas jail


The motion argued that all surveillance video from the jail should be confidential, “because public disclosure of this information would harm the safety and security of staff.”

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By Suzanne Carlson
The Virgin Islands Daily News, St. Thomas

ST. THOMAS, U.S. Virgin Islands — Lawyers for the V.I. government have been fighting for two years to block all public disclosure of surveillance video from the St. Thomas jail, and a federal judge recently denied the request, ruling that the public has a right to see what goes on inside the facility.

U.S. District Court Chief Judge Robert Molloy made the decision after “careful consideration and review,” according to the order entered March 15, which came two years after a lawyer for the Bureau of Corrections originally filed the motion for a protective order.

That motion, filed by Special Assistant Attorney General Kelvin Vidale in March 2021, argued that all surveillance video from the jail should be confidential, “because public disclosure of this information would harm the safety and security of staff.”

The motion requested that surveillance video be shown “in camera,” meaning it would be played in a closed-door hearing only to the judge and parties involved, but not released to the public or media.

The warden at the time, Ben Adams, said he was prepared to testify about “the risks associated with allowing the public to view footage” from the jail’s closed-circuit television system.

“The BOC surveillance system has blind spots,” said Adams, who warned “inmates may be able to take advantage of those weaknesses” if the public is able to view the tapes.

Surveillance video from the jail, also known as the Alexander A. Farrelly Criminal Justice Center, has been shown in open court for years, and The Daily News website, since May 31, 2016, has hosted video of the prisoner setting another man’s cell on fire.

But attorneys for the Bureau of Corrections raised concerns about staff security after the American Civil Liberties Union published surveillance video of a guard assaulting a prisoner on the group’s website and Facebook page in 2018.

ACLU attorney Eric Balaban argued that “in these circumstances, denying the public access to these videos presented as evidence of government officials’ misconduct is particularly unwarranted.”

Molloy is the latest judge to oversee a nearly 30-year-old federal consent decree at the jail, which came after the ACLU filed suit against the V.I. government on behalf of a class of prisoners in 1994.

The ACLU and Bureau of Corrections stipulated under a 2013 consent decree to set quarterly goals to improve the jail and ensure prisoners aren’t being held in conditions that violate their Constitutional right to be free of cruel and unusual punishment. The John A. Bell prison on St. Croix is under a similar but unrelated consent decree, overseen by a different federal judge.

The jail’s goal-setting process involves both parties and includes consultation with court-appointed security and mental health experts, who provide reports to the judge during quarterly evidentiary hearings.

As part of that process, ACLU lawyers have used video from the jail as exhibits in open court, illustrating the incidents described in the experts’ quarterly reports.

For example, surveillance video previously shown during evidentiary hearings includes footage of an accused murderer walking through several unlocked doors and stabbing another prisoner in 2017.

Former U.S. District Court Judge Curtis Gomez rejected a similar 2019 motion which sought to block public access to jail videos, and Molloy ruled on March 15, 2023, that the footage should not be under a blanket seal.

Molloy denied the government’s request for a protective order, and ordered the government to “provide access to the video footage at issue” to the ACLU’s attorney within 14 days.

If the government believes providing access to the footage could cause potential harm to Bureau employees, officers, or inmates, they must file a sealed notice within 10 days “specifically detailing how any disclosure would compromise the health or safety of any individual identified above,” Molloy wrote.

“Failure to comply with this Order will result in Defendants waiving its right to challenge the disclosure of the video footage,” he added.

On March 28, Assistant V.I. Attorney General Sheena Conway filed an “unopposed motion for reconsideration” of the order.

The plaintiffs already have possession “of any video footage at issue,” and the government’s motion “sought to protect the video footage already produced to Plaintiff,” she wrote.

“Because Plaintiffs’ counsel may access any and all video footage at will, absent a protective order, they remain able to publicize and have publicized sensitive security information from inside” the jail,” Conway wrote. “A protective order covering video footage produced by the Territory is therefore necessary and appropriate.”

Conway said the government conferred with ACLU attorney Maria Morris, “and she offers no opposition to the Court’s reconsideration of the order for the Territory to produce video footage to Plaintiffs,” and stipulated that the videos in question had already been produced.

She asked the court to “reconsider and vacate” the order, and asked that the court also order that all video footage be produced in camera, “allowing only the judge, Court clerk, parties, and witnesses in attendance to view, and protecting its public disclosure.”

On March 29, Morris filed a notice of opposition to the government’s “unopposed” motion.

Morris agreed that the ACLU already has the surveillance videos in question, but emphasized that they still opposed “any motion to reconsider any other part of the order,” regarding the government’s ongoing attempts to block public disclosure of those videos.

In another filing on April 7, Morris pointed out that government lawyers never followed up on Molloy’s order to explain how disclosure would compromise health and safety of prison staff or inmates, “and thus waived their right to challenge disclosure of the videos.”

Conway and another attorney for the government, William Lunsford, responded on April 14, and explained that they did not file the disclosure notice because they’d already asked the court to reconsider the March 15 order.

That request was filed “because it appears the Court’s decision may have been based on a misunderstanding of the facts,” because Molloy ordered them to produce video to the plaintiffs, which had already been produced, they wrote.

“The Territory does however believe that disclosure of the video footage from Plaintiffs to the public would be highly inappropriate, as articulated in the Motion for Protective Order. Accordingly, the Territory respectfully requests the Court reconsider and vacate its March 15, 2023, Order,” according to the filing by Lunsford and Conway.

After hearing from the parties at a status conference on April 26, Molloy entered an order on May 1, denying the government’s motion for reconsideration, “to the extent Defendant is seeking a protective order preventing disclosure of the video footage at issue.”

The video production issue is moot, Molloy added, because the government already provided jail surveillance video to ACLU lawyers.

That video has not yet been shared with the public or played in open court.

Molloy has scheduled a telephonic status conference for June 9, and the next evidentiary hearing has not yet been set.


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