Private prison company Corrections Corporation of America is asking a federal judge to put an Idaho lawsuit on hold while an FBI investigation into the company is underway.
In a motion filed in Boise’s U.S. District Court the week of March 10, CCA’s attorney Kirtlan Naylor said the company wants to stave off turning over documents or taking part in depositions until the federal fraud investigation ends.
CCA has operated the Idaho Correctional Center for more than a decade. In 2012, eight inmates at the facility sued the Nashville, Tenn.-based company, contending poor management and chronic understaffing led to an attack in which they were jumped, stabbed and beaten by a prison gang. The inmates also contend that CCA covered up the understaffing in monthly reports to the state of Idaho as part of a so-called “ghost worker scheme” designed to boost profits for the company despite putting inmates at risk.
At the start of 2013, the state announced it was launching an investigation into whether CCA understaffed the facility in violation of its $29 million annual contract. The state made that decision after an investigation by The Associated Press showed CCA reports sometimes listed guards working as much as 48 hours straight in order to meet minimum staffing requirements.
CCA later acknowledged that it had understaffed the facility by thousands of hours and that employees had falsified staffing records given to the state. The company has since agreed to pay Idaho $1 million to settle the understaffing issue. CCA also strongly contends that the understaffing had no impact on inmate safety and no bearing on the attack on the eight inmates who are suing.
But last week, the FBI notified state agencies that it was investigating whether CCA officials committed fraud or any related crimes in connection with the Idaho prison.
U.S. Attorney Wendy Olson told Idaho Attorney General Lawrence Wasden in a letter dated March 7 that the state must preserve all records connected to CCA because of the FBI investigation. Olson also sent a letter to Wasden’s chief of staff, Sherm Furey, advising him that employees at the Idaho Department of Correction and other state agencies are considered essential witnesses to the investigation.
“Further public release of information from these witnesses could negatively affect the investigation,” Olson wrote in the letter, which the AP obtained through a public records request. “Ultimately however, the decision to submit to an interview in connection with pending litigation is the witness’ alone.”
CCA’s attorney, Naylor, told the court in a motion filed March 11 that allowing the depositions in the ghost-worker lawsuit to move forward could force CCA employees who aren’t even named in the lawsuit to decide whether to ignore subpoenas ordering them to attend depositions or risk providing testimony that could later be used against them in a criminal case.
Normally, if a witness invokes the Fifth Amendment right against self-incrimination and refuses to testify, a jury is free to assume that the witness’ testimony would have been negative. If CCA employees not named in the ghost-worker lawsuit plead the Fifth during depositions or a trial, a jury could assume that CCA’s defense was weak, Naylor said.
“Although little is known about the scope of the FBI’s investigation at this time, many of these witnesses are likely either unaware of the implications of the investigation or have yet had the opportunity to assess the implications for them, personally. Should a witness elect to invoke his or her Fifth Amendment privilege, CCA — the sole Defendant in this matter at this time and the subject of the FBI’s inquiry — runs the risk of being on the receiving end of the resulting negative inference,” Naylor wrote.