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DA will not file charges in jail overdose case

Parents of deceased file civil suit

by Olivia Lueckemeyer

In a letter to Gunnison County sheriff Rick Besecker dated July 7, district attorney Dan Hotsenpiller stated he will not file criminal charges against any of the officers or deputies involved in the arrest or incarceration of Joseph “Trey” Councell Duke III, who died in the Gunnison County Jail last June after ingesting a bag of fentanyl.

It is unknown whether Duke swallowed the baggie while in jail or at some point before his arrest.

After completing a review of the investigation conducted by the Seventh Judicial District Critical Incident Investigation Team, Hotsenpiller determined that no officers involved in the case committed a “criminal act or omission” that led to Duke’s death.

“Two key conclusions are evident from any review of the facts of this case,” the letter states. “First, no officer used any force upon Mr. Duke (except for life-saving measures after Deputy Rupp found Mr. Duke unresponsive in holding cell #2 at 9:04 a.m.). Second, there is no evidence or reason to believe that any act or omission by any law enforcement officer or detention facility staff caused Mr. Duke’s death.”

On June 27, 2015, Duke was arrested outside of the Rodeway Inn in Gunnison after he was found sitting with his head between his legs on a stack of wooden pallets. When officers confronted Duke, they determined he was under the influence of drugs and also had heroin and prescription medications in his possession. He was arrested after he was found to be both on parole and violating the terms of a restraining order prohibiting him from possessing or consuming any controlled substances.

Once in jail, Duke underwent a drug recognition evaluation, which concluded that he was “under the influence of a polydrug combination of a CNS stimulant and narcotic analgesic.” Jail staff determined “Mr. Duke needed to detox as he had done before in the Gunnison Detention Facility.”

At no time did Duke request medical attention and, according to Hotsenpiller’s letter, “at no time did the officers or deputies that observed or interacted with him see any reason to believe he required medical assistance.”

This appears to be a source of disagreement between those involved in the case and Duke’s parents, represented by the Prisoner’s Justice League of Colorado, LLC, who on June 22 filed a civil lawsuit against the Gunnison County Sheriff’s Office, sheriff Rick Besecker, four deputies and five employees of the Sheriff’s Office, the Colorado State Patrol (CSP), and a CSP corporal and trooper.

According to the lawsuit, several of the defendants “were specifically aware of Trey’s condition and state of intoxication, yet none of them requested or took any action to secure a medical evaluation for Trey to determine whether medical intervention was necessary.”

The plaintiffs also accuse various Sheriff’s Office employees of not checking on Duke every 15 minutes as required for inmates “housed in holding.”

“If GCSO employees had conducted checks of Trey every 15 minutes as apparently required, they would have conducted 59 checks total,” the suit claims. “In fact, they only conducted 34 checks.”

As for the 34 checks, the plaintiffs claim that none of the defendants “entered the holding cell, spoke with Trey, or observed Trey without a metal and plexiglass barrier…” Additionally, none of the deputies were accompanied by medical personnel.

Sadly, Duke died in his cell at 9:25 a.m. the following morning. An autopsy report pointed to an “acute drug overdose” as the cause of death. His stomach contained a small plastic baggie and his gastric contents showed a high level of fentanyl. A cocktail of recreational and prescription drugs was also found in Duke’s system.

According to Hotsenpiller’s letter, if the baggie was ingested while Duke was in police custody, there is no video evidence to confirm or deny that possibility.

“Indeed, it could have occurred before officers contacted him at the Rodeway Inn,” the letter reads. “It certainly could have occurred before Mr. Duke was incarcerated. No officer observed him ingest the baggie, and the video evidence does not record him ingesting a baggie or other contraband.”

Hotsenpiller’s letter maintains that since there is no way the officers could have known that Duke swallowed the baggie, criminal negligence does not apply.

“There is simply no evidence that any officer could have been aware that Mr. Duke had a ticking time bomb in the form of a fentanyl patch in his stomach, or that the baggie would fail and release its lethal contents,” the letter states.

“There is absolutely no evidence that any officer had any reason to suspect or believe that Mr. Duke had ingested drugs and secreted a baggie of fentanyl in his stomach,” the letter continues. “Indeed, there is no reason to believe that these facts would have been discovered even if Mr. Duke had been examined by medical personnel.”

Duke’s parents claim that if a toxicity screen had been conducted while Trey was alive, the officers would have “immediately learned that Trey was under the influence of a massive cocktail of drugs that was nearly sure to kill him.” They also maintain that the officers, who knew Trey, should have known that he was at a high risk for overdose.

“None of the defendants took any reasonable measure to treat Trey’s intoxication; each of the defendants’ deliberate indifference to Trey’s intoxicated condition and attendant risk of death led to Trey’s demise on June 28, 2015; each defendant’s conduct was willful and wanton,” the suit states.

The plaintiffs are requesting damages be paid to Duke’s estate, as well as both of his parents. According to county attorney David Baumgarten, the defendants in this case have yet to be served.

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