Jailers 'brutalized' a dying man in an Indiana jail. A prosecutor says it wasn't a crime.
"Brutalized."
That's how one doctor described what happened to a man in a Southern Indiana jail cell.
"Sadistic" is how a veteran civil rights attorney characterized the actions of officers and a nurse recorded on the jail's surveillance camera.
Three legal experts used another term: "criminal."
They were all weighing in with their opinions on the treatment of 40-year-old Jerod Draper in the Harrison County Jail.
The video, obtained by IndyStar, reveals Draper stripped of his clothes and placed in a medical isolation cell as he began experiencing the effects of a methamphetamine overdose. He apparently ingested the drug during or prior to his arrest.
But instead of taking Draper to a doctor to treat his worsening condition, jailers handcuffed him and strapped him to a restraint chair. Not once, but twice. Each time, the officers covered his face with a hood and placed a helmet onto his head. Then they left Draper to sit alone in the cell for hours.
That wasn't all they did after strapping him into the chair for the second time.
When Draper began shaking his head back and forth — and, at times, slamming it back onto the padded chair — corrections officers and a jail nurse returned to the cell. They then applied pressure to sensitive points on his body, including near his neck. They also stomped on Draper's feet and repeatedly stunned him with a Taser. Draper screamed, begging them to stop. Jailers stunned him again. At least seven times in all.
Dr. Louis Profeta, an emergency room physician who described himself as a strong supporter of law enforcement and jails, is one of two doctors who reviewed the video for IndyStar.
"You're watching somebody sick, being brutalized, being denied medical care, OK?" Profeta said. "This is a horrible, sad, tragic case."
Profeta, who serves on the board of directors overseeing the Marion County crime lab, said it was "one of the most tragic, egregious cases of medical neglect" he's seen in a jail.
"This is the case," Profeta said, "that I would use to show every jailer in America what you don't do."
Four legal experts also reviewed the video for IndyStar. All four were shocked to see jailers not only fail to provide medical care to a person who was clearly in distress, but also repeatedly use force on someone the experts believed was complying with officers' orders, at least until he was minutes away from falling unconscious because of his rapid demise.
"I didn't see any conflict. I mean, this person was cooperating," said Michael Sutherlin, a veteran civil rights attorney who has worked on dozens of civil cases pushing for improvements in Indiana jails. "He wasn't resisting."
"I'm so angry watching that video. I can't even talk about it. It was just (expletive) appalling," said Jon Little, another civil rights attorney who has filed lawsuits seeking accountability in Indiana jails. "Everybody needs to watch it."
Their opinions, however, do not matter — at least not when deciding whether somebody could be held criminally accountable for Draper's tragic death.
In Harrison County, the only opinion that matters is that of J. Otto Schalk, the county prosecutor.
"You have to look at did a crime happen and can you prove that a crime happened?" Schalk told IndyStar. "And we evaluated this case, and we made the determination that those prongs could not be met."
He outlined his reasoning in a 30-minute interview with IndyStar. Where others see possible criminal acts, Schalk says he sees something completely different: pain compliance.
The term refers to infliction of pain, such as targeting pressure points or using a Taser, until a person complies with an officer's command. It was acceptable in the case of Draper, Schalk said, because a jail officer and nurse were trying to make him "calm down" and stop banging his helmeted head against the padded restraint chair.
"Whether or not the general public may love it," he said, "it still may be considered industry standard." That said, he acknowledged the video is "hard to watch."
It is unclear what those standards or policies are inside the Harrison County Jail. Nick Smith, who was elected sheriff after the October 2018 incident, declined two interview requests and did not answer numerous questions emailed by IndyStar about the circumstances of Draper's death.
An attorney sent a brief statement from the sheriff that said the jail has since bought a body scanner, capable of detecting swallowed or smuggled drugs, to hopefully prevent "similar incidents." In federal court, meanwhile, the sheriff's office denied any responsibility for Draper's death, even as the county reached a $1 million settlement with Draper's family.
Prosecutor Schalk, who said he's watched the jail video "hundreds of times," also noted the Indiana State Police agreed with his assessment not to pursue a criminal investigation.
A state police spokesman, however, told IndyStar that Schalk arrived at his decision prior to any state police involvement.
"Mr. Schalk had reviewed the materials and decided that no charges would be filed before sharing them with our investigators," ISP Capt. Ron Galaviz said in an email. "Any final decision on the filing of charges ultimately lies with the prosecutor."
'This is definitely criminal'
The circumstances of Draper's death were detailed in IndyStar's "Death Sentence" investigation in October. The investigation found that more than 300 people have died in Indiana county jails since 2010. That means someone dies in an Indiana jail on average every two weeks.
At the time, the Harrison County Sheriff's Office refused to release the surveillance video that recorded Draper's descent toward death. After successfully appealing to the Indiana Public Access Counselor, IndyStar acquired the footage and asked a panel of legal and medical experts to review what transpired.
When someone dies in custody in Indiana, jail officers almost never face any disciplinary action from the sheriff, let alone criminal charges from local or federal prosecutors.
Still, three attorneys said several state criminal charges could apply to what they witnessed on video.
On the low end in the state's criminal code is battery, which could range from a misdemeanor to a felony with a sentence of up to 30 years. To prove misdemeanor battery, a prosecutor would have to show the jailers or nurse touched Draper "in a rude, insolent, or angry manner."
On the more serious side is neglect of a dependent, a Level 1 felony with a sentence range of 20-40 years. A prosecutor would need to prove that the officers knowingly or intentionally placed Draper in a situation that endangered his life or health — and that Draper was mentally or physically disabled at the time.
"This is definitely criminal neglect of a dependent," said Little, one of the civil rights attorneys, "100%."
Jail nurse said he had dual roles
In the interview with IndyStar, Prosecutor Schalk deflected the criticism and offered details about why he declined to pursue criminal charges.
He did not consider reckless homicide or involuntary manslaughter because an autopsy found Draper's death resulted from a methamphetamine overdose. The coroner ruled the death as accidental, not a homicide.
The prosecutor said he relied on the science and deferred to the medical experts.
"My understanding is that prior to entering the jail, the defendant ingested a large amount of methamphetamine and the cause of death was as a result of that," Schalk said. "So I don't believe reckless homicide or involuntary manslaughter would be appropriate given the cause of death."
When asked why he did not seek a charge for neglect of a dependent, Schalk declined to elaborate.
As for the other actions inside the Harrison County Jail, the prosecutor emphasized that the facility had been accredited by the American Correctional Association, a trade association and nonprofit group that has created a voluntary set of standards for jails.
"Certainly I think it's important to know I don't run the jail," Schalk said. "You have to look at were officers following their SOPs, standard operating procedures."
Those procedures, Schalk said, allowed the infliction of pain on Draper to urge him to stop harming himself because he was banging his helmeted head against the padded restraint chair.
IndyStar could not independently verify the jail's policies on pain compliance, including the use of a Taser on someone who is already secured within a restraint chair. The sheriff's office did not answer IndyStar's written questions.
As for Schalk, IndyStar asked why it would be considered a standard operating procedure for a jail nurse to use a Taser on someone who is already restrained. Schalk said it was the jail's practice at the time to allow the nurse to carry the Taser for his own protection.
IndyStar then noted to Schalk that Draper could not have possibly posed any threat to the nurse at the time of the Taser stuns because Draper was already strapped to the chair.
"I've seen a lot of jail guards be injured, contract disease," Schalk said. "And so, to opine as to whether or not someone presents a risk when they can still flail around, when they can still projectile bodily waste, I don't know if that would be appropriate at the moment to opine whether or not (the nurse) was in danger at the time."
At the time of the nurse's use of a Taser, though, Draper's face was covered with what appears to be a mesh hood, sometimes referred to as a spit guard. And he was unable to flail his arms or legs because they were secured to the chair.
Regardless, the nurse's own explanation for using a Taser and other actions had nothing to do with protecting himself from Draper.
In a deposition taken as part of a federal lawsuit filed by Draper's family, the nurse said he had dual roles with the sheriff's office. Not only was he a full-time jail nurse, but he also worked as a reserve sheriff's deputy.
And he decided to switch roles — back and forth, minute by minute — inside Draper's jail cell, according to his deposition.
For example: When he poured peroxide on Draper's open wounds, he was working as a nurse.
But when he stomped on Draper's bare, shackled foot? He was temporarily working as an officer at that particular time.
The nurse said he was inflicting pain on Draper's foot in an attempt to keep Draper from harming himself. The nurse acknowledged that he had never been trained to do that — either as a nurse or an officer.
Still, Schalk defended the nurse's actions.
"Sometimes they will take certain steps — to the lay person they may not always understand," Schalk said, "but sometimes those practices are meant to protect the person from harm to themselves."
Doctor says nurse should lose license
Because the sheriff's office has declined to answer any written questions posed by IndyStar, it is difficult to know every step the jailers may have taken to provide medical care to Draper. What is known has been gleaned from the sheriff's court filings and a press release, as well as the jail video.
In court, the sheriff's office said Draper did not tell officers that he had ingested methamphetamine. Jailers gave him a dose of Librium, which is a medication that treats alcohol withdrawal. The sheriff's office maintains that the officers and nurse provided reasonable care to Draper, and their use of Tasers and a restraint chair were only to protect Draper from himself.
Medical experts who reviewed the video at the request of IndyStar, however, arrived at a different conclusion. They did not see reasonable care. Nor did they see a nurse trying to protect himself or help a patient; they saw a nurse making matters far worse.
"My biggest concern was the nurse, not once, ever took vital signs, never checked a blood pressure, never did anything to see physically what was going on with this gentleman," said Dr. Ron Eich, an Indianapolis emergency medicine physician. "Take 10 seconds. It doesn't take any effort."
What Draper needed, Dr. Eich said, was a medical professional to both create a plan for treatment and advocate for the patient's needs. In the jail video, Eich said the nurse did not appear to do either.
If the nurse had dropped his Taser and, instead, checked Draper's vital signs, he likely would have found that Draper's heart rate and blood pressure were seriously elevated, Eich said.
It is important for jail medical providers to monitor the vital signs of people restrained to a chair, according to guidance provided by The Legal & Liability Risk Management Institute, a Plainfield-based organization that trains law enforcement and jail staff.
The organization says that restraint "may mask medical and mental health issues," which is why jailers should "constantly" monitor someone who is strapped to the chair.
But because the nurse viewed himself as a corrections officer at various times, Eich said, the nurse's uses of force almost certainly elevated Draper's blood pressure and heart rate. And Eich was shocked to see the nurse wrap a hand around Draper's throat for several seconds.
"You can't be both. As a nurse, you're an advocate for the patient. As the deputy, you're not necessarily an advocate for the patient," Eich said. "From a nurse standpoint, he failed miserably."
He also appeared to fail as a corrections officer.
A training guide from Taser's manufacturer says that multiple uses of a Taser "cannot be justified solely on the grounds that a suspect fails to comply with a command."
"This is particularly true," the guide emphasizes, "when more than one officer is present to assist in controlling a situation." (No fewer than three jailers were present for each of the Taser stuns against the fully-restrained Draper.)
The guide adds that the decision to use a Taser "must take into consideration whether a suspect is capable of complying with officers' commands."
Dr. Profeta, the other Indianapolis physician who reviewed the video for IndyStar, said it would be impossible for Draper to comply with any orders while he was in the restraint chair because the video showed he was "completely delirious" by the time officers strapped him in.
"Anybody with an even rudimentary understanding of alcohol withdrawal or drug overdose would know that this guy is in a state of full-blown delirium," Profeta said. "(Draper is) about as sick as you can possibly be before you die. And guess what? He died. And then they sit there and then nobody even realizes he's dead."
Profeta said some of his patients have required restraints during treatment, too, but he has never seen a medical professional use a Taser.
"The entire philosophy of medicine is do no harm," Profeta said. "We don't Tase people. I've never inflicted intentional harm on a patient to control them. Are you kidding me?"
Profeta went on: "I think the nurse should be stripped of his license."
IndyStar is not naming the nurse because he has not been charged with a crime. IndyStar requested a comment through his attorney but did not receive a response. In filings made in the federal civil case, the sheriff's office said the nurse and other employees acted in "good faith" and provided "objectively reasonable" medical care.
Why the prosecutor did not file charges
In his interview with IndyStar, Prosecutor Schalk claimed that jailers called for an ambulance as soon as they learned Draper needed medical attention.
But several experts who reviewed the jail video for IndyStar said Schalk is incorrect when he says jailers immediately sought medical help for Draper.
"Well, that's just a lie. He had a medical problem as soon as he walked into the jail, and they knew that," said Sutherlin, one of the civil rights attorneys contacted by IndyStar. "It's a false statement. It's just ridiculous."
Richard Waples, another civil rights attorney who has worked on more than 50 cases involving Indiana jails and prisons, said it was "beyond the pale" to continue to inflict pain on someone who instead needed help.
"Anybody watching that video — any rational person — would come to the conclusion that the guy is not well and needs medical intervention right away," Waples said. "You can save people in his condition, but you've got to get him medical care right away."
Fran Watson, a professor at the Indiana University Robert H. McKinney School of Law, said the jailers' actions were disturbing, inhuman and made her "skin crawl with horror."
"It's not that he was resisting arrest. He's under arrest in the throes of a medical condition, strapped to a chair, helpless, with something over his face," Watson said. "And then the choice is made — clearly, the choice is made — to use a Taser on a harmless man."
Little, the fourth legal expert, said the video revealed actions that amounted to "callous indifference to human life."
"It's unbelievable," Little said. "In a county (expletive) jail that can happen to you. I don't even know what to say, man. I'm just floored by this."
If there were a prosecutor who was not biased to support law enforcement, Sutherlin added, then the jail officer, nurse and jail captain each would be "indicted and then charged."
Will federal investigators intervene?
It is unclear how many of the people are still employed at the Harrison County Jail. Again, Sheriff Smith did not answer IndyStar's written questions.
However, public records show that the nurse was still employed by the sheriff's office at least in 2020.
While the local prosecutor and Indiana State Police declined to pursue a criminal investigation into the matter, several experts emphasized one last avenue for potential criminal accountability: the federal government.
Three of the legal experts who reviewed the video told IndyStar they witnessed several potential constitutional violations, which the FBI and U.S. Attorney Zachary Myers would be empowered to investigate.
A spokesman for Myers' office declined an IndyStar interview request.
That said, a spokeswoman for the FBI's Indianapolis field office said the FBI is aware of the incident inside the Harrison County Jail but declined to confirm or deny a federal investigation, citing FBI policy.
In civil court, Harrison County recently agreed to a $1 million settlement with Draper's family, which will help provide for his teenage daughter. His mother, Vicki Budd, still questions why no criminal investigators appeared to take seriously the role that jailers played in her son's death.
"If they had cared about Jerod, at all, they would have gotten him medical treatment," Budd said. "And instead, they put him in a chair and tortured him until his heart stopped and his brain died. And that's what they did."
"And to me," she added, "that's criminal."
Contact Tim Evans at 317-444-6204 or tim.evans@indystar.com. Follow him on Twitter: @starwatchtim.
Contact IndyStar investigative reporter Ryan Martin at ryan.martin@indystar.com or by phone, Signal or WhatsApp at 317-500-4897. Follow him on Facebook or Twitter: @ryanmartin.
This article originally appeared on Indianapolis Star: Dying Indiana man 'brutalized' inside Indiana jail, experts say
