Erie County Attorney Cheryl A. Green has thrown up a new obstacle for the U.S. Justice

Department, continuing her almost two-year stand against federal intervention with the

county's jails.

A federal judge has ordered Erie County to let suicide-prevention experts into the jails

starting a week from Monday and to let them conduct interviews.

But Green demands that the Justice Department question county employees and even inmates

only during formal depositions — with a county attorney sitting in to voice objections

as necessary.

If Green has her way, Justice Department lawyers will give her written notice of the

employees or inmates they want to speak with. From there, a deposition would be scheduled. A

county lawyer would attend. The event would be transcribed.

Green says she will only allow interviews that are under oath, on the record and in accord

with the Federal Rules of Civil Procedure. The requirement threatens to slow the Justice

Department's examination of Erie County's suicide-prevention measures.

A federal expert contends that the Holding Center's suicide rate is almost five times the

national average for jails based on the average daily population. While Green says that

measure is misleading, other figures indicate the busy Holding Center has a high rate of

suicides. The state Commission of Correction, for example, says Erie County's suicide rate is

some 82 percent above the statewide mean for county jails in New York.

At least five Holding Center inmates have killed themselves since the Justice Department

began requesting access early in 2008.

In court papers, the Justice Department responds that Green's goal is to restrict the

agency's ability to gather information by forcing expensive and time-consuming depositions.

Further, the Justice Department says, the depositions would have a chilling effect on an

inmate's willingness to speak freely about suicide prevention and mental health care inside

the county's jails.

"These actions directly violate this court's order," the Justice Department's Zazy I. Lopez

said in written documents about Green's latest stand. "They rest on the mistaken premise that,

once litigation has commenced, that the only way a party may communicate with potential

witnesses is by taking their deposition. But that has never been the law."

Both Green and the Justice Department are asking U.S. District Judge William M. Skretny to

decide the matter.

Skretny, after a spate of suicides and suicide attempts in Erie County's jails over the

previous 90 days, ordered March 6 that the county turn over a trove of documents that will

help a federal expert assess the suicide-prevention efforts at the Holding Center in Buffalo

and the Correctional Facility in Alden.

Skretny also ruled that Green and the county's Jail Management Division open the doors for

an inspection related to suicide prevention on March 22 and 23.

"County lawyers and representatives may accompany the Justice Department and will be

present when county employees are questioned," the judge wrote.

Soon after, both Green and County Executive Chris Collins said they saw Skretny's assurance

that county lawyers can be present during interviews with employees as validating the county's

long-held position.

"The judge's ruling validates our stance," Collins said. "We've never had anything to

hide." Said Green: "We've always said that we'd give them access as long as a county attorney

is present. That is extremely important from the county's perspective," she told The Buffalo

News days ago.

But Green recently explained that while "we had always told them they could tour the

facilities as long as a county attorney is present, that does not mean we would allow them to

conduct interviews outside of the Federal Rules of Civil Procedure."

Green's court papers, seeking the chance to argue her position before Skretny, say that she

cannot let the Justice Department proceed in "free-for-all fashion."

"It would be highly disruptive — not to mention dangerous — for jail personnel

to be interviewed by plaintiffs' attorneys, consultants, experts and investigators while they

are maintaining security and safety at the facility," she wrote in court papers.

In an interview, Green said Skretny could schedule a hearing quickly enough to ensure that

the Justice Department's tour still begins March 22. She said she was not trying to delay that

inspection.

The standoff developed last week.

Green on Tuesday wrote to Lopez at the Justice Department to say that while "the County of

Erie intends to comply with Judge Skretny's recent order ... logistical questions need to be

worked out."

She went on to explain that though Skretny granted the Justice Department access, the

agency is a litigant in a larger lawsuit seeking improved conditions at the jails. So the

Federal Rules of Civil Procedure apply, she said, and that means formal depositions for

employees and inmates under county supervision, even though inmates are not parties to the

lawsuit.

Green said that with inmates, she wanted a county lawyer to also pose questions during

interviews. Otherwise, she said, the Justice Department would have "the unfair advantage in

this litigation to only present testimony obtained from the inmates that is favorable to the

United States."

Shanetta Y. Cutlar, chief of the Justice Department's special litigation section, responded

in a letter that Skretny's order allowed the department to interview inmates away from county

lawyers.

"Inmates have a First Amendment right to speak to government representatives," Cutlar

wrote, "and the United States does not seek sworn testimony from inmates at this time. The

fact that incarceration places inmates within the custody and control of the county does not

make them unavailable."

Green and the Justice Department lawyers talked by telephone Wednesday to see if they could

reach an agreement and work out other logistics. But in its papers, the Justice Department

said the county held to its position and the parties are at an impasse.