Case 6:08-cv-01241-DNH-ATB Document 138 Filed 11/08/10 Page 1 of 8

November 8, 2010

The Honorable Andrew T. Baxter

United States Magistrate Judge
United States District Court
for the Northern District of New York
Federal Building and U.S. Courthouse
100 South Clinton Street
Syracuse, NY 13261

Re: Thompson v. Johnson, No. 08-CV-1241 (DNH/ATB)

Dear Judge Baxter:

Pursuant to the Court’s direction, the Plaintiff files this letter brief in support of her
request to take the depositions of Jeffrey Delorme and Robert Hoefs in this action, as well as
her request that prior and prospective court filings be unsealed by the Court. Given the
pendency of discovery, and the uncertainty about the success of informal discovery efforts, the
Plaintiff will also detail all other witnesses that she currently believes will be necessary to
depose. Finally, the Plaintiff will address Defendants Wynn, Graves and Strauser’s
interrogatories.

1. The Plaintiff’s Request to Take Additional Depositions

As the Court is aware, the Plaintiff has previously requested leave of court to take more
than ten depositions. During a discovery conference on September 22, 2010, the Court
provided specific guidance to the Plaintiff regarding the burden she would need to meet to take
any depositions beyond the named Defendants and the Medical Examiner. My understanding
of the Court’s direction was that the Plaintiff was required to informally contact the various
witnesses in this action to secure their testimony by means other than depositions and, should
those efforts be unsuccessful, apply to the Court, detail those efforts, and seek leave of Court
to take the respective depositions after conferring with the Defendants. Prior to filing this letter
brief, the Plaintiff attempted to confer with the Defendants about prospective depositions going
forward, and reach some consensus about additional depositions given the Court’s guidance.
The Defendants have refused to engage in a dialogue on this issue. The Plaintiff notes for the
Court that, during a prior conference, the Defendants sought to block the Plaintiff from
deposing the Medical Examiner (Dr. Michael Sikirica) who conducted Darryl Thompson’s
autopsy -- at the same time two counsel for the Defendants had an opportunity to interview Dr.
Sikirica at great length. The Plaintiff respectfully maintains that the Defendants’ position in
opposing highly relevant depositions, in the absence of attempting to reach a consensus with
Plaintiff’s counsel in this regard, represents an effort to obstruct discovery in this highly
complex civil rights case rather than a good faith concern over the “cumulative” nature of the
depositions. As the Plaintiffs will detail in this letter, the depositions of Robert Hoefs and
Jeffrey Delorme are highly relevant to this litigation and, in light of the testimony of three
 Case 6:08-cv-01241-DNH-ATB Document 138 Filed 11/08/10 Page 2 of 8
The Honorable Andrew T. Baxter
November 8, 2010, Page 2
Re: Thompson v. Johnson
 
Defendants, these depositions are essential to the Plaintiff’s search for truth regarding the
death of her son.

Plaintiff’s Prior Efforts to Address Hoefs and Delorme’s Depositions

The Plaintiff has previously subpoenaed Hoefs and Delorme for depositions in this
action, without any objection from the Defendants. As the Court may recall, the Plaintiff
initially sought to add Hoefs and Delorme as Defendants in this action in April, but withdrew
that request after consultation with the Court.The Court later provided Plaintiff with leave to
amend her Complaint to assert claims against two other Defendants (Dorsy Brown, Edward
Ausborne), and stayed this action for several months while these Defendants obtained counsel
and filed an answer. Following the conclusion of this stay, the Plaintiff sought to reschedule
these depositions, and met with resistance from the Defendants.

The Plaintiff conferred at length with counsel for the agency Defendants, AAG Roger
Kinsey, about these depositions following the Court’s direction to engage in informal discovery.
As part of those discussions, the Plaintiff agreed that Hoefs and Delorme where represented by
the New York State Attorney General in this litigation, and that they could not be contacted
and interviewed in the absence of counsel. See, Niesig v. Team I, 76 N.Y.2d 363 (1990).
Specifically, while not Defendants in this action, Hoefs and Delorme’s actions will be
thoroughly scrutinized as part of a companion action in the Court of Claims, and their actions
will fairly be imputed to New York State as part of that action. In short, the Plaintiff’s counsel
cannot ethically contact either Hoefs or Delorme outside of the discovery process, and must
resort to the formalities of a deposition to secure their testimony. Neither Attorney Kinsey, nor
counsel for the other Defendants, disagrees with the conclusion that Hoefs and Delorme are
represented by counsel, yet they are united in their objections to allowing these depositions.

Legal Standard

In order for the Plaintiffs to take more than ten depositions in a civil action, they must
seek leave of Court “consistent with Rule 26(b)(2).” Fed. R. Civ. Proc. 30(a)(2). “[A] court has
discretion to allow more than ten depositions if the party who is seeking discovery has shown
why it is necessary.” Victory v. Lopez, No. 02-CV-0041-S-Sr, 2008 WL 4500202, *2 (W.D.N.Y.
Sept. 30, 2008). In considering a request to take additional depositions, the Court balances
whether or not the depositions will be “unreasonably cumulative or duplicative,” as well as “the
needs of the case, the amount in controversy, the parties’ resources, the importance of issues
at state in the litigation, and the importance of the proposed discovery.” Lent v. Signature
Truck Systems, Inc., No. 06CV569S, 2010 WL 1707998, * 4 (W.D.N.Y. April 26, 2010). “Once
relevance has been shown, it is up to the responding party to justify curtailing discovery.” Id.,
at * 3.

The Importance of Hoefs and Delorme’s Testimony

There were seven Youth Division Aides (“YDAs”) present in Briarwood Cottage during
Darryl Thompson’s restraint on November 18, 2006, five of which are Defendants, Johnson,
Murphy, Freese, Crocetta and Dorsy Brown. Hoefs and Delorme are the other two, and their
testimony is the primary subject of this request to the Court.

As the Court is aware from prior filings, there are divergent facts regarding the death of
Darryl Thompson. According to the children present in Briarwood Cottage on the date of
Darryl’s death, including several children who were either in the bathroom or watching from
across the hall, Thompson was assaulted and slammed to the ground by John Johnson for
complaining about recreation time. (Bissell Notes, pp. 4-8, 23-25) (Exhibit A). Once he was
taken to the ground, Defendant Robert Murphy proceeded to grab his legs while John Johnson
 Case 6:08-cv-01241-DNH-ATB Document 138 Filed 11/08/10 Page 3 of 8
The Honorable Andrew T. Baxter
November 8, 2010, Page 3
Re: Thompson v. Johnson
 
forced Darryl’s arms up behind his back. During the course of several minutes, Darryl
Thompson repeatedly begged John Johnson not to break his arm, and also complained that he
could not breathe. As time went on, Darryl’s voice began to falter, and it became evident to
everyone that he was having difficulty breathing. Eventually, Darryl stopped making any
noise, and presumably lay on the floor dying for a period of several minutes. The Youth
Division Aides responsible for the restraint, Johnson and Murphy, claim otherwise, stating that
Thompson never complained of any difficulty breathing, and that everything during the
restraint was done appropriately. (Bissell Notes, pp. 44-50).One YDA present during the
restraint, Defendant Freese, claims he heard Thompson repeatedly state “I want my f*cking
rec,” including when Freese was inside the bathroom. (Freese Dep., pp. 20-21, 52) (Exhibit B).
Another YDA, Defendant Crocetta, heard no noises from inside the bathroom, despite being in
the cottage before Freese. (Crocetta Dep., pp. 29-30) (Exhibit C). Crocetta further testified that
he was not sure if Thompson was even breathing when he entered the bathroom for the first
time, again before Freese got there. (Crocetta Dep., p. 33).The chief investigator for OCFS,
David Bissell, predictably testified that he “believe[d] the children’s version” given this
conflicting testimony, and indicated John Johnson for child abuse accordingly. (Bissell Dep.,
Day Two, p. 145) (Exhibit D).

At the conclusion of the restraint, Defendant Brian Freese came into the bathroom and
applied handcuffs to Darryl Thompson, claiming that Thompson was breathing and responded
to his comments by looking at him. (Freese Dep., p. 84). Over the course of the next several
minutes, Freese remained in the bathroom with Thompson after John Johnson and Robert
Murphy exited, and did not check on the child. (Freese Dep., p. 84-89). According to Delorme,
Johnson and Murphy remained in the bathroom for several minutes following the restraint,
(Bissell Notes, p. 27), a fact Murphy denied during his recent deposition. Delorme further
maintains that Freese left the bathroom at one point, a representation contrary to Freese’s
testimony. (Bissell Notes, p. 27); (Freese Dep., pp. 88-89). Finally, at some point in time,
either Jeffrey Delorme and/or Robert Hoefs entered the bathroom, and it was determined that
Darryl Thompson was not breathing. Freese could not determine whether or not John
Johnson reentered the bathroom, despite Johnson and Delorme informing Bissell that Johnson
did return to the bathroom. (Freese Dep., p.101); (Bissell Notes, pp. 27, 46). Delorme
apparently was the first person to recognize that Thompson was unconscious, despite the
presence of three other YDAs in the bathroom during and immediately following the restraint.
In response to an extensive examination, Freese claimed he did not perform CPR on Thompson
because Delorme was having difficulty removing handcuffs from Thompson’s wrist, and this
effort took several minutes.(Freese Dep., pp. 13-14). In Delorme’s statements to David Bissell,
he makes no mention of any problem with handcuffs other than being “panicky,” and he
further indicated that “approximately 5-6 times in the past he has observed residents become
unconscious due to restraints.” (Bissell Notes, p. 27). An inquiry in this last statement is key
to the Plaintiff’s case, in that she maintains that the reason no one checked on her son after he
became unconscious was that it was routine at Tryon for children to lose consciousness during
prone restraints. Furthermore, the Plaintiff would also like to inquire regarding Mr. Delorme’s
statement that “Mr. Murphy, Mr. Johnson and Mr. Freese had no idea Darryl was injured.”
(Bissell Notes, p. 27).

Hoefs’ involvement with Darryl Thompson appears to be more limited, and his
examination will be brief. Regardless, Hoefs expressed some confusion about who was present
in the bathroom with Thompson prior to his arrival, and he further stated that “the cuffs go on
a child even if the child is unresponsive.” (Bissell Notes, p. 34). Hoefs also stated that he did
not hear any yelling coming from the bathroom, despite testimony from Freese and Murphy to
the contrary. The Plaintiff would like to question Mr. Hoefs regarding these issues. Should the
Court allow for Mr. Hoefs’ deposition, the Plaintiff will consent to a time limitation on his
prospective examination.
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The Honorable Andrew T. Baxter
November 8, 2010, Page 4
Re: Thompson v. Johnson
 
Suffice it to say, the Plaintiff maintains that the testimony of Hoefs and Delorme is
highly relevant in this action, and that their depositions are appropriate. In light of the
continued uncertainty amongst the Defendants as to who was present during Thompson’s
restraint and death, and the conflicting statements given to Investigator Bissell about the
handcuffs issue, the Plaintiff’s request to take this testimony is well-founded and compelling.
Additionally, the Defendants bear the burden of proving that the proposed testimony is
cumulative of other depositions. Based on the facts detailed here, these depositions certainly
are not cumulative. Additionally, an examination by counsel of Hoefs and Delorme will be
more thorough than brief investigatory interviews and voluntary statements, further
undermining a claim that their testimony is cumulative. The Plaintiff respectfully requests that
the Court allow for the depositions of Robert Hoefs and Jeffrey Delorme.

Other Prospective Depositions

Pursuant to the Court’s instructions, the Plaintiff has endeavored to use informal
methods to limit depositions and expenses in this action. Those efforts are ongoing, and may
affect a future request for leave to take additional depositions. As an initial matter, the Plaintiff
believes that most, if not all, of the juvenile witnesses interviewed by IAB Investigator David
Bissell will voluntarily provide statements to the Plaintiff in support of her claims in this action.
Consequently, those individuals are not detailed in this letter. Additionally, in the absence of
an application for a protective order, the Plaintiffs will interview a number of OCFS employees
regarding their knowledge about Darryl Thompson’s death, their knowledge of John Johnson’s
propensity for violence against youth at Tryon, and their knowledge and impressions of OCFS
policies and procedures. These individuals are also not included in this letter. The Plaintiff
will address witnesses to Darryl Thompson’s death, and the later investigation, first, and then
address policy and procedure claims against the agency Defendants.

The Plaintiff maintains that the following individuals should be deposed regarding
issues unique to the Tryon Residential Facility, for the following reasons:

1. Duane Christensen – Youth Division Counsel – Mr. Christensen was the

administrator on duty at Tryon at the time of Darryl Thompson’s death. Mr.
Christensen interviewed several YDAs that were present at the time of this incident,
including Defendants Johnson and Murphy. The statements attributed to Johnson
and Murphy by Mr. Christensen directly contradict Murphy’s testimony, and
Johnson’s prior statements. Mr. Christensen further stated that he “had concerns
about Mr. Johnson being physically abusive to children in the past because he had
two residents transferred to his cottage because they were involved in incidents
involving restraints that Mr. Johnson had conducted and there was an investigation
into the matter.” (Bissell Notes, p. 42). The Plaintiff would like to make a further
inquiry of Mr. Christensen regarding these issues, and believes that Mr. Christensen
would be covered under the purview of the Niesig decision.
2. BCI Investigator Walter Hadsell – Investigator Hadsell was the primary State Police
Investigator assigned to the Thompson matter, and conducted his own investigation
separate and apart from David Bissell. Hadsell has also conducted several other
criminal investigations at Tryon. In the course of his investigation notes, Mr. Bissell
details that “witnesses were not separated, the facility had conducted their own
investigation and the facility’s administration did not fully cooperate with their
initial needs of access to witnesses and documentation. Investigator Hadsell stated
that Tryon has failed to report criminal behavior in a timely manner on past cases.”
(Bissell Notes, p. 39). The Plaintiff would like to make an inquiry regarding these
issues, something she maintains is reasonable under the circumstances. Counsel’s
past experience with the State Police is that they require a formal subpoena before
 Case 6:08-cv-01241-DNH-ATB Document 138 Filed 11/08/10 Page 5 of 8
The Honorable Andrew T. Baxter
November 8, 2010, Page 5
Re: Thompson v. Johnson
 
speaking with anyone about a law enforcement matter, hence an informal interview
with Mr. Hadsell will likely not be possible.
3. Rainer Feyer, P.A. – Physicians’ Assistant Feyer participated in discussions
regarding the purchase of a defibrillator for Tryon after the death of a staff member.
According to Joan Venerosa, a defibrillator (which generally costs less than
$2,000.00) was not purchased because of concerns over cost. (Venerosa Dep., p.
49) (Exhibit E). Apparently, Mr. Feyer was involved in this decision, and was in
contact with Tryon Administration. One of the claims raised by the Plaintiffs in this
action is that policymakers at the Office of Children and Family Services were
deliberately indifferent to the health of children by refusing to purchase
defibrillators for use by medical staff. The Plaintiff believes this deposition will be
very short. The Plaintiff believes that it is unlikely that Mr. Feyer will speak with
her counsel voluntarily, but counsel has not yet attempted to contact him.
4. Janine Rorick, R.N. – Nurse Rorick was present the day of Darryl’s death, and
performed CPR in an effort to revive him. According to her statements to David
Bissell, Nurse Rorick has apparently treated a number of children who were
unresponsive during restraints. (Bissell Notes, pp. 19-20). Furthermore, there has
been testimony in this action that nurses at Tryon were “punished” and had their
assigned car taken away, something that would have affected response time relative
to Darryl Thompson’s situation. The Plaintiff believes it is unlikely that Nurse
Rorick will speak with her counsel voluntarily, but he has not yet attempted to
contact her.

The Plaintiff has recently served a large document subpoena on OCFS which may reveal
the names of additional witnesses at Tryon.

Relative to policy and practice claims, the Plaintiff believes that the following
depositions of non-parties are appropriate and necessary. The Plaintiff cannot contact these
individuals directly, as they are clearly represented by counsel

1. Gladys Carrion, Commissioner, New York State Office of Children and Family
Services – Ms. Carrion took over as OCFS Commissioner shortly after Darryl
Thompson’s death. In various media reports, Ms. Carrion has been harshly critical
of OCFS prior practices, especially as they relate to the use of force and restraint
procedures. Ms. Carrion also has harshly criticized the environment at Tyron,
calling it “toxic,” and further requested that New York’s Family Court judges stop
sending children to her facilities. She also is quoted as saying that she attempted to
retrain Tryon staff to be less violent, and gave up, stating “quite frankly, I just don’t
think I can change to culture there.” Elizabeth Dwoskin, Kids in Detention: Four.
State Employees to Watch Them? 129, The Village Voice, May 20, 2010 (internet
copy attached as Exhibit F). Ms. Carrion was further quoted by New York Magazine
as having cried after visiting Tryon. The premise of the Plaintiff’s complaint is that
Darryl Thompson’s death was caused, in part, by a culture of brutality at Tryon; a
culture that has been confirmed by Ms. Carrion’s various public pronouncements.
Furthermore, the Plaintiff believes Ms. Carrion oversaw much of the investigation
into Darryl Thompson’s death. The Plaintiff’s request to take her testimony is well-
founded, and should be allowed by the Court.
2. Medical Director, New York State Office of Children and Family Services – The
Plaintiff may depose the Medical Director of the Office of Children and Family
Services, who was employed in that capacity at the time of Darryl Thompson’s
death. The scope of that examination would be the known dangers of positional
asphyxiation during prone restraints, the efforts of OCFS to monitor staff members
to ensure they are not conducting restraints improperly, and the efforts of OCFS to
 Case 6:08-cv-01241-DNH-ATB Document 138 Filed 11/08/10 Page 6 of 8
The Honorable Andrew T. Baxter
November 8, 2010, Page 6
Re: Thompson v. Johnson
 
end prone restraints in residential facilities. This individual may be “Dr. Cohen.”
(Bissell Dep., Day Two, p. 121).
3. Rule 30(b)(6) deponents on two issues; a) efforts to train Tryon personnel; and b)
investigations by OCFS regarding the deaths of Jamar Griffiths and Lee Jackson.

A. The Plaintiff may want to take the deposition of the chief trainer for Tryon
regarding OCFS training efforts about restraint techniques, emergency procedures
and the risk of positional asphyxiation.

B. Darryl Thompson is the not first child to die in the custody of the Office of
Children and Family Services; Jamar Griffiths and Lee Jackson preceded him. Just
as in Darryl Thompson’s case, public outcry caused extensive investigations into
OCFS practices that, for all intents and purposes, resulted in little positive change
in the organization. The Plaintiff plans to take discovery regarding these prior
deaths to demonstrate that senior OCFS personnel were well aware of the dangers of
prone restraints, and did next to nothing to avoid those risks, policies that led to
Darryl Thompson’s death.
4. Dr. Michael Baden – It is the Plaintiff’s understanding that Dr. Michael Baden was
called to investigate the asphyxiation and later death of Lee Jackson. Upon
information and belief, Dr. Baden was called upon to provide technical assistance to
the Office of Children and Family Services, and provided an extensive report. It is
also the Plaintiff’s understanding that almost all of Dr. Baden’s recommendations
were ignored by OCFS. The Plaintiff has served an extensive discovery request upon
the Office of Children and Family Services, and may withdraw this deposition
pending responses to that request.

The Plaintiff’s investigation into this action continues, and this investigation may reveal
additional witnesses that may be the subject of an application to the Court. Regardless, this is
a highly complex civil rights action with a number of different, albeit concurrent, theories of
liability against the Defendants. It is also an action with important significance given the
severity of the injury suffered by Darryl Thompson, and the subsequent outcry following his
death. The request by the Plaintiff to take a limited number of depositions beyond those
proscribed under the Federal Rules should be granted.

2. The Plaintiff’s Request to Unseal All Court Submissions

The present action represents the very worst form of governmental abuse, where many
individuals with a history of violence, including John Johnson, work for an agency that has
tolerated, if not outright fostered, brutality toward young people for over a decade. Three
deaths, scores of instances of sexual abuse, and hundreds of serious injuries are the result of
the OCFS culture of brutality against children. Now, the Defendants and OCFS seek to hide
their misconduct from the public by forcing the Plaintiff to file documents relating to this action
under seal, thereby precluding the public from being able to access documents upon which
this Court will make its decisions. This court sealing also, in effect, precludes the Plaintiff, and
her counsel, from being able to discuss the truth of what happened to Darryl Thompson with
others for fear that doing so will violate the Court’s sealing and protective order.

As an initial matter, the Plaintiff’s efforts to learn the truth about her son’s death were
used against her, in that in order to gain information about how Darryl died, the Plaintiff was
forced to agree to a restrictive protective order that required court sealing. The Plaintiff
specifically requested that she be provided with an opportunity to revisit the sealing provisions
of the order at the appropriate time, and she does so by this letter motion. 
 
 Case 6:08-cv-01241-DNH-ATB Document 138 Filed 11/08/10 Page 7 of 8
The Honorable Andrew T. Baxter
November 8, 2010, Page 7
Re: Thompson v. Johnson
 
The United States Court of Appeals for the Second Circuit has made clear that the
"common law right of public access to judicial documents is firmly rooted in our nation's
history." Lugosch v. Pyramid Co., 435 F.3d 110, 119 (2d Cir. 2006). "This right to have access
to judicial documents is premised upon the public's right to scrutinize the conduct of the court
on the legal affairs before it and to know the content of a person's evidence." Adams v. Village
of Keeseville, 2008 WL 3413867, *13 (N.D.N.Y. 2008) (unsealing documents regarding motion
for disqualification). For a document to be designated a judicial document "the item filed must
be relevant to the performance of the judicial function and useful in the judicial process."
United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). "Documents may be sealed if
specific, on the record findings are made demonstrating that closure is essential to preserve
higher values and is narrowly tailored to serve that interest. Broad and general findings by the
trial court, however, are not sufficient to justify closure." Lugosch, 435 F.3d at 120 (citations,
quotations omitted). The use of court sealing in an action involving the misconduct of
government officials is especially frowned upon because “there is a strong, legitimate public
interest on the part of the citizenry to have unfettered access to court proceedings, particularly
when they involve elected officials and the performance of their governmental responsibilities.”
Ottati v. City of Amsterdam, No. 6:06-cv-1370, Decision and Order, p. 11 (N.D.N.Y., January
25, 2010) (attached as Exhibit G) (quoting, Flaherty v. Seroussi, 209 F.R.D. 295, 300 (N.D.N.Y.
2001).  

Here, the Plaintiff respectfully suggests that all submissions made to this Court are
judicial documents. The Defendants opposed the Plaintiff’s efforts to amend her complaint,
forcing her to submit a substantial number of documents to the Court to substantiate those
amendments. The Court agreed with the Plaintiff’s proposed amendments following its review
of these documents. Now, the Defendants oppose the Plaintiff’s efforts to take highly relevant
depositions in this action, and the Plaintiff is again forced to detail to the Court the factual
bases for these deposition requests, requiring the Court to issue a ruling. Nearly all of the
documents underlying these disputes have had to be filed under seal given the Court’s
protective order, something the Plaintiff respectfully suggests is improper.Several courts have
not limited Lugosch’s holding to documents involved in a summary judgment filing, but rather
have applied the holding to a range of court filings. See, Adams v. Village ofKeeseville, 2007
WL 3413867 at * 13 (motion for disqualification); ABC v. DEF, 2008 WL 1809338, * 1 (S.D.N.Y.
2008) (pro hac vice motion; "These litigations do not relate to a matter of national security, an
issue before a grand jury, the rights of a sexual abuse victim or the interests of an infant ... The
public's business is done in this courthouse by a district judge whose salary is paid by the
public ... I will not permit "off-the-books" litigation in the public arena."); U.S. v. Tangorra, 542
F. Supp.2d 233, 237 (E.D.N.Y. 2008) (sentencing documents); Children First Foundation, Inc. v.
Martinez, 2007 WL 4344915, *20 (N.D.N.Y. 2007) (documents submitted to Court for in camera
review and later ordered disclosed); Guess America, Inc. v. Guess?, Inc., No. 09 Civ.
4373(SAS/JLC), 2010 WL 1416896, * 2 (S.D.N.Y. April 8, 2010) (motion documents). The
documents filed with the Court are judicial documents, and should be available to the public.
The Plaintiff agrees that documents identifying juveniles should be protected. These records
can be protected, however, through an order requiring redaction. See, Standard Inv. Chartered,
Inc. v. National Association of Securities Dealers, 2008 WL 199537, * 9 (S.D.N.Y. 2008) ("One
way to achieve narrow tailoring is to order redaction instead of wholesale sealing of
documents").

Additionally, the Plaintiff seeks relief from the protective order to be able to file a motion
in Fulton County Court to unseal the minutes of the Fulton County Grand Jury. The Fulton
County Grand Jury’s report quotes from transcribed proceedings extensively, and further finds
that “Resident Darryl Thompson was talking, breathing, responding to staff commands and
starting to calm down.” (Grand Jury Report, p. 6) (Exhibit H). This representation has been
reprinted in several news accounts about Darryl Thompson’s death. Based on my review of all
of the discovery materials produced to date, I am unaware of any documents reflecting that
 Case 6:08-cv-01241-DNH-ATB Document 138 Filed 11/08/10 Page 8 of 8
The Honorable Andrew T. Baxter
November 8, 2010, Page 8
Re: Thompson v. Johnson
 
Thompson was verbally communicating with staff after this restraint besides Defendant
Freese’s questionable and self-serving testimony. In fact, most of the proof, including the
uniform testimony of the children present that day, is that Thompson was silent, and
presumably dying, at the conclusion of the restraint, and no one attempted to check on him, or
help him, until it was too late. The Plaintiff has concerns about the reliability of this Grand
Jury Report, and plans to contest its admission at trial. As part of that effort, the Plaintiff will
move the Fulton County Court to unseal the proceedings before the Grand Jury. Should that
effort fail, the Plaintiff will move this Court to unseal those proceedings. See, Hewitt v. City of
New York, No. 09cv00214 (CPS/MDG), 2009 WL 2957924, * 1 (E.D.N.Y. September 11, 2009).
The Plaintiff should be allowed to request that the Grand Jury proceeding be unsealed on a full
record, and should not have to seal their filing seeking to have this public proceeding, which
resulted in a published report, unsealed. The Plaintiff requests leave of court to file documents
in this prospective state court proceeding in the public record, redacting the names of juveniles
as well as any other identifying information covered under the Court’s Local Rules.

3. The Defendants’ Interrogatories

Defendants Lee Wynn, R.J. Strauser and Jeffrey Graves have served a number of
interrogatories upon the Plaintiff, to which they are entitled to a response. The Plaintiff will
respond to these interrogatories, to the extent they are able given that they are all contention
interrogatories, by the time of the conference with the Court on November 19, 2010.
 
Conclusion

The Plaintiff respectfully requests that the Court grant her leave to take additional
depositions, as detailed in this letter, and that the Court order that all prior and prospective
court filings be unsealed.

The Plaintiff thanks the Court for its consideration of this request.

Respectfully Yours,

/s Elmer Robert Keach, III

Elmer Robert Keach, III

Enclosures (by overnight mail, to be delivered on November 10, 2010)

cc:

All Counsel of Record

(Enclosures by Electronic Mail)