by Jay H. Krulewitch

This article originally appeared in the February 2022 issue of Trial News, the monthly publication of the Washington State Association for Justice.

The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. — Patrick Henry

It is not only what we do, but also what we do not do, for which we are accountable. — Molière

Wali Musse’s nightmare started on Halloween six years ago, when he was arrested for a misdemeanor traffic offense. It was not a crime of violence. It was a misdemeanor and should not have resulted in anything more than an uneventful night or two in jail. But the sad truth is that it did. On that fateful night, Wali’s life changed because of a series of individual and policy decisions made by the King County Jail. As a result of that perfect storm of mistakes, of actions taken and not taken, early in the morning hours of November 1, 2015, Wali Musse was brutally assaulted by another inmate shortly after he was booked into the King County Jail. Upon arriving at the jail, Wali was assigned to a cell on the 9th floor at around 3:00 a.m. He promptly selected a bunk and went to sleep. Approximately 18 minutes later, Mr. Musse was awoken out of a sound sleep. A deranged, psychotic, violent inmate, who had been placed into the same cell around the same time, smashed Mr. Musse in the face and head. Later, Mr. Musse learned that this inmate, Carl Anderson, had been talking to himself while walking around the cell. Other inmates reported that Mr. Anderson had been saying that a demon was telling him to hit someone. As it turned out, that “someone” was my client, Mr. Musse. By the time jail’s correctional officers were able to open the cell door and stop this brutal assault, Mr. Musse had sustained a variety of serious head and facial injuries. This brutal assault need not have happened and should not have happened.

Unbeknownst to Mr. Musse, as a result of a series of glaring policy failures and mistakes, King County Jail put a very violent, psychotic, unstable individual into the same general population cell as Mr. Musse. Mr. Anderson was beset with a number of psychiatric issues or red flags. In retrospect, he never should have been approved for initial placement into a general population cell. Mr. Anderson had a long violent criminal history including a prior custodial assault conviction, a history of suffering from schizophreniform, a history of acting pursuant to command hallucinations, and a history of being treated for mental illness in the King County Jail itself. On top of those red flags, Mr. Anderson had been acting in an extremely bizarre, irrational, and violent fashion on that very night in question. The jail knew or should have known about each one of these red flags. To begin with, the jail was aware that just earlier that evening, Mr. Anderson had been arrested for walking up to a citizen on a street in Downtown Seattle and smashing this person in the face and head. He brutally attacked this citizen for no apparent reason. No words were exchanged. The victim in that incident did absolutely nothing to provoke Mr. Anderson. It turns out that Mr. Anderson was in the midst of a meth-fueled rampage.

After being arrested for this unprovoked assault, Mr. Anderson was taken to the jail but was rejected for reasons of “meth” and “low blood pressure.” He was then transported to Harborview Medical Center where an experienced emergency room doctor evaluated him. The ER doctor indicated that he had treated many people in the Harborview ER for meth intoxication, like Mr. Anderson. In his examination, the ER doctor observed that Mr. Anderson had suffered various wounds up and down his hands and arms. When questioned about how he obtained the wounds, Mr. Anderson indicated that he had been in a meth-fueled rampage, striking all sorts of persons, signs, and other objects. Mr. Anderson further stated that he had virtually no memory of what he had been doing for the past thirty hours or so. When questioned about where he was, Mr. Anderson stated that he thought he was at a Thanksgiving Dinner with his family when, in fact, it was Halloween, and he was being treated in the Harborview emergency room. The ER doctor did not feel Mr. Anderson was safe to be released into the community due to the level of meth intoxication that he was suffering from. The only reason the doctor felt that Mr. Anderson was safe to be released was because he was being released back into the custody of an officer and was to be taken back to the jail for booking and processing.

When Mr. Anderson was transported back to the jail, shortly after his discharge from Harborview, Mr. Anderson was seen by a Jail Health Services (“JHS”) nurse who focused on his medical treatment. Scant attention, if any, was paid to the ER doctor’s notes concerning his examination and treatment of Mr. Anderson. Yet, despite having access to the important information contained in the ER doctor’s treatment notes, the JHS nurse failed to focus on the alarming descriptions of Mr. Anderson’s violent, bizarre, irrational behavior, his meth intoxication, or his reported hallucinations which were well-documented in the ER report. Instead, the JHS nurse, pursuant to JHS policy, focused his evaluation of Mr. Anderson on how he appeared at the time of booking into the jail. What happened at Harborview, what the ER doctor had observed, noted, and recorded, was considered “past history” by the JHS nurse. This policy was confirmed not only in depositions with the JHS Nurse, but with his supervisor, as well as the Director of King County Public Health. This was a glaring policy deficiency in the booking procedure of inmates. The jail, in making an initial housing determination, had a policy of delegating the initial housing decision to a JHS nurse. The JHS nurse was charged with the responsibility for deciding whether an incoming inmate should be initially housed in general population or placed into some other secure location in the jail, such as the Jail Psychological Ward. In another glaring policy deficiency, the JHS nurse did not discuss his decision with the booking officer. While there is a stated exception within HIPAA which specifically allows for the JHS nurse to share confidential medical and psychiatric information on incoming inmates with jail booking officers for reasons involving the security of the jail, the King County Department of Public Health, under which Jail Health Services operates, typically does not share such medical information with jail booking officers. As a result of this policy deficiency, the failure to share this information means that booking officers are deprived of critical information obtained by the JHS nurse who does the initial medical and psychological evaluation of incoming inmates. This initial housing decision is not discussed with the booking officer. It is merely recorded on a Receiving Screening Form. Unless there is some other flag on the incoming inmate, most inmates are approved for general population. Thus, there is no oversight or review of the JHS nurse’s initial housing decision. In this instance, this deficient policy and procedure had terrible consequences for Mr. Musse.

In addition, while the JHS nurse was able to access electronic records on incoming inmates who were previously incarcerated in the jail, the King County Department of Public Health decided, as a matter of policy, to archive past King County Jail psychological records which were in paper form and predated the use of JHS’ electronic medical records system. These older paper records were never incorporated into the electronic medical record system accessible by JHS nurses working in the booking area of the jail. In this case, the rich detail of those paper records contained ample evidence that Mr. Anderson suffered from schizophreniform, a close cousin of schizophrenia, and also suffered from command hallucinations. But unfortunately, those paper records were stored off-site, presumably in a storeroom, yet inaccessible to the JHS nurse charged with assessing Mr. Anderson in the booking area. In effect, those records might as well have not even existed. They were presumed to have minimal to no value. But, in this case, King County was completely mistaken. These records had tremendous relevance. On this night, Halloween 2015, Mr. Anderson, as he had in the past, was acting pursuant to command hallucinations. As a result, this policy decision had catastrophic implications for Mr. Musse. When you couple the violent, bizarre, irrational behavior that led to Mr. Anderson’s arrest for assault that night, with the fact that he admitted to being on a meth-fueled rampage for over thirty hours, with the fact that he had a longstanding psychological history at the King County Jail and that he had a longstanding history of acting pursuant to command hallucinations, it is unthinkable that a reasonable JHS nurse or correctional officers could put this person up in a general population cell with other inmates. By putting Mr. Anderson into a general population cell, the jail had put the physical safety of other inmates, including Mr. Musse, in jeopardy.

King County was upgrading the jail’s computer system during the 2015 Halloween weekend. This was a massive upgrade, both hardware and software. King County had been planning this upgrade of the jail’s computer system for approximately two years. As a result of this computer upgrade, booking officers did not have any access to past booking records for Mr. Anderson. Because of this computer upgrade, the jail’s computer system was down for 26 to 27 hours that weekend. That meant jail booking officers were unable to utilize the jail computer system to conduct a variety of background searches, including criminal history, for incoming inmates. Booking officers routinely relied upon that assortment of rich background information to determine what an inmate’s past criminal history was at the time of booking. Accordingly, there was no way to know whether Mr. Anderson had any other “red flags” in his background. For this reason alone, Mr. Anderson should have been housed in a holding cell in the booking area and/or some other secure holding cell until the computer upgrade had finished, the jail’s computer system was back online, and Mr. Anderson’s background could be properly evaluated. It was not safe to do otherwise. But that did not happen. Caution was thrown to the wind. Mr. Anderson was sent upstairs to the 9th floor to be housed in an open, dormitory-style cell where he was free, once again, to violently attack other inmates, just as he had done earlier that evening to a citizen in Downtown Seattle. The rest, as we know, is history. He did attack again. And this time Wali Musse paid the price.

This case was litigated in the U.S. District Court for the Western District of Washington and was set to start trial on December 6, 2021, before the Honorable John Coughenour. With the tremendous help of my co-counsel, Tim Ford, of MacDonald Hoague and Bayless, we worked this case up and were ready to go to trial. We were fortunate to win a motion for spoliation that Tim had drafted regarding the reckless destruction of the video recording evidence that would have captured all or most of the incident. Judge Coughenour had ruled on our motion for spoliation several weeks before trial. In his ruling, Judge Coughenour granted, in part, our request for sanctions. Then, a month before trial, shortly after a full day of mediation with Judge Paris Kallas, the case settled for $1.25 million. For Mr. Musse, it took over six years to receive a measure of justice for the brutal assault he endured in this incident, an assault which need not have occurred, and should not have occurred.

Jay H. Krulewitch, EAGLE member, is a sole practitioner attorney in North King County specializing in the areas of civil rights, personal injury, and criminal defense.