SPECIAL MASTER'S VERIFIED EXECUTIVE
SUMMARY
The
Special Master has prepared a report containing
recommendations to the Court in connection with its
prosecution of contempt proceedings against the Federal
Bureau of Prisons and Kristi Zook, the former warden of the
Federal Correctional Institute in Seagoville, Texas
(“FCI Seagoville”). The Court initiated these
contempt proceedings in response to its discovery that BOP
employees at FCI Seagoville failed to comply with a condition
in its Order granting Defendant Frederick Mervin
Bardell's (“Mr. Bardell”) second motion for
compassionate release (“Release Order”). This
condition required BOP to release Mr. Bardell after
the United States Probation Office (“Probation”)
approved a compliant plan of release developed in
coordination with Mr. Bardell's former counsel, Kimberly
Copeland (“Approval Condition”). The Approval
Condition was not followed, and Mr. Bardell was released
before a release plan was approved by Probation.
In
addition, Mr. Bardell died nine days after his release from
FCI Seagoville. The circumstances of his release necessitated
judicial scrutiny.
Pursuant
to the Court's Order appointing him Special Master, the
undersigned was charged with: (1) investigating the
circumstances of Mr. Bardell's release; (2) prosecuting
contempt proceedings on behalf of the Court; (3) determining
whether BOP and/or Warden Zook should be held in contempt for
violating the Release Order; (4) advising on the imposition
of sanctions; and (5) preparing a report containing
recommendations to the Court on how to proceed. (Doc. 111, p
2.) The executive summary, which accompanies the
undersigned's more fulsome report, provides a concise
overview of the Special Master's investigation, his
ultimate findings of fact, and his corresponding conclusions
of law.
The
Special Master used the following fact-gathering tools in
conducting his investigation: witness interviews
depositions, informal requests for document production, and
research based on publicly available documents.
Contemporaneous notes were taken of the witness
interviews.[1] The Special Master interviewed:
Ms.
Copeland and her legal assistant; Mr. Bardell's parents
and brother; five current and former Probation officers; four
doctors, including two who submitted affidavits in support of
Mr. Bardell's motion for compassionate release and two
who treated him at Baptist Health in Jacksonville following
his release; a retired supervisory correctional systems
specialist at the Federal Correctional Complex at Coleman;
two government attorneys; and the regional medical director
for BOP's South-Central region. In addition, the Special
Master deposed 13 BOP employees.
II.
TREATMENT OF PRIVILEGED MATERIAL
The
undersigned has been sensitive to issues of attorney-client
privilege that have arisen during his investigation. In order
to conduct a robust investigation without compelling the
parties to waive privilege, the Special Master entered an
order governing the production of privileged information on
April 29, 2022. (Doc. 128.) Pursuant to that order, the
government produced a comprehensive privilege log during the
investigation. The Special Master's report does not
contain privileged information, and the Special Master was
careful to avoid eliciting privileged responses during
witness interviews and depositions.
Based
on the undersigned's review of documents produced by the
parties and witnesses, as well publicly available documents
on BOP's website, witness statements made during
investigative interviews and depositions, and the
undersigned's assessment of the witnesses'
credibility during the same, the Special
Master
makes the following findings of fact.
• The Approval Condition in the Release Order was
lawful, clear, and unambiguous.
• The Approval Condition required BOP to wait to release
Mr. Bardell until it received approval of a release plan from
Probation.
• This condition was consistent with BOP policy and
practices already in place at FCI Seagoville.
• BOP and Warden Zook had the ability to comply with the
Release Order.
• FCI Seagoville employees responsible for carrying out
release procedures provided one of three reasons for not
complying with the Approval Condition: (1) they did not read
the Release Order; (2) they did not heed the Approval
Condition; or (3) they assumed that the Approval Condition
had been met.
• The foregoing reasons demonstrate that the relevant
employees did not make all reasonable efforts to comply with
the Approval Condition.
• The actions of the FCI Seagoville employees grossly
deviated from reasonable conduct.
• At the time of Mr. Bardell's release, Warden Zook
had responsibility for administrative and organizational
controls at FCI Seagoville, as well as the technical and
administrative direction of subordinate employees.
• At the time of Mr. Bardell's release, Warden Zook
had full authority and responsibility to carry out court
orders directed to FCI Seagoville.
• Prior to Mr. Bardell's release, there was no
system in place to ensure that FCI Seagoville employees
complied with all conditions of judicial release orders.
• The subsequent remedial measures that Warden Zook
implemented at FCI Seagoville were not put in place to
prevent FCI Seagoville employees from failing to comply with
future release orders but, rather, to avoid a finding of
contempt and the imposition of sanctions in these
proceedings.
• At the time of her deposition, Warden Zook was the
warden at a different BOP facility, specifically the Federal
Transfer Center in Oklahoma City, Oklahoma (“FTC
Oklahoma City”).
• At the time of her deposition, Warden Zook had not put
procedures in place to ensure that she had oversight over
compliance with release orders at FTC Oklahoma City.
• At the time of her deposition, Warden Zook did not
have plans to incorporate the changes she made at FCI
Seagoville at her new facility.
• BOP is responsible for transporting released inmates
to the location where they will be residing. This
responsibility includes payment for transportation.
• Because BOP did not want to pay for a non-contract
flight for Mr. Bardell, FCI Seagoville employees asked Mr.
Bardell's parents to pay for a commercial flight.
• If Mr. Bardell's parents had been unable to pay
for and book his flight, BOP would have paid for a
non-contract flight.
• BOP directed Mr. Bardell's parents to pay for his
release transportation before receiving approval of a release
plan from Probation.
• This direction did not comply with the Approval
Condition in the Release Order.
• The cost of Mr. Bardell's flight on February 8,
2021, was $494.20.
• Mr. Bardell's parents incurred this cost due to
actions taken by FCI Seagoville employees to authorize Mr.
Bardell's release prior to satisfying the Approval
Condition.
• Ms. Copeland had a telephone call with Mr. Bardell on
the morning of his release.
• During this call, there was no expectation of a
confidentiality because there were clearly marked signs
around the phone stating that the call would be recorded.
• FCI Seagoville designates separate phones for
unrecorded, privileged calls.
• On the call, Ms. Copeland agreed that BOP could book
Mr. Bardell a commercial flight to Jacksonville so that he
could leave FCI Seagoville on February 8, 2021, without
incurring expenses for air ambulance transport.
• At the time she agreed, Ms. Copeland was unaware of
the extent of Mr. Bardell's physical condition. She did
not know how weak he was or how difficult it would be for him
to travel on his own.
• The Probation officers who worked on Mr. Bardell's
release plan knew that Mr. Bardell would be released to a
hospital in Jacksonville.
• The Probation officers did not know that Ms. Copeland
intended for Mr. Bardell to be transported to the hospital
via air ambulance.
• Even if BOP had complied with the Approval Condition,
Mr. Bardell may still have travelled to Jacksonville on a
commercial flight.
• Two days before the Court issued the Release Order,
FCI Seagoville diagnosed Mr. Bardell with cancer.
• FCI Seagoville employees who met with Mr. Bardell on
the day of his release had the opportunity to observe his
physical condition. That day, Mr. Bardell complained of
weakness and asked to sit down during a meeting with the unit
secretary. He later requested a wheelchair. He was pushed in
a wheelchair to the receiving and discharge center at FCI
Seagoville immediately before he left the facility.
• Once released, Mr. Bardell was driven to the Dallas
Fort-Worth airport and left at the curb. He had to make his
way through DFW and a connecting flight in Atlanta without
any assistance. He was in a bloodied and soiled condition
when he arrived in Jacksonville.
• FCI Seagoville employees provided Mr. Bardell with a
flight, rather than bus transportation, because of the
distance to be traveled and in response to concerns
communicated by Mr. Bardell's mother regarding his
health.
• FCI Seagoville employees did not consider whether any
other assistance should have been provided to Mr. Bardell in
light of his physical and medical condition.
• Most of the FCI Seagoville employees who processed Mr.
Bardell's release were unaware of his medical condition
because they did not read the Release Order.
• The costs and expenses of the Special Master's
investigation would not have been incurred if BOP and Warden
Zook made all reasonable efforts to comply with the Release
Order.
In view
of the foregoing findings of fact, and the Special
Master's analysis of controlling and...
