PORTSMOUTH, Va. (WAVY) -- The Portsmouth Commonwealth's Attorney's Office released a 166-page report Wednesday detailing their investigation into the 2015 death of Jamycheal Mitchell in his cell at the Hampton Roads Regional Jail.
Although the report calls Mitchell's death "tragic and likely avoidable," the Commonwealth Attorney's Office has determined that "no charges can be sought at this time" based on missing information that would help the prosecutors determine probable cause.
"After considering the relevant statute regarding abuse of incapacitated adults and its affirmative defenses, we are still missing a great deal of information that would make clear whether probable cause exists to charge specific persons for specific events and whether an affirmative defense applies," the report states.
"This case is a sad referendum on how people in positions of power and responsibility become cogs in an unfeeling wheel, immune to the plight of the weakest and most vulnerable among us," the report continues.
Mitchell was mentally ill, and died on Aug. 19, 2015 while waiting to be transferred from the HRRJ to Eastern State Hospital in Williamsburg.
Mitchell was arrested on April 22, 2015 for trespassing and stealing $5 in snacks from a 7-Eleven on George Washington Highway in Portsmouth.
Mitchell was diagnosed as "manic and psychotic," and a judge ordered for him to be transferred to Eastern State Hospital so he could be restored to competency. That transfer never happened, according to a Department of Justice report released in December.
Before his death, Mitchell spent 100 days in restrictive housing at the HRRJ. He was put in restrictive housing for refusing to be tested for tuberculosis. He remained there under the classification "administrative restriction -- unable to adapt," according to the DOJ.
The DOJ alleges that that classification is used by the HRRJ for mentally ill prisoners who have a hard time obeying orders and rules.
"If one HRRJ officer had enough compassion for Jamycheal Mitchell to take up his cause, demand that he be properly treated for his clear outs of mania, psychosis, and refusals of medication, to generate the appropriate emergency reports documenting their requests and to not rest until Mr. Mitchell was stabilized and his decompensation was reversed, this report would be uncessary," the CWA report states.
During their investigation, the CWA interviewed HRRJ inmates and staff, as well as medical staff from its healthcare provider, NaphCare.
The CWA's report outlines inconsistencies in the information prosecutors were given during their investigation. Some inmates reported that Mitchell was abused, assaulted, and denied food, but also asked for "favorable treatment " in exchange for their testimony about his death. HRRJ staff said they had nonviolent encounters with Mitchell, and that he was fed "consistently," and often asked for more food, but still lost weight.
The CWA concluded that Mitchell was "likely deteriorating mentally and physically before he went into custody," and that the actions of HRRJ and NaphCare staff might have contributed to his death, but likely didn't directly cause it.
"Reports that Mr. Mitchell was fed and even overfed while at the HRRJ are credible," the CWA's reports states. "When viewed in isolation, the reports of ravenous eating accompanied by simultaneous weight loss make little sense. However, when viewed in conjunction with the medical examiner's conclusion that Mr. Mitchell died from an unknown wasting disorder (possibly Addison syndrome), his weight loss gains appropriate context."
The CWA concluded that the jail's medical provider, NaphCare" was "significantly more culpable" than HRRJ staff in Mitchell's case because they had the duty to provide him appropriate care, even though he refused treatment and medication. NaphCare staffers came into contact with Mitchell nearly every day, and had reason to know that he was seriously mentally ill, the CWA reports states.
CWA Stephanie Morales wrote in an open letter to the Virginia General Assembly that her investigation found that NaphCare probably did not do everything they should have to make sure that Mitchell understood the medical treatments available to him, and that Mitchell was likely not mentally able to provide "informed consent" for his medical care.
"Jamycheal Mitchell probably did not understand informed consent or the consequences of refusing treatment, and our office has see no evidence that NaphCare took any extra steps to ensure that he did," the CWA's report states.
Although NaphCare could not force Mitchell to accept treatment, if he had been transferred to Eastern State Hospital, the mental hospital's staff might have been able to involuntarily treat him, the CWA's report states.
NaphCare also allegedly did not fully cooperate with the Virginia State Police or the CWA's criminal investigations into their staff, including providing incomplete medical records for Mitchell to the VSP.
According to the CWA, NaphCare also prolonged the investigation into Mitchells death. The CWA requested interviews with 22 NaphCare staffers. The company took 18 months to give the CWA access to 14 of those people, and never gave the office access to others, the report states.
Grace Morse-McNelis, a lawyer representing NaphCare, said in a statement to 10 On Your Side, "We are still reviewing the Portsmouth Commonwealth Attorney’s report but disagree with the premise that NaphCare failed to cooperate. NaphCare stands by its prior statements on this matter."
In her letter to the Virginia General Assembly, Morales called for change in the form of the adoption of "Jamycheal's Law," which would address informed consent in inmates who are seriously mentally ill or incapacitated.
The proposed law, Va. Code 18.2-369.1, reads:
"In any prosection initiated ... for the neglect of an incapdiated adult, it shall not be a defense that a responsible person acted in accordance with the informed consent of an incapacitated person when the incapacitated person is an inmate in a local, regional, or state correctional facility and the incapacitated person (a) is the subject of a competency restoration order by a court of competent jurisdiction; or (b) has been diagnosed with a serious mental illness."
"Inmates with serious mental illnesses are often helpless to carry out their own wishes," Morales wrote in the letter to the Virginia General Assembly.
"They sometimes cannot communicate clearly or understand the complexities of medical and mental health decision-making. So that prosecutors have all available tools possible to investigate in-custody deaths, we call for the addition of Va. Code 18.2-369.1 to the list of crimes into which a multijurisdictional grand jury can investigate. We call for the creation of a clear statutory definition of serious mental illness. We further urge the adoption of proposed 18.2-369.1 to remove the shield of informed consent from those who are responsible for ensuring the safety and well-being of society's most vulnerable members," Morales wrote.
The Portsmouth NAACP feels let down. "My first reaction was disbelief, then saddened for our community and saddened for the family," says James Boyd, President of the Portsmouth NAACP.
Boyd thinks Morales dropped the ball. "Look, it's been nearly four years since Jamycheal's
death and no one is held responsible for failing to give medical treatment," Boyd said. "Where there is smoke there is fire, and certainly anyone can see there is smoke coming from the regional jail."
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