HMP riot trial: Defence targets senior staff in negligence claims
Defence lawyers say managers at Her Majesty's Penitentiary were criminally negligent last February when they did not act in advance to prevent a notorious riot at the prison's chapel.
Nick Avis, who is defending Justin Harvey, and Nick Westera, who is defending inmate Calvin Kenny, on Friday filed court documents that allege specific HMP managers knew that something wasn't right on and before Feb. 9, the day that several inmates jumped convicted killer Kenny Green.
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The lawyers name Assistant Supt. Owen Brophy, Capt. Frank Lee, Capt. Diane Gibbons and Acting Sgt. Mike Stevenson in their application.
Avis and Westera are asking for a stay of proceedings. The Crown has already state it would oppose this application.
Harvey, Kenny and fellow accused Jody Clarke are on trial for their alleged participation in the riot.
Another man, Justin Wiseman, was convicted and sentenced last week, while a fifth man — Philip Pynn, who earlier this month was found guilty of manslaughter in the shooting death of Nick Winsor — is being tried separately. A sixth man, Paul Connolly, pleaded guilty and was convicted earlier this year.
The riot is alleged to have been a targeted attack on Green, who would later plead guilty to manslaughter in the Tessier Place beating death Joey Whalen.
If the application is granted, there's no indication how it could impact the other accused in the trial.
The threat was real
In the statement of facts entered on Friday, Avis said management knew there was a real threat against Green, which led them to keeping Green's and Pynn's units separate.
He said management was informed of the threat, knew it was real, and should never have allowed inmates from the two units to be in the chapel at the same time.
Avis stated that he does not hold the correctional officers and guards accountable for what happened, and management should have acted on the information they had to avoid a situation like the riot.
Two days notice
According to Avis's documents, Capt. Frank Lee testified at trial that he received information from an "unreliable source" that something could happen if Green was brought to chapel.
Lee was also ordered to inform the captains' and sergeants' offices via email. He had discussion with Capt. Diane Gibbons and an Acting Sgt. Stevenson, and expected the information to be passed on.
According to testimony entered in the statement of facts, the exchange between Lee, Green and other HMP staff happened two days before the incident.
However, some guards stated the first they heard of something going down was the day of the riot.
Other guards said they were surprised Green and Pynn were allowed in the same room at all, when only two or three weeks before the riot Green had to be escorted around HMP because of threats against him.
Concerns about safety
Capt. Gibbons, who did not testify at trial, said she received an email from Lee on Feb. 7 indicating there would be a threat against Green if he attended chapel service that coming weekend.
Gibbons said later that same day, Lee spoke to her about the matter, and Lee had told her he spoke with Green about it.
The two agreed Gibbons should contact Brophy and Lee prior to the Salvation Army service to express their concerns about safety.
Gibbons spoke to Stevenson. She told investigators that Stevenson said he had ample staff working and they should be able to accommodate the service.
Surveillance video entered as evidence shows there was one correctional officer in the chapel when the fight broke out.
The video also shows several inmates beating Green, with Connolly using a broken pew to smash Green's head.
The Crown and defence will argue Friday's application on Dec. 2.