By DENISE LAVOIE AP Legal Affairs Writer
RICHMOND, Va. (AP) — Seven sheriff’s deputies and three hospital workers should be put on trial together for the death of Irvo Otieno, who was pinned to the floor while being admitted to a Virginia psychiatric hospital, a prosecutor argued Wednesday.
All 10 defendants are charged with second-degree murder in Otieno’s March 6 death. An autopsy determined the 28-year-old man died of asphyxia while he was in handcuffs and metal leg restraints and held to the floor for about 11 minutes, Dinwiddie Commonwealth’s Attorney Ann Cabell Baskervill wrote in a motion seeking to try all the defendants together.
Baskervill argues that the 10 defendants “acted together” and should be tried together.
“It is not irrelevant that if one person here had acted differently, then Otieno may very well have been able to survive. Nor is it irrelevant that if one person had encouraged the others to act differently and urged others to stop applying lethal pressure to Otieno, Otieno might well still be with us today,” the motion states. “The fact that nobody did this is part of the problem and part of the crime charged, because the collective pressure was the cause of his death.”
Baskervill said what happened to Otieno was not unlike what happens to a football player who is tackled by numerous players as he lays face down on the field. But she noted football tackles usually last only seconds. She also wrote that the type of asphyxia that caused Otieno’s death is reminiscent of a method of execution in medieval times called “pressing.” The accused was made to lie flat on their back with a door or wooden board on their chest while the executioner piled large rocks on the board until the person either confessed to the crime or died.
Baskervill said the autopsy examination cannot determine who was on which parts of Otieno’s body at any given time. She said the most culpable people would be considered those on Otieno’s torso. “But, anyone participating in the restraint would have been contributing to Otieno’s death by maintaining his prone body position, thus preventing him from becoming supine or upright,” she wrote.
Stephen Mutnick, an attorney for Deputy Sheriff Randy Boyer, said in a statement that Baskervill’s references to medieval torture and football tackles “appear to be metaphors solely meant to manipulate the passions of the public.”
“As Mr. Boyer has maintained from the beginning, the death of Irvo Otieno is a tragedy. However, he denies that there was an illegal or wrongful act on his part,” Mutnick said.
Jeff Everhart, an attorney for Deputy Sheriff Brandon Rodgers, said in an email the defendants should not be tried together because their interests “will vary, and those interests will almost certainly, at some point, be adverse to the interests of other defendants.”
Everhart has said previously that Rodgers had tried to help Otieno by moving him onto his side. Baskervill said video shows Otieno was moved on his side only when someone from the hospital came in and gave that direction.
RELATED: Video shows Irvo Otieno pinned to floor before his death
Attorneys for the other defendants did not immediately respond to emails and phone messages seeking comment on the motion.
Under Virginia law, a judge may order people charged with committing contemporaneous and related acts to be tried together at a prosecutor’s request unless a joint trial “would constitute prejudice to a defendant.”
During early court appearances and in statements, several of the defense attorneys have said that Otieno was combative and that the deputies were trying to restrain him. Several attorneys have also said their clients were positioned at Otieno’s legs and did not know he was having trouble breathing.
Video released last month shows various members of the group attempting to restrain Otieno for about 20 minutes after he was led into a room at Central State Hospital, where he was to be admitted. For most of that time, Otieno is on the floor being held down by a group that at one point appeared to include 10 people.
The family of Otieno, who was Black, has said he was brutally mistreated, both at the hospital and while in law enforcement custody for several days before that.
The family is being represented by Ben Crump, a prominent civil rights attorney who also represented the family of George Floyd and has said Otieno’s treatment has close parallels with Floyd’s killing by Minneapolis police in 2020. Virginia attorney Mark Krudys, who is also representing Otieno’s family, has pushed back against defense claims that Otieno was being combative and has said he was simply struggling to breathe.