Crucial evidence of response time in inmate's death was lost, documents say

State investigators failed to ­preserve crucial audio and video recordings that would have shown how long it took for officers to respond to the suicide of a mentally ill Stillwater prison inmate in 2009, according to documents filed in U.S. District Court in St. Paul.

Minnesota Department of Corrections officers may have waited for as long as seven minutes in front of Garrett Benike's cell before they entered to cut him down from the sheet he used to hang himself, according to internal prison reports and depositions reviewed by the Star Tribune.

Officers have attributed the delay to the time it took to assemble a team to enter the cell, according to prison reports.

Attorneys representing Benike's family in a negligence lawsuit argued during a hearing Friday that District Judge Jeanne J. Graham should order sanctions against the officers and instruct jurors that investigators tampered with evidence to hide the ­failure to quickly rescue the 25-year-old Rochester man. Settlement ­discussions in the case may begin as early as February.

When officers finally entered the cell and tried to revive Benike, they applied shock pads that showed he still had electrical activity in his body — an indication that he might have been revived if they had acted more quickly. But without the digital, time-lined recordings taken by the officers, it is extremely difficult to establish an exact chronology of their responses and actions, attorneys argued.

Last summer, the Department of Corrections disclosed that the audio recordings had been destroyed by an unknown employee. They also said that the video footage of the officers' response was tampered with so badly that it couldn't be recovered from a disc. The video had been stored in a supposedly secure area, but when it was retrieved, it was not viewable, the department said.

A typewritten log created from the audio recording is all that remains to show what allegedly did or did not take place when officers responded to the suicide alert. Richard Wright, the Benike family's attorney, argued that there is no way to prove whether that log, created from the now-destroyed audio recording, is accurate.

The recordings, he said, were the only objective way to show whether officers acted properly or were negligent.

"A DOC investigator knows this is a potential criminal matter," Wright said. "It flies in the face of the raw reality. Because of that risk, that this would be a criminal matter, all the more reason to preserve the ­evidence."

Assistant Attorney General Kelly Kemp, representing the officers, told Graham that there is no proof that there was a deliberate attempt by anyone in the department to destroy evidence.

"For some reason that no one can explain, the video is not playable," she said, ­adding that two experts in video retrieval were unable to restore the tape and play it. Still, she said "no facts" support the allegations that evidence was deliberately destroyed.

Benike's mental illness was well detailed by the department. When he was first imprisoned, a mental health screening form indicated that he had a history of inpatient and outpatient mental health treatment. In 2007, he attempted suicide in prison by a drug overdose. The following year, the department wrote, "He has a history of mental health issues within the past year but is receiving no services currently."

It's estimated that at least 25 percent of the men and 65 percent of the women in the state prison system are in ongoing mental health programming. Recently, the Star Tribune reported that since 2000, at least 22 state inmates have committed suicide and that at least seven, like Benike, had been flagged as mentally ill.

In one case several years ago, a schizophrenic inmate in Rush City committed suicide by overdosing on more than 125 painkillers he'd been able to hoard, his prison medical records show. The inmate had been the subject of five ­volumes of mental health records indicating a history of drug dependence, and prison officials knew from those records that he had demonstrated suicidal behavior.

Still, administrators allowed him to acquire an unlimited amount of over-the-counter pain drugs at the prison canteen, the newspaper found. "How this patient was able to have all these medications at his disposal was explained to me by the guards — that due to budget constraints, the prison has an honor system for obtaining some medications, and some of the prisoners have been hoarding medications," a doctor wrote.