Former prison employee’s conviction a rare occurrence in South Dakota

John Hult - South Dakota Searchlight

By John Hult
South Dakota Searchlight

A 42-year old former correctional officer who pressed his thumb into the neck of a strapped-down, mentally ill prison inmate was convicted by a jury of simple assault against an inmate last month.
Cases like those against Joshua S. Westenkirchner, of Harrisburg, are rare in South Dakota. Few correctional officers are charged criminally for assaulting inmates, though officials with the state Department of Corrections and Division of Criminal Investigation both said they do not track charges filed against DOC staff.
The former officer also faces excessive force allegations in a federal lawsuit filed by the inmate victim, Shawn Albrecht. That lawsuit names DOC Secretary Kellie Wasko and Penitentiary Warden Teresa Bittinger as additional defendants, among others.
Documents in that federal case and transcripts of testimony from Westenkirchner’s trial have revealed more details about the assault charges, all of which stemmed from two days of interactions between Albrecht and Westenkirchner.
Prosecutors argued that Westenkirchner treated Albrecht “like an animal” by choking him and wiping vomit on him during days the inmate spent tied to a metal bed for belligerence. Jurors acquitted Westenkirchner of felony aggravated assault, a charge specific to choking, but convicted him on two counts of misdemeanor simple assault.
The former officer has not responded to requests for comment.
In a written statement, defense attorney Ron Volesky alleges that his client’s case amounts to scapegoating one former DOC employee for the agency’s failure to protect staff and properly manage the inmate population.
“Mr. Westenkirchner was the victim of multiple felonious assaults by a dangerous inmate who was an active threat to the safety of staff,” Volesky’s press release said. “The jury also heard evidence of systemic issues with South Dakota’s prison system including the Warden’s authorization of strapping an individual inmate to a metal bed frame with four-point restraints for up to ninety days, a cruel and unusual tactic.”
Sparse details
For simple assault, Westenkirchner was sentenced to probation with a suspended imposition of sentence, a tool by which a conviction is scrubbed from a defendant’s record if he adheres to certain conditions. Often, such sentences carry a threat of jail or prison time if the defendant doesn’t follow the rules, but Westenkirchner was not given any suspended jail time.
That the public knows about the case at all is an anomaly. The trial took place in a public courtroom in Sioux Falls, but no state or local agency mentioned the case to the media before, during or after the trial, and no media outlet covered the trial.
Had it not been for a press release from Attorney General Marty Jackley, it’s unlikely news of Westenkirchner’s conviction would have appeared in print or broadcast.
Jackley oversees the DCI, which often investigates alleged crimes behind the prison walls. He also leads deputy attorneys general in his office, who prosecute such cases, typically against inmates accused of holding contraband, assaulting staff or other inmates, or otherwise behaving outside the bounds of the law.
Just last week, Jackley’s office filed charges against two inmates in a brutal assault on a correctional officer that court records characterize as a planned and targeted attack in which the officer was bloodied by at least 70 punches and kicks, including dozens of blows that slammed the back of his head into the concrete floor.
Inmate complaints of excessive force by correctional officers are common and frequently form the basis of civil rights complaints filed in federal court, nearly always naming the DOC Secretary as a defendant. Wasko, who’s been DOC secretary for less than two years, is a named defendant in 21 federal lawsuits alleging various misdeeds by prison employees. Such complaints are typically unaccompanied by state charges against officers, however.
The results of internal investigations into excessive force complaints rarely find their way into public view. Unlike police officers, sheriff’s deputies and state troopers, correctional officers in South Dakota are not certified. As such, alleged misconduct by a correctional officer falls outside the oversight of the state’s Law Enforcement Standards and Practices Commission, whose meeting agendas and minutes list the names of officers who contest misconduct allegations. Contested misconduct cases, in which an officer disputes the allegations against them, occur during public meetings.
That’s one reason why a Charles Mix County sheriff’s deputy recently faced the commission to respond to questions about his conduct after an inmate died in the Lake Andes Jail, while none of the correctional officers he worked with that day faced public scrutiny.
In a statement released after Westenkirchner’s conviction, Jackley said his behavior was unbecoming of a correctional officer.
“The conduct in this case should not and has not been tolerated. It is an isolated incident of one individual that should not reflect on those correctional officers that serve their positions with respect,” Jackley said.
Trial, federal
court offer insight
Transcripts of testimony from Westenkirchner’s assault trial offer details on the incident that led to both the assault charges and the federal lawsuit.
Both stem from interactions between the officer and inmate March 14-15, 2022, at the state penitentiary in Sioux Falls. Albrecht is being held for forgery and drug possession, often in the mental health unit at the South Dakota State Penitentiary.
A former contract counselor for the DOC testified that Albrecht has a “complex” series of mental health issues, including addiction, a personality disorder and a history of antisocial behavior.
On March 14 Albrecht complained about his diet, Westenkirchner told the jury, and had “swallowed an object” of some type. Westenkirchner and another officer were unable to stop him.
As the officers attempted to strap Albrecht to a table by his hands and feet for an X-ray, Albrecht spit water at Westenkirchner, which temporarily delayed him from restraining the inmate’s right foot.
Albrecht remained in the “four-point restraint” on the table through the night.
The following morning at 5:30 a.m., Westenkirchner went into Albrecht’s cell to take away a blanket, which he said he was directed to do by DOC mental health staff. Shortly thereafter, staff began to hand out medications to inmates. Albrecht was hurling verbal abuse through the entire exercise, Westenkirchner said. When staff poured water in Albrecht’s mouth to force him to swallow his medication, the inmate spit the water at Westenkirchner.
At that point, the officer told jurors, he applied “compliance holds” on the restrained inmate. Westenkirchner said he’d learned them in the military, and that they did not involve choking. He pushed down Albrecht’s chest and pressed into a nerve near his jaw, he said.
“I didn’t know what he would do after that, if he would just start spitting or start grabbing at people,” he said. “So then that’s why I went around and went hands-on with the inmate.”
Assistant Attorney General Lindsey Quasney challenged Westenkirchner’s version of events in her cross-examination. She pointed out that his coworker saw him raise his fist to Albrecht on March 14, which Westenkirchner denied. He also disagreed with prosecution experts who said his “hands-on” control tactic was applied so sloppily that it constituted a choke, and with a DOC employee who testified that Westenkirchner was given the option of having his sweatshirt tested for disease after the sliming incidents and that he had refused.
“So everyone is lying but you?” Quasney asked.
“I’m not saying everyone is lying,” Westenkirchner replied.
Quasney also noted that inmates are allowed to refuse their medications, and asked him why he’d stayed and applied pressure to Albrecht even after the spitting incident.
“I was already in the cell and I did not want him to attack or assault another person because I had already been assaulted multiple times that day,” Westenkirchner said.
Quasney also asked why he felt it necessary to use what she described as a chokehold for at least 20 seconds to an inmate strapped to a metal table by his hands and feet.
“I was applying pain because he was not complying,” he said.
Inmate: Officer spit, wiped vomit on him
Quasney also questioned the officer about wiping vomit off of his shoe and onto Albrecht’s foot on March 14, asking if he’d treated Albrecht “like an animal.” The officer said he’d wiped his shoe off on the inmate’s blanket after stepping in vomit without realizing he’d touched Albrecht.
“Is there anybody else that you would wipe vomit (on), even on a blanket on their bed?” she asked.
“No,” he said.
She also asked him why he didn’t leave the cell and get a spit shield if he was worried about being “slimed” again, and challenged his concern about being spat upon, given that his “hands-on” hold put him face-to-face with Albrecht.
During his testimony, Albrecht said he’d just returned from the Mayo Clinic in Rochester, Minnesota, when the incident took place. He’d needed surgery after swallowing metal objects. He told Assistant Attorney General Katie Mallery that he’d been “four-pointed” on March 14 to stop him from swallowing anything else.
“Your arms are secured at your sides so you can’t grab or touch yourself, and then your legs are restrained so you can’t move them either,” Albrecht said. “So you are kind of — your legs are in a V and your arms are out to your sides.”
He said the mattress on the restraint table had been removed because “when my restraints were loose I ripped up the mattress.”
He told jurors the officers made remarks about being sick of his behavior and said “they wished I would just die already.” Westenkirchner specifically had used those words, he said.
On March 14, Albrecht said, Westenkirchner had “pulled back” to hit him, but was told to leave “and they just walked him out of my cell.”
On March 15, the day that began with Westenkirchner snatching Albrecht’s blanket, the inmate said Westenkirchner spit on him. During the “med pass” that took place shortly afterward, Albrecht said he took his medication, then took an extra drink of water to spit at the officer.
That’s when Westenkirchner choked him, he said. He also said the officer had slammed his head into the metal table, but that it didn’t hurt as badly as the choke.
He only grabbed at the officer, he said, “hoping that he would let go.”
Under questioning from Volesky, Albrecht said staff had been annoyed with him for his swallowing behavior and all the steps it forced them to take to stop it.
It wasn’t uncommon for him to be strapped to a table for very long periods of time, he said.
“This time I don’t remember,” Albrecht said of the March 2022 incident. “Maybe a week. Well, I was four-pointed at the hospital too. And it’s not my first time on four-point. Sometimes it’s 90 days.”
He also testified that “they just recently kind of addressed” the issue of four-point restraints in the penitentiary, “with the new change over of upper staff.”
“I’m one of the very few inmates left that is allowed to be four-pointed,” he said.
Further details of the DOC’s restraint policies or how they’ve been applied to Albrecht are unclear from transcripts of the testimony from the officer and the inmate. The DOC policy on suicide prevention says restraints may be recommended to prevent an inmate from harming themselves or others. It also says inmates are to be monitored every 15 minutes while in restraints, and that periods of restraint longer than two hours must be approved by the warden or a designee.
The DOC has not responded to South Dakota Searchlight’s request for a comment.
Volesky did not explore the policy itself in his questioning of Westenkirchner or Albrecht. He did ask Albrecht about an immunity deal he’d taken to testify. Albrecht said the deal didn’t make him immune from prosecution for sliming, which is a felony when committed against an officer, but only from his testimony in Westenkirchner’s trial being used against him.
Agencies tight-lipped about convicted officer
Volesky’s statement pointed out that the state had failed to charge Albrecht for assaulting his client by sliming, even though Albrecht spat at Westenkirchner multiple times.
He also pointed out that Jackley’s office is defending DOC Secretary Wasko and other state employees in the federal lawsuit filed by Albrecht. In that case, the inmate has asked for $20,000 in punitive damages and another $10,000 in compensatory damages, as well as a transfer to a prison in a different state.
Jackley’s office does not represent Westenkirchner in that lawsuit, though in a response to the inmate’s complaint, an assistant attorney general denied that “excessive force” had been used against Albrecht.
The docket in the federal lawsuit notes that Westenkirchner’s status as a defendant “in his official capacity” as a DOC employee was terminated on July 18. That is the date U.S. District Judge Karen Schreier signed the order dismissing him as a state defendant. It’s unclear when Westenkirchner left his job at the DOC.
DOC spokesman Michael Winder referred questions on Westenkirchner’s dates of employment to the Bureau of Human Resources, which declined to reveal his date of departure.
It also remains unclear how many other correctional officers may have been charged for their interactions with inmates.
Winder said via email that the DOC does not track the number of such cases forwarded to the DCI for prosecution.
Jackley spokesman Tony Mangan said the attorney general’s office handles prosecutions for prison crimes investigated by either the DCI or the DOC’s special investigations unit. He said the office does not track the number of cases filed, either against inmates or DOC employees. Regarding charges against prison employees, he wrote “the lawyers believe it is not that many.”
Volesky alleged that Jackley’s involvement in the federal lawsuit is a conflict of interest, but Mangan said the attorney general’s office cannot comment on ongoing litigation.
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