When Justice Isn’t Fair

IN THE NARROW hallway of Multnomah County’s main courthouse, the Fair family crowded into a tight circle last Wednesday, September 28.

“In Jesus’ name, we ask for justice for this boy!” called out Kelli Jarrell, the matriarch of a family that has gone through hell in the year since her son, Kyeron Fair, was arrested on suspicion of armed robbery. Fair’s saga with the local criminal justice system—including a mental breakdown and allegations that he was severely beaten by jail guards—has become a troubling example of the all-too-common intersection between mental illness and incarceration.

And now, 12 months after Fair’s arrest, the family has lost faith in justice. That Wednesday, they were at court attempting to fire Fair’s public defender, Gary Bertoni, days before a crucial deadline to decide whether to accept a guilty plea for 10 months in jail or go to trial. This week, in a quiet end to his plight, the family accepted the plea anyway.

“I have lost trust in Gary Bertoni,” Fair, an 18-year-old African American from Northeast Portland, told Judge Eric Bergstrom repeatedly during last week’s hearing, saying he believes Bertoni withheld crucial information from him.

“Your case has certainly had an unusual progression,” acknowledged the judge. “But it has also been given a pretty generous offer by the state. I’m not sure you want to start all over with a new attorney.”

Noting the public cost of restarting the legal process after a year of work, the court said Fair could get a new lawyer only if he paid for one out of pocket.

And so Fair pleaded guilty.

“He said he’s just bummed out, he just doesn’t have it in him to fight,” said Jarrell. “He’s not going to get the justice he deserves.”

As reported extensively in Portland African American newspaper The Skanner, Fair’s struggles with the court system began September 13, 2010, when officers pulled the Parkrose High School senior out of class to arrest him for his role in a three-person armed robbery of a pound of pot from a medical marijuana user. The 17-year-old was booked at the Multnomah County Detention Center (MCDC), then taken to the county’s juvenile detention center. That’s where things got weird.

Fair, who had no prior history of mental illness, began acting extremely erratically. Fair remembers almost nothing from this time, but when his mother visited him, she noted that he was jittery, wouldn’t make eye contact, and kept repeating the phrase, “I didn’t do it. I didn’t do it. Can they hear me? Can they hear me?”

He refused to eat or drink for three days, believing his food had been poisoned. He apparently became aggressive with staffers, who called MCDC on September 17, 2010, to have him transferred back to the adult jail because they couldn’t handle him. The juvenile center staff also feared he was suicidal, though that was not told to the MCDC officers who came to pick him up in a detention center van.

The local detention centers are used to dealing with people suffering from mental illness. Oregon’s jail and prison system is the state’s largest provider of mental health care—20 percent of the inmates who spend time at the Multnomah County Detention Center have a serious mental illness diagnosis [“The Criminalization of Mental Illness,” Feature, Jan 14, 2010].

Six to eight juvenile detention center staffers escorted the teenager, whose feet and hands were cuffed, out of the juvenile facility. During the transfer from juvie to MCDC, and eventually to Oregon Health and Science University (OHSU), Fair repeatedly flopped on the ground—screaming at and kicking officers.

When Fair did not respond to officers’ orders during the transfer to the hospital, instead playing peek-a-boo with the officers by pulling his shirt over his face, MCDC officers decided to Taser him twice, and then use a series of straps to bind his arms, shoulders, and legs to a gurney, a tactic known as a “four-point restraint.”

Fair eventually spent 20 days in the hospital, mostly while shackled or handcuffed and allowed only one phone call a day from his mom, as his behavior fluctuated from paranoid to near-comatose. Exams revealed no drugs in his system except cannabis, and showed no injuries except air pockets that had formed under the skin of Fair’s face, neck, and chest—a strange condition that could occur spontaneously or be caused by physical trauma. On October 11, 2010, Fair was diagnosed with bipolar disorder and transferred to the Children’s Farm Home, a juvenile mental health treatment center.

When state police investigators wrote up a 1,100-page use-of-force report about the case months later, one of the few memories Fair relayed was that an officer pounded on his chest in the hospital, calling him stupid. Reviews of the state report found that “there is no basis for the conclusion that the individual was criminally assaulted by anyone.”

For the county, state, and city, Fair’s case is closed as he heads to jail.

But for his family, questions linger that no court will ever answer. What exactly happened during the days Fair doesn’t remember? And what will happen when he returns behind bars?