DINWIDDIE COUNTY, Va. -- Dinwiddie County Commonwealth's Attorney Ann Cabell Baskervill charged seven Henrico County Sheriff's deputies with second-degree murder after she viewed a video she described as a 12-minute struggle between the deputies and 28-year-old Irvo Otieno.
During the deputies' arraignments Wednesday, Baskervill said the video showed deliberate and cruel treatment during which Otieno was smothered to death by the weight of seven deputies on top of him.
Baskervill cited videos from Central State Hospital and Henrico County jail in court. Neither video was made available to the public yet.
She noted there was no footage from officer-worn body or dashboard cameras.
In what was considered a rare legal maneuver, Baskervill filed a criminal information charge against the seven deputies.
Related: Deputies charged in man's death at Virginia mental hospital
She said she did that for the protection of Henrico jail inmates who might come into contact with the accused deputies.
"There must be some sort of evidence that makes the Commonwealth's attorney have some level of confidence in placing a charge like this and going out on a limb like this," CBS 6 legal expert Todd Stone said. "Second-degree murder requires that there be some malice in their mind like some sort of anger, vengeful motive, and then it has to be an intentional killing of another person. So we're not talking about recklessness here we're talking about an intentional killing of another person."
But the defense attorney for deputy Jermaine Branch called Baskervill's action part of a rush to move on this case.
"The Commonwealth's Attorney has taken a very aggressive position here, and it's pretty unusual to go about things the way it's been done," attorney Cary Bowen said. "There was no judicial involvement until this morning really. Although they did see a magistrate last night when, all the defendants did, when they were brought to the jail, this could've been done with a warrant or by direct indictment, which would have been the normal course of doing it."
Deputies Branch and Bradley Disse received bonds following their hearings. Both could be released from custody if they are able to post the $15,000 and $10,000 bonds respectively.
If Branch and Disse are released, they’ve been ordered to have no contact with their co-defendants or any witnesses in the case.
The five remaining deputies were being held until they arrange legal counsel or receive court-appointed attorneys.
What Happened to Irvo Otieno?
The seven Henrico Sheriff's deputies were charged with second-degree murder this week in connection with the March 6, 2023 death of Irvo Otieno at Central State Hospital. The state-run mental facility is located in Dinwiddie County, Virginia.
Otieno, who was physically restrained with handcuffs and leg shackles, died during the intake process, Baskervill said in a statement. Baskervill's statement did not state a cause of death but said Otieno's body had been taken to a medical examiner's office for an autopsy.
In court Wednesday, Baskervill stated Otieno died of asphyxia, having suffocated while being held on the ground.
Defense attorney Bowen said his understanding of the circumstances was that Otieno became unresponsive after sedatives were administered.
Baskervill told the court those two injections never made it into Otieno's system because, by that point, his heart stopped.
Autopsy and toxicology findings were not yet available to the public.
The prosecutor claimed the seven deputies charged in Otieno's death did not assist Otieno in the aftermath, moved his body, removed his restraints, and waited three hours to call Virginia State Police to investigate.
Bowen told Judge Joseph Teefe that the number of deputies assigned to take part in the transportation of one inmate showed just how concerned officers were about Otieno’s ability to be violent.
Otieno's family has previously raised concerns about his treatment, with his mother telling the Richmond Times-Dispatch for a story published Saturday that “something went wrong" while he was in the government's custody.
“The family is grief stricken after learning of the brutal nature of Ivor’s death and his inhumane treatment in the hours preceding his death. The public, and experienced mental health professionals alike, will be appalled when the facts of this case are fully disclosed," Mark Krudys, an attorney for the family, said in a statement, spelling Otieno's first name as he said the family refers to him.
Otieno, whose family is from Kenya, was a deeply loved and well-regarded young man, an aspiring musician who had been a well-known high school athlete in the area, Krudys said.
Henrico County Police have previously said in a news release that officers responding to a report of a possible burglary on March 3 identified Otieno as a potential suspect. Based on their interaction with and observations of Otieno, officers put him under an emergency custody order. He was taken to a hospital for evaluation, the news release issued Friday said.
At the hospital, Otieno “became physically assaultive toward officers, who arrested him” and took him to a local jail, which is managed by the Henrico Sheriff's Office, where he was served with several charges.
Baskervill's statement said Henrico sheriff's office employees took him to Central State Hospital, located south of Richmond, just before 4 p.m. on March 6 to be admitted. Around 7:30 p.m., state police were called to investigate his death.
State police investigators were told Otieno had “become combative during the admission process,” Baskervill's statement said.
Virginia State Police spokesperson Corinne Geller confirmed Tuesday that the agency's investigation into the matter remains ongoing. She said state police have obtained hospital security footage as part of their criminal investigative file.
There are no immediate plans to release it, she said.
Henrico County Sheriff Alisa Gregory said in a statement that her office was cooperating fully with state police and conducting its own internal review of the incident. She said seven deputies “who were transferring custody of Mr. Otieno” had been placed on administrative leave.
In a March 8 interview, Gregory told senior reporter Wayne Covil that "we have investigated everything up until the transport and there are no issues with any of their actions... [the deputies] handled things properly and from my personal point of view, they went above and beyond.”
The deputies were expected to be back in Dinwiddie Circuit Court on Tuesday, March 21.
The Associated Press contributed to this report.
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