As a video was released publicly this week showing sheriff’s deputies and employees of a Virginia mental hospital pinning Irvo Otieno to the floor, attorneys for several of the defendants charged with second-degree murder in his death began to weigh in to defend their clients.
During bond hearings and through statements, lawyers sought to distinguish their clients from the mass of bodies involved in holding Otieno to the floor for over 10 minutes.
One said in court that his client only worked to secure leg irons on Otieno, while another said his client put his body weight on the man for just a short period of time and then tried to position Otieno on his side so he would not have trouble breathing.
Some defense attorneys also said their clients were only trying to restrain Otieno and there was no evidence of an intent to kill the 28-year-old Black man as deputies sought to have him admitted to Central State Hospital on March 6.
“At no time did he realize that Mr. Otieno ... was in any danger whatsoever,” said attorney Caleb Kershner, who represents one of the seven Henrico County deputies who have been charged, along with three hospital employees.
But Otieno’s family and their lawyers, including prominent civil rights attorney Ben Crump, pushed back against any attempt to minimize the role they say individuals in the crowded room played in Otieno’s death.
During a press conference Tuesday evening, family attorney Mark Krudys quoted some of the language used by defense counsel during bond hearings earlier that day, including a description of Otieno as being in obvious need of medical attention.
“Despite that they piled on him,” Krudys said. “Ten individuals.”
Krudys and Crump said the defense attorneys were offering “excuses” for what the video showed while trying to cast Otieno, who was shackled and handcuffed, as combative.
“They are trying to say ... ‘Well, he was struggling. Well, he was still resisting.' No he wasn’t. He was trying to breathe,” Crump said at the news conference, which was punctuated by sobs from Otieno’s mother.
Otieno's family has said he was brutally mistreated not only at the hospital where he died but also while in law enforcement custody beforehand.
Otieno, whose family said he had long-running mental health struggles, was initially taken to a Richmond-area hospital by police for psychiatric care March 3. But after authorities said he became combative, he was criminally charged and transferred to the jail. His family says he was denied access to needed medication during his time there.
News outlets obtained video this week of the events that preceded Otieno's death at the state mental hospital in Dinwiddie County. The prosecutor had previously shown the footage, for which there is no audio, to Otieno's relatives and attorneys.
According to timestamps, an SUV carrying Otieno arrived at the hospital just before 4 p.m. March 6.
In court, defense attorneys said that before he arrived there he was resistant. One said it took approximately 12 officers to get Otieno out of his cell at the jail.
Video from the hospital shows that nearly 20 minutes after the SUV's arrival, officers remove Otieno from the vehicle and escort him inside. He appears to be upright but hunched over.
By 4:19., a different camera shows him being forcibly led into a room with tables and chairs. He is hauled toward a seat and eventually slumps to the floor, first seated and then lying flat.
An increasing number of people become involved in holding Otieno down. At times his shirtless body is obscured by the sheer number of bodies or by someone standing front of the camera.
Steve Benjamin, a Richmond criminal defense attorney who serves as special counsel to the Virginia Senate Judiciary Committee and is not involved with the case, said the video by itself is not enough to determine the criminal culpability of the deputies or hospital workers.
“We don't know if those who were observing were saying to the deputies, ‘Get off him, he can’t breathe.' We don't know if he was saying he couldn't breathe or if he was threatening violence to those who were trying to restrain him. We simply have no idea," Benjamin said.
“Our reaction to that video is human and natural,” he said, “but it doesn't go very far in answering the question of, was there a criminal offense committed here?”
In Virginia case law, second-degree murder is generally defined as the malicious killing of another, meaning the conduct must be so likely to cause death or serious injury that it demonstrates utter and callous disregard for life.
The first charges in the case were announced last week against the deputies, followed by the hospital workers two days later. Dinwiddie Commonwealth's Attorney Ann Cabell Baskervill said in an email Wednesday that while she doesn't have additional charges “in the pipeline,” the state police investigation remains ongoing.
A separate investigation into the events preceding Otieno’s death — at both the hospital and the jail — is also ongoing, according to Henrico County Commonwealth’s Attorney Shannon Taylor.
All 10 defendants have been granted bond and have pre-trial hearings set for late April or May.
Final autopsy findings have not been released. Baskervill has said in court that Otieno died of asphyxiation, though some defense attorneys have raised the possibility that injections administered at the hospital may have played a role.
The Rev. Al Sharpton has been asked to deliver the eulogy at Otieno's funeral, his National Action Network said Wednesday. Details have not been announced.