GIST: "A video shows murder suspect Malcolm Querido as correctional officers use pepper spray to subdue him, strap him to a chair and forcibly take a DNA sample from his mouth. The video shows at least three correctional officers wearing gas masks, gloves and carrying shields as another pumps pepper spray into an inmate’s cell, leaving an orange-tinted residue clinging to the walls. The officers then handcuff and shackle the inmate, 31-year-old Malcolm Querido of North Providence, drag him from his cell, strap him to a chair and forcibly hold his head as a Providence detective extracts a DNA sample from his mouth. Throughout the process, Querido challenges the validity of the search warrant for the DNA sample. “This is wrong, bro. Yo, this is wrong, bro,” Querido yells as the correctional officers in riot gear strap his arms and legs to the chair. “You’re all beating me up to get my DNA?” Querido asks. Wayne Salisbury, warden of the Adult Correctional Institutions Intake Center, warns Querido to cooperate, that they need to get the DNA swab from his mouth or they will extract blood instead. After Querido fails to cooperate, Salisbury gives the command and three officers grab his head. “Salisbury, this ain’t right,” Querido says. Later, he can be heard screaming, “Ah, ah, it’s burning!” as he showers to decontaminate himself. The video, taken June 22, 2017, at the Adult Correctional Institutions, prompted Superior Court Judge Robert D. Krause to suppress key DNA evidence in Querido’s upcoming murder trial based on “outrageous governmental conduct.” Krause issued the order April 11, striking the buccal swab taken June 22 from Querido, an accused pimp who is charged with stabbing to death Robert J. Bullard, of Medway, Massachusetts, in 2014. “I have seen, as you know, some pretty rough stuff, particularly on this calendar,” said Krause, according to a transcript of the hearing. The judge presides over some of the state’s most violent cases. “And frankly, I have rather thick skin, and I have a high tolerance to that stuff, but yesterday when I saw that video, that was one of the most disturbing clips I have seen in a long, long time. It reflected conduct of law enforcement officers — be they correctional officers, police officers, I couldn’t tell how many they were which, most of them were probably correctional officers ... acting in a most unsettling manner. And I use ‘unsettling’ charitably.” Krause compared the chair seen in the video to “Old Sparky — all that was missing was an electrical cord.” “This court finds, unreservedly, that resorting to the use of noxious pepper gas spray, coupled with the subsequent and unreasonable force and violence by several officers to extract the buccal swab, should have and easily could have been avoided by the state simply filing with the court a motion ordering the reluctant defendant to submit peaceably to buccal swabbing. If the defendant thereafter failed to submit peacefully as ordered, the state merely had to seek a contempt order, and the defendant would have been ordered to a medical facility within the ACI to have the swabbing (or blood drawing, as also allowed in the search warrant) ... accomplished,” Krause wrote in his April 11 order. Querido’s trial has been placed on hold as the state attorney general’s office appeals Krause’s ruling to the state Supreme Court. Prosecutors stand behind the correctional officers’ action. A felon with a long criminal record, Querido has previously been convicted of robbery, felony assault and drug possession. “The state believes that the Department of Corrections’ administration of the buccal swab was constitutionally proper in all respects, and will ask the Supreme Court to reverse the trial court’s contrary determination,” Amy Kempe, spokeswoman for the office, said in an email. Special Assistant Attorney General Joseph McBurney emphasized April 11 that the officers’ actions came only after Querido refused to comply with an earlier warrant and, on June 22, refused to exit his cell. Prosecutors told the court that he had tried to bite correctional officers. The state Department of Corrections declined to identify the officers involved through spokesman J.R. Ventura. Asked about department policies regarding the frequency and manner of administering pepper spray (which officers referred to in the video as the “cell buster”), Ventura gave this email response: “The AG’s office is the agency handling this matter, in order to preserve the integrity of the judicial process, we defer to them regarding future inquiries. As to your other questions, in order to maintain proper safety and security, those procedures are not under public policies. Those security measures are in place to ensure the safety and security of our staff as well as the inmates.” The Journal has filed a request under state Access to Public Records law seeking a copy of the video. Querido’s lawyer, Judith Crowell, allowed a Journal reporter to view the video this week. Richard Ferruccio, president of the correctional officers union, said he wasn’t aware of the case. “My officers do what they’re told to do — within reason,” he said. Crowell, who is joined in representing Querido by Ronald C. DesNoyers, expressed outrage after Assistant Attorney General Jay Sullivan asked Krause to give the prosecution time to seek a fresh warrant for the “critical” DNA evidence. “I think what was shown on the videotape of the extraction ... is absolutely outrageous and dehumanizing and inhumane conduct on the part of the officers involved,” Crowell said April 11. “It seems to me, your honor, that the court’s decision to suppress the buccal swab was entirely appropriate and should not be reconsidered.”
Crowell reiterated that position in an interview at her Dorrance Street office this week. The legal underpinning for Krause’s ruling is “outrageous government conduct,” in which government conduct so shocks the conscience that it violates the Fifth and 14th amendments, Crowell said. “Suppressing evidence so obtained punishes the outrageous conduct and seeks to deter future such conduct on the part of government agents,” Crowell said in an email. “There would be no deterrent value to such a decision if the agents were permitted a ‘second bite at the apple.’” George West is expected to represent Querido on appeal, with Aaron Weisman arguing for the state."

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