When two Kansas City attorneys took on a pro bono case for a convicted double murderer suffering health problems from secondhand smoke, they thought they’d lose for sure. But they didn’t.
Michael Foster and Phillip Zeeck, attorneys at Polsinelli PC in Kansas City, represented Willie Simmons, now known as Ecclesiastical Denzel Washington. Their client was sentenced to life for strangling Cheri Johnson in 1987 and suffocating Leanora McClendon in 1988, both of St. Louis.
Washington, who has suffered from asthma since he was 10, was being exposed to secondhand smoke in prison that worsened his condition. So he filed a lawsuit.
“We thought there was very little chance that this guy could win,” Foster said. “He’s a two-time murderer, so to have a jury award him damages seemed a long shot.”
Foster and Zeeck took the case mainly as an opportunity to gain trial experience.
Washington got the case going himself at the state prison in Cameron, Mo., surviving a dismissal motion and a motion for summary judgment. At that point, the court thought the case had enough merit to reach out to Polsinelli and ask whether the firm would do pro bono work.
“Mr. Washington was convicted of doing some really horrible things,” Zeeck said. “His punishment for that is they lock him into an 8-foot-by-11-foot concrete box for 20 hours a day, every day, for the rest of his life. There is a good argument that is a just punishment. But the question in this case is whether his cellmates should be allowed to fumigate him also.”
Technically, smoking inside a Missouri prison already is against the rules. However, the prison allows inmates to smoke in designated areas outdoors, so prisoners have access to cigarettes and lighters. The argument Foster and Zeeck made at trial was, if you’re addicted to smoking and have access to smoking materials, you’re going to light up inside the prison as well even if it’s against the rules.
“We had a guy on the stand who said he smoked 15 packs a week in prison, which is about two packs a day,” Foster said. “So it’s just not reasonable to think if you let these guys have cigarettes and lighters in their cells that they aren’t going to smoke inside.”
Washington could constantly smell smoke in his cell. He also would be exposed to secondhand smoke as he walked to the medical building to get asthma treatments. He had a prescription stating that he required a non-smoking cellmate and should be issued a painter’s mask, but the prison ignored it. He used the internal grievance procedures eight times to try to get the smoking policy changed, to no avail. So he filed suit.
“Mr. Washington was sentenced to life in jail, but he wasn’t sentenced to life in jail with constant exposure to secondhand smoke,” Foster said. “So it was a cruel and unusual punishment case. With the arguments we made, we think the jury just really wanted to change the policy more than anything. They did that by assessing damages.”
The jury awarded Washington $111,000 in damages. The Missouri Department of Corrections voluntarily agreed to change the policy, signing an order that gives it until April 1 to totally ban smoking.
“He is currently working to transfer to a correctional facility in another state,” Zeeck said. “This isn’t good news for a lot of other people in the prison, and they’ve threatened him for it. He knew there were serious personal risks, but he did it anyway because he thought it was the right thing to do.”