DEPARTMENT OF PUBLIC SAFETY

CITY of SARATOGA SPRINGS, NEW YORK

DRAFT REPORT
on the
CIRCUMSTANCES SURROUNDING the DEATH
of
DARRYL MOUNT

Respectfully submitted to the Mayor and City Council,

James Montagnino
Commissioner of Public Safety
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 Prefatory Remarks

Darryl Mount was a human being. He was a son, a stepson and a brother. He was

a friend to many. His passing at age 22 was a tragedy that not only cut short his life but

also robbed his family and friends of a cherished member. These facts must be expressed

by the writer and understood clearly by the reader before any discussion of the

circumstances surrounding his death can be undertaken in an appropriately solemn

manner. The analysis that follows is intended to be objective and dispassionate. That

perspective, of necessity cold and unemotional, must not be misinterpreted as

disrespectful to the memory of a young man who, while he had his limitations and made

his mistakes, was a member of our community and whose life touched the lives of many

in a positive way.

Jim Montagnino
Commissioner of Public Safety
City of Saratoga Springs

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 Introduction

On August 31, 2013 Darryl Mount was approached on the street by officers of the

Saratoga Springs Police Department. Mr. Mount ran off. The officers pursued him. At the

end of the chase, Mr. Mount was found unconscious, face down, in an alley. He never

fully regained consciousness and was never again able to speak. He died of complications

of his injuries nine months later on May 13, 2014.

Exactly what happened on that night eight years ago has been the subject of

unending controversy up to the present moment. Even the question of whether the matter

was ever investigated is in dispute: Christian Mathiesen, the Public Safety Commissioner

at the time of the incident, insists that there were three separate investigations conducted,

while others contend that no official investigation has ever taken place. Gregory Veitch,

the police chief at the time, told a reporter that two separate investigations had been

initiated and were under way. Later, under oath, he admitted that this statement was

untrue and intended to mislead. What is clear is that no comprehensive written report of

any investigation has ever been made available to the public. This document is offered as

a draft report presenting a distillation and analysis of much of the evidence that has been

made available by the Saratoga Springs Police Department, augmented significantly with

testimonial and documentary evidence adduced in the discovery phase of the civil

litigation commenced by Mr. Mount’s family in 2014 and pending still. This report is

labeled a “draft” because additional evidence is known to exist, but has not yet been

made publicly available. For example, Medical Examiner Dr. Michael Sikirica was Court

ordered to provide additional deposition testimony and has already done so; additionally,

4
another civilian witness has come forward and has been deposed on videotape. These two

depositions have not been publicly filed as of this writing.

The layout of this report requires some explanation. Each step of the incident is

traced; a discussion of the law applicable to the actions of the police at each step is given.

At times, Mr. Mount’s actions are also discussed in relationship to specific factors (such

as his parole status) that may have influenced his actions. A number of sidebar

commentaries are also provided to give additional context and to provide points for

further discussion.

It is important to note that the majority of the testimony referenced in this draft

report is drawn from the City’s papers submitted by its counsel in support of a motion for

summary judgment. Though submitted two years ago, no opposition papers to that

motion have been served or filed by plaintiff’s counsel. Instead, plaintiff’s counsel moved

for relief seeking, among other things, additional discovery. That motion was granted;

additional discovery has been done; more discovery is under way; a motion for a

protective order has been served and filed by the City’s attorney; and additional motion

practice may result before any papers will have been submitted by plaintiff’s counsel in

opposition to the City’s anticipated renewed motion for summary judgment. Accordingly,

while this draft report draws upon voluminous material to substantiate its factual

presentation, that the motion for summary judgment is not fully submitted must, in all

fairness, be stressed. For although the City’s attorney has served and filed more than a

thousand pages of transcripts, photographs and other exhibits, the plaintiff’s position in

the civil litigation is currently supported, in the main, by the allegations of the initial

pleadings.

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Sidebar: Summary Judgment

Often, when a civil lawsuit has been prepared to the point of trial readiness, one

side or the other (and sometimes both) file a motion for summary judgment. The motion

is a request for an order determining that there are no material factual issues in dispute

and that, therefore, one side is entitled to prevail without the need for a trial. In order to

succeed on such a motion, the moving party must support its position with competent

evidence to show that it is entitled to judgment as a matter of law. In order to oppose such

a motion successfully, the non-moving party must either show that the movant has not

produced legally sufficient evidence to support its position or, in the alternative, the non-

moving party must put forth competent evidence of its own which demonstrates the

existence of a triable issue of fact. In New York, a judicial determination either granting

or denying summary judgment is appealable. As a result, in a case such as this, many

months may be spent litigating the issues surrounding a motion for summary judgment.

As will be discussed in detail later, the best vehicle for providing comprehensive

answers to the numerous questions presented by the Darryl Mount case would be a grand

jury report prepared pursuant to Article 190 of the Criminal Procedure Law. Such a

report could only be prepared under the direction of the District Attorney or the Attorney

General (who, as will be discussed also, would need an Executive Order of the Governor

to confer jurisdiction). Ron Kim, Saratoga Springs Mayor, with the unanimous consent of

the City Council, formally requested that the District Attorney undertake such an

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investigation. On February 3, 2022, Saratoga County District Attorney Karen Heggen

denied this request.

The author is the fourth person to hold the title of Commissioner of Public Safety

since the Darryl Mount incident occurred. That eight years have passed without any

individual in authority’s having issued a public report on the incident is beyond

shameless. While this draft report is far from perfect, it is offered as a best effort at

providing sufficient facts and analysis from which a reasonably objective reader can draw

the conclusions needed to answer the questions that have remained open for far too long.

Whether a grand jury investigation will ever be conducted and whether the civil lawsuit

will ever see the inside of a trial courtroom are questions that cannot and are not

answered here. Nonetheless, the community is entitled to know as much as possible about

what actually happened on August 31, 2013 and beyond in order to be able to make

informed decisions for the future and in order to re-establish trust in our local institutions

and leadership.

Darryl Mount’s Background

It is important to understand a little about the person of Darryl Mount to be able to

assess the decisions he made on the night he suffered his fatal injuries. The publicly

available record contains a wealth of information, including school reports and

psychological assessments made during his childhood. It would be inappropriate here to

explore Mr. Mount’s educational and psychological history as deeply as the documents

filed in connection with the summary judgment motion do, as his family deserves some

level of privacy, at least as to details which would not be relevant to the events

7
surrounding his death. Accordingly, only the main points which may shed some light on

his decision-making process are discussed here.

Mr. Mount had been diagnosed as suffering from attention deficit hyperactivity

disorder (ADHD) and oppositional defiant disorder (ODD). Symptoms of ADHD include

difficulty focusing and impulsive behavior. Individuals suffering from ODD are often

uncooperative and combative with parents, teachers and other authority figures. The

causes of these conditions are not well understood. Both are chronic and often lifelong

illnesses that can be difficult to manage successfully. No publicly available information

indicates whether Mr. Mount was receiving ongoing treatment for either of these

conditions as of August 2013.

At the time of the incident, Mr. Mount was on parole supervision. He had been

convicted of Burglary in the Third Degree, a non-violent felony offense, and had been

sentenced, as a first felony offender, to one and one-third to four years in state prison. He

had been initially released to parole supervision after having served the minimum period

of incarceration; however, he was subsequently found to have violated the terms of his

parole release, though the specific nature of the violation does not appear in the publicly

filed documents. He was returned to prison for an additional 90 days. On July 11, 2013

he was released once again to parole supervision.

The relevance of Mr. Mount’s parole status and previous violation of parole

should be obvious: he had some understanding, from his own experience, of how the

parole system works and how re-incarceration for violations of parole are routine. Mr.

Mount also knew – or at least had reason to know – that, as will be discussed more fully

later, on August 31, 2013 he was violating the terms of his parole by not being at home

8
after curfew, by consuming alcohol to the point of intoxication, and by being subject to

arrest for an offense for which a sentence of incarceration was possible.

Sidebar: The Parole System

For generations, individuals convicted of felonies in New York and sentenced to

incarceration for more than one year have been subject to supervision after their release.

Traditionally, “indeterminate” sentences of imprisonment are imposed where both a

minimum and a maximum sentence of incarceration are specified at the time of

conviction. For certain classes of felonies and for most first-time felony offenders, the

minimum period is one-third of the maximum period. For others, the minimum period is

one-half of the maximum.

One of the intended goals of the parole system is to encourage offenders to take

positive steps toward rehabilitation while they are incarcerated. To accomplish this, a

three-member parole board reviews an offender’s record and determines after a hearing

whether to release the offender after service of the minimum period or whether to hold

the offender longer. Over the years, a byzantine system of “good time credits,” “earned

eligibility certificates,” “conditional release dates” and the like has been developed. This

renders it all but impossible for anyone to know with precision when a particular offender

will be released to parole supervision, if at all.

From time to time, the parole system comes into public focus. Usually this occurs

when an individual who is on parole commits a particular egregious offense. In 1950, for

example, a gruesome robbery and murder occurred which came to be known as the

“Reader’s Digest” case because the perpetrators, one of whom, Harry Stein, was already

9
on parole for a prior robbery conviction, robbed and killed a truck driver who was

delivering subscription payments to Reader’s Digest Magazine’s headquarters in

Westchester County. In the wake of the publicity surrounding this case, which ended with

the executions of three defendants, there were numerous calls for the abolition of parole

release for convicted felons. Nonetheless, the system remained in place.

In his first year in office in 1995, former New York Governor George Pataki

announced his intention to abolish parole for violent felons. What resulted was the

“Sentencing Reform Act of 1995.” For crimes considered violent felonies, indeterminate

sentencing was abolished. In its place, “determinate sentences” were to be imposed.

These sentences are calculated in whole or half-year amounts. Thus, a defendant

convicted of Robbery in the First Degree, which used to carry an indeterminate sentence

ranging from a minimum of two to six years to a maximum of twelve and one-half to

twenty-five years, now faces a determinate sentence ranging from five years through

twenty-five years.

As always, though, the devil is in the details. While a determinate sentence of

seven years, for example, would seem to imply that the offender would serve seven years

in prison and then be released, in practice this is not the case. First, the offender is

entitled to a “good time credit” of up to one-seventh of the sentence. So a prisoner

serving a determinate sentence of seven years who has incurred no disciplinary

infractions while in state prison is eligible for release after having served only six years

of that seven year sentence.

Imagine the confusion that this system causes. When a client asks an attorney,

“When would I get released from a ten year sentence,” how does the attorney explain, in

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words that the client can understand, that release will occur after service of six-sevenths

of that sentence? (One creative attorney, Jerome P. Kiley, Esq., has come up with an

answer: he tells his clients, “They give you Sundays off.” After a pause, while the client

contemplates how unbelievable this sounds, the attorney continues, “Of course, they can’t

let you out every Sunday. Instead, they just count the Sundays and give them to you at

the back end.”)

This is hardly the end of the analysis, though. While parole was supposedly

abolished for violent felons, it was replaced with “post release supervision.” So after an

individual has served a determinate sentence, he or she is not yet truly free. Instead, for a

period of up to 25 years following release, the defendant is still subject to supervision.

And this supervision is overseen by none other than the Department of Corrections and

Community Supervision, the successor agency to the Division of Parole! Moreover, a

violation of the terms of post release supervision can result in re-incarceration in the same

way that a violation of parole can. Accordingly, parole for violent felons has not ended, it

has merely been given a different name.

The terms of parole (or post release supervision) can be violated in any number of

ways. Failure to report to a parole officer, failure to abide by curfew, intoxication,

commission of a new offense – these and many other things can result in summary arrest

for violation of parole. And when a parolee is accused of violating parole by the

commission of a new offense, even a subsequent acquittal for that offense may not

absolve the offender of liability for a parole violation. The burden of proof at a parole

revocation hearing is proof by a preponderance of evidence, while the burden at a

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criminal trial is proof beyond a reasonable doubt. And so, paradoxically, one can

potentially be acquitted of a crime but still find oneself back in prison.

One final note: as completely unfathomable as it may sound, there are more than

one hundred people in New York who have fully served the entirety of their determinate

sentences and yet are still incarcerated. This is because the law provides that, under

certain circumstances, an offender can be required to serve a period of post release

supervision at a “residential treatment facility.” The drafters of this provision envisioned

this to mean that a person under post release supervision may be required to live in a

group home or halfway house where he or she could be provided with the necessary

supportive services to ensure that the offender remained drug and alcohol free. Instead,

some Machiavellian officials have decided to designate certain state prisons as residential

treatment facilities. As a result, there are individuals who are still in prison despite having

served their full sentences, as they have been required to serve their post release

supervision at a residential treatment facility that is itself a state prison.

Darryl Mount’s Physical Condition

Another relevant background consideration is Mr. Mount’s physical condition. In

2010 he suffered a broken neck in a diving accident in a swimming pool. He had to

undergo spinal fusion surgery. This left him with a titanium rod and screws rigidly

connecting his vertebrae from C7 (the seventh cervical vertebra) to T5 (the fifth thoracic

vertebra). In other words, five of his vertebrae, ordinarily cushioned by and free to flex

on their intravertebral discs, were rendered completely immovable by the surgery. This

left Mr. Mount permanently disabled per the criteria of the Social Security

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Administration. The information relating to this injury is clearly set forth in medical

records, in the report of the plaintiff’s expert and the report of the city’s expert. These

facts will be particularly relevant to the ultimate analysis of the extent of Mr. Mount’s

injuries suffered on August 31, 2013.

The Initial Encounter

In the evening of August 30, 2013 Mr. Mount came to Saratoga Springs from his

home in Ballston Spa, where he lived with his mother, Patty Jackson. He was

accompanied by his girlfriend, Morgan McLean. The two were socializing and drinking

at several of the bars located along Caroline Street. Eventually, both would become

intoxicated and they would quarrel.

Patrolling Caroline Street that night were Saratoga Springs Police Officers Eric

Warfield, John Bateholts, Adam French and Tyler McIntosh. Sergeant Aaron Benware

was in a police cruiser, the others were on foot. At about 2:20 am, a woman approached

Officers Warfield and McIntosh. She told them that she had just seen a man slap a

woman in the face. She pointed out Mr. Mount and Ms. McLean to the officers. The

witness, who did not provide her name, apparently then walked away.

The two officers approached Mr. Mount and Ms. McLean. Officer Warfield took

Mr. Mount to one side, while Officer McIntosh stayed with Ms. McLean. Each officer

asked whether the two had been fighting. Both denied any altercation. With this, the

officers let the two of them go with no further action taken.

At her deposition in the civil lawsuit, Ms. McLean stated under oath that, in fact,

there had been a physical incident between herself and Mr. Mount at around 2:00 am. She

13
said that the two had been quarreling. Mr. Mount, who was holding her ID card in his

hand, had slapped her across the face with it.

Sidebar: Intimate Partner Violence; Evidence-Based Prosecution

It is currently well understood that intimate partner violence is a widespread and

seemingly intractable problem in our society. Complicating the investigation and

prosecution of such criminal conduct is the frequent reluctance of the victims of such

abuse to come forward. Even when some victims initially report violent incidents, they

frequently recant, fail to cooperate with police, or otherwise refuse to proceed with

prosecution. Accordingly, domestic violence training for law enforcement, prosecutors

and court staff now emphasizes the importance of gathering independent evidence of

intimate partner violence whenever possible. A third-party witness to domestic violence,

for example, is far less likely to recant than the victim of that violence, particularly where

the witness has no family or social connection to either the victim or the perpetrator. In

the present case, the unidentified woman who told police that she had seen the initial

incident might, under different circumstances, have been a valuable witness.

Sidebar: Reasonable Suspicion

The question of when a police officer has the authority to stop an individual on

the street and question him or her is, of course, an essential one. New York Courts have

carefully analyzed innumerable scenarios over the years and have crafted a multi-tiered

approach to the question. Simply put, the degree of intrusion permissible is directly

related to the quality and quantity of information available to the police at the time of the

14
encounter. Relatively little evidence is needed to justify an officer’s merely approaching

an individual and asking a question; significantly more is needed before the officer can

actually detain the person – however briefly – for questioning. Even more evidence is, of

course, needed before an individual may be frisked for weapons; still more before an

individual may be placed under arrest.

A “stop and inquire,” such as occurred here at about 2:20 am, requires

“reasonable suspicion.” This is defined as the amount of evidence that would lead a

person of ordinary prudence and caution to believe that some form of offense is either

being committed or has been committed. It is settled law that when a private citizen

reports having observed what constitutes an offense, (here, perhaps, the violation of

harassment in the second degree), reasonable suspicion to allow an officer to stop and

question the individual identified as having committed the offense has been established.

The Second Incident

At her deposition, Ms. McLean testified that a second incident occurred some

time after the slap with the ID card. She recounted how she and Darryl Mount were in the

Paddock Bar when Mr. Mount pulled her hair. This incident was neither witnessed by nor

reported to any police officer. Accordingly, it is not directly relevant to the ultimate

questions posed in this case. It is offered simply to complete the narrative of events and

demonstrate a course of conduct.

Later, at about 3:00 am, Ms. McLean was on Caroline Street near where it

intersects with Broadway. She was walking on the sidewalk and talking with an

unidentified young man. From the other side of the street, Mr. Mount charged after her.

15
He was swinging his arms in the air and shouting, “F—k you!” Officers McIntosh and

Warfield, who were on the side of Caroline Street opposite that on which Ms. McLean

was walking, witnessed this. They shouted to Mr. Mount and directed him to stop. The

officers then headed toward Mr. Mount, who was still running toward Ms. McLean.

Before the officers could reach Mr. Mount, he grabbed Ms. McLean’s head in

both his hands and shoved her into the brick wall of a nearby building. Ms. McLean

crumpled to the ground from the blow. Though Ms. McLean would later deny, in a

videotaped interview with a blogger, that her head had, in fact, made contact with the

wall, she ultimately admitted to it under oath when she was deposed for the civil lawsuit.

In her testimony, Ms. McLean stated that she suffered bruising, swelling and a cut under

her hairline.

After having shoved Ms. McLean’s head into the wall, Mr. Mount ran toward

Broadway. Officers McIntosh and Warfield gave chase, with McIntosh being the faster

runner than Warfield. As they pursued Mr. Mount, he turned left onto Broadway. The

officers followed, communicating with fellow officers by radio.

Sidebar: Probable Cause

The warrantless arrest of an individual is only authorized when “probable cause”

exists. This is defined as the amount of evidence needed to show that it is more likely

than not that the individual being pursued or arrested has been engaged in criminality.

Here, even if Ms. McLean’s head had not contacted the wall, what the officers observed –

namely, Mr. Mount charging at Ms. McLean, swearing at her, grabbing her and shoving

her – gave them probable cause to believe that Mr. Mount had, at the very least,

16
committed the violation of harassment in the second degree. That offense is committed

when a person, intending to harass, annoy or alarm another individual, subjects that

individual to unwanted physical contact. Here, Mr. Mount’s intentions may be inferred

from the surrounding circumstances, and the physical contact between Mr. Mount and

Ms. McLean was directly observed by the two police officers.

Additionally, even without Ms. McLean’s head having hit the wall, the officers

had probable cause to believe that Mr. Mount had committed the class B misdemeanor of

Attempted Assault in the Third Degree. That offense is committed when a person,

intending to cause physical injury to another, attempts to cause such injury. (Physical

injury is defined in the Penal Law as “impairment of physical condition or substantial

pain.”)

Indeed, even though it is not reflected in any of the police reports filed in

connection with this matter and subsequently released to the public, nor is it referenced in

District Attorney Heggen’s letter of February 3, 2022, there is evidence to support a

conclusion that the officers had probable cause to believe that Darryl Mount had

committed the class E felony of Attempted Assault in the Second Degree. That offense

shares the elements of Attempted Assault in the Third Degree, but contains the additional

element of the use of a “dangerous instrument.” A dangerous instrument is defined as any

instrument, article or substance which, in the way it is being used, threatened to be used,

or attempted to be used, is capable of causing serious physical injury. Accordingly, there

is a sound legal argument that the brick wall constituted a dangerous instrument and,

therefore, the offense rose to the level of a felony. In any case, however, whether the

evidence supports the conclusion that there was probable cause to believe that a felony,

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misdemeanor or even just a violation had been committed, there was sufficient probable

cause to authorize the police officers on the scene to pursue Darryl Mount and effectuate

his arrest. Moreover, Mr. Mount’s flight from the police constituted the separate offense

of Resisting Arrest, a class A misdemeanor.

Some have posed the question of whether, even if probable cause were to be

conceded, it was appropriate to have pursued Mr. Mount to arrest him. These

commentators concede that the officers could pursue him; they ask instead whether they

should have pursued him. They argue that, since the police radio transmissions confirm

that the police knew Darryl Mount by name, they could simply have gone to his home

some time later and served him with a summons to appear in court.

This argument proceeds, however, with the clarity of a hindsight that was

available to no one as the incident was unfolding. The information known to the officers

at the time militated in favor of immediate action. Only an hour before, these officers had

been approached by an individual who said she had witnessed Mr. Mount strike Ms.

McLean in the face. These same officers had now just seen for themselves a second

attack on the same victim (and we now know that this was actually the third within an

hour’s time). Accordingly, the conclusion that the officers acted appropriately under the

circumstances as they existed at the time is supported by clear evidence.

The Pursuit; the Deployment of Tasers

Darryl Mount ran south on Broadway with Officers McIntosh and Warfield

running behind, shouting for him to stop. Mr. Mount then turned and ran into the narrow

alley between two buildings on Broadway. Each of the officers then paused, drew their

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Tasers, and fired a total of four prongs toward Mr. Mount. None of the prongs hit their

intended target.

Sidebar: Tasers

The Taser (an acronym for Tom A. Swift Electric Rifle) was invented about fifty

years ago but was not put to use by law enforcement until the early 1990’s. The device

works by delivering a high-voltage electric charge which briefly incapacitates the person

struck by its conductive prongs. The Taser has become nearly ubiquitous as a tool for

subduing noncompliant subjects because it is generally effective and usually safe for

police officers, bystanders and the subjects themselves.

Hundreds of individuals have been killed by Tasers, however, since the device

was initially marketed. Yet the Taser defies ready classification as a deadly weapon,

since it causes no significant or lasting injury in the vast majority of situations in which it

is employed. In relevant literature, the Taser is referred to as “non-lethal force,” though

this term is not defined in New York or in Federal law. New York recognizes “physical

force” as being distinct from “deadly physical force,” though the Taser is not specifically

recognized as an instrumentality of either in any statute.

This potential for confusion is not limited to New York. In Fulton County,

Georgia, the same prosecutor who charged police officers with felony assault when those

officers used a Taser inappropriately against student protesters refused to concede that

another officer may have acted properly when he shot a suspect who had stolen that

officer’s Taser, had fired one prong at the officer, and was threatening to fire the other at

him.

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 For purposes of the present case, the state of New York law in 2013 as it relates to

Tasers was the same as it is today. While the law remains somewhat murky, there is

neither statutory nor case law to suggest that a police officer acts improperly when he or

she deploys a Taser in an attempt to subdue a subject who is resisting a lawful arrest. As

noted previously, Mr. Mount was resisting a lawful arrest, supported by probable cause,

by fleeing from the police. Thus, there was no impropriety in the pursuing officers’

having discharged their Tasers in an attempt to subdue him.

Mr. Mount Falls and Sustains his Injuries

The alley down which Mr. Mount proceeded to run was the site of ongoing

construction work. Chain link fencing had been put in place to prevent access to the area.

Mr. Mount climbed over the fencing and continued onto the site. The building on his

right had a fire escape that served a number of apartments facing the alley. Ahead of him

and to the left was temporary scaffolding that had been erected for the construction of,

among other things, a staircase that would eventually lead pedestrians from the relatively

high surface elevation of Broadway to the lower elevation of Putnam Street, a short

distance to the east down the alleyway. The upper surface of the scaffolding was 19 ½

feet above the level of the alley below.

Officer McIntosh climbed over the chain link fencing, while Officer Warfield

proceeded further south along Broadway and then turned down another alley which

linked up to the one into which Mr. Mount had run. Officer McIntosh, who had lost sight

of Mr. Mount as he ran into the darkness, slowed his pursuit and stopped on the

scaffolding. Below him was the unilluminated alley. Mr. Mount was not to be seen.

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 Meanwhile, Matthew Pedersen, Lisa Boucher and Keith Burstyn were working in

the bar area of Gaffney’s Restaurant near the side door, which lay open to the alley. The

three of them heard a sudden crash. Ms. Boucher described what she heard as being

similar to the sound of a door being slammed shut or of a large object being thrown into a

trash bin. Mr. Pedersen, on the other hand, later recalled in deposition testimony that the

sound was eerily like something he had heard before: the sound of a head hitting a solid

object like a wall or the pavement. With Mr. Pedersen in the lead, all three immediately

entered the alley and began walking in the direction from which the sound had emanated.

As Mr. Pedersen walked into the dark end of the alley, he could see a flashlight on

the scaffolding above. Officer McIntosh called down to him, “Did you see anybody

running through here?” Mr. Pedersen replied, “No.” A moment later, Mr. Burstyn saw

immediately in front of him Mr. Mount, lying motionless on the loose-packed asphalt

pavement of the alley. Mr. Burstyn shouted, “Oh shit, there’s a guy on the ground!” Mr.

Pedersen and Ms. Boucher then approached and also saw Mr. Mount lying there.

Officer McIntosh then radioed, “We got him,” turned to his right and climbed

onto the fire escape. He descended to the lower level of the alley and was quickly joined

by Sergeant Benware and Officers Warfield and French, who had entered the alley from

Putnam Street, which parallels Broadway to the east. Sergeant Benware placed handcuffs

on Mr. Mount, who was breathing but unresponsive. Realizing that Mr. Mount was

unconscious, and seeing a puddle of blood by Mr. Mount’s face, Sergeant Benware called

for Emergency Medical Services and directed Officer Warfield to remove the handcuffs.

Within minutes, Investigator James Bell arrived and began taking photographs of

Mr. Mount and the surrounding area. EMS personnel came and placed Mr. Mount onto a

21
backboard. They brought him by ambulance to Albany Medical Center. Shortly after his

arrival there, Patty Jackson was contacted and informed about what had occurred. She

rushed to her son’s bedside.

Ms. Jackson testified at her deposition that one of the emergency room doctors,

whose name she did not recall, took her aside and told her that he suspected Mr. Mount’s

injuries might have been the result of an assault. Ms. Jackson then telephoned the police

station to register a complaint. Meanwhile, upon learning from the police that Mr. Mount

was at Albany Medical Center, Ms. McLean alleged that he was the victim of police

brutality.

Mr. Mount’s Injuries

Mr. Mount suffered multiple fractures to numerous bones on the left side of his

face. These included a broken orbital socket and a broken jaw, which required later

surgery to repair. But the most serious injury he suffered was brain damage, which

resulted from bleeding within his brain. Though his physical condition began to slowly

improve, he remained comatose. While he regained consciousness to a degree, he was not

able to communicate. Ultimately, as a result of his prolonged immobility, Mr. Mount

contracted pneumonia. He passed away, shortly after his 22 nd birthday, on May 13, 2014.

An Investigation?

Almost immediately after Darryl Mount was taken to Albany Medical Center,

police investigators began canvassing the neighborhood for potential witnesses to the

incident. In all, they interviewed more than a dozen individuals and received signed

22
statements from most of them. Copies of these statements – with the names and

identifying information of the witnesses redacted – have been released by the Saratoga

Springs Police Department and are available on their website. The three Gaffney’s

workers, Mr. Pedersen, Ms. Boucher and Mr. Burstyn, were among these witnesses. (Mr.

Pedersen and Ms. Boucher were later deposed in connection with the civil litigation; Mr.

Burstyn left New York and so was apparently not available for deposition.) A witness

who lived in the vicinity wrote that he had heard an authoritative male voice shout

commands just before the witness heard two popping sounds. The witness noted that the

sounds were not those of gunshots, but could have been made by a Taser.

Another witness, a man who lived in an apartment facing the alley, gave a

statement describing how he was awakened at around 3:00 am by a noise that sounded to

him like someone jumping onto the fire escape. This witness also stated that he looked

out his window and saw a police officer with a flashlight. The witness went on to state

that he heard the officer ask someone in the alley if he had seen anyone running through

it. He heard someone in the alley reply, “No,” and then a moment later heard someone

say that they could see somebody lying on the ground.

Another individual stated that he had been walking down Putnam Street past the

alley when he saw an individual being turned on his side and handcuffed by a police

officer. This witness went on to say that, while he was acquainted with Darryl Mount, he

did not realize that it was Mr. Mount who was being handcuffed until some time later.

The witness said that he had seen Mr. Mount earlier that night and recognized the red

shirt and shoes worn by the individual in the alley as being those worn by Mr. Mount

earlier that night.

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 Investigator Bell took numerous high-definition photographs of the scene. He also

noted smudged palmprints on two trash barrels, but determined that these were unsuitable

for analysis. He did not report looking for fingerprints on the scaffold framing, the fire

escape or any other surface in the vicinity. Though it had been raining earlier on the night

of the incident, Investigator Bell did not recover any footprint evidence from the surface

of the scaffolding or the fire escape. His report does not indicate whether he had sought

such evidence.

The Saratoga Springs Police Department had in place at the time General Order

#25, which mandated an internal affairs investigation whenever a complaint was lodged

alleging serious police misconduct. Despite both Ms. Jackson’s and Ms. McLean’s

having both alleged that Mr. Mount had been assaulted by the police, no such

investigation was ever initiated. Instead, then-Police Chief Gregory Veitch issued an

email on September 2, 2013 which stated, “I will take a statement from someone who

alleges the police beat Mount knowing it is false . . . .”

When contacted on October 15, 2013 by Caitlin Morris, then a reporter for the

Saratogian newspaper, Chief Veitch told her in an email that there were two parallel

investigations under way. He said that one was a criminal investigation into the alleged

crimes committed by Darryl Mount on August 31, 2013, and that the other was an

“internal investigation” into the allegations of police misconduct. When he was later

deposed for the civil lawsuit, Chief Veitch admitted under oath that he had intentionally

“misled” the reporter. He conceded that there had never been an internal investigation.

The City Charter of Saratoga Springs places the ultimate responsibility for

overseeing the police department on the Commissioner of Public Safety, an elected

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official. The Charter also gives the Commissioner the obligation of setting policy and

ensuring discipline in the uniformed services. Christian Mathiesen, Public Safety

Commissioner at the time when Mr. Mount suffered his injuries and when he died, was

also deposed for the civil lawsuit. When asked about setting police department policy, he

testified, “I would leave it up to the police chief to manage his department.”

Commissioner Mathiesen was also asked questions as to why there had been no

internal investigation, even though there was a standing rule mandating one. He defended

the lack of investigation by contending that the rule only mandated internal investigations

of misconduct when the allegations were “substantiated.” General Order #25 states, in

pertinent part:

Complaint – For the purposes of this order, a complaint shall be defined as . . . [a]ny
alleged act or omission which, if substantiated, is contrary to the rules, policies and
procedures of the department . . . [or] would constitute a violation of law.
***
The Chief of Police shall be promptly notified about all complaints, and shall
designate an Internal Affairs Designee . . . to investigate any serious complaint . . . .

Clearly, the phrase “if substantiated” means, in its context, that if an allegation on

its face made out a violation of law or policy, it would need to be investigated. Under

Commissioner Mathiesen’s logic, however, the phrase means that the allegation had to be

proven true before it could be investigated. This puts the proverbial cart before the horse:

if an allegation had to be proven before it could be investigated, there would be no need

for investigation; conversely, any allegation that had yet to be proven would not be

investigated and therefore could never be proven. This interpretation of the language of

the rule is therefore erroneous, as it leads to an absurd result.

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 A more appropriate interpretation of General Order #25 would be that it mandates

the internal investigation of all complaints of serious misconduct. The facts and

circumstances surrounding the complaint would dictate the scope of the investigation.

Accordingly, a vague complaint or one based merely on uncorroborated hearsay might

warrant only a cursory investigation to satisfy the order. A more specific complaint, on

the other hand, might warrant a far more detailed investigation.

At this juncture, it would be appropriate to pursue the question whether former

Chief Veitch himself violated General Order #25 not once, but twice: first, by having

failed even to take the initial step of appointing an Internal Affairs Officer to investigate

the complaints that Mr. Mount had been beaten by police officers, and second, for having

deliberately – by his own eventual sworn admission – misled the press (and by extension

the public) into believing that he had commenced the required internal investigation.

These specific issues, moreover, beg the inevitable question of why Veitch was never

held to account, and instead was allowed to remain Chief until his eventual retirement in

2019. The complete lack of accountability demonstrated here renders it not at all

surprising that many have lost trust in their local government leadership.

Particularly with a matter as sensitive as police brutality, our leaders must learn

that there are consequences in taking a dismissive attitude toward or in downplaying the

severity of allegations of abuse of force. Yet even as recently as 2006 the New York State

Commission on Judicial Conduct chose only to censure and not to remove an Albany

City Court Judge who told a police officer at whom a criminal defendant had made an

obscene gesture, “If you are so upset about it, why don’t you just thump the shit out of

him outside the courthouse . . . ?” Even though the Commission recognized that this

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“suggests to a police officer, and to anyone else who heard respondent’s words, that the

court sanctioned violence as an acceptable means of retaliating against unruly

defendants,” they allowed this Judge to remain on the bench (Matter of Carter, Sept 26,

2006 at p 8). It should come as no surprise, therefore, that some individuals will likely

continue to question whether Darryl Mount was the victim of an assault.

The Ultimate Question: The Source of Mr. Mount’s Injuries

None of the witnesses to have come forward have testified to having direct

knowledge of how Mr. Mount came to be face down and unconscious on the pavement in

the alley. We know from both testimony and video evidence that he ran south on

Broadway and turned into the alley where construction was ongoing. The three

eyewitnesses from Gaffney’s are consistent in their reports that they saw Mr. Mount

unconscious in the alley before any police officer approached him. So the question

remains, how did he sustain his injuries?

Dr. Michael Sikirica, the medical examiner, opined that Mr. Mount fell from the

scaffold and thereby suffered his injuries. This conclusion was challenged by Dr. Cyril

Wecht, the expert retained by Mr. Mount’s family. Dr. Wecht pointed to a number of

facts that call into question the theory that Mr. Mount fell nearly 20 feet. First, Wecht

noted that a conscious individual falling from such a height would have instinctively

thrust his hands out in front of him. Hitting the ground from 20 feet, the individual would

be expected to exhibit injuries to the fingers and hands. Yet Mr. Mount’s fingers and

hands were unharmed.

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 Dr. Wecht also opined that a fall from such a height would have resulted in

additional and significant internal injuries. Other than the bleeding in his brain, Mr.

Mount exhibited no internal injuries. Ergo, reasoned Dr. Wecht, Mr. Mount’s injuries

were not consistent with a fall from a significant height; rather, he inferred, the injuries

were consistent with a physical assault.

It would be wise at this point to focus on Dr. Wecht’s precise claim, that Mr.

Mount’s injuries were “consistent with trauma sustained from a direct assault, i.e.,

physical beating.” It implies that, if an individual was physically assaulted, he or she

would exhibit the injuries presented by Mr. Mount upon his admission to Albany Medical

Center. Yet Dr. Wecht takes this one step further, and in doing so, he violates basic rules

of logic. Dr. Wecht draws the ultimate conclusion that a person exhibiting such injuries

had, in fact, been physically assaulted.

The error of Dr. Wecht’s reasoning can be explained simply. He implicitly posits

a conditional premise: if a person was physically assaulted, he would exhibit injuries like

Mr. Mount’s. But then Dr. Wecht improperly turns the conditional statement around to

conclude that the result proves the condition: that is, if a person exhibits Mr. Mount’s

injuries, he was physically assaulted.

A simple analogy can demonstrate the flaw in Dr. Wecht’s logic: getting wet is

consistent with walking through a lawn sprinkler. John is wet. Therefore, John walked

through a lawn sprinkler. The flaw in reasoning is easy to see here, for walking through a

lawn sprinkler is sufficient to get wet; yet walking through a lawn sprinkler is not

necessary in order to get wet. Obviously, many other possibilities exist to explain how

John may have gotten wet. Similarly, while a physical assault may be sufficient to cause

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brain injuries and broken facial bones, these injuries are not necessarily the result of a

physical assault. Other causes may have brought about this result.

So the question remains, what actually caused the injuries that led to Mr. Mount’s

death? If Dr. Sikirica is wrong in concluding that Mr. Mount fell nearly 20 feet and Dr.

Wecht is also wrong in concluding that Mr. Mount was physically assaulted, what really

happened? It can be shown that there are sufficient facts in the established record to

harmonize the eyewitness testimony with the medical evidence.

First, the Gaffney’s witnesses, corroborated in part by video footage, establish

that there was no physical assault. These witnesses not only were the first persons to see

Mr. Mount lying unconscious in the alley, they also put Officer McIntosh up on the

scaffold and not down in the alley at the time of their initial approach. Moreover, the

video footage shows that Sergeant Benware and Officer French did not enter the alley

from Putnam Street until after the Gaffney’s workers had already walked down the alley.

Accordingly, there is overwhelming evidence from which a reasonable person can

conclude that no police officer was near Mr. Mount at the time he suffered his fatal

injuries.

Second, both of the medical experts fail to account for the fact that Mr. Mount

had relatively minor abrasions on his hands and knees. An abrasion on Mr. Mount’s right

hand can clearly be seen in a photograph taken while a police officer was checking his

pulse. The medical records from Albany Medical Center also describe minor abrasions to

both of Mr. Mount’s knees. These are injuries that suggest that Mr. Mount fell while

running, not after falling from a 20 foot height.

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 Additionally, the spot on which Mr. Mount is shown lying in the photographs is

some considerable distance from the scaffolding. This further suggests that he did not fall

from the scaffold. Instead, it suggests that he fell after he had begun running in the alley

after having descended, either from the scaffold or from the fire escape, to the lower part

of the alley.

Both the testimony of the witnesses as well as the video footage show that

Broadway was well lighted, while the alley at the base of the scaffolding was very dark.

In fact, Mr. Pedersen testified that he only spotted Mr. Mount when he was almost on top

of him. Testimony and photographs show that the surface of the alley was loose-packed

asphalt. The Albany Medical Center records show that Mr. Mount’s blood alcohol

content was .18%, or more than twice the level needed to prove intoxication. Is it not

reasonable to conclude that an intoxicated man, running in a panic from the police,

having just descended from a well-lighted area into nearly complete darkness, might have

tripped and fallen on the loose-packed asphalt surface of an alley?

But how did Mr. Mount get down from the scaffolding without falling 20 feet?

There are several possibilities here. First, the fire escape provided Officer McIntosh the

means to get down to the base of the alley without injury. Mr. Mount might simply have

climbed down the fire escape. Second, it is possible that Mr. Mount might have climbed

down the framing of the scaffolding itself. Mr. Mount could even have jumped the short

distance between the scaffolding and the fire escape and descended by climbing down the

outside of the fire escape. In short, there are a number of ways he could have reached the

bottom of the alley without having fallen the full distance of 20 feet.

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 Yet the ultimate question still remains: if Mr. Mount was able to get to the base of

the alley and begin running, how can it be that simply tripping and falling could have led

to fatal injuries? The answer to this question may be found in the one piece of medical

evidence not considered by either of the experts as a potential factor in their analyses: Mr.

Mount’s prior spinal injury. As noted earlier, the 2010 diving accident left Mr. Mount

with five fused vertebrae. Beyond any doubt, this surgery would have left Mr. Mount

with limited flexibility in his upper body and neck. The injury was certainly sufficient to

have convinced the Social Security Administration to determine that he was incapable of

employment in any capacity, as he had been found by them to be permanently disabled.

The physical limitations caused by this prior injury were thus shown to have been

significant.

All of us have tripped and fallen at some point in our lives. Rarely, however, does

a fall result in serious, much less fatal, injury. Yet most of us, while falling forward, are

able to avoid having our faces and heads take the full force of the impact. This is due in

large part to the flexibility of our upper bodies.

Now consider what might happen if a man without upper body flexibility should

suffer a headlong fall, particularly when running in a panic. The impact of the full weight

of his body would be focused exclusively on his head. Moreover, the momentum

imparted by his forward velocity while running would magnify the force of the impact

substantially. The possibility of serious and even life-threatening injury would thus be

significant.

The likelihood of the veracity of this explanation is further corroborated by the

fact that Mr. Mount was found lying with the left side of his face – the sole locus of the

31
serious external injuries – on the ground. Additionally, the only blood found on the scene

was immediately under the spot where Mr. Mount’s face lay. This further suggests that he

struck the ground hard when he fell, face first, to the pavement, and remained,

unconscious, at the very spot where he had tripped and fallen.

Additional support can be found in the medical records regarding the trauma to

Mr. Mount’s brain. These records indicate that he suffered from bleeding in a number of

locations in his brain. From this comes the reasonable inference that Mr. Mount’s head

was moving forward at considerable speed when his injury was sustained. The

momentum of the brain mass caused it to continue moving forward in the skull after the

head had suddenly decelerated upon impact with the pavement. This, in turn, caused the

massive bleeding that ultimately led to Mr. Mount’s death.

Of course, there are other and simpler hypotheses. If Mr. Mount did not fall the

full 20 feet from the top of the scaffolding, perhaps he was able to climb down part way

and fell a lesser distance. There is also the possibility that he might have landed safely on

the floor of the alley only to run headlong into a wall in the darkness. In the end, the

exact etiology of the injuries is secondary to the essential point that, at least at present,

there is no evidence in the public domain that suggests anything other than Mr. Mount’s

accidental sustaining of his injuries.

Where do things stand now?

The internal investigation mandated by the rules in effect in 2013 was never done.

Multiple requests for investigation by the Office of the Attorney General were referred to

the Office of the Saratoga County District Attorney. By resolution passed unanimously

32
by the Saratoga Springs City Council in January 2022, the District Attorney was formally

asked to undertake the impaneling of a Grand Jury pursuant to Criminal Procedure Law

Article 190 in order to investigate and report on the circumstances surrounding Darryl

Mount’s death. The District Attorney refused this request.

Since 2015, New York law has empowered the Attorney General with original

jurisdiction over matters involving the death of unarmed civilians during encounters with

police. This law is not, however, retroactive to 2013. Accordingly, it would take an

Executive Order of the Governor to authorize the Attorney General to perform the CPL

Article 190 investigation refused by the District Attorney.

A Grand Jury investigation by the Attorney General would be the best vehicle for

finally establishing all the facts of this case, or at least as many facts as can be ultimately

determined at this late date. Grand Jury proceedings are secret, and witnesses before the

Grand Jury are immune from prosecution for any offense arising out of the substance of

their testimony (with the sole exception being perjury in the Grand Jury itself). Thus, if

there are indeed any witnesses otherwise reluctant to come forward publicly, CPL 190

would allow them to testify behind closed doors and cloaked with immunity from

subsequent prosecution.

As previously noted, a civil lawsuit was commenced by Patty Jackson in 2014.

That case is still pending. In fact, all of the sworn testimony relied upon in this draft

report has come from depositions of witnesses in this civil litigation. In late 2019, the

City’s attorneys moved for summary judgment. That motion was not opposed by

plaintiff’s counsel; instead, they have sought, and have received, additional discovery.

Some of plaintiff’s discovery requests have been objected to, and this part of the

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litigation continues. It is likely that the case will continue in the Courts for at least

another year. A renewed motion for summary judgment will ultimately be filed on behalf

of the City; that motion will need to be answered by plaintiff’s counsel. The trial Judge’s

decision will undoubtedly be appealed by whichever side is unsuccessful on the motion.

The appellate process itself could take another year or more.

In the meantime, Dr. Sikirica was deposed a second time. Another witness was

also deposed. This individual, who only came forward very recently, apparently

corroborates the testimony of the Gaffney’s employees. Neither the transcript of this

deposition nor of the further deposition of Dr. Sikirica is yet available for public

inspection, however.

It would be inappropriate to speculate as to when and how the civil lawsuit will

ultimately end. Yet the overwhelming weight of evidence currently available for public

inspection militates in favor of the City, as Dr. Wecht is, at present, the only known

witness who supports plaintiff’s theory of liability. The weaknesses in Dr. Wecht’s

analysis was discussed earlier here. We may wait for the judicial process to run its

course, though a reasonable person might well find that sufficient evidence is currently

available to support a reliable conclusion as to what really happened on August 31, 2013

and afterward.

There is, of course, another possibility: the City could extend an olive branch to

the family of Darryl Mount by offering to negotiate a settlement of the civil lawsuit. Even

in the absence of evidence that Mr. Mount was mistreated in any way by the patrol

officers of the Saratoga Springs Police Department, there is more than sufficient proof

that the misconduct of former Chief Veitch has caused Mr. Mount’s family considerable

34
pain and suffering. Moreover, a significant percentage of the information developed by

investigation into the events of August 31, 2013 was brought to light through the efforts

of the attorney representing Patty Jackson. Accordingly, it would be appropriate for both

sides to sit down at the table and make a good faith effort at settling the litigation along

mutually acceptable and fair terms.

What Lessons Can We Learn?

In this era of reform, communities across the country have been focused more

than ever on issues surrounding policing, incarceration, pretrial detention, parole and

probation. At the same time, the ongoing problem of intimate partner violence has also

gotten the attention of the public. The Darryl Mount case represents a unique confluence

of many of these issues.

No evidence whatsoever has yet been produced to show misconduct on the part of

the police officers who were immediately involved in the events of August 31, 2013.

Their initial approach of Darryl Mount at about 2:20 am was based on reasonable

suspicion provided by the unidentified female witness. They later personally observed

Mr. Mount shove Morgan McLean’s head into the wall. This provided them with

probable cause to arrest him. The deployment of the Tasers during the pursuit was in

accordance with existing (and currently accepted) standards of police practice. And there

is no evidence of any physical assault on Darryl Mount.

Some criticism might be leveled against Sergeant Benware for his having

handcuffed Mr. Mount despite his being clearly unconscious and injured. Sergeant

Benware’s training, however, would have prompted him to ensure that the scene was

35
secure, so handcuffing a suspect would have been all but automatic. In any event, there is

nothing to suggest that Mr. Mount’s injuries were exacerbated by his having been briefly

handcuffed, and Sergeant Benware had the cuffs removed before EMS arrived. This fact

is corroborated by photographs taken by Investigator Bell at the scene.

The real criticism lies in the failure of leadership. Former Chief Veitch was

obliged under existing rules to ensure that an internal affairs investigation was conducted.

Not only did he fail to discharge this obligation, he openly took a position that

presupposed a particular conclusion. Most troubling, however, was his admitted

deception of a reporter, as this equates with the deliberate deception of the public. One

may understand his loyalty to the officers whom he had known and worked with for

years; his professional obligations, however, should have transcended that sentiment.

Instead, his mistakes only served to cast a cloud of suspicion over his Department. That

he was never formally disciplined for his misconduct in office is inexcusable.

Former Commissioner Mathiesen bears some responsibility here as well. He was

– and remains – a highly regarded member of the community. He was entrusted by the

voters, for three terms of office, with the duties of his elected position. Unfortunately, his

deference to former Chief Veitch ran contrary to the obligations imposed upon him by the

City Charter. The framers of that document envisioned civilian oversight of the City’s

uniformed services. Deferring to the Chief in important matters of policy was thus an

abdication of that responsibility.

To those who have repeatedly alleged that the Darryl Mount case was never

adequately investigated, Mr. Mathiesen responds with the claim that there were three

investigations: the one done by the police; the one done by the City’s insurance carrier;

36
and the one done in preparation for litigation by the law firm representing the City. But

no investigation can be called complete without a comprehensive written report. The

Warren Commission issued its report on the assassination of President Kennedy; The

9/11 Commission issued its report on the attacks on the World Trade Center and the

Pentagon; and the Mueller Commission issued its report on alleged Presidential collusion

and obstruction. The death of Darryl Mount deserves an investigation that culminates in a

comprehensive written report. This draft is offered as a starting point toward that eventual

goal.

Saratoga Springs is a small city. Its elected leaders come from all walks of life.

Some of those leaders come to their tasks lacking the knowledge, wisdom and courage

needed to discharge their obligations effectively in times of crisis. These all-too-human

shortcomings can have lasting and painful consequences. Let us strive to do better for the

future.

Verbum sapienti sateat.

Conclusion

Darryl Mount’s death was a tragedy. Its repercussions have been felt by the

Saratoga Springs community for years. Mr. Mount’s family and friends have sought a

closure that is painfully slow in coming. While Mr. Mount may have had his

shortcomings, “Let him who is without sin cast the first stone.”

It is hoped that this draft report will provide enough information so that

reasonable people can be empowered to begin to draw their own conclusions about what

happened in that alley. It is also hoped that Saratoga Springs can turn a page in its history

37
and move toward a renewed trust in its institutions and in its public servants. May Darryl

Mount rest in peace, and may his memory be a blessing to his family and to his friends.

Respectfully submitted,

James Montagnino
Commissioner of Public Safety
City of Saratoga Springs, New York

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