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Prisoner System Battering

Marilyn Shirley paid for her crimes. She wants a prison guard to pay for what she says he did to her.

By Betty Brink

Preparing myself for prison had to be the hardest thing I ever had to do, but it really doesn't hit until you arrive at the front entrance and realize this is where you're going to be for the next 36 months of your life. Outside, life will go on, but yours is put on standstill inside the razor wire and fences. ...

Marilyn Ann See Shirley spent many a sleepless night in Fort Worth's federal prison camp at Carswell - fear-filled nights when she lay awake wondering whether an attacker would call her out from bed, if the guard would be there shining his light in her eyes, nights when she wondered if the evidence hidden under her bunk would ever reach authorities.

Convicted on a drug charge, Shirley was locked up at the Federal Medical Center at Carswell from Jan. 12, 1998, until Sept. 10, 2000.

When she got out, the fear was gone, but the sleepless nights became her new jailer. So she bought the blue-jacketed notebooks and kept them by her bed, and when she couldn't sleep, she wrote. Night after night, she filled their pages with the detailed memories of her days at Carswell, from that bleak winter afternoon when she "kissed my kids and husband goodbye" at the gate until the Indian summer day she walked out a free woman, three months shaved off her sentence for good behavior, her debt to society paid in full.

The notebooks tell of the anxieties, nightmares, and fears that have haunted her since she left the confines of the razor-wire fence: Still not feeling right. Been very nervous and panicky ... Hope I don't have another nightmare ...Very depressed. ...Will I ever feel pretty and clean again? Will I still want sex? ...Woke up in hot sweat! Can't stop shaking and crying. ...Want to be somewhere safe. ... Am I losing my mind? Gotta take another bath and get him off me.

Back in 1998, as Marilyn Shirley tried to mentally prepare herself for the lonely journey she was about to begin, the one thing she couldn't prepare for was rape.

On March 11, 2002, Marilyn Shirley's attorneys filed a $10 million lawsuit in Fort Worth federal court, alleging that Carswell prison guard Mike Miller had raped her almost two years earlier. Documents in the case include a graphic description of what Shirley said happened to her:

"He took off his belt and keys and pulled his pants down, and proceeded to push her head down on his penis, forcing her to perform oral sex on him, saying ... 'Do you think you're the only one? Don't even think of telling because it's your word against mine and you will lose.'

"Officer Miller then turned her around, shoved her head against the wall, bent her over, shoved his finger into her vagina, placed his penis in her vagina, and holding his hand over her mouth, proceeded to rape her.

"Subsequently a loud noise, like someone clearing their throat as if to give a signal, was heard over Miller's radio and he jumped back and told her to get out and if she told anyone, she would be sent to seclusion.

" Shirley, jerking and shaking, pulled up her pants, returned to her room, went into the bathroom, threw up and sat on the bed and cried the rest of the night."

The suit, filed by attorneys Arch McColl of Dallas and Gina Joaquin of Hurst, seeks $10 million from Miller and the Bureau of Prisons. Shirley's allegations also triggered an FBI investigation of Miller that is still active, according to FBI spokesperson Lori Bailey. Miller, a senior federal correctional officer at Carswell since 1996, is still employed by the Bureau of Prisons but is no longer at the women's prison, BOP public affairs officer Carla Wilson said.

Shirley reported the rape to Carswell authorities on Sept. 10, 2000, the day she was released from prison. Eight days later, Miller was transferred to the BOP's Federal Medical Center for men in Forest Hill. The bureau, Wilson said, will take no action against Miller unless the FBI investigation leads to an indictment. She said she did not know why he was transferred so quickly following Shirley's charges.

Reached by phone at his home in North Richland Hills, Miller refused to talk about the allegations. "I've been advised by an attorney not to talk to you." He has filed an answer to the lawsuit, denying all the allegations. The Bureau of Prisons has not filed its answer yet.

Sitting in a quiet corner of a Dallas coffee shop recently, Marilyn Shirley was more than ready to talk about the night of March 12, 2000. "I'll never forget it," she said, her voice barely above a whisper. "As much as I want to, and as much as I pray to God to let me forget, it won't go away." A small-boned and slender woman, Shirley has long brown hair streaked with blonde tints, framing a weathered but still attractive face that speaks of a life lived on the edge.

Born in East Texas in 1955 to a family struggling to make ends meet, Marilyn See ran away from her Gladewater home in her early teens and bummed around the town, living mostly in her car or occasionally with friends. "I was just a free spirit," she said. "I wanted to be on my own.

But it wasn't all it was cracked up to be." One night after work at a steak house, she was sleeping in her car when a darkly handsome man roared up on a Harley and asked her why in the hell she was sleeping in her car. "I was so scared, I couldn't talk. When I finally told him I had nowhere to go, he put me on the back of his bike and took me to his house, fed me, and put me to bed. He didn't touch me. I fell in love right then." The man was Raymond Shirley, 15 years her senior. They married, and she began a roller-coaster life that alternated between drugs, crime, an occasional arrest, and periods of normalcy, with kids born along the way. "I never blamed anyone else for my troubles. When I wound up in jail at Carswell, I knew I'd gotten myself into this mess, so I just had to make the best of it," she said. "But the best of it didn't include rape."

FMC-Carswell, as the women's prison is labeled in federal records, is a sprawling compound that includes a high-rise hospital for chronically or terminally ill federal female prisoners and a smaller, tightly secured cellblock for violent and high-security inmates.

Across the street from those buildings is the prison section known as the camp, a cluster of two-story apartments that sit among large oak and pecan trees. There, non-violent, low-security offenders live communally, with three to five women in each unit. Camp inmates are locked in their rooms at night, but during the day they work in various jobs for which they have been trained, such as welding, auto repair, groundskeeping, and office work, always under the watchful eye of guards. Because the camp women have freedom of movement during the day, Shirley said, some of the officers - including Miller - didn't like to pull guard duty there. "I think it was because they couldn't control us as well ... we were more independent."

Dark-haired and muscular, Miller was in his mid-thirties, Shirley said, and was married with one daughter. He had been a BOP officer there for four years - and Shirley had never had any trouble with him before.

In fact, records show she caused no trouble with anyone at the prison while she served her sentence for "unlawful use of a communication device" (a telephone) to facilitate a sale of methamphetamines. Prison records show that she had taken all the required BOP courses, from substance abuse prevention to learning job skills; had become an expert welder with an "outstanding" work performance rating; and had never had an incident report written against her. She kept a low profile, her fellow inmates said, did her work, and counted the days. She was rewarded with time credited for good behavior, and when she left, the BOP gave her a $250 check for being a model prisoner.

(She did not rejoin her husband, however. Soon after she entered Carswell, Raymond Shirley, now 62, was convicted of conspiracy in the same drug transaction and is serving eight years in protective custody at an unnamed federal pen. Both Shirleys had been under the witness protection program, in connection with an unrelated case, when they were convicted of drug crimes in 1997. By the time they entered prison, they had once again assumed their real names. Neither Marilyn Shirley nor federal authorities will comment on the earlier case.)

What she calls "those dark hours" began one March night when Miller had pulled duty as the camp's night safety officer. Shirley, then 45, had seven months left on her sentence. In her lower bunk bed, in the apartment she shared with four other women, she was "dreaming of going home. ... I was so excited about getting out and being with my children and having some privacy," Shirley said. "The apartments were like living in a fish bowl."

Shirley's account of what happened next is recounted in detail in the court documents. She said she had dropped into a deep sleep when she was suddenly jarred awake by the slamming of the apartment door. It was 3:30 a.m. She looked up to see Miller coming toward her, yelling, "Get up, Shirley, you're wanted at the officer's station."

"For what?" she asked sleepily. "Just get up," he said. By that time, her roommates were awake from the commotion. Recently released inmate Gail Birch, who had shared the apartment with Shirley for almost three years, saw Miller standing over Shirley, she told Fort Worth Weekly, heard him tell her to "report to the safety office," watched her pull on her sweat pants and leave. Everyone went back to sleep, Birch said, thinking he had pulled her out for a random drug test. "That kind of thing happened a lot. Drugs were everywhere. It was harder to smuggle chewing gum into that prison than drugs," she said.

But a drug test was not on Miller's mind.

Still, as Shirley followed him into the office, she had no fear for her own safety, she said. "I was scared to death, but not of Miller. Getting called out in the middle of the night, I thought something might have happened to my husband, who's diabetic, or one of my 22-year-old twins."

Then Miller did a strange thing, Shirley said. He picked up the phone and told someone at the other end that he was taking a break and "if anyone heads over here, give me the signal." Then, she said, he pulled her toward him and tried to kiss her. He told her he had been fantasizing about her and began to grope her breasts. She pushed him away and told him to stop. "I begged him, 'Please don't do this, you're a married man.' I thought I could talk my way out." It didn't happen.

Miller ordered her into a side room, she said, where she remembers an ironing board with a radio sitting on it. It was a storeroom where supplies were kept for the inmates. The more she cried and begged him to leave her alone, the more brutal he became, she said, forcing her to perform oral sex on him and then raping her from behind.

"I couldn't even tell you what kind of shorts he was wearing," she said, in the interview with the Weekly. "It was dark in that little room, and he had dropped his pants and underwear. All I can remember is the sound of that big old belt buckle that he wore, hitting the floor."

Shirley said she also remembers the pain and fear and humiliation of those moments. "It seemed like it lasted an hour," she said, "but it was probably only about half that. The warning he got from someone stopped it," she said. "And that just means he had an accomplice, and that this was something that goes on all the time. I still get sick thinking about it."

All the way back to her room, she said, she focused on one thing: "I've got my pants. I've got the evidence. I have to save my pants." And she did. She took her gray sweatpants off and carefully wrapped them in black plastic and hid them under her bed.

The next morning, according to the court filings, she "confided in her welding boss, Maria Monreal, and advised her that she had been raped by Officer Miller." Shirley said that at the time she asked Monreal not to tell anyone until Shirley was ready to leave the camp. Monreal complied, in violation of bureau policy. Contacted by Fort Worth Weekly at her Granbury home, Monreal said she no longer worked at the prison and had "no more comment at this time."

When Shirley's roommates asked, she told them that Miller had just wanted to talk to someone to help him stay awake. After about a month, she broke down and told Birch, swearing her to secrecy.

"I was in the witness protection program," Shirley explained. "And I had been told [by the Justice Department officials who had jurisdiction over her] not to bring any attention to myself while I was in Carswell." Publicity could have endangered her life, she said. And by now, of course, she was scared of Miller.

"Who would believe me? I wanted out. He could have retaliated against me. Made up something that could have kept me there for months past my release date. I decided to wait until the day I was walking out the gate to let the BOP know and turn the pants over to 'em."

Even in today's politically correct society, prison rape is still fodder for jokes - and not just in the locker rooms.

Last year 7-Up stirred a storm of protest from human rights groups when it aired a commercial titled "A Captive Audience" that depicted a company spokesman passing out cans of the soft drink to male prisoners. He drops one, then refuses to bend over to pick it up. Asked to pull the commercial by such groups as Human Rights Watch and the ACLU, 7-Up refused. And more recently, California's attorney general angered the same groups when he was quoted in news reports as saying that he'd "love to personally escort Kenneth Lay to an 8-by-10 cell that he could share with a tattooed dude who says, 'Hi, my name is Spike, honey.'"

But prison rape is no joke, angry reform advocates say.

"Recognized by the Supreme Court as a form of cruel and unusual punishment, prison rape violates the Constitution, offends fundamental principles of human dignity, and shames the society that allows it to occur," Human Rights Watch activist Joanne Mariner wrote last year in a book-length report on male-on-male prison rape.

But a leading advocate for women victims of violence says that prison rape occurs precisely because society has no shame about it. Professor Wendy Murphy, who teaches about the historical and cultural roots of violence against women at the New England School of Law, also founded a group that provides legal help to Boston-area victims of violent crime.

"Even the most outrageous cases such as gang rape leading to death or pregnancy or transmission of AIDS only get a moment in the sun, then things go back to the way they were because the victims have no voice and too many people still view prison rape of both males and females as an acceptable part of the sentence," she said.

"As a class, there are none more voiceless in this country than women prisoners. The cultural and historical idea that males are 'entitled' to sex ... is magnified immensely in a women's prison setting where the victims are captives with no place to turn."

No one even has a handle on the depth of the problem. With two million prisoners in county, state, or federal jails, no accurate nationwide data exists on just how widespread the abuse is. The only estimates are based on anecdotal evidence.

Studies compiled recently by the ACLU National Prison Project in Washington, D.C., suggest that as many as 20 percent of male prisoners and 10 percent of females have been coerced into sex or raped while in U.S. prisons. But the figures could be much higher, the ACLU pointed out, because of the obvious difficulty in getting those behind bars to report on their abusers.

Fears of retribution, repeated rapes, or that prisoners will not be believed are grounded in reality, Murphy said. Currently, federal and state inmates must exhaust their prison's administrative complaint procedures, which often takes six months, before they are allowed to file a suit in state or federal court. The delay, she said, makes them vulnerable to many forms of retaliation. Murphy and others are seeking legislation to change such policies.

According to Bureau of Prisons public affairs officer Carla Wilson, the agency keeps no records on the number of its employees who have been prosecuted and convicted of sexual harassment, sexual abuse, or rape of inmates or other employees. And complaints from inmates against an employee for sexual offenses are not available to the public, she said. The Fort Worth Star-Telegram did report in 1999 that an FMC-Carswell cook received three years probation after pleading guilty to "sexual abuse of a ward" and admitting that he had sex with a female inmate.

Often the only ones who know the names of such predators, however, are the women in the prisons themselves. "We have a grapevine that's pretty damn good," said Marilyn Shirley's roommate Gail Birch, 58, who spent nine years at Carswell for transportation and possession of marijuana. She now lives near Hillsboro and spoke to the Weekly from her home. "I knew Marilyn really well. We were roommates for almost three years. She was real pretty, sweet, didn't get into any of the gossip or fighting, and she sorta took in the newcomers, mothered 'em, made 'em comfortable. Marilyn was a good girl."

When Shirley finally told Birch what had happened to her that night in March, Birch said, "I knew it."

Birch also knew Miller well, she told the Weekly. "He never smiled," she said. "We talked a lot about our lives, during smoke breaks, and he showed me pictures of his wife. She was a beautiful Hispanic girl." But he also hustled inmates, she said.

She claimed that Miller used her to try to get close to one young inmate at the camp. "He gave me notes to smuggle to her," she alleged, "and called her 'Angel Eyes.' She was very pretty and very young..." Birch said Miller told her that he was "falling in love" with the young inmate.

He found excuses to get the woman into his office, Birch said. "The girl tried to avoid him. She came to me for help, because she was frightened," Birch said. "But he was an officer - what can you do?" Because the woman is still incarcerated at Carswell, Birch didn't identify her.

When the inmates talked without jailers around, Birch said, "the topic was Miller." Birch, who was at Carswell when Miller came to work there, said the guard was "a male chauvinist pig. He saw women as objects, treated us with no respect, talked down to us."

Another former inmate, Carolyn Wiginton, described Miller as "an ass. He used his power to humiliate and degrade the women here," with curses and sexually charged language. Wiginton, a former nurse, served time for a narcotics conviction and now lives in Shawnee, Okla. She said she worked alongside Shirley for five months and found her to be trustworthy.

Shirley said she had heard the stories but that she had never had any problems with Miller. "He and I had a smoke sometimes, outside on the benches. We talked about our families." Birch and former inmate Becky Stone both said that Shirley never flirted with the guards or did anything inappropriate.

Birch said she had heard of no rape allegations against Miller, other than Shirley's. "But I saw him take other girls out of their rooms at night, just like he did Marilyn," she asserted.

"It was widespread knowledge throughout the camp about Miller," Stone said. Stone, of Midwest City, Okla., served eight months for embezzlement. She's been out since 1999. She had been warned that Miller was a problem, she said, and she simply avoided him. Stone said she was harassed by another BOP worker who made lewd remarks about "my body parts," but she didn't file a charge. "I didn't have that long to go, and I didn't think it would do any good. ... A lot of women in prison keep quiet" about sexual abuse, she said, "so they can get out without any trouble. It gets them in trouble if they tell."

Shirley claims in her court filings and in interviews that Miller began trying to intimidate her soon after the alleged rape. "I was walking to work one day, not long after, and Miller was driving the perimeter truck," she said. "He ran the truck off the road, drove straight toward me, slung gravel on me, and tried to run me down.

"I ran behind a building, started shaking all over, and vomited. It was awful."

At other times, he would come into her room late at night and shine his flashlight in her face, she said.

Finally, when the day came for her to leave, Shirley took her allegations and the sweat pants to Carswell administrator Amy Carlton.

"I was raped," Shirley told her.

And then, she said, all hell broke loose. Carswell Warden Joe Bogan was called to the office, along with a battery of prison administrators. She was held for three hours, giving statements and answering questions.

"Ms. Carlton took the pants, turned them inside out, spread the legs, and saw a black pubic hair," Shirley said. "She used tweezers to take it as evidence, put it in a baggie, and sealed it. I watched her do it." Then Carlton took photographs of the pants, put them in a sealed bag, and called the FBI. Agent Bruce Shinkle took the pants and the pubic hair to be sent to Washington for DNA testing.

Three days later, the FBI gave Shirley a lie detector test, which she said she passed.

She moved in with a daughter in Dallas, got a job, and began to wait. "I thought it would happen so fast," she said. "And I was sure that they would indict Miller. I had given them enough evidence, and I had witnesses."

More than two years later, she's still waiting. In the meantime, the carefully preserved evidence on her pants has been determined to be inconclusive. The FBI found semen all right, but Shirley said an agent told her that, as evidence, it was flawed because the semen came from a man who had had a vasectomy.

A DNA expert said a vasectomy can make it harder but not impossible to get a conclusive DNA analysis, because sperm is no longer present in the semen. Dr. Greg Sawyer, a DNA specialist at Bio-Synthesis, Inc. in Lewisville, said that seminal fluid from a vasectomized man would almost certainly contain some skin or white blood cells, providing DNA to be analyzed. "I would ask the FBI to do further testing," he said.

And then there was the pubic hair. "I told them 'you have the hair,'" Shirley said. But they didn't. "The hair's gone," she said. "It was lost."

FBI spokeswoman Lori Bailey said that because the investigation is continuing, "We can't release any information on any test results we have received that may be used as evidence." Bailey would not confirm that the FBI had ever received - or had lost -the hair.

Still, Shirley said, there's the semen. In a women's prison, she said, "that proves that I had sex with a man that night. There's no such thing as consensual sex with a guard if you're locked up in a prison. It's either rape or it's coerced. And it's illegal. And my roommates saw Miller get me. That ought to be enough evidence to get him in and put him under oath. ... Shouldn't it?"

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