Sheriff’s captain not indicted in jail pepper-spray incident

DAYTON — A Montgomery County grand jury declined to bring felony assault charges against Sheriff’s Office Capt. Judith Sealey for pepper-spraying a restrained female inmate in the jail, the county prosecutor’s office announced Monday. 

The grand jury’s decision does not prevent possible misdemeanor charges, administrative action by the sheriff’s office or the outcome of an ongoing federal investigation of the incident.  

Sealey, then a sergeant, pepper-sprayed inmate Amber Swink while she was strapped into a restraint chair in November 2015. Swink filed a lawsuit against the county last year after local attorney Doug Brannon obtained video of the incident that disappeared from county records; the lawsuit was on hold pending the police investigation.

RELATED: Missing paperwork raises questions about pepper spray probe

Montgomery County Prosecutor Mat Heck said in a statement that the grand jury heard testimony from more than 30 witnesses over six days. 

 “By their vote, the Grand Jury has indicated that there is insufficient evidence of any felony,” Heck said. “The appropriate felony charge the Grand Jury was asked to consider is felonious assault, which requires evidence of serious physical harm.” 

 Brannon said Heck should have appointed a special prosecutor because the county was both presenting this case to grand jury and defending the sheriff’s office against Swink’s lawsuit. 

 “Quite frankly I’m upset that the Montgomery County Prosecutor’s Office failed to obtain an indictment,” he said. “I think it’s probably by design due to the fact there is a clear conflict of interest.”

SPECIAL PROJECT: Lawsuits, accusations plague county jails in the region

Heck said Dayton police were asked by Sheriff Phil Plummer only to investigate the pepper-spraying, not whether Sealey violated jail policy or whether public records were destroyed or stolen when the video disappeared from the jail and got into Brannon’s hands.  

Plummer said Monday that his office is now “conducting the internal investigation which deals with policies and procedures.” 

Sealey has been on paid administrative leave since October, shortly after Brannon’s lawsuit brought the incident to light. She was paid $91,375 last year, accroding to the I-Team Payroll Project.

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Heck also noted that the decision about whether to pursue misdemeanor charges rests with the city of Dayton. Dayton City Prosecutor Stephanie Cook said no decision has been made yet, but the process would typically begin with her office getting a police report and speaking to the alleged victim.  

RELATED: Woman at center of pepper spray lawsuit back in court

Misdemeanor assault charges require evidence of only harm, not serious physical harm.
“This was serious enough to cause her to become unconscious. That seems pretty serious to me,” Brannon said. “I think the FBI needs to now conclude their investigation and bring criminal charges since the Montgomery County prosecutor failed to appoint a special prosecutor and complete the task properly, and this woman should never be allowed to go back to work in our Montgomery County jail.”

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