CCPOA in Control of the CDC

Lawyers Say the Guards Union Has Persuaded the State To Go Easy in Prosecutions


By Pamela A. MacLean
Daily Journal Staff Writer

SAN FRANCISCO - Internal investigators for the state Department of Corrections spent years putting together criminal cases against three guards accused of provoking violence among inmates. One state court trial and two federal prosecutions later, a trio of Pelican Bay State Prison guards were convicted.

Now, under pressure from the powerful prison guards union, the corrections department may be torpedoing its own handiwork. Arm-twisting by the California Correctional Peace Officers Association has succeeded in getting the new corrections director, Edward Alameida, to walk away from a legal challenge to one guard's conviction and to agree to pay for a second guard's legal defense in a retrial.

Steve Fama, of the Prison Law Office in San Rafael, said he was surprised and disappointed by Alameida's decisions. But he was particularly troubled by an assertion in court documents by James Fallman, senior deputy district attorney in Del Norte County, that union pressure played a role. "The statement that [Fallman] was told the union pressured the department underscores the obvious truth that, in large part, the union runs the department," said Fama, who represents inmates in enforcing a landmark class action intended to reform abuses at Pelican Bay. Madrid v. Gomez, 889 F. Supp. 1146 (1995).

Former prison guard Jose Garcia spent two years and 10 months in prison on his 1998 conviction for conspiracy to assault inmates at Pelican Bay. He and other guards came under investigation in 1995 for allegedly directing inmates to stab and beat convicted child molesters and then rewarding the attackers with whiskey and extra time outside their cells.

One stunning piece of testimony during a federal trial of Garcia and co-conspirator Sgt. Michael Powers revealed Powers had supplied a homemade knife to one inmate to facilitate an assault. The inmate backed out of the attack and hid the knife inside a wall. Years later he told federal authorities where to find it.

Fallman hoped to fend off Garcia's habeas corpus challenge to his conviction this summer. The effort died because the CDC refused to help, according to Fallman.

Fallman was tied up with five pending murder prosecutions, three of them capital cases, all stemming from killings inside Pelican Bay. Rural Del Norte County, in the northwestern corner of California, is cash-strapped. In April, he pleaded for help on the Garcia case from the state attorney general's office and the CDC. "But assistance from both agencies was denied," Fallman said in a court declaration.

"CDC's legal personnel told me that they were receiving too much pressure from CCPOA, the guards union ... ," Fallman said. "[T]herefore, they could not assist me in preparing a proper response to Garcia's habeas corpus." The CCPOA failed to return several calls for comment.

It would have been simple to avoid a protracted habeas hearing, according to Fallman. Garcia was on parole at the time he filed his habeas petition. The petition would have been rendered moot if CDC had released Garcia from parole a few months early, as Fallman says he urged the agency to do. Officials there refused, he said, giving Garcia standing to pursue his habeas claim.

In a written response to questions from the Daily Journal, Alameida's office called Fallman's claim of union pressure "absolutely untrue." Alameida's prepared response also said the suggestion that Garcia's habeas would have been mooted by lifting his parole was "pure speculation." Fallman stands by his court declaration. Taking Garcia off parole would probably moot his habeas claim, he said.

"I was told the chances were zero [of taking him off parole] and they were not doing that because of flak from CCPOA," he said. Garcia "had done all of his [prison] time and it was pointless for me to put the time in to fight the habeas. Even if we retried the case, [Garcia] would not have gotten one more minute of prison time," he said. To Garcia, however, the point was significant. He faces a new sentencing, this time in federal court, based on his May conviction of conspiring with 27-year corrections veteran Powers to violate the civil rights of inmates through violence.

With the prior state conviction vacated through the habeas relief in June, federal sentencing guidelines allow for reduction of his potential 10-year prison term.

More significantly, Garcia's defense lawyers now argue his federal conviction should be overturned because incriminating statements inappropriately introduced at the state trial by Garcia's former lawyer were used against him in the federal case.

Garcia's former, union-paid attorney was San Francisco attorney Robert Noel, now in prison himself for his role in the notorious San Francisco dog-mauling homicide case.

The CDC argues that Garcia's parole status made no difference to his habeas petition.

"After consultation with the attorney general's office, CDC determined that there were enough residual issues that a court could have retained jurisdiction and decide [sic] to entertain the habeas corpus petition themselves," the agency said in its prepared statement. In effect, CDC forced Fallman to go it alone or drop his challenge. He dropped his efforts on the Garcia case to focus on the pending murder cases. That guaranteed that the Del Norte judge would grant Garcia's habeas claim of ineffective assistance of counsel. Garcia's habeas petition was granted in June, unopposed by Fallman.

The appearance that CDC is undermining the prosecutions, built on years of its own investigations, goes further. Last month, Alameida agreed to pay for the legal defense of ex-guard David Lewis in his federal retrial scheduled for January in the near-fatal 1994 shooting of inmate Harry Long. Although the union, not the state, footed the bill in Lewis' first trial, CDC will pay the second time around, despite having gathered evidence for the prosecution.

In 1994, Lewis nearly killed Long, shooting him in the chest to break up a fight in which Long was the victim of an attack by another inmate. Lewis suspected incorrectly that Long was a child molester, and the prearranged fight gave Lewis the excuse to shoot, according to testimony in the first trial. Alameida decided to pay for Lewis' defense on retrial despite conflicting opinions from his top staff on the advisability of defending a guard the CDC had spent so much time investigating and helping to prosecute, according to Fama, of the Prison Law Office.

As the basis for its decision, Alameida's office cited the newly negotiated terms of the union contract. The CCPOA won language requiring the department to pay defense costs for CDC employees in any criminal matters brought as a result of acts arising on the job.

"The decision surprises me," said Fama. "All I know is 12 jurors found that the former officer deliberately violated the civil rights of a prisoner in using force. To me that seems very plainly not within the scope of employment," he said.

Alameida also may prevent one of the original investigators in the Lewis prosecution from participating in the federal retrial. That can be a potentially critical issue for inmate witnesses, who are easily intimidated into clamming up if they fear repercussions from testifying against guards, according to both law enforcement sources and Fama.

"The changing of investigators may torpedo the prosecutor's relationship with inmate witnesses, particularly since the case was so long in developing," Fama said. "Those prisoners see themselves with more than a little justification as vulnerable. It is particularly true when prisoners are going to provide testimony against staff."

When asked whether the same investigator would work on the Lewis retrial, Alameida's prepared response on Oct. 28 was, "Not necessarily. However, those investigators will be made available to assist along with other support staff resources."

"The department has assigned on an as-needed basis an Office of Investigative Services agent to this case," the statement reads. The agent who built up several years of trust among the dozen inmate witnesses, Joe Reynoso, would not have day-to-day involvement, the CDC said. Lewis' conviction was overturned by the 9th U.S. Circuit Court of Appeals in 2001 because, the court ruled, U.S. District Judge Maxine Chesney should have allowed the defense to show jurors a 1994 CDC shooting review board report that cleared Lewis.

Shortly after the 1994 shooting, the CDC shooting reviews in general came in for harsh criticism in court actions. The judge in the Madrid class action determined in 1995 that the agency's shooting reviews often were whitewashes and the case sought an overhaul of the system.

The department's shooting review procedures were "tantamount to a wink and a slap on the back, rather than on the wrist," concluded state Sen. John Vasconcellos, D-San Jose, in a 1998 special legislative investigation of prison conditions.

He said CDC shooting reviews were not just "dysfunctional" but ranged from "missing to cover-up."

CDC completely revised its shooting review system in the years following the Lewis incident.

These legal developments come at the end of a political campaign season in which CCPOA was the single largest political contributor to Gov. Gray Davis' re-election and the campaigns of 24 other state lawmakers.

Fama said of the decision to fund the Lewis defense, "The more I think of this, the more I think about the amount of money the guard union gave the governor. To me, it is not an unreasonable question to ask, did that have anything to do with the department change of heart?"